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Dental Protection member to fight decision on vicarious liability and non-delegable duty of care

Post date: 21/07/2021 | Time to read article: 3 mins

The information within this article was correct at the time of publishing. Last updated 21/07/2021

Dental Protection member Mr Raj Rattan has said he will appeal the decision of the High Court that he, as a practice owner, is liable to Mrs Hughes for the treatment carried out by associate dentists at his former practice. He did not carry out any of her treatment and sold the practice six years ago.

Mrs Hughes, represented by the Dental Law Partnership (DLP), pursued a claim against Mr Rattan under vicarious liability and non-delegable duty of care, despite the fact that the treating dentists have been identified and are willing to respond to the claim. DLP and their client refused to engage with them and instead pursued Mr Rattan as practice owner.

The vicarious liability claim focused on the relationship between Mr Rattan (as the practice owner) and the self-employed treating dentists, to ascertain whether it could be considered by the Court to be “akin to employment”. The non-delegable duty of care claim focused on Mr Rattan’s relationship with the patient and whether he owed her a duty that was of a nature that could not be delegated.    

In relation to vicarious liability, the Dental Protection legal team argued that the associates worked in and for their own business and at their own risk as to profit or loss, and that their relationship with Mr Rattan was therefore not akin to employment.

In considering the preliminary issue of non-delegable duty of care, the judge focussed on the wording of the (2006) Standard General Dental Services contract between the then Primary Care Trust and Mr Rattan’s practice.  This was challenged by Dental Protection on the basis that Mr Rattan, as the practice owner, had not assumed a positive duty to protect the claimant from harm which means the requirements of the decision in the 2014 Woodland v Swimming Teachers Association & Others case were not satisfied.

The Preliminary Hearing judgment made clear that Mr Rattan’s conduct as a practice owner is not being criticised in any way. However, it ruled that he is vicariously liable for the self-employed associate dentists working at his former practice, and that he owed Mrs Hughes a non-delegable duty of care when she attended his practice for dental treatment.

Mr Rattan, who is also Dental Director at Dental Protection, took the decision to fight this case in the High Court as a matter of principle given the potential repercussions for the dental profession.

Dental Protection recently extended its benefits for current and new practice principal members to include additional protection against vicarious liability and/or non-delegable duty of care claims relating to treatment provided by self-employed, contracted dental practitioners. But it said it would continue to challenge the principle of these often-unnecessary claims.

Geoff Jones, Executive Director, Member Protection and Support, said: “We have supported Raj Rattan in fighting this case both for himself and for his fellow practice owners. Its potential impact cannot be understated and we will continue to support him in an appeal.

“The self-employed dentists who were involved in the patient’s care were willing to respond to the claim, but DLP and their client refused to engage with them. Mrs Hughes had nothing to gain by refusing to engage with the treating dentists and pursuing Mr Rattan personally. 

“Sadly, there seems to be a growing trend in DLP pursuing claims like this against the practice owner rather than the self-employed dentists who provided the treatment and against whom negligence is alleged. It is disappointing as they cause real distress for the practice owner and pose a risk to the long-established arrangements that exist between practice owners and their associates.

“We remain committed to fighting the principle of these often-unnecessary claims on behalf of members and the wider profession, but we also want to reassure practice principal members that they can request assistance from Dental Protection with these types of claims and are as protected as they can be in a rapidly changing dental landscape.”

END

Notes to editors

For further information contact: E: kate.tullett@medicalprotection.org  T:+44 (0)7515 298791.

The law requires that individual practitioners hold appropriate indemnity to ensure patients have access to compensation in the event of a successful claim. There is no legal requirement for practice owners to also hold indemnity for treatment carried out by other practitioners, the majority of whom work as independent contractors.

About Dental Protection

Dental Protection is a registered trademark and a trading name of The Medical Protection Society Limited (“MPS”). MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of almost 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.

MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.

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