Back in February, you may remember our blog on a case that rocked the boat on vicarious liability, its impact on the future of dentistry, and its effect on the practice owner and associate relationship.
We have now seen a new update in Cardiff County Court reinforcing the practice owner’s non-delegable duty of care to the patients of the practice, regardless of the treating associate’s employment status.
The question now arises: ‘Have the flood gates opened, and what can you do to protect your practice?’ With this in mind, we’ve turned to Sarah Buxton from FTA Law to explain…
Miss Lynda Breakingbury -v- Mr John Martin Croad
The new case of Miss Lynda Breakingbury -v- Mr John Martin Croad is based on very specific facts, looking at the liability of a retired dental practice owner in the event that the associate dentist is subject to a patient complaint or negligence claim.
The Court have made the decision to find that the dental practice owner is vicariously responsible for the treatment of their associate dentists. We must always stress that, at this very early stage of decisions made by the Court, they are highly dependent on the facts and may be subject to appeal.
Understandably, without knowing the facts behind the case nor having an impartial legal opinion, this has been an ongoing cause for concern for practice owners since its publication.
Points to note
The notable distinctions in this case are that the associate had a template associate agreement, not bespoke to the circumstances. Secondly, the practice owner clearly expressed his responsibility to ensure the services at the practice were safe and met the expected standard of the local health board.
There were points the judge touched on and points we encourage practice owners to consider when entering into associate agreements, such as the status of the patient at the practice.
The decision is centralised around the fact that the patient was a patient of the practice and not the associate. We would like to make it clear that a patient cannot belong to a practice. What the practice can own, and should distinguish between, is goodwill. Therefore, when placing restrictive covenants in an associate agreement, the wording is imperative to its interpretation.
Other issues have been flagged by the judge related to the consistency of the dental practitioner. Notably, Miss Breakingbury was treated by a different dentist on almost every occasion they attended the practice, due to the fact that the practice had ultimate control of whom the patient is seen by.
The judgment, and those that have gone before the courts, are cases of NHS dentistry. We have yet to see a case go before a judge in respect of private dentistry. We have to question whether this is due to the fact that private practices are commonly better at protecting the self-employed status and liability of the associate, particularly in terms of retaining the same patient list and distinguishing between the role of the practice and that of the associate.
Therefore, the practice owner distinctly holds more of an administrative role than a duty of care. However, as we have yet to see the case of private associates go before the court, we cannot confirm this is the case, but it is one for consideration.
Ultimately, the case of Miss Breakingbury reiterates the importance of having a bespoke associate agreement. The agreement can be drafted to incorporate a clause allowing practice owners to reclaim the costs incurred when dealing with a complaint made due to an associate’s negligence or recklessness, further drawing on the independence of the associates role as a self-employed associate.
Once in possession of a bespoke associate agreement, the practice owners should ensure the clauses are enforced throughout the course of the agreement.
The case should only encourage practice owners to seek independent advice in respect of indemnity insurance to ensure they are covered in the event that a patient pursues them for the negligence of the associate.
Our final piece of reassurance to practice owners is that this is a relatively new decision, and we may even find it challenged or overturned in months to come. The case itself is decided on its own facts and cannot be directly transferred to all future cases of medical negligence.
If you want any more information regarding this issue, you can email me at email@example.com or call 03300 882275.
To watch Sarah talking at length about vicarious liability and the impact it may have on dental practices, you can watch the Practice Plan webinar by going to Employment Law Update – Vicarious Liability – Practice Plan