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Dental practice liable for contractors substandard work

A dental practice was found to be liable for work carried out by a contractor.

Recently, a dental negligence case that Matthew Gascoyne, a specialist medical negligence solicitor, was dealing with had to go before the County Court for a decision on a point of law.

Background

Matthew’s client, Ms R, was suing her dentist for unnecessary pain and suffering following a poorly executed tooth extraction. She had been seen by a dentist working at her dental practice and, as such, expected that the practice would be responsible for any issues arising. However, the practice regarded the dentist as independent and therefore personally responsible for any problems with the treatment.

Insurance cover

The dentist who carried out the treatment failed to deal with the claim and, as a result, was no longer covered by his indemnity insurance that would normally have dealt with any such claim. Therefore, the only hope of recovering compensation for the client was to prove that the practice was responsible for the treatment provided by the dentist.

Arguments

It was argued that the practice should be responsible for the actions of the dentist,  as it owed a non-delegable duty of care to the client.

In English law, an organisation accepts a duty of care towards a person when it accepts the obligation to ensure their safety or wellbeing. In certain situations, a duty of care, once accepted, cannot be avoided by delegating it to a third party. This can arise where the person is vulnerable, for example where the person is a patient, and relies on the protection of the organisation.

The practice argued that it had not accepted the obligation to ensure the client’s wellbeing.

Alternatively, it was argued that the practice was vicariously liable for the treatment provided by the dentist.

Vicarious liability law is where an employer is held to be responsible for the actions of an employee.

In this case, however, the practice argued that the dentist was a contractor, rather than an employee.

We argued, in the case of Ms R, that the practice had assumed a duty of care towards the client and that this was a non-delegable duty, meaning that responsibility could not be avoided by passing this on to the dentist. Further, it was argued that the relationship between the dentist and the practice was sufficiently akin to employment that it would be reasonable to impose vicarious liability on the practice.

Judgment

The court’s decision was that the practice had accepted a duty of care towards the client, when she was accepted as a patient, and that this duty of care could not be delegated to the dentist. In addition, the court decided that the relationship existing between the practice and the dentist was sufficient for the practice to be held vicariously liable for the conduct of the dentist. As such, the practice was responsible for the treatment provided to the client and for the injury she had suffered because of that treatment.

Commenting on the decision, Matthew said: “The judgment handed down by HH Judge Belcher is important given the trend towards locums and independent contractors practicing within dental and GP practices. Patients are entitled to expect that practices will be responsible for protecting their health and wellbeing in respect of treatment provided in their name and where clinicians’ insurance policies do not adequately cover the injuries suffered”.

The ruling has already been cited in another case – Hughes v Rattan [2021] EWHC 2032 (QB) (21 July 2021).

 

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