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Recently you may have heard of a case relating to vicarious liability and its impact on the future of dentistry. Otherwise known as Ramdhean -v- Agedo (1) The Forum Dental Practice Limited (2). Vicarious liability is one of those legalistic terms with a simple meaning. It is generally known as the liability imposed on employers for the wrongdoings of their employees.
The case itself looked at the liability of dental practice owners in the event an associate dentist was subject to a patient complaint of negligent treatment. The court made a notable decision to rule that dental practice owners have a vicarious liability to patients. Understandably, without knowing the facts behind the case or without an impartial legal opinion this has been an ongoing cause for concern for Practice owners since its publication.
Most dental associates are self-employed and hold their own indemnity insurance as required by the GDC to practice dentistry and quite often this is a contractual condition in the associate agreement. When patient complaints arise, the complaint is commonly directed to the dental practitioner to rectify any wrongdoings through their personal indemnity insurer. This has always been the case and continues to be.
We would like to provide reassurance to practice owners and would encourage them not to worry about the details of the case too much. This is a relatively new decision and we may even find the decision is 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.
However, if practice owners take anything from the case it should be the importance of maintaining their indemnity insurance. To cover cases where the patients are insistent on pursuing the dental practice. When patients approach the practice owner with a complaint it is sometimes worth the practice dealing with the patient complaint to protect its goodwill. Nevertheless, before making a decision to take responsibility for the complaint, practice owners still have duty to contact their indemnity insurers to see if they will cover the costs involved. This should be done the moment practice owner is made aware of a potential complaint. Alternatively, the cost to settle the complaint or rectify the treatment may be minimal and worth settling at the loss of the practice to protect the goodwill. It is always important to remember the impact reputation has on the practice.
Another way we recommend protecting yourself as a practice owner is by way of 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.
Sarah Buxton is a Solicitor and Director of FTA Law and specialises in drafting bespoke associate agreements for Practice Owners and Associates. For further information please email: - sarah.buxton@fta-law.com