Vicarious Liability (VL) and Non-Delegable Duty Of Care (NDDOC)
Since early 2020, there has suddenly been a lot of discussion in dental circles about the legal concepts of vicarious liability and non-delegable duty of care. These issues have been of particular concern to dental practice owners who, for many years, rested assured that claims arising from treatment performed by associates working within their practices would be pursued against those associates direct. In other words, dental practice owners would not be involved merely because of owning the business.
At Dental Defence Society, some of our membership options include protection against vicarious liability (VL) and/or non-delegable duty of care (NDDOC) claims arising from treatment provided by associates in your practice. Our Executive Committee are also involved in ongoing discussions with other indemnity organisations, insurers and dental representative bodies, such as the BDA, with a view to agreeing practical solutions which may spare owners the stress of being brought into legal claims unnecessarily.
Whilst that work is ongoing, we thought our members might find it helpful to understand the differences between VL and NDDOC and why these legal concepts have become so topical in dentistry. An explanation appears below. Together with our legal partners, we have also drafted a set of amendments to the BDA standard associate contract, with a view to strengthening the protection of each party’s status. If you are a member of Dental Defence Society and would like to receive further information, please get in touch.
What is the difference between Vicarious Liability (VL) and Non-Delegable Duty Of Care (NDDOC)?
Vicarious liability (VL)
VL is a rule of law under which a party may be held liable for the wrongdoing of a 3rd party. The classic example is that an employer is, generally speaking, liable for the actions of an employee acting in the course of their duties. In contrast, for many years the general rule has been that a party is not liable for the negligence of a third party independent contractor.
Dental practice owners do not routinely engage associate dentists as employees. Traditionally, associate dentists have been engaged as self-employed independent contractors who are required to hold their own indemnity or insurance in respect of their work. As such, any patient claims arising from that work were typically pursued against the associate dentists themselves, rather than the practice owners and the question of VL did not usually arise.
However, there have been cases where the Court has found that the relationship with the practice owner is akin to employment, whatever may have been intended. Unfortunately these cases are often fact specific and there is no ‘bright-line test’. In general, the Courts will be looking at the degree of control by the practice owner as part of that relationship and whether the associate is truly in business on his or her own account.
If VL is found to exist, it means that the principal/practice owner will, like an employer, be liable for the negligence of associate dentists working in their practice and this can sometimes arise many years after the treatment.
Non-delegable duty of care (NDDOC)
NDDOC is a similar legal concept to VL. In general terms, a duty of care which is owed to someone else may be delegated, except where the nature of the relationship renders the duty owed a personal one, such that the duty is regarded as non-delegable.
Whether a non-delegable duty of care (NDDOC) exists or not is often nuanced and fact specific. In general terms, this question will be determined by reference to a number of features present or not in a given case, for example where the antecedent relationship (if any) and whether the patient has capacity, is a child, or for some other reason is especially vulnerable.
If a particular duty of care is found to be non-delegable, it means that the principal/practice owner will be liable for the negligence of any third party, such as an associate dentist, to whom they delegated the work.
Why are VL and NDDOC so topical?
Since early 2020, the courts have considered a number of dental negligence claims involving issues of VL and NDDOC, with sometimes conflicting outcomes. However, in 2021 a the case of Hughes v Rattan was decided at High Court level, thereby giving rise to an authority. The practice owner, Mr Rattan was found to be liable, on the basis of both VL and NDDOC, for dental treatment provided to Mrs Hughes by three self-employed associates in the practice which he owned. Whilst the three associate dentists held adequate indemnity and were willing to respond to the claim, it seems Mrs Hughes (via her solicitors, The Dental Law Partnership) actively chose to pursue Mr Rattan as the practice owner rather than the associate dentists who performed her treatment.
Mr Rattan received permission to challenge this decision before the Court of Appeal, stating that he was doing so because “its potential impact cannot be understated…and poses a risk to the long-established arrangements that exist between practice owners and their associates”.
On 4 February 2022, the Court of Appeal handed down Judgment. It found that Mr Rattan was not liable to Mrs Hughes under VL. However, it found that Mr Rattan was liable to Mrs Hughes under NDDOC. In other words, Mr Rattan’s duty of care to Mrs Hughes as a patient of his dental practice could not be delegated to the associates who actually performed her treatment.
What next?
It’s important to bear in mind that this area of law is still evolving. As things currently stand, dental practice owners should ensure that they hold adequate cover in respect of claims pursued against them on a VL or NDDOC basis (at Dental Defence Society, we do provide that cover, but some others do not, or else the policy is inadequate for other reasons). As little as 10 years ago, no such indemnity scheme or insurance policy existed within the market. However, in modern dentistry, it’s now an essential.
To minimise the risk of liability, a review of your practice should be undertaken including:
Written communications, text messages, leaflets and website etc – In the Hughes v Rattan case, the judges took into consideration the patient’s own perception that she was a patient of the practice rather than the individual dentists who treated her. To displace this, ensure patients are informed that associate dentists are self-employed, independent contractors and are personally responsible for the treatment they provide – and that your communications, leaflets and websites are consistent with that.
The personal dental treatment plan form – the layout of this form (FP17DC in England and Wales) is such that only the practice owner can be named. However, the name of the treating dentist, if different, can be added to the form by hand, either alongside the performer number or within the Oral Health Assessment box. The form FP17DC in the Hughes v Rattan case named Dr Rattan as the dentist providing her treatment and there was no other documentation naming the three associate dentists.
Contracts and internal policies – often these are proformas taken from websites, previous practices or non-specialist lawyers. Check these are reviewed annually and do not suggest a relationship akin to employment or a personal duty of care. The risk is reduced if contract clauses say that:
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- Associates are responsible for their own tax/national insurance contributions.
- They can work for other practice owners or businesses if they wish.
- They do not receive sick pay or pension from the practice owner.
- They can choose which dental laboratory they use.
- They are responsible for their own clinical audits of their patients.
- They have complete clinical control over the dental treatment provided to their patient at each consultation and are responsible for their own standard of work.
- They have to pay for their own clothing and non-standard equipment and materials.
- They indemnify the practice owner for any damage, injury or loss including claims by patients.
[NB of course, this may not be consistent with how practice owners wish to run the practice and it is a balancing exercise]
Indemnity arrangements – associates should be required to hold their own indemnity or insurance with a provision to confirm that it is adequate and appropriate on a regular basis. That means more than just checking a policy exists at all; cover is not one-sized fits all and the policy may be inadequate for a number of reasons. This may be especially relevant with policies arranged abroad where the damages cap can be much lower than here. As well as the practice owner’s own cover for VL and NDDOC, if the practice is operated through a limited company then the practice may need its own ‘entity insurance’ taken out in its own right.
Uniforms, business cards, social media etc – for maximum protection, there should either no practice branding or else it should be clear that associates are independent contractors as above. However, this may not suit how a practice owner wants to represent a prestigious brand and, once again, there is a balancing exercise here.
Associate contact details – retain up to date contact information, including at the point an associate leaves the practice. If an associate can’t be contacted in the event a claim, which is often up to 3 years after the treatment, the patient is more likely to try to bring a claim against the practice, rather than being left without a legal remedy.