Vicarious liability for dentists

Introduction

In dental practices today, it’s increasingly common for patients to receive care from a variety of team members – not just one named dentist. Within a single practice, associates, hygienists, therapists and nurses all play a vital role in delivering treatment.

As a result, patients are more likely to take legal action against the practice as a whole if something goes wrong, rather than the individual who provided the care. This is where the concept of vicarious liability comes into play.

What is vicarious liability?

Vicarious liability is when a person or organisation is held responsible for the actions of another, even if they weren’t directly involved. In a dental setting, this usually means a practice owner or principal dentist becomes legally liable for work carried out by another team member – for example, a dental associate or hygienist.

Even if an individual working in the practice is self-employed, a court may still decide the practice owner or principal dentist is liable if:

• The treatment was provided through the practice
• The patient believed the practice was responsible for their care
• The patient was unaware that the person carrying out their treatment was self-employed

With this in mind, it’s wise to put appropriate measures in place to protect yourself, including regularly reviewing and updating the contracts of those working in your practice.

Non-delegable duty of care

The court found that the practice owed the patient a non-delegable duty of care - in other words, a duty that cannot be transferred to someone else. This is because patients attend the practice expecting treatment to be provided safely, so responsibility cannot simply be delegated to associate staff.

Vicarious liability

The court also concluded that the practice owner was vicariously liable for the negligent acts. The working arrangements between the practice and its associates was considered “akin to employment”, even though the associates managed their own tax and insurance.

Limitation period

The claim was found to be within the limitation period (the legal time limit for bringing a claim) because the patient only gained real knowledge of the negligence in 2018. Even if this had not been the case, the court said it would have allowed the claim at its discretion so the usual time limit would not apply.

This case is significant because it makes clear that practice owners can be held legally responsible for negligent treatment carried out by their associate dentists. As a result, it’s now much harder for a practice to avoid liability by arguing the negligence is the sole responsibility of an individual dentist.

How to protect yourself

When it comes to protecting yourself against vicarious liability claims, there are a few practical steps you can take. These include:

• Reviewing and updating associate contracts

If you have associates working in your practice, it’s important that their contract clearly defines them as self-employed and responsible for their own clinical work and patient care. It should also include indemnity and insurance clauses, requiring them to maintain their cover in line with GDC guidelines.

Another important element to review is the locum clause, which appears in the standard BDA contract used by most practices. This clause states that if an associate is unable to work, they are liable to supply and pay for a locum. This is a key factor in demonstrating that associates are genuinely self-employed.

Many practices choose to supply and fund a locum themselves in order to stay on good terms with associates. While well-intentioned, doing so could potentially undermine their self-employed status and increase the chance of vicarious liability claims. As in the case of Breakingbury v Croad, this is because a court may choose to disregard the ‘self-employed’ wording if an associate is treated as an employee of the practice.

A clearer and safer approach is for associates to arrange their own locum insurance, ensuring continuity of care without exposing the practice to unnecessary legal risk.

• Checking clinician indemnity arrangements

To safeguard both your practice and your patients, it’s essential to put robust indemnity measures in place. This means all associates, hygienists and therapists must hold adequate, appropriate and continuous professional indemnity. Having this insurance is a contractual requirement and you should request proof of cover on an annual basis.

• Considering incorporation

Incorporating a dental practice into a limited company can help reduce personal liability for practice owners. While this structure doesn’t eliminate all risks, it does provide an extra layer of protection for personal assets like your car, home or personal savings.

As a limited company director, you may also want to consider obtaining entity-level liability cover. Unlike personal indemnity, this type of insurance protects the practice itself. With entity-level cover, your business assets (such as property, equipment and bank accounts) are safeguarded too.

Reviewing your personal indemnity

While an important part of your role is making sure everyone in your practice has appropriate indemnity cover, it’s equally important to review your own arrangements.

Whether you’re covered by an insurance policy or through membership of a Dental Defence Organisation (DDO), regular reviews ensure your protection keeps pace with changes in your role, the services you provide and the evolving regulatory landscape.

When reviewing your cover, it’s also worth considering the differences between the two options available. Both provide protection against the risks faced by dental professionals, so the right choice will depend on your appetite for risk and the type of reassurance you value most. For example:

• Insurance policies clearly outline the terms of claims settlement from the outset, giving you certainty about what’s covered. This transparency can offer peace of mind and help you know exactly where you stand in the event of a claim.
• DDOs typically offer discretionary cover. While this can work well, it means they ultimately decide who and how to assist with a malpractice complaint – including any claim settlements.

Key considerations

To help inform your decision, there are a number of key questions you can ask both providers. These include:

• How will you protect me financially if a negligence claim arises? What scenarios are covered?
• How will you defend against false accusations and protect my professional reputation?
• If I carry out additional treatments (such as Botox or maxillofacial surgeries), what type of cover can you provide?
• If I have multiple previous claims or accusations logged against me, how will this affect my cover?
• If I disagree with a claims settlement outcome, what are my options?
• If I retire from dentistry, how am I protected against claims from previous work?
• If I purchase a practice from another dentist, who is liable for past actions?

Taking the time to answer these questions can help prevent gaps in cover, ensuring you remain compliant and well-protected should a claim arise.