Dental malpractice judgment sounds insurance alarm bell

In a judgment approved by Cardiff County Court, a former owner of an NHS dental practice was for the first time held to be vicariously liable and to owe a non-delegable duty of care to an NHS patient for alleged poor treatment provided by associate dentists working at his practice.

The judgment stems from the Court of Appeal extending the law relating to vicarious liability from 2013 onwards, and the decision of the Supreme Court in relation to the non-delegable duty of care in 2014. This is the first case, however, where the owner of an NHS practice has been held to be liable for the negligence of his associates.

Specialist solicitors, The Dental Law Partnership, says the judgment has major implications. In the case of its client whose claim led to this judgment, two of the three dentists allegedly responsible for negligent treatment relating to dental bridgework were no longer registered as dentists on the General Dental Council Register and are no longer resident in the UK. There was also no evidence of indemnity cover for the dentists.

Chris Dean (pictured), managing director of The Dental Law Partnership commented: “If it were not for vicarious liability and the non-delegable duty of care, there would have been no reasonable prospect of success in the claim for our client, or of our client being awarded the funds to pay for corrective treatment. Her case would have been discontinued not because it lacked merit, but because there was no route for her to seek justice against the treating dentists.”

Dean believes the judgment will also have far reaching consequences for insurance in the dental profession, with practice owners now needing to be insured for vicarious liability claims.

“We urge owners of dental practices to obtain the right level of insurance to protect them from the risk of mistakes made by their associates. Practice owners having insurance against claims is crucial to help victims of dental negligence. Individual indemnity cover is often discretionary and can be withdrawn at any time. This makes a mockery of the whole system because it is usually the dentists who have caused the most egregious harm who have their cover withdrawn. At least going forward patients can be more confident their dental practice will have insurance if something goes wrong,” Dean concluded.

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