LANDMARK JUDGMENT OF BREAKINGBURY V CROAD SEES NHS DENTAL PRACTICE OWNER HELD LIABLE FOR THE NEGLIGENCE OF ASSOCIATE DENTISTS
Judgment will help victims of dental malpractice receive compensation
In a judgment approved by Cardiff County Court last week, 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 has major implications for victims of malpractice who have been unable to make successful claims, as well as for professional insurance cover in the dental profession. The patient’s dental negligence claim is being handled by specialist solicitors, The Dental Law Partnership.
This judgment is significant because until now, when claims were made against them, NHS dental practice owners had been able to confidently state as a defence that dentists working at their practice were self-employed independent contractors. So, when things went wrong for patients treated by dentists working at their practice, it had only been the individual dentists who were responsible for the poor treatment and resultant claims.
The system has left many victims of dental negligence denied the justice and compensation they are due, and hence unable to pay for corrective treatment. Often, regardless of the name above the door, individual dentists are only covered by discretionary indemnity insurance that often will not pay out, or patients find that while the practice remains open their dentist no longer works in the UK, or has disappeared.
In the case of DLP’s 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 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.”
The recent 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, but this is the first case where the owner of an NHS practice has been held to be liable for the negligence of his associates.
“This judgment rightfully changes things,” Chris Dean said. “We’ve long been arguing that the system failed patients. Too often NHS patients have suffered at the hands of poor dentists but have been left unable to secure compensation to pay for corrective treatment, because the principals at the practice where the dentist worked were not considered liable. This judgment is a victory for common sense. Until this judgment patients had more protection from slips and trips in the waiting area than when they were sat in the dentist’s chair.”
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.