When a dentist in a practice is negligent, who do you sue, the individual or the practice?

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07 January, 2022

Leonie Millard

Whether medical treatment and care can be delegated in terms of liability has been somewhat unclear over the years in medical negligence claims. Recent dental claim decisions have resulted in findings that a dental practice, or the owner of a dental practice, has a non-delegable duty of care to the end user/patient. This means that ultimately, the dental practice will be solely liable to a claim of clinical negligence against them, rather than the individual dentist.

In the cases of Ramdhean v Agedo (2020), Breakingbury v Croad (2021) and Hughes v Rattan (2021), the courts have provided clarity in relation to the circumstances where a non-delegable duty is owed, and who owes this duty to the patient.

The Legal Position - what is a non-delegable duty?

Generally, the law of negligence is fault based. A non-delegable duty is a personal duty, not just to take reasonable care in performing work, but to ensure the reasonable performance of work delegated to others. It is therefore an exception - along with vicarious liability - (Liability for the acts of another, such as an employee acting in the course of their employment).

It enables a claimant to bring their claim against a large corporate entity when the person who has committed the harm is un-insured or under-insured. The claim therefore falls to the corporate entity to try to defend. It exposes a corporate entity to significant liability risks.

The Test for non-delegable duty

Woodland v Swimming Teachers Association and ors (2013)

The starting point was a relationship between the two parties giving rise to a positive duty on the part of the defendant to protect a particular class of persons (including the claimant) against a particular class of risks.

In this case, the five features of a non-delegable duty were defined as below:

1. The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

2. There is an originator relationship between the claimant and the defendant, independent of the negligent act or omission itself

i) which places the claimant in the actual custody, charge or care of the defendant; and

ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant.

3. The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

4. The defendant has delegated to a third party some function which is an integral part of the positive duty towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

5. The third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The court will look at the above 5 factors when determining whether there is a non-delegable duty that exists. A non-delegable duty may alternatively arise pursuant to statute.

Consideration of non-delegable duties in recent case law

These cases all held that a non-delegable duty was established. We will consider these below.

Ramdhean v Agedo 2020

The claimant was referred from her usual dental practice to another dental practice - the second defendant, who was a self-employed surgeon. The dental practice's contract required the second defendant to provide personal dental services and comply with various terms and conditions relating to the employment or engagement of dental practitioners.

The claimant claimed that the first defendant performed the procedure negligently and that the second defendant owed her, as it's patient, a non-delegable duty of care. The second defendant was uninsured for clinical negligence claims although it had sufficient assets to meet the present claim.

The court found that the five defining features set out in Woodland were met and that the second defendant did owe her a non-delegable duty of care.

Breakingbury v Croad 2021

This case has similar facts to the above case. In finding that a non-delegable duty was owed by the owner of the practice, and not the individual dentists that contracted with the dental health board. The claimant made payment to the practice and the claimant did not choose which dentist she saw. This was therefore a non-delegable duty.

Hughes v Rattan 2021

This was a High Court decision that reached the same conclusion as the above two cases. The claimant attended a dental practice owned by the defendant. She claimed she had received negligent treatment from four dentists working at the practice. Three of those dentists were self-employed.

A contract between the defendant and the local PCT required the defendant to provide primary dental services and contained detailed terms and conditions including the employment and engagement of dental practitioners.

Profits were shared between the defendant and the dental practitioners he engaged or employed. The practice held the claimants dental records and arranged her appointments and the defendant decided whether the dental services he had contracted with the PCT to supply would be provided by himself, his employees, associates, or subcontractors. In line with his contract with PCT the defendant agreed to obligations relating to patients of the practice, and the claimant was treated at the practice's premises using the defendants equipment, nursing staff and other facilities. As a result of these findings of fact, the High Court held that there was a non-delegable duty owed by the dental practice.

What does this mean for Clinical Negligence Claims in the Future?

These cases have established that the courts will take the same approach to all forms of medical treatment. In a typical dental surgery where the patient engages with the practice, the practice is subject to detailed requirements by the commissioning NHS Trust and the practice provides the necessary premises and equipment, a non-delegable duty is likely to arise. These factors also point in favour of a practice being vicariously liable for negligent medical treatment by self-employed dentists it has engaged.

In Clinical Negligence claims prior to the above cases, it became an increasingly grey area in terms of liability and delegable duties. These cases have confirmed that even if the dental practice has sub-contracted its services, for example to a self-employed dentist, the first dental practice is still to be held accountable and vicariously liable for any negligence of the contracted party. This will of course be determined on the facts of each case and will depend on the circumstances and particular agreements/contracts between the parties.

For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

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