Dental Practice and Responsibility for Claims

Brian is an experienced dental practitioner and has spent over 20 years as Senior Dentolegal Adviser at DPL. He is currently the Academic Dean at the Faculty of Forensic and Legal Medicine of the RCPacademicdean@fflm.ac.uk

Dentolegal work and cases are not in essence any different to medicolegal work in general. Secondary care dentolegal work is exactly the same as its medical counterpart.

But the majority of dental work (about 95%) is carried out in General Dental Practice. It is carried out mainly by dentists, but also by an increasing number of other dental registrants, such as therapists, hygienists, and clinical dental technicians. All of these are required to have adequate indemnity/insurance.

Dental practices can be owned by any registrant (not just dentists), by partnerships of registrants, and by Dental Corporations (certain conditions apply to these arrangements). This is important because of the recent rise in vicarious liability claims against practice owners. All of the major indemnifiers now offer cover for this (and Non-Delegable Duty of Care) although not always retrospectively.

One of the reasons why dentistry is vulnerable to such claims is the relationship between dentists in practices. Associates (non-practice owners) are usually self-employed and, before 2006, worked on NHS patients under their own contractual arrangements. In the “new” NHS GDS contract of 2006, the contract with NHS England was with a Provider. In essence this was the practice owner (registrant or corporate). The Provider then contracted with associates for them to be Performers and carry out work on NHS patients on the Provider’s behalf. The Performers are not in contract with the NHS. The NHS patients are patients of the Provider. The Provider may never have seen them.

One recent case was against a Provider who had not even been in the practice (he had retired) for many years. It may be that the Providers are easier to track down than the actual treating dentists who may not even be in the country anymore.

There may be a different outcome where Private patients are concerned. These are “introduced“ by the practice to associates, who then assume full responsibility for their treatment. Estimates and quotes are set by the associate, although there may be a practice advisory price list. Although it would seem that these are not the non-delegable responsibility of the Practice Owner, there are issues that cloud this. Patient fees are usually paid to the practice and receipts are from the practice. All the paperwork usually has the practice details. In most practices, the practice pays the associate his/her percentage of the fees. To counter that, most contracts between owner and associate stipulate that the associate must leave all the patients at the practice if they depart, and the practice will assume responsibility for them (thus indicating that the Associate had responsibility up to that point).

Summary

Although there have been vicarious liability cases in medical practice, these have generally been in specialist clinics and not in general practice. Depending on how the current cases turn out (e.g. Dental Law Partnership and Rattan shortly at the Supreme court) these dental cases may become more widespread dentally and medically. Dental Practitioners, both Owners and Associates, must look carefully at the contracts between them and at what is covered in their indemnity and for what periods. It might be prudent to look at monthly paysheets to see which way the transactions go for Private patients (from the practice or to the practice).

Finally, the insurers and indemnifiers of all involved should have a joint understanding of dealing with such cases seamlessly and swiftly.