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Dr Raj Rattan, a member and Dental Director of Dental Protection, was sued by a patient who had received NHS treatment carried out by associates at his former practice. Despite never having treated the patient, and with the treating dentists willing to respond to the claim, the claimant’s solicitors refused to engage with them and instead continued to pursue Dr Rattan under both vicarious liability and non-delegable duty of care. Here he shares his personal account of the claim and reflects on the impact it had on him both personally and professionally.
I have so many memories from my time as a practice owner – challenging clinical cases, many wonderful patients, business challenges, lessons learned, decisions made, opportunities taken, and perhaps some missed as well. I’ve always seen colleagues in neighbouring practices as partners, not competitors. Little did I know that three decades of hard work and memories were about to be tarnished so many years after the sale of my practice.
I received a letter from a dental negligence solicitor, advising that they were acting on behalf of a patient who had received some treatment at my practice years earlier, while I was the owner of the practice. I could not recall her name, and after reviewing the records it was clear that I had never treated her. I assumed the claim would be redirected to the treating dentists, who were made aware of the situation, but I was wrong. The claim was aimed at me because I owned the practice at the time.
I did what Dental Protection advises all members to do – seek help and guidance from the outset. I contacted the team straight away asking for advice.
My 20 years of dentolegal experience counted for very little, because this was a case like no other. There were two components to the claim brought against me: non-delegable duty of care (NDDC) and vicarious liability.
NDDC focused on my relationship with the patient and whether I as the practice owner owed her a duty of care that could not be delegated.
The vicarious liability part of the claim – a term practice owners will be more familiar with – focused on the relationship between me as the practice owner and the treating clinician, and whether it could be considered ‘akin to employment’ by the court.
While I conceded that I could be vicariously liable for the alleged negligent acts of a vocational trainee (he was employed, as all trainees were), I contested being personally liable for the negligence of the self-employed associates. In my previous role at the London Deanery, I had often lectured about the threat of vicarious liability given the relationship between the trainer and trainee – the irony was not lost on me.
It would be four years before the case would be heard in the High Court, and this only added to the constant background stress and uncertainty. It’s chronic, and eventually takes its toll. You soon realise what the word resilience really means and how it is tethered to time. ‘Non-delegable duty of care’ and ‘vicarious liability’ were the phrases I punched into Google more than anything else during this time.
The initial issues of vicarious liability and non-delegable duty of care had previously been considered by the County Court in other cases, but this was the first time these issues had been considered by the High Court. This meant mine was an important case and the stakes were high, which added to the emotional burden.
The High Court case was scheduled for two days. I remember looking at the dates and realising that I would have to apologise to my son for missing his birthday – I would explain that I have ‘some important work’ to attend to. That moment really stuck with me thinking about the bigger picture.
Surprisingly, there were no butterflies or nerves on the day of the trial. It felt like an ordinary day, which was pleasantly reassuring. I arrived early at the court – the last time I was this early for anything was my dental school interview many years ago. I sat in the coffee shop opposite for an hour or so drinking my coffee with great care to avoid spilling any on my shirt.
My friends and colleagues sent words of support and thanked me for sticking up for the profession in court. I didn’t feel like I deserved their plaudits, because, in all honesty, I would rather have been anywhere else.
I knew I would be asked questions about how I operated the practice, the associate contracts, and the specifics of the GDS contract. I knew I could be asked anything from any page in the 400-page case bundle. When in doubt, ‘tell it as it is’ has always been my guiding principle, and that day was no different.
I’d like to thank everyone for the civility shown to me. Both sides were polite, respectful, and courteous during the questioning and cross-examining. The time in the witness box goes quickly – too quickly, because I found myself wanting to explain in more detail, but the questioning moves fast, punctuated by moments of tension and pauses of gentle humour.
Having been examined, cross examined, and re-examined, I sat in silence for the rest of the two-day trial, as the barristers argued their case. There are moments when you are tempted to raise your hand to seek permission to interject – you can’t, but the temptation is still there. You have to remind yourself that you are not there to present your case – that is their job.
I realised that my anxiety about this entire case was not just about the ruling itself, but about how it would be reported in the media. We live in a world where brevity rules. A headline is not just a headline – it’s the entire story. I was worried about what conclusions or inferences would be drawn from the headlines. I discussed this at some length with the press team at Dental Protection who had planned for all eventualities. Nothing was left to chance – preparation was the order of the day, and that gave me some peace of mind.
What really kept me going was the support from the Dental Protection team, friends, and colleagues in the profession.
The High Court judge made clear that my conduct as a practice owner was not being criticised in any way. This was hugely reassuring, because I was passionate about general practice and cared deeply about how the practice operated. However, the court ruled that I was indeed vicariously liable for the actions of the self-employed associate dentists working at my former practice, and that I owed the patient a non-delegable duty of care when she attended my practice for dental treatment. I was disappointed but not disheartened. After talking to Dental Protection, we decided to appeal. We had come this far, and fighting this had become a matter of principle given the potential repercussions for the profession.
Thankfully, the Court of Appeal ruled that I was not vicariously liable for the actions of the self-employed associates, because of the level of independence they had in the practice. This was positive news, but because the finding was specific to my case, the judgment didn’t set a precedent for all vicarious liability claims.
With regards to non-delegable duty of care, the appeal judges unfortunately upheld the High Court’s decision. They agreed that I had a positive non-delegable duty to protect the patient from harm caused by dental treatment at my practice. The judges took into consideration the patient’s perception that she was a patient of the practice, rather than the individual dentists who treated her. The personal dental treatment plan form used in England and Wales (FP17DC) was significant in relation to this point, as it named me as the dentist providing her treatment. Furthermore, the patient had not received any other documentation naming the individual dentists, so it was identified that patients were described as ‘patients of the practice’ under the associates’ agreement.
Dental Protection now offers eligible practice principal members additional protection against claims relating to treatment provided by self-employed, contracted associates. Still, experiencing a vicarious liability or non-delegable duty of care claim can still be emotionally draining, frustrating, and – at best – an unnecessary inconvenience. In the long run, practice owners may face higher indemnity costs as a result.
What I found particularly frustrating was that the treating dentists were willing to respond to the claim from the outset, yet I was pursued as the practice owner instead. I often reflect on how long the process took, and it makes me question whether the patient’s best interests were truly served throughout this process.
I urge fellow practice owners to look at some practical guidance on avoiding claims like these. Some of the steps set out may seem small or administrative, but they can potentially prevent a long and stressful litigation process. It’s worth it to avoid the emotional strain I experienced throughout this journey.
An incorporated company is a legal entity that can be subject to a claim for clinical negligence. By default, this means that the directors of the company can be held liable for claims or complaints related to the provision of any dental services. Individual practice principal indemnity membership does not cover an incorporated business for claims brought through vicarious liability or non-delegable duty of care.
For more information on the separate indemnity cover required for claims like this, visit our Company Protection webpage or contact our Membership Team on 0800 561 9000.
Visit our vicarious liability hub for more information
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