Clinical negligence: dental practice vicariously liable for negligence of self-employed dentist

United Kingdom

The County Court in Leeds has recently set an important precedent by finding a dental practice vicariously liable for negligent dental work carried out by an uninsured dentist who was not directly employed by them. The dentist in question, Dr Alfred Agedo was working for The Forum Dental Practice Ltd (FDPL) as an independent contractor.

Background

In September 2013 the claimant, Neema Ramdhean (NR) was referred to FDPL by her general dentist practitioner for a wisdom tooth extraction. FDPL was engaged in an Intermediate Minor Oral Surgery contract (IMOS) with Doncaster Primary Care Trust (PCT). The IMOS required all procedures to be carried out at The Flying Scotsman Centre; a property not owned or operated by the FDPL.

At the Flying Scotsman Centre, NR had two procedures with Dr Agedo, where he failed to remove the roots of her wisdom tooth both times, despite confirming otherwise. This left NR with a loss of sensation around the mouth and suffering from ear and gum aches.

Dr Agedo initially had professional indemnity insurance, however, upon failure to notify his insurers about the potential claim against him, they cancelled his insurance under the terms of the policy. The whereabouts of Dr Agedo now and during the trial, are unknown.

Legal Issues

The first question Belcher J contemplated was whether FDPL owed NR a “non-delegable duty of care” in relation to the treatment provided by Dr Agedo. Belcher J held that by accepting the referral of patients, the FDPL accepted them as patients of the company and in doing so accepted an obligation to provide those patients with the relevant dental services. This along with the fact that FDPL made a profit from said referrals, resulted in the FDPL owing a non-delegable duty of care to those patients it takes on.

The second question considered was whether FDPL could be held vicariously liable for any negligence that NR should prove in her claim against Dr Agedo. Belcher J followed the approach laid down by the Supreme Court in Cox, where Lord Reed set out a “close connection test.” Where this test is satisfied, it is fair, just and reasonable to impose vicarious liability on the ‘employer.’ On this point, Belcher J found “the connection between Dr Agedo treating a patient and the relationship between FDPL and Dr Agedo is sufficiently connected” and the test was satisfied. Consequently, Belcher J held FDPL vicariously liable for the negligence that NR suffered through Dr Agedo’ s treatment.

Comment

The decision confirms what has been thought to be the position for some time in relation to self-employed dental practitioners who work within a dental practice but where the relationship is akin to an employer-employee relationship. In these situations, an employer will be considered vicariously liable for their employee dentist’s negligent acts regardless of that dentist’s insurance position.

Further reading

Ramdhean v (1) Agedo and (2) The Forum Dental Practice Ltd [2020] 1 WLUK 406