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Dental Practice Owner Owed Patient a Non-Delegable Duty of Care

There is such a thing as a duty of care that cannot be delegated to others. The Court of Appeal made that point in finding that the owner of a dental practice bore personal responsibility for a patient's wellbeing although he played no part in her treatment.

The patient claimed to have been negligently treated by four dentists who worked at the practice. There was no dispute that the owner was vicariously liable for any negligence proved against one of the dentists, who was employed to work at the practice. The other three dentists were, however, self-employed.

Each of the three dentists held their own professional indemnity insurance cover and were responsible for the standard of their own work. They had complete clinical control over the treatments they provided and could work for other practices if they wished. They paid their own tax and National Insurance Contributions and were not provided with sick pay or a pension by the owner.

Following a preliminary hearing, however, a judge nevertheless found that the owner owed a non-delegable duty of care to the patient and was liable to compensate her in respect of any injury arising from negligence on the part of the three dentists. In ruling on the owner's challenge to that decision, the Court noted that it was a test case in that many businesses operate in the same manner as the practice.

Dismissing the appeal, the Court found that the owner owed a positive and non-delegable duty to protect the patient from injury. It noted that, prior to undergoing treatment, the patient was required to sign a personal treatment plan that named the owner as the provider of any treatment she received. That created an antecedent contractual relationship between them whereby the owner took on responsibility for her care, whether or not he provided it himself.

The patient had no control over how the owner performed his obligations, whether personally or via third parties. She could express a preference as to which dentist treated her but, so far as she was concerned, she was a patient of the practice. Stringent restrictive covenants in the agreements between the three dentists and the owner were also highly significant in that the former were prohibited from soliciting patients of the practice or treating them elsewhere.

The Court differed from the trial judge in finding that the owner was not vicariously liable for any negligence proved against the three dentists. The degree of control that he exerted over their work was insufficient to give rise to a relationship analogous or akin to employment. Given the non-delegable duty he owed to the patient, however, that ruling made no difference to the outcome of the appeal.

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