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Dental errors – who to sue?

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A number of recent cases have provided clarity for claimants and have made it clearer who they should sue if things go wrong.

A number of recent court cases have established that the owners of NHS dental practices rather than individual dentists working at that practice can be held liable for the negligence of the individual dentist, which makes the process of bringing a claim much easier for people seeking compensation for negligent dental treatment.

Two cases were decided in the County Court and more recently one in the High Court.

In Breakingbury v Croad the County Court judge decided that the practice had a duty to ensure that its dental services were safe and met the Local Health Board standards and that the dental practitioners were merely carrying out work on behalf of the practice, which benefitted the practice as a business.

The judge held that the individual dentists did not carry out their own separate business, as it was the practice arranging treatment for patients, so they were acting in the course of their employment and therefore the practice was vicariously liable for the actions of those individual dentists. The judge also held that the practice was liable for failing in their duty of care which was non-delegable, in other words a duty that cannot be passed on to others.

A similar decision was reached in the High Court decision of Hughes v Rattan.

Sarah Cunliffe, a specialist clinical negligence lawyer at Shoosmiths Northampton Office, says:

“It remains to be seen whether the defendants in the Hughes case will seek permission to appeal to the Court of Appeal. However, dental practices have in the past, avoided liability for negligent treatment on the basis that no duty of care was owed and that no vicarious liability exists between the practice and the dentist. These rulings mean that it will be extremely difficult, if not impossible, for this to happen in the future and for the practice itself to escape liability."

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Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2021

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