Careful when you contract others
A recent court case has re-affirmed legal precedents which could prove costly for some independent practitioners. Elena Goodfellow explains what it means and suggests action they can take.
The case of Hughes v Rattan
This was a Court of Appeal decision from February 2022 concerning the issues of vicarious liability and non-delegable duty of care.
It involved a patient, Mrs Hughes, who had undergone dental treatment at a practice owned by the primary defendant Dr Rattan by other dentists who were self-employed associates who held independent contracts with the practice for their work.
So what does vicarious liability and non-delegable duty of care mean in medical malpractice claims?
In a nutshell, vicarious liability is the concept that one individual or business entity can have responsibility – i.e. liability – for another’s care of a patient.
A non-delegable duty of care is the concept that an individual/entity who has a duty of care towards a patient is unable to pass on or delegate that duty of care to another in situations where they have delegated the actual provision of care of the patient.
What did Hughes v Rattan decide?
The Court of Appeal decided that Dr Rattan was not vicariously liable for the negligent treatment provided by independently contracted dentists.
This decision followed other court decisions made in recent years on the issue by looking at the relationship between Dr Rattan and the associate dentists and considering how similar this relationship was to the relationship between an employer and an employee.
As the associate dentists were free to work as much as they liked, were responsible for their own tax, National Insurance, professional clothing and development and they had to hold their own liability insurance for their work, the court found that the relationship was not ‘sufficiently akin to employment’ so as to make Dr Rattan vicariously liable.
The court did, however, find that Dr Rattan owed a non-delegable duty of care to the claimant. The law on this is found in a 2013 case called Woodland v Essex County Council.
This sad case concerned the brain injury of a young child suffered during a swimming lesson provided by an independent contractor. The claim was against the school who arranged the lesson.
The principles considered in this case are manifold and require a separate article in itself, but, in summary, concern the relationship between the claimant and the primary defendant, how vulnerable the claimant was and how much control the claimant had over how the primary defendant performed their obligations to the claimant – such as Dr Rattan arranging treatment with another dentist.
Implications for those who use independently contracted practitioners
Most businesses who use independently contracted practitioners will have secured, as part of the contract, an agreement that the practitioner is responsible (liable) for their own actions, negligence and any claims arising from their care.
However, claimants suing for personal injury can pursue whomever they chose and it is for the defendant to then establish that they are not the correct defendant.
In my experience, it is fairly common for claimants to sue both the practitioner who actually provided their care and also the entity – be it a clinic, practice or other company – who arranged it.
This can be for a variety of reasons: the independent practitioner may no longer be traceable or even in the UK, may not be solvent or have adequate/correct insurance or the claimant may simply do this to ‘cover all the bases’, leaving the defendants to work out between them who has responsibility for the claim, which can take time and incur legal costs.
To limit exposure in these situations, various steps can be considered.
First, entities should look to the agreements they hold with both their contracted practitioners and their patients. Is the practitioner’s contract so restricting that it is close to a contract of employment? How much control over care does the agreement with the patient allow for?
Second, organisations should ensure that they have appropriate provisions for indemnity insurance in their contracts and mechanisms to ensure their practitioners comply with this.
They should also ensure that they also have suitable insurance cover for themselves.
What does Hughes v Rattan mean for independent practitioners?
While in this case Dr Rattan was found to be responsible for the claim because of a non-delegable duty of care, meaning Mrs Hughes was able to recover compensation for her injuries from him, this does not mean the dental associates would necessarily have escaped liability.
This is because:
- Mrs Hughes would also have had a valid claim against them (we are not told in this decision if she was suing both Dr Rattan and the associates) ;
- Their contracts with Dr Rattan probably contained provisions that they were liable to him for any claims against him, arising out of their care.
Cases involving multiple defendants – especially where the defendants themselves need to sort out who is responsible – can become drawn-out and expensive, and it may sometimes be that the independent practitioner ends up paying not only their own legal costs but also those of the entity they are contracted to.
So independent practitioners should make sure that they:
Hold appropriate defence cover, taking care to ensure their policy covers claims brought years after the treatment occurred or that they purchase ‘run-off’ insurance;
Can afford any excess on their policy should they be subject to multiple claims;
Report any potential or threatened claims to their defence bodies/insurers as soon as possible.
Elena Goodfellow (right) s an associate solicitor in the clinical disk department at Bevan Brittan LLP. She advises both public and private sector clients in a variety of clinical negligence/medical malpractice claims. She has acted for both independent practitioners and clinics/practices in claims concerning cosmetic, ophthalmic and orthopaedic surgery
