Ramdhean v Agedo and The Forum Dental Practice Limited 2020 WL 00620352
This article originally appeared in Issue 5 (May 2020).
The Facts
The claim arose out of allegedly negligent care given to the Claimant at a dental surgery. A preliminary hearing was held at Leeds County Court to consider whether the Second Defendant Practice owed a non-delegable duty of care in relation to the advice and treatment given by the First Defendant (the treating dentist) and/or whether the Practice was vicariously liable for the First Defendant. The Practice argued that the associate dentist was a “a fully qualified, self employed, individually indemnified, independent dental professional.”
The men of straw
The Dentist (Dr Agedo) had professional indemnity insurance (with Dental Protection), however, had failed to notify his indemnifiers of a possible claim in relation to the Claimant, and had declined cover. The managing director and majority shareholder of the Practice (Dr Jackson) held medical indemnity insurance solely in respect of medical/dental work carried out by him personally. The Practice had public liability insurance, which did not cover negligence in any treatment provided. However, it was accepted that it had ample assets to meet the particular claim.
However, HHJ Belcher held that it was not a relevant consideration that the Claimant’s “only hope of an effective remedy” was bringing a claim against the Practice:
“It forms no part of my decision making for me to try and find someone to impose liability on simply because they can afford to meet a claim, whether through insurance or from personal assets. There must be a proper basis for imposing a legal liability on a party, regardless of whether or not that party has the ability to meet any judgment sum awarded against it.”
Non-Delegable Duty
Unsurprisingly, it was agreed that the appropriate starting point was the Supreme Court’s judgment in Woodland v Swimming Teachers Association & Others [2013] UKSC 66 (“Woodland”).
The Claimant argued that the court was not being asked to hold that an individual dentist owes a non-delegable duty in connection with treatment by another dentist. Instead this was a limited company with its own distinct legal personality, but which, unlike a hospital or NHS Trust, profits from the very service which is the subject matter of the claim. Accordingly ‘like a hospital,’ it should owe a non-delegable duty for all the clinical treatment provided to patients referred to the practice. The Claimant referred to Farraj v King’s Healthcare NHS Trust [2009] EWCA Civ 1203 and to Woodland as authority for the proposition that there was an obvious non-delegable duty that applied in all healthcare cases. HHJ Belcher rejected the breadth of that argument, holding that:
“…there may be cases involving a hospital where a non-delegable duty does not arise. Whilst it may be the case that the facts of many healthcare cases may produce a non-delegable duty, in my judgment the simple fact that the case involves healthcare provision is not necessarily sufficient, without more, for the court to impose a non-delegable duty.”
HHJ Belcher also rejected the argument made by the Practice that the Primary Care Trust was in effect as responsible as the Practice. She held that while the PCT had entered into a contract with the Practice to provide dental services, that fell within the general rule that any duty to take reasonable care could be discharged by entrusting performance of the task to an apparently independent contractor: “The PCT did not undertake the care, supervision and control of the patient in this case.” Conversely, she was entirely satisfied that the Claimant was a patient of the Practice, and therefore satisfied the first limb of the Woodland approach (dependency through being either a patient or especially vulnerable). This was particularly so when considering the terms of the agreement (‘the IMOS’) between the PCT and the Practice for the provision of effectively secondary care in the community:
“The IMOS contains terms and conditions relating to those performing the services and conditions for their employment or engagement, and expressly permits subcontracting of clinical matters … The IMOS also impose positive obligations on FDPL, such as, for example, ensuring that any dental practitioner performing services under the IMOS was maintaining and updating his skills and knowledge in relation to those services he was performing … What it does illustrate is that, on any view, FDPL was not (or should not have been) the simple administrative referral service which Dr Jackson sought to suggest.”
HHJ Belcher then looked to whether there was an antecedent relationship of control (the second limb of Woodland), and held that the Claimant was under the actual care of the Practice, even if the IMOS permitted that to be by way of employing associate dentists, under whose care the Claimant would also be. The Practice had control over the decision to refer the Claimant to the dentist in question by accepting her as a patient and directing her to Dr Agedo. The Claimant could not be referred directly to Dr Agedo.
With regards to whether the Claimant had any control over how the Practice chose to perform its obligations under the IMOS (i.e. whether personally or through employees or other third parties) – the third limb of Woodland – HHJ Belcher held that the Claimant plainly had no control over such measures.
HHJ Belcher then held that the fourth limb of Woodland was satisfied as the function delegated to Dr Agedo was an integral part of the function of providing minor oral surgery. The care of the Claimant was accepted by the Practice when it accepted her referral, and then was delegated to Dr Agedo, together with the function of making the relevant clinical decisions.
Overall, it was fair, just and reasonable to impose a non-delegable duty of care on the Practice.
Vicarious Liability
HHJ Belcher referred to the judgments of the Supreme Court in Cox v Ministry of Justice [2016] UKSC 10 and Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11.
She held that it was in the Practice’s control to determine that work should be passed to Dr Agedo, even if it could not direct him to carry out any particular treatment or in fact to carry out any treatment at all if he considered it appropriate:
“… the only reason that Dr Agedo was in a position to carry out treatment on Ms Ramdhean, was because she was referred to FDPL under the IMOS, and FDPL passed her on to Dr Agedo for treatment. In my judgment there is sufficient control.”
For the same reason, Dr Agedo’s treatment formed part of the Practice’s business activities under the IMOS.
With regards to the creation of risk, HHJ Belcher held that:
“…without the IMOS, Miss Ramdhean would never have been referred to Dr Agedo. In my judgment FDPL’s business activities did create the risk, in exactly the same way as an employer who employs an employee to conduct his business creates the risk, in the sense of creating the situation in which a negligent act might occur. I should make it clear, given the tenor of cross examination, that I am not saying that FDPL created the risk by a poor appointments process/appointing an individual with known difficulties or anything of that sort. I have already made it clear I do not consider it necessary for me to make findings on that issue. I base my assessment simply on the fact that FDPL used Dr Agedo to deliver, and thereby perform, FDPL’s obligations under the IMOS in terms of treating oral surgery patients. In my judgment it is self-evident that in doing so, FDPL created the risk.”
Accordingly, there was vicarious liability.
Comment
Any decision in the field of vicarious liability on the basis of ‘being akin to employment’ and/or direct non delegable duty of care in the field of healthcare provision is of course highly fact specific. This is also a county court judgment, and further is potentially subject to appeal and was decided prior to the recent Supreme Court judgments on vicarious liability covered by Shaheen Rahman QC. However, this case is significant as it both represents another brick in wall of imposing liability on healthcare providers outside the pure NHS hospital context, and also is relevant to many other dental practices as similar agreements appear to have been place between many PCTs and dental providers. It is worth noting that the practice in question had subsequently taken out insurance against harm arising from negligent treatment by associate dentists.
