14/05/2025
Current considerations around health practitioner liability continue to develop.
Dental practitioners can be liable for the personal injuries that patients might allege against them for dental treatment. In simple terms patients can sue their treating practitioner for failed dental treatment and has been the case in common law since time immemorial. Practitioners are required to have Indemnity insurance in place personally for these purposes as one of the AHPRA registration standards.
However, in recent times because of the development of more and more group practices, patients may seek to sue the practice in addition to the dentist to provided them the treatment. This arises because patients usually receive an invoice with the practice facility name on it as well as the name of the practitioner who provided the actual dental treatment. This risk can be insure with most of the indemnifiers.
It is understandable therefore that patients might view their contract as having been with the practice rather than the dental practitioner who provided the treatment. Depending on how the case is pleaded, this may mean that the practice is alleged to have a liability because of some of the processes that the practice is responsible for in addition to assertions of oversight and vicarious liability which may or may not be evidence. In plain language this means that owners of dental practices are at risk of suit from patients for the personal injuries for negligent dental treatment as alleged by dentists who work at the practice and invoice through the practice.
In addition where multiple practitioners treat a patient over a period of time within a practice, a patient might quite reasonably commence action against all of the practitioners who have provided treatment to the patient as well as the practice itself and the directors of the practice entity.
In such cases the issue of proportionate liability arises.
The Victorian Civil Juries Charge Book states at 2.1.9 in relation to apportionment that
โYou would need to consider, in deciding to what extent it was just and equitable that one defendant should recover contribution from the other, the extent to which each defendant, in your judgment, fell short of taking that care for the plaintiff which it should have taken in all the circumstances. In considering that matter, it would be appropriate to take into account whether, in your view, one defendant had greater control over the situation than the other. You would also need to consider, in deciding that matter, the importance of the conduct of each defendant in causing the accident and the plaintiffโs injuriesโฆโ
In the circumstances there are a number of mechanisms which are appropriate for practice owners to reduce their risk in the circumstances and this can be done by way of the agreements that the practice has with the patients and with the dentist who they engaged. If this is a concern then these practice practices should seek appropriate legal advice about these protections.
Somewhat more problematic and difficult to prevent is the issue of regulator action against practitioners who were only minimally involved in the treatment of a practitioner and this can be because of the practice ownership being perceived to be part of the treatment.
As is well known anyone can complain about the treatment provided and the conduct by any practitioner at any time. Often, dissatisfied patients will complain about the practice and the communications of the staff as well as about the dentist who provided the actual treatment.
Then issues of shared care responsibility arise. The Dental Board Code of Conduct has a shared care provision including the following
Good practice includes that you:
a. take reasonable steps to ensure that any person to whom you delegate, refer or hand over to has the qualifications and/or experience and/or knowledge and/or skills to provide the care needed
b. understand that, although as delegating practitioner you will not be accountable for the decisions and actions of those to whom you delegate, you remain responsible for the overall management of the patient and for the decision to delegate, and
c. always communicate sufficient, timely information about the patient and the treatment needed to enable the continuing safe care of the patient.
However practice owners are at some risk of being involved in patient complaints in matters connected to treatment such as patient recalls communications with patients and even infection control.
It is prudent for practice owners particularly to review these processes and minimise their risk by way of clear communications and policies.
Consider:
Indemnities in service agreements or independent contracts.
Insurance cover for engaged dentists and the corporate who owns the practice
Patient Consent forms including an explanation of practice arrangements.
Consistent policies and reviews of communications with patients about these issues.
Brad Wright
May 2025
This short article is not intended as legal advice and is for general information only. Any practitioners who consider the issues arise in this article that give them any concern should seek independent legal advice from an appropriately qualified legal practitioner.
Liability limited by a Scheme approved under Professional Standards Legislation.
