Vicarious Liability - Breakingbury v Croad

Breakingbury v Croad: A claim against a practice owner for treatments provided by self-employed associates who worked in his clinic.
We often speak to practice owners who need help with their general practice policies, covering things like contents, equipment, buildings & material damages.
When we learn that there isn't a medical vicarious liability policy in place, it is our duty to explain the importance of vicarious liability and spend time highlighting the associated exposures involved.
In a startling number of scenarios, practice owners are quick to dismiss our recommendation. We receive a common objection: the practice ensures that all medical personnel hold and maintain their medical malpractice policies.
The common misconception is that the treating practitioner's policy should trigger and respond to the claim if a claim arises. This is not always the case, as we will further explore...
Breakingbury v Croad – what happened?
The Breakingbury v Croad County Court judgment (19 April 2021) highlights a court decision that identified that there was a "non-delegable duty of care" existing between the practice owner and the patient and vicarious liability for the errors and omissions of the treating dentists in delivering treatments to a patient whom he had never seen or treated.
In this case, patient Lynda Breakingebury who visited the practice owned by Dr. Croad received care through two self-employed associates of the practice between 2008 and 2012. At the time, Dr. Croad had already been retired for seven years (since 2000) but still owned the practice until 2012.
To Dr. Croad's astonishment, he received a letter of claim as he was the former practice owner, where he was required to defend the claim out of his own pocket.
What does non-delegable duty mean?
Non-delegable duty is used to justify the imposition of liability on one person for the negligence of another to whom the former has entrusted (or 'delegated') the performance of some task on their behalf.
This notion is associated with vicarious liability. The fundamental directive of vicarious liability is that an employer is vicariously liable for the negligence of an employee provided the employee was acting 'in the course of employment. Importantly, vicarious liability of the employer is additional to the 'primary' liability of the employee for negligence.
Regarding responsibility, a commonly recognised justification for vicarious liability is that, because the employer receives the benefit of the business performed, the employer should also be required to adopt risks associated with the business.
Other considerations…
Even in circumstances whereby an employee of a practice holds their indemnity, a vital consideration to make is how it will respond:
- If indemnity is provided by a discretionary medical defence organisation (MDO), the MDO has the right to decline representation and claim payments. In this case, the claim is likely to subrogate back to the practice.
- If indemnity is arranged through an insurer, it is possible that there are gaps in cover (through exclusions or restrictions). If a claim is therefore declined, it is likely to subrogate back to the practice.
In circumstances of class actions (whereby a claim from multiple claimants against a single practitioner), the limit of indemnity or coverage may not provide full compensation amounts, leading to a portion of the claim being subrogated back to the practice.
FAQ - Vicarious Liability & Practice Indemnity
About Servca – How we can help.
Servca is an independently owned Lloyd's broker, specialising in Medical Malpractice and Healthcare insurance.
Unlike many brokers, we have no affiliations or allegiances to any external parties, insurers or associations. Our team of expert brokers offers bespoke professional indemnity for healthcare professionals. As medical indemnity specialists, our ethos and core values revolve around ensuing that our clients have the best protection and representation.
While no one wants to receive a claim, healthcare professionals are always at risk of receiving a claim, even if they risk manage and do everything by the book. Not only are Servca risk management specialists, but our dedicated team is here to support you. Contact us today to learn more about our services and how we can help you.
If you want to learn more, please get in touch with Dr Edwin Rajadurai.
Switch Board: +44 (0)207 8469010
Direct Dial: +44 (0)203 7355955
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Email: erajadurai@servca.com
Website: http://www.servca.co.uk/