Are you covered for vicarious liability?

Did you know that you and your business could be held liable for the actions of your employees even if it wasn’t you providing the treatment? As a owner practitioner you are exposed to a multitude of risks on a daily basis. Ensuring you have the right insurance could be the difference between having to cover the financial loss of a claim yourself or being covered by a team of experienced professionals.

What is the risk?

Owner practitioners that engage AHPRA registered dental practitioner(s) should ensure they have vicarious liability cover to protect them from claims that originate from treatment provided by their employee AHPRA registered dental practitioners. Some professional indemnity policies are silent or specifically do not provide this cover. This can leave the owner practitioner uninsured and needing to seek their own legal representation and covering any of their own financial loss as a result.

What is vicarious liability?

Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place during their employment.  

What you can do to ensure you are adequately covered?

The impact of vicarious liability on employer dentists can differ and is dependent on the business/ownership structures. It is therefore important to understand both your business structure type and how you hire personnel into your practice as it directly effects the actions of others that you will be held liable for at law. Owner practitioners should seek professional advice from either their lawyer or accountant to understand their own individual circumstances and get clarity on their legal obligations.

How can Guild help?

The ADA Dentists Liabilities policy underwritten by Guild Insurance is designed to provide a sleep easy, no gaps cover for these practitioners. The cover includes vicarious liability cover to help ensure that should you and/or your practice receive a demand due to an employee making a mistake or omission, you will be protected from being financially responsible for the legal costs.

What has changed?

This year Guild Insurance has changed its pricing approach to practitioners who employ AHPRA registered dental practitioners including dental hygienist and oral health therapists. Practitioners that are currently insured with Guild Insurance should have provided information to us about their professional services at the start of their insurance, during previous renewals and through various surveys. This is the information used to prepare your insurance policy.

For practitioners that have advised they have an ownership interest in an entity, Guild Insurance will extend cover for owner practitioners and will charge additional premium when there are two or more AHPRA registered dental practitioner employees.

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Download the Dentist Practitioners and Vicarious Liability document to get a complete understanding of the reasons for the changes, the exposures practitioners face when they employ staff and what this means for owner practitioners.

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    Property maintenance - could your property cause an injury?

    Guild Insurance sees many insurance claims which have come about due to poor maintenance of a property.  In too many of these cases, the poor state of the building or its grounds is obvious and it’s quite surprising, as well as disappointing, that repairs haven’t been carried out before an incident has occurred.

    What can go wrong?

    There are a range of incidents which can occur due to poor maintenance of a property.  Staff can be injured leading to a worker’s compensation claim as well as staff being absent from work for an extended period.  Visitors to the premises, such as customers, clients or contractors, can also suffer injuries leading to public liability claims.  As well as the insurance claims which need to be managed, there’s the added stress of knowing that someone has been injured while at your premises.  Some of these injuries can be very serious and life changing.  Unfortunately, the hazards which lead to these injuries are often not viewed as seriously as they should be.  Yet with appropriate property maintenance many of these injuries could be avoided.

    Case 1

    A client entered a building and tripped over an edge of carpet which was ripped and curled up.  The client sustained a fractured wrist when they landed.

    Case 2

    An awning out the front of a building was old and worn out.  During heavy winds it broke off from the building and hit a person walking past at the time.

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    While walking through the carpark of a premises, a staff member has tripped on a large crack in the asphalt which had caused the surface to be uneven.  They fractured their ankle as they fell.

    Case 4

    Poor maintenance doesn’t just lead to people suffering injuries, it can also lead to further damage to the property.  An old deteriorating roof collapsed when hit by heavy rain as it no longer had the strength to support the weight of this rainfall.  This led to excessive water damage within the building.

    Property maintenance tips

    • Have a documented maintenance program in place. This requires a schedule for regularly checking the property to identify hazards as well as details on what needs to be serviced, repaired or replaced and when.
    • Be aware of the out-of-sight, out-of-mind hazards. Many properties have roofs, guttering and downpipes in poor condition due to a lack of maintenance as no one has thought to get up on the roof and inspect it. Include the less obvious hazards in the maintenance program.
    • Have a maintenance budget. Some maintenance work can be planned, other work will come up unexpectedly when something breaks down. You need to be able to find money to fix hazards when identified.
    • Be sure to use qualified tradespeople to undertaken maintenance work. While it can be tempting to undertake some DIY and save money, the risk of things not being maintained or repaired correctly will not be worth the savings in the long term.
    • If you’re a tenant, be aware of what you’re responsible for maintaining and what’s the responsibility of the landlord. Not all tenancy agreements are the same, so you need to be across the details of your agreement.
    • Don’t wait to undertake maintenance till a more convenient time. There are many cases of injuries occurring due to hazards which had been identified but not yet acted upon, usually due to costs, time or not acknowledging the risk of the hazard.
    • All staff have a responsibility to create and maintain a safe workspace. Some hazards will be identified through regular property inspections, however, you can’t rely solely on these inspections. Therefore, encourage all staff to continually be on the lookout for hazards and to speak up when they see something.
    • Don’t think it won’t happen to you and your property. These incidents are a lot more common that many people realise.

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    Orthodontic and third-party agreements: risks and concerns.

    In recent times, there has been a growing number of companies on the internet offering orthodontics like braces, aligners, and other products that people can use at home. While the convenience is very appealing for patients, the same can’t be said about the risks and concerns that come with partnering with foreign-based aligner companies. With the recent demise of two overseas aligner providers, some dentists have not been able to continue patient care in the middle of a course of orthodontic treatment. This has resulted in patient complaints against dentists, who had no part in the companies’ collapse but are left to manage the fallout and develop a re-treatment plan with another aligner provider.

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    The ADAVB recommends that any member undertaking orthodontic treatment with third-party aligner providers familiarise themselves with the risks and ensure that they are not exposing themselves to additional liability, which may place them in a precarious position when defending a claim.

    Major concerns 

    Treatment plans by aligner companies are often computer-generated offshore with some input from a technician. Blindly following these plans may result in a compromised outcome and potentially irreversible damage. Orthodontists often make changes before a satisfactory plan is reached and may even further modify plans during treatment, depending on the progress. As the clinician, you’re responsible for the treatment and any adverse outcomes, not the aligner company that generated the treatment plan.

    As a result, any claims by patients would most likely be against the dentist or the clinic. Contractual and duty of care considerations need to be taken into account. Even if the contract says the aligner company will cover your liability, that can’t be enforced. By Australian law, the dentist cannot delegate liability for treatment performed to another party. So, in the end, the problem comes back to bite the dentist.

    Fault by association

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    impossible for the patient. The patient will turn to the only person they can reach and direct the blame to – their dentist. It should be noted that at present, there are two class action claims in courts overseas against aligner providers, but these may take years to play out, and it’s unknown if they will be successful.

    An insurer is not privy to the contracts dentists sign or warranties offered by aligner companies. This means warranties deflect back to the dentist and may not be covered under a professional indemnity policy. In Australia, health service providers cannot give warranties, so that part of the company’s “promise” is worthless unless it relates specifically to the aligners themselves (breakages, replacements, etc), not treatment outcomes. 

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    Australian Health Practitioner Regulation Agency (Ahpra) – Guidelines for advertising
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    Understanding social media risks

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    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791.  This article contains information of a general nature only, and is not intended to constitute the provision of legal advice. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them    .

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