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Vicarious liability for associate or locum clinicians: Whetstone v Medical Protection Society Ltd

The question of whether practice partners or principals are vicariously liable for negligent treatment provided by associates or locums is one which has frequently exercised the medical defence organisations in recent years.  The issue ought to be academic, because such associates or locums are usually required, under the arrangements made with a practice, to have cover with one of the recognised organisations.  However, it is not unknown for associates or locums to fail to comply with such an obligation, or at least to notify their practices of where they have obtained their cover so that the benefit of it cannot be obtained when the associate or locum has left the jurisdiction and cannot be traced.

The absence of any case law dealing with the issue has made it difficult for practitioners to predict with confidence the court's reaction to any attempt to impose vicarious liability for the actions of associates or locums.  The judgment of HHJ Richard Seymour QC in Whetstone v Medical Protection Society Ltd [2014] EWHC 1024 (QB) contains the first detailed examination of this issue in our jurisdiction.

The claimant was a sole principal in a dental practice.  Between 1998 and 2009, he engaged a Mr Sudworth as an associate dentist within the practice.  A contract in 2008 provided the basis of their relationship.  Allegations by patients of inadequate treatment by Mr Sudworth began to be made in early 2009, and resulted in the termination of the agreement later that year.  A number of claimants intimated claims against Mr Whetstone on a vicarious liability basis.  Mr Whetstone sought indemnity from the MPS, and the majority of the judgment contains an interesting analysis of the legal basis of discretionary cover by medical defence organisations.  In the latter part of his judgment, however, the judge considers whether Mr Whetstone was, in fact, vicariously liable for the actions of Mr Sudworth.  He first examined some of the features of the contractual relationship between the two dentists at [116]:

.... there was a degree of artificiality about the Sudworth Contract. It had been carefully constructed so as to ensure that, as between themselves, Mr. Whetstone and Mr. Sudworth were not in an employment relationship. However, to the outside world, unaware of the actual terms of the Sudworth Contract, how some of those terms worked was likely to create a different impression. By clause 1 Mr. Sudworth was to follow the policies of the Practice as laid out in the Whelby House procedures and policies folder. A copy of those policies was adduced in evidence. They were highly prescriptive. By way of example, the first section was "Greeting the patient and communication", and the first item was, "Greet the patient whilst standing facing them, be polite and put them at ease". The equipment and materials provided pursuant to clause 5 of the Sudworth Contract apparently included a uniform which Mr. Sudworth was required to wear. By clause 7a Mr. Sudworth was to make himself available for work during agreed hours, rather than work whatever hours he chose. By clause 8 Mr. Sudworth's holiday entitlement was limited, rather than a matter entirely for him. The effect of clauses 15 and 17 of the Sudworth Contract was that Mr. Whetstone collected the fees for work done by Mr. Sudworth and refunded Mr. Sudworth's share, notwithstanding that the contract was structured as a payment of a licence fee by Mr. Sudworth for the opportunity to earn fees. The actual fees charged were fixed by Mr. Whetstone, not by Mr. Sudworth. Clauses 24, 25, 26 and 27 of the Sudworth Contract were extraordinary if, in truth, Mr. Sudworth were an independent contractor providing services to his own patients, rather than to the patients of Mr. Whetstone. If Mr. Sudworth were an independent contractor one would not expect that he should hand over his patients' books and records to Mr. Whetstone (clause 24), not have any goodwill in relation to his own patients (clause 25), not be able to treat his own patients wherever he liked (clause 26), and not be able to treat his own patients after the termination of the Sudworth Contract (clause 27). Provisions of those types are normally only found in contracts of employment.

He concludes that the relationship was one "akin to employment". He summarised the circumstances which led him to that conclusion in the following terms at [123]:

.... In the circumstances of the present case, as I have pointed out, Mr. Whetstone exercised a high degree of control over Mr. Sudworth and his activities. Not only was Mr. Sudworth bound to follow the policies prescribed by Mr. Whetstone, but he was to attend to provide his services at times prescribed by Mr. Whetstone, and to charge fees for his services fixed by Mr. Whetstone. Mr. Whetstone certainly had an organisation, the Practice, which undertook the provision of dental treatment to patients, and Mr. Sudworth participated in that organisation and was integrated into it. He was provided with the physical means to undertake the provision of dental services, both in terms of the necessary equipment, but also in terms of the necessary support staff. In no meaningful sense was Mr. Sudworth an independent dental practitioner merely taking advantage of premises provided by Mr. Whetstone. Mr. Sudworth could not decide of his own choice when to work, or what to charge for his services. When the Sudworth Contract came to an end he could not take "his" patients or their records with him. It seems to me that the relationship between Mr. Whetstone and Mr. Sudworth was as "akin to employment" as one could get in a relationship deliberately structured by contract to avoid an employment relationship.

Experience suggests that the contractual relationship in this case was one in which the principal regulated the conduct of the associate in an unusually tight manner.  The judge's reasoning, set out above, suggests that his decision might have been different if Mr Sudworth had simply been renting accommodation within Mr Whetstone's practice.  Nor does the decision consider the implications of the decision in Woodland v Swimming Teachers' Association [2013] UKSC 66, [2013] 3 WLR 1227 and whether a practice principal might owe a non-delegable duty of care to patients treated within his premises.  Nevertheless, the judge's approach is likely to inform any future litigation on this topic.

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