Vicarious liability - explanatory note

 

An employer can be held vicariously liable if an employee commits a negligent act or omission while acting in the course of the employee’s employment. There is of course extensive case law surrounding this but the general statement sets out the principle of vicarious liability. It is therefore very important for all members who employ staff to be clear on the extent of support offered by MDDUS. 

Each case is considered carefully by MDDUS but in general terms, and in order for it to be as simple as possible for our members, it is likely that the following examples of individuals acting in the course of their employment would fall within the scope of protection offered by membership of MDDUS:

  • Nurses who might be regarded as performing generally recognised practice nurse tasks*
  • Nurses performing tasks normally associated with the work of nurse practitioner or advanced nurse practitioner, provided the practice is a member of the Discount Practice Scheme and all partners are MDDUS members*
  • Healthcare assistants
  • Phlebotomists
  • Non clinical administrative staff.

The following would be likely to fall outside the scope of protection offered by your membership of MDDUS:

  • Medical staff including salaried doctors and locums
  • Physician’s assistants
  • Nurses performing tasks normally associated with the work of nurse practitioner or advanced nurse practitioner, where the practice is not a member of the Discount Practice Scheme and/or all partners are not MDDUS members*
  • Staff involved in professions allied to medicine, including but not exclusively, radiographers, audiologists, physiotherapists, pharmacists, laboratory staff, those providing counselling
  • Midwives.

*If you are in any doubt please telephone our Membership staff. In general terms a nurse practitioner is someone holding an advanced qualification in a specific relevant specialty.

If your practice is in MDDUS’s Discount Practice Scheme, certain employed staff can apply for membership of MDDUS in their own right. Please contact our membership staff for advice.

Where MDDUS only has a proportion of partners in membership it is likely that any contribution to costs, payments or expenses, where these are validly incurred, will reflect that proportion.

MDDUS benefits do not extend to meeting claims based on your joint or several liability arising out of the fact that any of your fellow partners has failed to meet his or her obligations.

Similarly the indemnity extended to dental practice principals will not normally extend to an indemnity for the acts and omissions of associates who must carry their own adequate indemnity provision. Principals have a duty to ensure that correct indemnity is in place for any associate and that proper arrangements are in place to ensure that associates continue to bear that risk once they have left the practice. Any request for assistance from a practice principal in respect of an associate’s act or omission will be considered on a case-by-case basis so as to ensure that member principals do not face personal exposure to claims for damages in cases where they have properly sought to discharge their responsibilities.

Additionally, a dental practice principal may employ someone who is registered with the GDC as a dental care professional (DCP). These team members must work within their scope of practice as determined by the GDC and only carry out a task or type of treatment or make decisions about a patient’s care if they are sure, and the practice principal confirms, that they have the necessary skills and are appropriately trained, competent and indemnified. These DCPs must practise in accordance with the GDC’s guidance, Standards for the Dental Team, at all times.

Principals can reasonably expect to be assisted in such circumstances subject to the terms of the Articles of Association

Members should ensure that those who are outside the scope of protection offered by MDDUS are required to produce evidence of adequate and appropriate indemnity arrangements being in place before they are engaged.

There may be vicarious liability for a claim which does not fall within the scope of MDDUS membership.