In the case of Kazi v Gajjar, 2023 CanLII 86105 (ON HPARB), a patient attended a dental office and received treatment from an ASSOCIATE dentist (not the principal dentist owner of the practice). But the patient wasn’t happy and complained against the principal owner dentist.
The principal dentist responded that they had no contact with the patient, did not consult with, and did not provide any treatment with the patient.
The Inquiries, Complaints and Reports Committee (the “Committee“) of the Royal College of Dental Surgeons of Ontario (the College) investigated and decided to take no further action. Specifically, the Committee noted that it’s the treating dentist who is responsible for the treatment provided. The Committee further noted there was no information available to support the allegation that the dentist may have engaged in any conduct that failed to meet the standard of the profession. This decision makes absolute sense since the RCDSO governs its members in how they engage with the public (i.e. their patients). So if a dentist didn’t actually engage in any way with a patient, why would that dentist be liable from a regulatory perspective? Thus, the Committee therefore took no further action.
The patient appealed to the Health Professions Appeal and Review Board (the “Board“) and lost (the Committee’s decision was left intact and no further action was taken).
This is good news for principal dentists: at least, when it comes to how they are regulated by their the RCDSO, if a principal dentist isn’t consulting or treating a patient and that patient complains about the principal dentist, the principal dentist will not be subject to discipline. Again, this makes sense because the principal dentist has no relationship with someone they never treated.
What About in Civil Cases?
NOW bear in mind that, had the patient actually proven some tort (e.g. professional negligence, etc.) or breach of contract (e.g. false advertising by the dental office), and went after the principal dentist, then the question arises: would the principal dentist liable for the associate’s actions or omissions in those contexts?
Here, it will come down to the relationship between the principal dentist and the associate.
If the associate dentist is an employee of the principal dentist, then there’s a strong argument that the principal dentist could be vicariously liable. Vicarious liability is legal liability by an employer for the negligent acts / omissions of their employee.
What would make the associate an employee of the principal? Well, beyond just looking at the associate contract that exists between them (because courts look at the factual reality and not just the legal paperwork that is signed), there are a number of criteria that point to an associate dentist being an employee, such as:
- The associate dentist being supervised by the principal dentist
- The associate dentist getting paid hourly or salary
- The associate dentist not having their own instruments, but relying solely on the principal’s
- The associate dentist not treating their own patients, but rather the principal’s patients
- The associate dentist having their schedule determined by the principal.
In all likelihood, a dentist who is employed by a hospital, public health organization or dental school may be an employee and if they’re treating a patient and the patient wishes to sue for vicarious liability, they may be able to make a case against the hospital, public health organization or dental school.
That said, it won’t be easy to prove vicarious liability in the vast majority of associate / principal cases since practically all associate dentists in private practice are engaged as independent contractors (which does not attract vicarious liability) of the principal and would NOT be considered employees.
Why are associate dentists generally considered independent contractors? Because they get paid based on a percentage of billings or collections (not hourly or salary), they are professionals with their own insurance and who aren’t supervised or controlled by the principal dentist, they may set their own schedules, they may have their own professional corporations, and they may also solicit and market to patients to come to the office that they’re engaged at.
For a blog recently written about vicarious liability and what needs to be proven for a successful claim, click HERE.