sued under a theory of vicarious
liability. Although the court found
that the theory did not apply to the
associate dentist (the assault did
not serve the employer and was
outside the scope of employment,
and the patient could not have had
a reasonable belief that the dentist’s
sexual assault was an act of his
employer), the court concluded that
vicarious liability did apply to the
owner-dentist because the dental
assistant in the room failed to prevent
the assault. 2
Associate dentist liability is
somewhat afected by employment
classifcation. Te actions of an employee dentist are more likely to result in vicarious liability. However,
independent contractor status does
not create an impenetrable shield.
Te typical test for determining
the liability relationship of the parties is whether the employer retains
the right to control the time, manner, and method of the employee’s
execution of the work. In the dental setting, courts will consider
whether the owner provided fully
equipped ofces and support staf,
booked appointments and assigned
patients to dentists, established
charges, and did billing and collections. 3 Since this describes the
majority of independent contractor relationships, owners should be
aware of the likelihood of vicarious
liability in both employee and independent contractor relationships.
Te good news for employee or
associate dentists is that vicarious
liability is a one-way road. You are not
vicariously liable for the malpractice
of another dentist employed by the
corporation, even if that dentist is the
ofcer or director of the corporation.
Tere are a number of legal vehicles
for creating your business entity.
Most partnerships use some type of
corporation, which provides signifcant liability protections known as
the corporate shield. If you did not
create a legal entity for your practice,
the default legal entity is a partnership. Te partnership legal entity may
have some benefts, but it falls very
short when it comes to protecting either partner from the acts of the other—there is no corporate shield. Each
partner has unlimited liability for the
negligent injuries associated with the
practice. A patient who was seen by
only one partner may sue all partners
Cases involving “negligent referrals”
seem to be cropping up more frequently. Legally, a dentist’s duty of
rendering dental care and attention
is not excusable through delegation
or referral. If the referral dentist performs his or her duty incorrectly, the
referring dentist could be on the hook.
Negligent referrals hinge on a
combination of three factors:
• Whether the referring dentist knew
or should have known that the spe-
cialist was impaired or incompe-
• Whether the referring dentist ma-
terially beneftted from the referral
(generally monetarily, but not al-
• Whether the referring dentist di-
rected or took part in the treatment
provided by the specialist.
Negligent referral cases are not
restricted to out-of-ofce referrals.
Multispecialty practices, husband-
wife partnership practices, and even
itinerant specialists working out of a
general dental ofce have all been the
subject of these types of legal suits. If
your practice falls into one of these
categories, be aware of the mutual
risks and liability.
Vicarious liability can be tricky—and
it can have just as great an impact on
your license and career as your own
acts. Sometimes practice growth,
proftability, and turnover create increased liability. Te law has determined that it is up to you to set the
practice’s tone, control work procedures, supervise all staf members,
and help them recognize the importance of acting in your name. For the
purposes of your legal defense, your
employees’ professional actions are
extensions of your own.
1. American Jurisprudence Proof of
Facts, 2d. 1984;( 38)445.
2. Marie Y. v General Star Indemnity Co.,
110 Cal.App.4th 928, 2 Cal.Rptr.3d
135 (3d Dist 2003).
3. Matter of Lane, 160 A.D.2d 1060, 553
(NY App Div 1990).
Benjamin Dyches, DDS,
JD, practiced dentistry for more than a
decade before studying law. Dr. Dyches
is the founder of
Aegis Lion (aegislion.
com), a company designed to provide
comprehensive legal, tax, financial planning, compliance, and transition care for
dental practices—all in one place.