Dental Case Study: Vicarious Liability… Strikes Again
Repurposed from The Scope, Third Quarter, 2026
In this case, the MLMIC-insured dental practice owner never provided treatment but was named in the lawsuit as he had discussed the patient with the treating oral surgeon on several occasions.
The 58-year-old male patient was seen at the MLMIC Insurance Company policyholder’s office by the oral surgeon, who was insured with another carrier, on a referral for an emergency consultation for persistent right lower jaw swelling that had been present for three weeks. The patient reported being on antibiotics, which had recently been switched from amoxicillin to clindamycin. The oral surgeon noted swelling of the right jaw, a failed root canal therapy, periapical pathology and bone loss with periodontal disease at #30 and #31. The oral surgeon recommended exploration and extraction of #31. The patient consented, and a flap procedure and extraction of #31 were performed. The oral surgeon noted extensive buccal bone loss at #30 and #31. The wound was debrided, and there were no signs of acute infection with drainage or abscess. The surgeon’s prognosis for #30 was guarded.
The patient presented to the oral surgeon for postoperative visits on day two and day eight, at which time it was noted that there was still swelling, but the patient had no other complaints. The wound was healing slowly, with granulating tissue.
A few days later, the patient returned with persistent swelling of the right jaw. The oral surgeon recommended extraction of #30 due to bone loss. The extraction was completed, and no signs of infection were noted.
The patient returned to see the oral surgeon a week later and reported that he had seen his primary care provider, who placed him on Augmentin for the swelling. Upon examination, there was mild right buccal posterior fullness that was firm and non-tender. The oral surgeon noted a possible hematoma and recommended warm compresses and continuation of the antibiotics.
One month postoperatively, the patient presented to the oral surgeon with increased swelling and pain over the previous 24 hours. The exam showed right buccal swelling and edema near the inferior border of the mandible, with tenderness on palpation. A flap exploration with debridement was recommended and performed. Upon exploration, no acute infection was found, and no foreign body was discovered to explain the edema.
A month later, the patient returned to the oral surgeon with a new complaint of trismus. The exam revealed extremely inflamed erythematous gingiva along the areas of #29 and #30. The recommendation was to perform an incisional biopsy of the gingival tissue through the extraction site of #30, perform a CT scan and refer the patient to a head and neck surgeon. The biopsy showed acute and chronic inflammation with a nonspecific finding, and the CT revealed marked inflammatory changes, but no evidence of osteomyelitis or osteonecrosis.
The patient’s last office visit was one week later, at which time the oral surgeon noted increased edema, now around #27-#29, with trismus.
One week after his last presentation, the patient was seen by another oral surgeon at a different practice. This clinical exam revealed right facial swelling to the lateral border of the mandible, extending inferiorly to the submandibular area. It was firm; there was no fistula, and the area was tender and warm. There was no fluid or drainage, and the bottom of the mouth was firm and bumpy. Teeth #28 and #29 were mobile. After further imaging, the patient was ultimately diagnosed with actinomycosis. He subsequently developed osteomyelitis and a large fistula, necessitating surgical explorations; the debridement of necrotic tissue; intravenous antibiotics; the extraction of teeth #28, #29, and #32; partial mandibulectomy with eventual wound closure; reconstructive surgery; and resulting nerve damage.
Legal Action and Allegations
The patient filed a lawsuit against the oral surgeon, who was not insured by MLMIC, as well as the practice and its owner, both of whom were MLMIC policyholders. The suit against the oral surgeon alleged failure to timely diagnose and manage the actinomycosis infection, resulting in the progression of osteomyelitis; the destruction of soft tissue, bone, and teeth; multiple surgeries; and prolonged antibiotic therapy. The claims against the insured’s practice were vicarious liability for the oral surgeon’s actions, along with direct claims of lack of informed consent, negligence, and negligent hiring, training, and retention.
Expert Opinion and Defense
MLMIC’s expert opined that the oral surgeon was a qualified and trained professional. The patient’s prior dentist had referred the patient directly to the oral surgeon, rather than to the practice, and the oral surgeon exercised independent discretion and judgment in treating the patient.
While the defense moved for summary judgment, arguing that the oral surgeon was an independent contractor, the oral surgeon’s deposition revealed he was an employee and received a W-2. The motion was resolved before a decision with an agreement to discontinue all direct claims against the practice owner, leaving only vicarious liability to be determined.
Trial and Outcome
The case proceeded to trial, with a pretrial motion by the plaintiff and the non-MLMIC codefendant seeking to hold the office vicariously liable for the oral surgeon. The court granted this motion, finding the office vicariously liable but only responsible if the verdict exceeded the oral surgeon’s policy limit. The plaintiff’s attorney argued against the office’s participation in trial, citing duplicative testimony, and the judge agreed.
The verdict favored the plaintiff, but the award remained within the oral surgeon’s policy limits, so there was no contribution for vicarious liability from the MLMIC policyholder.
A Legal and Risk Management Analysis
The plaintiff in this case claimed the MLMIC policyholders — the dental practice and its owner — who never treated the plaintiff, were vicariously liable for the actions of the co-defendant oral surgeon. The key defense issue was whether this oral surgeon was an employee or an independent contractor outside of the practice’s control. This defense was complicated by the lack of a written agreement defining the oral surgeon’s legal relationship with the practice, underscoring the importance of documenting the terms of the legal relationship between a provider and the practice where the provider delivers professional services. This clarity will support a defense against vicarious liability claims.
Vicarious Liability: Employee or Independent Contractor?
A dental practice may be held vicariously liable for the alleged malpractice of its employees if the malpractice claim is against the employee acting within the scope of employment.1 The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results of the professional’s work.2 However, under New York law, a dental practice is generally not vicariously liable for the malpractice of an independent contractor because the practice would have no right to control the way the independent contractor’s work is performed.3
Simply calling a professional an independent contractor rather than an employee, however, is not enough to obtain dismissal of a vicarious liability claim. Instead, the practice must show that it had no control over the professional and there are no significant indicia of an employer-employee relationship.4 This determination is fact-specific. Under New York law, some indicators of a true independent contractor relationship include: the provider managed their own scheduling and hours; the practice had no control over the professional aspects of the services; the provider was solely responsible for income taxes and paid self-employment taxes; and the provider did not discuss patients with the owner of the practice.5 Another indicator of control is when the patient has reason to believe the professional was acting on behalf of the practice.6 Courts look at factors such as whether the patient is assigned to any available provider at the time of scheduling and whether advertisements led the patient to contact the practice rather than any specific provider.7
Difficulties With Defense
In this case, the relationship between the oral surgeon and the practice was ill-defined. There was no contract between the parties setting forth the terms of the relationship, and the relationship evolved over time from what appeared to be an independent contractor relationship to what the court determined was an employer-employee relationship. During the first five years, the oral surgeon’s compensation was based on a percentage of gross income for his services, and he did not receive a W-2. Over time, the oral surgeon became more entwined with the practice. He began receiving a weekly paycheck and a W-2 and had a set schedule determined with input from the practice. While the surgeon discussed the patient with the owner on several occasions, there was no indication that the owner supervised or evaluated the oral surgeon's professional services.
The Court’s Finding of Vicarious Liability
The two facts supporting the argument that the surgeon was an independent contractor were that the owner did not supervise the professional aspects of the surgeon’s services, and the patient’s dentist referred the patient specifically to the surgeon rather than to the practice. However, given all other aspects of the relationship, the court found that the oral surgeon was an employee of the practice and the practice would be vicariously liable for any malpractice by the oral surgeon.
Risk Management Takeaway
From a risk management perspective, practices should expressly document their relationship with each professional who provides services at the practice. A written agreement should identify whether the professional is an employee or an independent contractor, explain the degree of control the practice may exercise and address compensation and other key terms.
The practice and the professional should then conduct their relationship in accordance with the agreement, because a contract carries little weight if the parties do not act consistently with its terms. If the relationship changes over time, the agreement should be updated to reflect the new arrangement.
Should you have any questions regarding the legal or risk management implications of or requirements for vicarious liability, please do not hesitate to contact MLMIC Insurance Company for assistance and guidance at any time.
MLMIC policyholders can reach out to our healthcare attorneys for questions about litigation, claims, legal papers, or other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.
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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, dental, medical or professional obligations, the applicable state or federal laws or other professional questions.
