Kennedys Law’s Laura Collins, Christian Lowden and Nico Fabri explain who is liable for damages arising from clinical negligence when patients use a credit card to pay for private medical treatment.
Bailey v (1) Bijlani (2) MBNA Ltd [31.01.2025]
In what has turned out to be a notable judgment relating to negligently performed private dental treatment, the judge found both the dentist performing the treatment and the credit card provider used to pay for the treatment to be jointly and severally liable for damages.
It is a judgment that will be of particular interest to claimants and compensators alike where private treatment was paid for by credit card and there are concerns about appropriate levels of indemnity for the negligent practitioner.
Background to the case
In May 2018, the claimant underwent private dental treatment under the care of a dentist (the first defendant) the sole director of the dental practice. The treatment had been paid for on an MBNA Ltd (MBNA) credit card.
Regrettably, the claimant suffered extreme pain following the treatment, requiring subsequent revision surgery to remove a damaged tooth and the implant that the dentist had inserted. The claimant suffered bone loss in her jaw and ischaemic colitis associated with the medication she was prescribed for pain.
The claim
The claimant brought a claim against the dentist for failure to conduct a comprehensive assessment before the implant procedure, to obtain informed consent, and to recognise the risks associated with treatment.
Relying on Section 75 of the Consumer Credit Act 1974, the claimant also brought a claim against MBNA, as the second defendant.
Section 75 of the Act provides that: “If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.”
To put it in simple terms, under these circumstances, the claimant was considered the debtor; the dentist the supplier; and MBNA the creditor.
The decision
It was found that the claimant had contracted with the dental practice for the provision of dental services which were provided by the dentist. A duty of care was owed to the claimant in the provision of those services.
Furthermore, a contractual relationship was established with MBNA resulting in potential liability for any breach of contract, pursuant to the implied contractual term under section 49 of the Consumer Rights Act 2015 and section 75(1) of the Consumer Credit Act 1974.
The judge ruled that the dentist had been negligent in the performance of the treatment and MBNA was jointly and severally liable under the provisions of the Consumer Credit Act 1974. The claimant was awarded damages recoverable from both defendants.
Notably, the judge held that MBNA was entitled to an indemnity and/or contribution from the dentist in respect of damages and costs on a 100% basis, stating specifically that “though jointly and severally liable, there was no suggestion that the Second Defendant was liable other than through the mechanism of the Consumer Credit Act 1974”.
Why this matters
While establishing a claim against a negligent practitioner is not unusual, it is noteworthy that the claimant successfully relied upon section 75 of the Consumer Credit Act 1974 in a clinical negligence claim.
As a mere provider of credit, MBNA had no control over the performance of the treatment but, as is regularly observed under section 75, the credit card provider will often be jointly responsible with the retailer or supplier where things go wrong.
