Speaker 0:10

Welcome to Confidence To Thrive, the podcast helping building practitioners and healthcare entrepreneurs, navigator challenges and risk of regulation and building management. And we have to say Christopher Cloke Browne tackles a different issue facing healthcare practitioners and entrepreneurs or interviews and building something that matters in their technology profession. Hello, my name is Jody Raynsford, and today I'll be talking with Christopher Cloke Browne, Director of Owlicity. On this podcast episode, we're talking about why most healthcare professionals are just one complaint away from a crisis and what to do about it. Welcome, Christopher. Thanks, Jody. Great to be here. Okay, let's crack on. We're thinking about complaints here. Why are most healthcare practitioners or private healthcare businesses one complaint away from a crisis? What's the issue?

Speaker 1 1:00

Yeah, so I think it comes down to really our mantra is if you don't deal with the basic rumbling complaints that come in, then you can lose control of the situation. And if you lose control of the situation and the patient goes off and hires lawyers, you end up in an awkward situation where once lawyers are involved and engaged, the lawyers' fees start to stack up. Now, as many might not know, the UK is fairly odd in that if you litigate, the loser pays the lawyer's costs of both sides. So as those lawyers get engaged and all their costs start to rack up, those costs become a sort of uh a big loose cannon, and all the lawyers want to get paid. Uh win, lose, draw, whatever. They don't care. They're but their fees rack up regardless. So you then end up in a situation where somebody only has to prove a tiny amount of negligence. So as our mantra is always 1% negligence leads to 100% of those legal fees. So it's this huge sort of unexploded bomb, if you like, that goes off. And it even gets worse than that. We've had one of our clients who literally is in dentistry, they ended up suing a patient for unpaid fees. Uh the client then claimed counterclaimed negligence, uh, and then all that, uh, the lawyers managed to rack up a hundred thousand in fees. So whoever lost that fight, by the time that was done, you know, what anyone was paid in terms of compensation for bad dentistry was irrelevant. It was all the lawyers' fees.

Speaker 2:54

And so, in terms of who this potentially affects, is this something that if you haven't had a complaint, if you've been in business for a significant amount of time, have you not suffered a complaint or a claim or anything else at this point? Is this something that can still happen to you? Are you more at risk or less at risk? Is this something that just happens to people who are new coming into the industry?

Speaker 1 3:21

Yeah, no, I think it can happen to anyone. And it is, it's it's one of those things that you know maybe isn't widely known about. And and you know, what in some ways, why would it be? It's all a bit of a sort of dark recess, if you like. So why would you want to go there? But you know, it's there and it happens, uh, and you see it happen every day. I mean, it is just to be clear, those legal costs are insured. So the insurance covers the cost of defence as well as the compensation. But as you can imagine, if you've got 100,000 the lawyer the legal fees and the insurance pays out 100,000, the insurer is going to get that back through your premiums.

Speaker 4:00

So it's going to affect your business, i it's going to significantly affect your business, not just in terms of the energy and potential reputational damage that you worry about, it's also the increased costs in the future and everything that comes with that.

Speaker 1 4:13

At the end of the day, you don't pay it all in one sum, but you you pay it over time.

Speaker 4:19

Before we talk about kind of what the kind of core problem that sits behind this, how many times have you seen a situation or have you experienced situations with practitioners that you've either consulted with or you've spoken with where if they had dealt with it differently from the start, it wouldn't have escalated. In a lot of cases, can it be prevented or do a lot of these things just naturally end up with the lawyers?

Speaker 1 4:46

Yeah, and I think it really can be prevented, and that's across the spectrum. So, you know, we talk about dealing with complaints that aren't your fault and there's been no negligence. But similarly, you know, in in your assessments, if you have been negligent, then in many ways that there's no point fighting it. You know, you're paying a lot of money to fight what ultimately should be a losing battle. It's about being proactive and dealing with it now. Clearly, you you have all the issues with insurer control and insurers paying the premiums, they take control of the situation and so on and so forth. But again, that's part of what we're here to help with is to make sure insurers' lawyers don't try to fight hopeless battles. And again, uh there's a moral stance on that, is if somebody really has been injured, then they should be compensated and they should be compensated quickly and effectively. So we are all about trying to assess what the rights and wrongs of a situation are and get to the right outcome for everybody as quickly and as effectively as possible, and then you can move on, as we've said previously. Our core belief is no healthcare practitioner goes to work in the morning with the intent of maiming people. There's a few notable exceptions to that, but generally speaking, we that's our belief, and so bad things happen, things do go wrong. That is what insurance is for. That's there to help you deal with it and make sure that the person is cared for and compensated.

Speaker 6:16

One of the things that we talked about on the previous episode was when something does happen, whether it's right or not, the speed at which it's dealt with, so that you can then get on with business, you can continue to do the things rather than getting tied up and having to use energy and resource on battles that you like, you've already said you can't win.

Speaker 1 6:39

Yes, yeah, absolutely. In many ways, the speed is important because it is a very stressful, very draining part of your life. So actually getting it dealt with and over with is is quite important.

Speaker 6:54

So let's talk about that then. Let's talk about then what is the the core problem here because you were talking there about insurance lawyers and potentially fighting battles that shouldn't so one of the things that we've been focused on is really the gap between understanding about what it's you know, you've I've got insurance and I think insurance covers me in this way, and actually being protected properly from these issues. What is that difference and where do most practitioners sit in terms of where the kind of the level of support that they have in order to be able to navigate these challenges?

unknown 7:24

Yeah.

Speaker 1 7:25

So most healthcare claims are now dealt with by law firms on behalf of the insurer. So if you have a sort of standard medical malpractice healthcare practitioner insurance, you get some kind of complaint, lands on your doormat, you send it to your broker, sends it to the insurer, or not the insurer, they send it to an email address, which it is a firm of lawyers, and the firm of lawyers open it up and get going on it and deal with it from very much uh legal perspective. It's just then a legal process and legal arguments to be made and so on. Whereas we are very much more about trying to get the situation resolved on a human level, on a personal level up front. So it's very much working with the practitioner to assess whether or not they were negligent. So that's down to the, you know, does this person deserve compensation or don't they? And where do I sit on that spectrum and what do I feel about that? Once I've determined that, then clearly, as we said, if they really have been hurt and there has been negligence, then you know, we would look to expediate that process and get them sorted out as fast as possible. At the other end of the spectrum, it's then deciding how accommodating you wish to be. And maybe partly in a sort of business context, do I want to offer this person some remedial treatment, some free treatment, a bit of a refund for good business sense to be decent and promote myself and my business and my practice? Or actually, do I just think there are a complete chance we're absolutely trying it on? And I've I've done absolutely nothing wrong and no thanks, you know, shut up shop. And as I say, we even get to the point where we recommend to our clients that they invite people to sue them, and at that point the lawyers actually become our friends because the no-win-no-fee lawyers all have to spot winners to get their money. So we actually will write to people saying, Well, you can sue us, but we try to preempt their case and say, Well, if you were to sue us, you'd have to prove this, this, and this. And then they can troop off to a lawyer who will look at it all and say, Well, I don't think you can prove all that, so you know, I'm not going to take your case. Uh we do actually see that. We actually go out and actively say, Well, go and sue us, and this is what you're going to need to prove, and it all goes quiet for a few weeks, and then they come back going, Well, actually, I'm not as angry as I used to be, and it's not as bad as I thought it was, and so on. You can almost see the process happen.

Speaker 10:06

But that requires doing a huge amount of groundwork beforehand and working very closely with the client. Is the challenge of the approach of most insurance firms then pushing it over to law firms is that the human side of it, the commercial side of it is never looked at. And so you have a situation where you're pushed into decisions which maybe don't reflect the reality on the ground.

Speaker 1 10:26

Yeah, and there's a little bit, it's interesting that you said doing a lot of work up front, and that's absolutely it. So I think we look at front loading dealing with the situation. So we put quite a lot of time, effort, and even resource into dealing with the situation up front. Whereas the insurers is all about sort of, well, I'll spend a bit of money now and hopefully it will go away or something will happen, and oh no, it hasn't. So I'll spend a bit more money and there's this sort of trip. Whereas we actually try and work it out up front and we'll even, you know, to prove negligence, you have to have in healthcare, it's this is this thing called the Bolum test, which is really about a it's a modified Bolum test, and the modification is it has to be a sensible sound practitioner. It used to be any practitioner, so you could find the maddest one on the planet to say anything. So it now has to be a sensible sound practitioner, would give an opinion as to whether or not in the same circumstances they would do the same thing. So it's really about an expert witness saying that your practice was sound giving the patient and current knowledge and all these things, and we will go out and take expert opinions quite early in the process, because that really does put a lid on any claims of negligence. If you can get a really good quality, respected practitioner to give a supportive opinion, it's back to those no win, no-fee lawyers. They all of a sudden start going, Oh, I'm not so sure I'm going to win this one.

Speaker 11:57

So it's a case of once it's pushed to them, then you have essentially preempted it so that any sensible lawyer reading the law correctly will most likely tell them that they haven't got a case, and then that puts them in a situation where I'm afraid it's a little bit more Machiavellian than that.

Speaker 1 12:15

It's down to the commercial realities of the claimant lawyers. So the claimant lawyer sees a eminent practitioner who's given an opinion that it's completely sound, so he's gonna have to trump that.

Speaker 12:27

Yeah.

Speaker 1 12:27

So he's gonna have to go and find out uh at least as eminent, if not more eminent, practitioner, and pay them to give a critical report to then go and fight in court about which expert is right. So, as you can see, all the costs are starting to get quite large, and he's looking at what he'll make in fees from the potential claim and all this stuff, and going, oh, I'm not really sure that that's worth it.

Speaker 12:51

And isn't that one of the other challenges with the send it straight to legal firm approach, is the potential for settling, even when you are not necessarily negligent that you're being asked to do something at the behest of the legal team rather than someone who has properly looked at the situation from a commercial perspective and from a professional perspective as well.

Speaker 1 13:21

Uh absolutely. So I'm sure you know every lawyer does this work and under the sun will protest that uh it's not the case. But should we say that we would certainly believe it's the case? And it's again it's the commercial pressures. These people are have a fee rate and an expectation from the insurer to get these things closed, get these things settled, deal with them. I think again, quite often the litigation risk is possibly overestimated sometimes. So people prefer to settle a claim rather than let it litigate. It's all these sorts of things, that vast experience that Roger and his team have come into play. He is, you know, he is quite canny at at judging really whether people have a case or want to push a case. So, yes, it's really defending that aspect. You know, we really will defend, unless it's absolutely clear that our practitioners are negligent, in which case we'll be the first to tell them they just need to shut up and pay up, then you know, it is about really having that person who is committed to defending you and defending you well and effectively. We don't charge a huge amount for this service. A lot of the service is is free as a client of ours. So actually, unlike the lawyers who get paid by the hour, so more hours, more pay. For us, it's a drain to our business, it's a cost to our business to have this stuff run on. So we want it sorted out and settled as quick as we can.

Speaker 14:51

There's a different set of incentives there, isn't there? That discovery process can take a lot longer than it needs to, potentially, from a legal perspective. Are there any specifics about the healthcare sector, public healthcare sector, and some of the some of the developments and some of the innovations in it that potentially leaves the knowledge and the expertise that you need in order to understand the kind of the nuances? Is there a particular challenge there as well, in in the fact that maybe some of the training on the legal side or the training on the insurance side doesn't really reflect what is happening in the industry and the changes that are happening?

Speaker 1 15:29

I think, yes. Firstly, the healthcare litigation itself, I think, is quite a detailed specialist area, which every lawyer involved in it would agree with and tell you that they're an expert in. But part of it is effectively to prove a claim, there's two pieces to it. There's the first piece is what's called breach of duty. So that's that you have to you have to determine through this Bolum test that your practice was not fit for purpose or not up to standard, and so on. And then that breach of duty has to have caused the problem. So there's causation. So even if you've got breach of duty, you're not home and dry on the claim because you have to prove that breach of duty caused whatever the issue is, uh, and you can defend both those pieces. So that's one piece, the one sort of issue that makes the whole process quite complicated, and then all of everything with to determine both of those factors is very specialized knowledge that experts can argue over. So that's one piece. I think another piece is healthcare is changing quite rapidly, uh, and especially in the wellness, longevity, um, even the sort of down to GP land, where it's about prevention rather than cure and preventing chronic disease and all these things. Uh, so the skills and knowledge are different, the practitioners are actually different. So you're starting to see where you now have a world where diet, exercise, lifestyle, and all these factors are becoming massively important in your health and supporting your health. You actually have practices where the nutritionists are possibly the more qualified to assess and comment and deal with certain issues, but the nutritionists are not doctors, and strictly speaking, the diagnosis and treatment of diseases is the domain of doctors only. And we've had a client who has run into an issue where a effectively their business was accused of having a nutritionist diagnosed disease, which is a big no-no, and then for the doctor who runs it, that would end up with problems with the her regulator, the general medical council. So you've got medicine heading off in different directions and getting different types of people involved, which is putting an awful lot into very grey areas of regulation. Similarly, you've got these compounds called peptides. The GLP1 weight loss drugs are peptides. They're one example, they are dozens and dozens of peptides. Stop me if I'm getting too scientific, Jody. I'm not a biologist myself, so I've got very limited knowledge, but as many will know, amino acids are the fundamental building blocks of the body, and peptides are sort of very short-chain amino acids, they're very sort of small amino acids, but they do all sorts of amazing things. But the problem is they do all sorts of things, uh, some of which are amazing, and many of which are unknown. So if you start feeding people peptides for a certain property, you're impacting all sorts of other things across the body. But peptides are natural substances, so they are not medication, they are not prescribed, they are not anything. If they're something, they're food supplements. So as a doctor, you can start recommending people just take food supplements. Sounds innocuous. Yeah. These particular food supplements are enormously powerful and do all sorts of things into the chemical processes in your body, and so you have to be really careful. So that's all happening. And so are you insured for them or not? I mean, again, you know, your insurer might just say, Oh, supplements, fine, but I tell you what, when you get a claim for aggravating cancer through some weird process, then all of a sudden insurer's going to go, oh, I don't know about that. You can foresee problems, let's put it that way. So there's that, and then I think as a last piece, you're also seeing healthcare being run increasingly as a business. So a big transition is, you know, we uh Roger and I always have this sort of image of Dr. Finlay on his bicycle in the village, and there's a village doctor, and he'd cycle around all the villages and deal with them and know them and care for them and give them their pills and so on. And now healthcare, now it's not even people outside healthcare are becoming business people who run healthcare services and hire doctors to run it. So I says, you know, everybody will complain about. I go to my GP, I get a different one every time. So I go to my GP, I've seen six different GPs, some problems happened. How am I to know which GP was the problem? So the High Court now has has just come up with a judgment that basically says that if I go to XYZ branded GP practice and I have a problem, uh, all I have to do is sue the practice, and the practice can figure out which GP caused the problem or not. But if I'm the practice owner, it's all of a sudden my problem and not the individual practitioners' problems. And again, these structures are very often not the GPs who work for the practice, aren't employees, they're all associates, so they all have their own insurance, different insurance, and so the practice is trying to shovel, getting all these claims in and trying to shovel it all off to the GPs, and the GPs all trying to blame each other in the practice, and it's all a big it's all a big bun fight.

Speaker 21:01

And so with those legal changes, and then you you spoke to their innovations in different aspects of healthcare, which mean that the commercial side of it is sometimes pushing further forward than say the insurance or the legal side of it. What are the kind of things that most practitioners need to either bear in mind or look at right now just to make sure that getting a complaint doesn't knock them off course, that they have the right protection in place and they have the right elements in place to be able to cope with something and it's not derailing the growth of their business?

Speaker 1 21:36

Yeah, I I think it is. We've talked about the support and the whole sort of support piece. I think again, if you are in some of these more innovative areas, the whole regulatory framework and regulatory support is an important part. It's something we offer a degree of a service to. At the end of the day, we're not CQC experts, but we've certainly helped a number of businesses and trying to. number of businesses through complaints to the General Medical Council about their promotion and so on. So we've got some fairly decent ideas and we've got some great connections in the CQC advisory firms and so on. We can pull in the expertise as as needed. But it's really helping to define what it is, what your practice does, and then really making sure that your insurance really does cover all these things is being absolutely honest and asking the questions and really checking out the answers to those questions. If you're considering using peptides ask your insurer you know if if I get a claim for recommending peptides is it covered see what they say. It is all those sorts of stuff is be cynical, be skeptical and and I think really certainly on that that more leading edge be aware you are probably one of the few people in the world who actually really understand the stuff and you probably want to make sure the people who insure you have something of an understanding about it. Otherwise you'll end up in an awful place you'll have an insurer who's just sort of shrugging their shoulders going well then what's that?

Speaker 23:06

And is that the challenge then there's an assumption because an insurer or a broker is offering insurance for the particular sector you're in that it they have a full understanding of what services you are offering, what products you're offering therefore you are covered and so you actually just need to be very explicit when going through the cover to make sure that you are covered in those areas.

Speaker 1 23:30

There's a certain amount of the devils in the detail so you know you get so increasingly in in some of these more sort of leading edge medical practices you get what's called off license prescribing. So a drug can go through all its clinical trials but it is licensed for a particular use in even in particular dosages. So the NHS when they approve a drug it is X drug is approved for Y use and here are the dosage levels depending on height weight severity what a whole table sometimes but these are the these are the the dosage amounts. Now strictly speaking even breaking a pill in half is is off license because it's not that table. Now that's probably not so bad and not covered but then you start to get certain medication is used in completely different ways so long COVID. All sorts of licensed medications which are licensed for all sorts of other things not long COVID because they were licensed long before there was long COVID are now used in the treatment of long COVID. So that's all off license but insurers being conservative people most likely in their contract half you are covered for subscribing drugs as licensed by and so on. So if you're doing that you need to check that you're covered for the off license use of medications.

Speaker 24:49

So the big takeaway from this really is that if you are operating in one of those sectors where you are like you say leading edge go back to your insurance check your insurance cover and make sure that those specific cases are mentioned and covered because there's an assumption sometimes that they are and you actually just have to be very specific and very open and honest with your insurance to make sure that you're in a position to get the protection you need.

Speaker 1 25:17

Yes absolutely and possibly even just understand a little bit you know the a lot of that health wellness stuff the top end of that is growing out of the aesthetics business. As you can imagine the sort of clientele that high end medical aesthetics practice have and are worrying about wellbeing and longevity and energy levels and menopause and a whole variety of issues and these are all doctors and skilled doctors the top end of the aesthetics market is some fairly skilled people there. So they're expanding their services but the insurance policy when and the insurer made the insurance policy they imagined that you were getting a bit of anti-wrinkle and some filler so the insurance policy anticipates that's your business and now you just add this service and that service and the other service and now all of a sudden you're recommending these you know the world moves on the in leave peptides aside just the supplements the top end supplement producers are producing are enormously targeted. It's for very specific purposes and for gut health is to promote certain types of microbe in your gut it's very specific and very targeted. And whoever built anesthetics policy didn't even imagine that would be happening. You don't want to be the person who when they realize that you know oh the guys who are all doing a little bit of anti-wrinkle and fillers are now recommending people to take these things.

Speaker 26:46

So so what you're actually saying here is that if you are in one of these areas you are expanding your service and again it makes perfect sense to expand your services is particularly because you know the ways of business you think around an audience you think around a customer they are need a certain number of things and different needs the insurance doesn't need to cover that this needs to be a conversation that you are having a commercial conversation with your insurance broker, insurance provider, whoever is providing you with that protection about these as you are looking to move into those areas yeah absolutely and we spend quite a lot of our time answering the question on I'm considering doing this.

Speaker 1 27:30

Is it covered on my insurance? Can it be covered on my insurance? And so on and we're very happy to assess and analyse and answer that question. And um yeah we have a good relationship with the underwriters and our insurers so if it's sensible and we can get our head around the risk and how it's managed we we can usually get there but don't assume that it's there to start with.

Speaker 27:52

I think that's a really strong note to end on there. So thank you very much Christopher that I think that's been a very insightful episode and lots to take away from anyone considering some of those areas that are right on the leading edge and some of the people who are already working there to go back, look at the protection you've got and take some steps just to make sure that you are covered and you are clear. Thank you. Thank you for listening to Confidence To Thrive before you go please rate review and subscribe to Confidence To Thrive on your preferred podcast platform and help us spread our message to others who are making a difference in private healthcare. This podcast was brought to you by Owlicity, instructive advisors who support your business ambition. Owlicity advises practitioners owner to make the note of healthcare practices on mitigating risks to your business control. Learn more about how Owlicity can support you by finding the link in the show notes or visiting Owlicity.co.uk