SPEAKER_01 0:00

You're listening to Confidence to Thrive, the podcast for ambitious healthcare practitioners and entrepreneurs, brought to you by Our City Advisors. Welcome to Confidence to Thrive, the podcast helping growing practitioners and help care entrepreneurs navigate the challenges and risks of regulation while building brands that matter. Every episode we tackle a different issue facing healthcare practitioners or entrepreneurs. We interview a guest who's work on the leading edge of private healthcare building something that matters in their sector or profession. My name is Jody Rainsman, and on today's episode I'll be discussing with Christopher Cloak Brown and Roger Houston, directors at our Licity, on how to take great notes for functional medicine practices and best practice to sports defence against claims. We'll touch on the challenges that practice face, the downside of poor note-taking, and what to take action on. Let's get into the conversations. This is a subject that's come up time and time again over all the episodes of Confidence to Thrive that we've recorded, the importance of note-taking. I think the first place to start is what is the challenge caused by poor note-taking?

SPEAKER_02 1:01

So I think an absence of obvious defensibility. So we come at this from a defensibility perspective, which means that we're very keen on notes disabusing a claimant lawyer who's likely to sue one of our doctor clients on behalf of a patient who thinks they are wronged in some way, typically on a no-we, no-fee basis. So if we part clinical risk for a moment, let's think about litigation risk. So if the notes are to a standard where candidly the lawyer can't see a way through to establishing breach of duty and therefore negligence and causation, or those medical experts that he's asked to have a view on breach of duty effectively shrug their shoulders and say, I would have done the same thing in the same circumstances based on these notes. That's clearly a defensible case, and the lawyer will put that on the side and say, There's no way I can see a clear route to a victory here. Victory is defined as proving 1% negligence against our doctor. That's important because there's an asymmetry here that most people don't understand that 1% negligence translates to 100% of recoverable costs on what we call a standard basis, and we can talk about the difference between standard and indemnity costs. We can give Prince Harry a little bit of a briefing on that because he's just learned a very hard lesson in connection with the defamation case against the Daily Mail. But the legal principle around costs applies to our part of the world as much as it does to defamation against a national newspaper. So that's where I look for, if you said to me, what's a good set of notes from your perspective? And we've talked about this before, Jodie, where we can't refuse to release notes to a patient who can then seek a legal opinion from a lawyer. What we look for is them being sufficiently watertight that a letter of claims, alleging negligence and various other things doesn't come back to the practitioner.

SPEAKER_00 3:14

I think it was interesting, Roger, when we were chatting with Adrian Richard, who, as you know, is enormous 40 years of experience. I think 40 years of experience in plastics and some in the NHS, even before that. And when we were talking about this. You said when you were at the NHS that like your heart sank when the defendant stood up and said, I can't remember what happened that day. My normal practice is. And Adrian just laughed his head off and said, He's just sunk, isn't he? And the absence of notes is effectively you might as well just write it down as a as a loss and litigation.

SPEAKER_02 3:44

Yes, it significantly increases the risk to the defendant, which is really our perspective, or the prospects of success for the claimant lawyer who's coming after you, whichever is two sides of the same coin.

SPEAKER_01 3:57

And so the the severity of this is the thing that you are considering first and foremost, and being able to immediately deter that litigation. So, why is there such a gap between how seriously people take notes and some practices is a core part of everything they do? You've talked about good practice, and we've talked about that in various places where that has significantly shortened the amount of time that someone's had to deal with a claim because straight away those notes have killed off any idea that there will be litigation. And knowing that, why are some practices still not note-taking to the level that would protect them in the way that they need to be protected? What are the particular challenges that you see that people have?

SPEAKER_02 4:42

A combination of time pressure with some certainly at the GP level, if you've got six minutes of client to include note-taking, that's not long. I'm and I'm very well very happy to take comics on this podcast when it's broadcast uh arrogance on the part of a practitioner, that they don't feel that they need to explain themselves to their professional colleagues, never mind anybody else.

SPEAKER_00 5:10

Would you say there's a focus element, Roger, to the extent that I think I've heard some practitioners say to the extent that I'm got half an eye on my notes and half an eye on the patient, I'm not giving the patient my full attention.

SPEAKER_02 5:22

Yeah, yeah, there's an element of that. There's also an element of older practitioners, particularly saying, I don't want to trouble the patient with all of the all of the decision points here. I just want to tell them what it is they should do and record that. So the risks of that X years later is saying that the patient's saying, had I known those other options and their risks, I would never have agreed to this particular course of action. That's the the short dagger on that argument. You can end up trying to make things easier. There was definitely, when I first started doing this, a doctor knows best approach, and it wasn't arrogance, it was benevolence, and benevolence doesn't necessarily get you the defence that you need in the forum that you need to deploy it. As we've said before, the the witness box is a lonely place. The only doctor in the whole thing is you. Both sides, councils are lawyers, the judge is a lawyer. The only sort of kindred spirits you might have professionally are the expert witnesses, half of whom are against you anyway. So it's quite a lonely place and it's one to be avoided.

SPEAKER_01 6:30

When you say benevolence, do you mean purposefully withholding uh information that you don't think that the patient needs to hear or the patient needs to worry about?

SPEAKER_02 6:38

Yeah, I guess there were two motivations for an introduction for the duty of candor, which is a relatively recent concept. One was the suggestion that they thought the profession was being guarded, and those were withholding information which they thought would have been potentially critical to their practice, or alternatively, and maybe less significantly, the benevolent side of it. So you have a duty of candor. When cases go wrong, and you eyes will reflect that in the notes to say here are the options, here are the quantifications of the risks associated with these options, here's the benefit, the benefit exceeds the risk, ergo it's in your best interest, and that needs to be noted as succinctly as you can. You don't need to go, notes don't need to be verbatim, but they need to evidence the key decision making that's gone on that has precipitated the course of action that's ultimately complained of. That's how I would summarise it.

SPEAKER_01 7:37

One of the things that you have said a few times on previous episodes is that a lot of the quality of the note-taking, we have very good quality of note-taking because because of the NHS. And so that when they originate from NHS practice, there tends to be a higher quality. Is it a case of there is a lack of training around how to take notes, or what is the thing that sits behind that there is variability?

SPEAKER_02 8:09

So from our client base, we tend to have relatively few private medical-only practice practitioners. The difference between private practice and NHS practice is the obvious commercial imperative, and some of these procedures are a bit conveyor belt-ish. And the suggestion that you're coming to a private practitioner for a discrete, if you like, isolated procedure. So the nice thing about NHS notes is that you get them in the round and you make a contribution from your own specialist perspective, but you do have access. One of the things that's very clear to me from some of the private notes I see is that they are written in a vacuum.

unknown 8:56

Yeah.

SPEAKER_02 8:57

I'm not saying I'm not saying they're not sufficiently specialized for the reason the patient's there. But interestingly, just on this MDT last night, there was a whole conversation about at what point you should end up taking a specialist psychological opinion, because this is a plastics business that we're talking about. So there's a component about image and dysmorphia and various things. If you go to a private procedure for an orthopedic procedure, the focus is very much that. And then, in reality, three years down the line, when you're approaching court, someone says, Well, you should have taken a dextero scan, you should have done this, you should have done that. The other thing, particularly with private procedures that I've noticed, is there's too much deference to the patient at the risk of giving proper professional advice. So the number a number of times I've gone to take a defensive statement from one of our clients as a potential defendant, and he I said, Why did you do that? And the answer is because they asked me. Well, that's neither here nor there. In your professional opinion, was it appropriate? Was it risks v benefits? Does the benefit outweigh the risk? And we get that quite a lot on not so much on serious orthopedic stuff, but you don't tend to get that privately on the cosmetic elective side. I did that because they asked me. You're the expert in the room, and if that's not in their best interest, then you have to say no. And in the NHS, you tend not to get that, but it's relatively rare from my NHS LA days to read in the notes. I did this because the patient asked me. There's more collegiate support, I would say, within the NHS. I get the impression with some of the people, some of the notes I see, there's this if I don't agree to do it, they'll go next door and get it done. Yeah, and the NHGMC is very clear on that, but you're there for the patient's best interest, not for your own financial well-being. And that, if you spin it to say we deal with disciplinary cases, Jody, as you well know, and a very destructive allegation from the GMC is you've offered treatment for a financial gain. And the suggestion that you've been asked to do something that your gut tells me tells you you shouldn't do, and then you said no one writes this, but the subtext is if I wasn't going to do it, my competitor next door would. That's not defensible medicine, that's a short course to a serious GMC issue. And so it's public safety, patient safety, it perhaps ought to be.

SPEAKER_01 11:33

So, from a kind of a fundamental level, then what does a set of notes look like? You said that it doesn't necessarily have to be verbatim, but it talks through the thought process of the vaction in sufficient detail, what has been explained to the patient. Yeah. Is there anything in there that people often leave out that would be valuable to include quantification of risk?

SPEAKER_02 11:54

The quantification of it.

SPEAKER_01 11:57

Is that a normal thing? Is that a standard thing? No, okay.

SPEAKER_02 12:00

As a layman, and people are saying, What the hell do you know? You've not been to med school. I've seen quite I've seen way too many very good, competent practitioners get caught out by what does significant mean? There's a significant risk of bleeding. What does significant mean? It can only mean something within the context of what you're proposing by way of the procedure. And it's interesting that medical science, such as it is, and the the literature carries an awful lot of information that's capable of quantification. It's where quite a lot of these probabilities come from. But it's it's my concern on defensibility is when the notes are too discursive. There's no, so I've just had a very interesting afternoon with a consultant, plastic surgeon, on what's effectively a dissatisfaction case, and we're going through the notes, and one of the things is asymmetry with between one breast and another, or the other. You've only got two, so it's one and the other, and in terms of nipple height, symmetry, and all the rest of it, and she's done a wonderful job. So one of the complaints is the left is not the same as the right. And she said, I told her that. I don't disbelieve that she did, but the killer for me is it's very clearly written in the notes that there is asymmetry here, and then it's described. So if you think of levels of defensibility, and we've talked about this before, something that's written in the notes, recorded, evidence, you know, quantified, particularised, whatever is the gold standard. The killer is I don't remember this patient, but my normal practice is, and then somewhere around that level is I'm sure I discussed it with them, but it's not in the notes. If it's in the correspondence, you've got half a chance because the correspondence is part of the note, and to be honest, it is in this case, there were several detailed clinic letters which covered the ground, but it was belt and braces in that case because it was particularised in the notes, and then that informed the commentary in the case correspondent. And I mean, interesting enough, this woman is a wife of a senior and well-paid legal business executive local to me. There's every prospect of them taking legal advice, and then I'm quite happy. Almost encourage them to do that, but takes the pressure off the doctor. Here are your notes, go off and get a legal opinion, and when that comes back to say there's no case, then that's an independent verification that they will accept. So I courses for courses. If the notes are that good, great, use the Michigan shield.

SPEAKER_01 14:34

The gold standard is make your notes so good that you'd willingly give them to a patient to go off and see.

SPEAKER_02 14:41

The other thing I would say is that the doctors, they're not good in confrontation, most of them, it's not what they joined for, they're there to try and treat people, whether it's privately or through the NHS. And lots of people think, oh, I've had a complaint, I might as well just do whatever they ask. As I always say, the starting point in all of this, think of it like a script for a play. If you like the patient journey, you're the playwright, you write the notes, so they need to be of a sufficient quality that they're capable of independent scrutiny and support. Quite a lot of what we ensure is not leading evidence. That's why I like functional medicine, actually, because that's the closest that I think Chris and I get to something that's genuinely leading edge. But your average plastic surgeon, particularly if it's of a more cosmetic nature, there's a range of procedures that is not new to medicine. And you write the script for each patient. So, in some ways, if someone picks your notes apart to the point where you have to conceive negligence, that's quite a low blow. That's you've only got yourself to blame for that without being unkind. That's why we talk about cases being lost by a poor defendant discipline rather than one by a claimant.

SPEAKER_01 15:52

Yeah.

SPEAKER_02 15:53

Because the burden of proof is with the patient.

SPEAKER_01 15:56

And what part do practices to businesses where you have multiple practitioners working within it? What role do they tend to play and what role should they play? Is it a white practice will come together and they will set a standard for note-taking or at least review each other's notes or have something in process, or is that very much there's only a handful of people doing that? What tends to be the kind of the common practice around that?

SPEAKER_02 16:24

Referred pain. Yeah. On the basis that something's gone wrong, it's gone to an MDT for a clinical oversight, and then as I attend some of these things, and that kind of comes back in the sort of risk management feedback loop to say the weaknesses in the case is distinct from the medicine or in the note-taking, and here are the specific areas.

SPEAKER_00 16:47

But I would say, Roger, from what we see is that we're and you are seeing increasingly large practices for larger practices, then absolute best practices is to have periodic peer review of notes, and we do see that. We do, yes, we do.

SPEAKER_02 17:03

Yeah, and then the insurance overlay for that is Chris is whether the these are circumstances that we need to report to insurers on whatever precautionary basis. Yeah. And that has the added benefit of sweeping up as you go along and your business's data room ready by way of legacy exposure, which is what we've spoken about with Asia and other podcasts. So it's quite a nice virtuous circle that.

SPEAKER_01 17:28

And one of the casing we were discussing before we came in on the episode was around the fact that that notes can point to a particular pattern that can be inferred. So simply notes don't always have to be as a result of some kind of action being taken or some kind of action being prescribed that from a pattern of behaviour of a patient and detailed notes being taken from that, it can support you in a claim when that comes up. And I think it'd be quite good to talk about that particular case.

SPEAKER_02 18:03

So this is an example where a close relative of the patient is very engaging with a particular doctor, and this was a sort of daily feedback thing for a period of time. And uh said, Well, I I didn't make detailed notes because I had 40 minutes of the same conversation every day, and really it was a two-sentence thing that would have made all the difference to say I saw X again today, 40-minute conversation, nothing new. So it builds a picture as to the patient and the way the family engaged and and what have you. Just because it was 40 minutes of the same broken record didn't make it unnoteworthy. From a defensibility point of view, that would have been useful to have been able to evidence.

SPEAKER_00 18:56

You also said, Roger, it's not too burdensome because you can imagine trying to write the same 40 minutes of notes every day. And then day three is I had the same conversation as day one, no change, and you can do that today, whatever.

SPEAKER_02 19:24

Yeah, because one of the particular allegations, not that it's got legs, but it's still been raised, is that there was no adequate feedback and there was a lack of compassion, a lack of dialogue, they were accusing the practitioner of not engaging, which is quite a serious allegation, notwithstanding the agent of the patient.

SPEAKER_00 19:43

Yeah, and so if we rewind all the way to the beginning of the conversation, the the lack of notes then just makes it uh almost a he said she said. And in my defense is uh my recollection is I talk to you for 40 minutes every day.

SPEAKER_01 19:57

I wasn't gonna say that in the absence of notes, what what does fill in the gap? What uh are you expected to provide to do? Is it just a kind of a statement of how you imagine it would be? And yeah, that's what you think.

SPEAKER_02 20:11

Yeah, so the clinical sort of valley of death is the he said she said thing.

SPEAKER_01 20:15

Yeah.

SPEAKER_02 20:16

Because there it that is as objective as it gets. And if we circle back to litigation risk, we need to ensure via the notes, which is the mechanism by which we effectively do this, that the litigation risk is firmly with those representing the patient. Defense, so litigation risk is not the preserve of the claimant, there's plenty of litigation risk for the defendant, and one of the ways it manifests itself very quickly on the defense side, is I don't remember this patient, but my normal practice is. Or I'm sure I said that because you can bet your bottom dollar, those representing or the patient or their parents or whoever will not recognize it in the same way as you would have persuaded themselves whether it was actually said or not, that's what was said, and therefore, this whole consequence of calamity for which you owe them a huge amount of money originates from this, and you can't prove otherwise. So it's also a bit of a fallacy. It's true to say the burden of proof rests with the patient, that's true, but the inference can quite readily be shifted on the basis that you can't categorically prove what you know you've said, which is really where the defense comes in. And that's really the tragedy of notes is the fact that you haven't filled them in properly. And the trouble is we all do it. This is the tenth person you've seen, you've got six minutes, you've got to get out to do house calls. I'll do that later, or I won't do that. Nine out of ten cases that day, or any other won't come back to bite you, but this one will.

SPEAKER_01 21:58

Yeah.

SPEAKER_02 22:00

So in terms of I quite like slow horses, I know lots of people think it's all rubbish, but I think it's quite harmless drama. So I've calling this for a spidey sense. Your spidey sense, if you've got a parent who's a pain in the neck, guess what? Your spidey sense should be tingling to say actually my notes need to be that much better because this person will come back and complain. It's just a matter of when and where.

SPEAKER_01 22:21

And well, good practices try to identify those ones that seem to be higher risk, not just from a medical perspective, from a this seems like the kind of person who will complain risk.

SPEAKER_02 22:31

Yeah, they're all too polite to call it a pain in the neck index, but that's basically what it is. That's as an important tool, defensive tool, as good medicine. Yes, you clearly you need good medicine, but you need to be able to evidence it.

SPEAKER_01 22:43

Because that's just as much as disrupting the business as a medical claim, isn't it? Yeah, almost more because that person is really dedicated to disrupting the business as much as possible. And there are very real reputational concerns, operational concerns, and for the person involved, probably worry and harming the business in a way that's probably disproportionate to the actual claim that they have.

SPEAKER_02 23:08

Yeah, yeah, and we've spoken about it before the idea that a very competent physician or practitioner leaves the profession because of a poor experience through discipline or claims. It's a loss to society, isn't it? On the basis that good doctors are hard to find and we all want to benefit from good medicine. We've all got loved ones and family. And how can society benefit when a very good doctor says I solved this? I'm not putting up with that, I'm not being accused of that. It comes back to the point, it's not all over before you write the script, and it's not like you're not able to do it. You are the the professional in the room.

SPEAKER_01 23:44

I suppose a lot of what a lot of what we're talking about here is about taking control, feeling as I think a lot of people who experience their first claim or complaint, they feel out of control in those situations or they feel the situations out of control without realizing how much they can do to control it and not have to capitulate and manage it and know the right process to go through. The other thing I want to ask is around technology. We talk about note-taking. Has the advent of technology changed this, the ability to record conversations? And I anecdotally know people who take recorders in to record diagnoses with doctors partly because they can't remember what the doctor says or to listen back to it, and also the use of AI, which again facilitates note-taking and in more detail, but also brings own challenges. What kind of impact do those things have on producing it? Is it possible to take notes, say voice notes and them to be submitted, or is there a preference?

SPEAKER_02 24:44

Chris is the one to deal with AI from my point of view. I can tell you from my experience that where particularly long and detailed consultations are taped or recorded, and that voice file is made available as part of the notes, that can be accessed via a patient system, subject to the whole GDPR file all around it and all the rest of it, there is a very noticeable trend that those cases don't tend to result in claims being pursued. So there is a little bit of wriggle room on written notes, but if you can record it and give the copy to the patient for onward transmission to their lawyers or direct with a suitable mandate, there's a lot of good advice that's given that's captured. And those cases, in my experience, tend not to progress in the same way as you could imagine a similar set of competent notes might. So to me, that's to be encouraged. And certainly with the functional medicine stuff we do, where you've got complex multiple modalities in play, and people have had a poor journey elsewhere with medicine generally. It's very useful to be able to listen to a conversation where there's some stark home truths explained by way of what can and more importantly, what cannot be reasonably expected from what's on offer with this practice versus the diagnosis that they're trying to address or whatever. So I think that's very useful, and it's worked well in a couple of complex cases where there was some serious potential for the difficulty that recording has put the case into the wrong grass. And here we are dying a year later. We've had nothing more. Most cases tend to run in a much shorter time frame. So I would be optimistic enough to close the file and think that we're out of the words on those cases. And I'm pretty sure that the difference between that and what you might imagine would be a second bite of the cherry with some tenacious lawyer has been the recording of the consultation, not necessarily the notes recording it manually if you like. So I'm a big fan of that.

SPEAKER_01 27:01

And from an AI perspective, Chris.

SPEAKER_00 27:03

Yeah, so from AI certainly, and then we had quite a long discussion with Adrian, but it's episode 24, I think, on the whole thing. So I think very interesting, and I certainly think it helps with this issue that we did touch on briefly, the idea that you've got half your eye on the notes and half your eye on the patient if you've got an AI or something taking the notes and then actually frees the doctor up to to concentrate fully on the patient. As we were discussing ourselves, Jodie, even about our own transcripts with AI. You've always got the accuracy of the transcript question. Now, again, there's going to be medical and medically trained and medically biased and medically dictionary-backed AIs and so on and so forth. But AIs are far from perfect. So you I think you have to assume that there are some errors in your note-taking. So you probably don't need to just leave it to the AI and say, oh, that's wonderful. Because again, in that critical time, you'll pull up the notes and find gibberish. And maybe Roger, you can comment on how well that's going to go in court, but I can imagine what you're going to say. So yeah, so I think very useful, very effective. I would say to especially with audio files, which take much less storage space than video files. To me, the the absolute bulletproof is just a straight audio file. You can't beat a straight recording. You can always run it through AI with a later date if you want to summary.

SPEAKER_01 28:21

And is it just a cultural issue in terms of people not recording consultations? Do you think? Or is it just people not thought of it?

SPEAKER_00 28:29

Why do not why do more practitioners not record the technology thing to some extent, in that people won't be familiar and comfortable with the technology? It's still okay, it's not that modern, but it's not commonplace. I suspect there will be GDPR fears, people not understanding GDPR. Certainly, I think our own experience is, and again, this is part of the reason why we like these bigger practices that have multidisciplinary teams and that sort of thing, is they just have more resource. The whole cybersecurity thing when it was individual doctors used to be absolutely quite shocking. Even post-GDPR, they still merely email people's notes around from Dr. John at Yahoo.com. Completely unsecure, unencoded, unprotected, blasted off to the world, basically. That's much better now. So you take the big sophisticated practices, they've got they've got IT teams, they've everything's encrypted, everything's encoded, they've got encoded platforms, the the whole thing. So yeah, I think it's probably a sort of familiarity technology GTPR thing that the bigger practices have the resource to figure out and are starting to do.

SPEAKER_02 29:37

Slightly facetious and say I haven't seen a set of Lloyd George cards for an awful long time. So those are the small cards you may remember when you but actually, in terms of security, there's nothing remotely IT-based about them, and you couldn't read the doctor's handwriting anyway. Maybe Lloyd George cards are the answer. Who knows?

SPEAKER_01 29:57

So when we talk about note-taking, of course, we are in this episode we're keeping it separate from talking about the wider complaints process and how that fits into a practice and how notes fit within part of that. And we're going to be coming back at that to another episode. But I think we've comprehensively talked about notes in this episode, and I think there's been some lessons there that a lot of practice can take out of that in order to improve their note-taking and ensure their defensibility against claims. So I think a good place to wrap it up, and thank you very much, and I'll see you on the next episode. Thanks, Jacob. 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 Ourlitity, insurance advisors who support your business ambitions. Our literity advises practitioners, owners, and entrepreneurs of healthcare practices on mitigating risks so your business can thrive. Learn more about how OurLitity can support you by finding the link in the show notes or visiting ourlitity.co.uk