Suki Singh talks to dentist and Head of Indemnity at the BDA, Len D’Cruz, about the inevitability of complaints and how to prevent them from escalating.
Suki Singh talks to dentist and Head of Indemnity at the BDA, Len D’Cruz, about the inevitability of complaints and how to prevent them from escalating.
Life after GDC
John Makin, head of the DDU, said:
“The announcement of a Civil Justice Council working group to examine excessive legal costs in clinical negligence claims is a delayed but still welcome first step. Proposals to make claimants’ lawyers costs more proportionate to the compensation their clients receive were first mooted back in 2015. We hope that things will move ahead faster now.
“Even with dental claims, which are generally lower in value than medical awards, the fees charged by claimant lawyers are still, on average, above the level of compensation awarded and that cannot be right. For example in one settled claim, the claimant’s costs were more than quadruple the settlement figure received by the patient.
“Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and will help to establish some much needed balance to the system.
“We will be happy to take part in the working party to represent our members’ views. However, disproportionately high costs charged by claimants’ lawyers are only part of the problem. The cost of litigation is becoming unaffordable for the dental profession and the NHS. The Government needs to take more decisive action. We urgently need more radical legal reform to restore balance to the system for clinical negligence claims.”
It has been a little while since I last wrote this blog. Various things have taken over as they tend to do in life, and the blog unfortunately was something that seemed to never quite get done. However, I’ve now found myself back in the writing frame of mind, and I still seem to have opinions that some will agree with and no doubt others will disagree with, so here we go with some more ramblings of a Yorkshireman.
I have still been keenly observing what has been going on with regards to the profession over the last few months, and there still seem to be the same old problems surfaces that always have. I shall be writing about all of these issues in the near future.
The GDC seems to still be a problem to many, and personally whilst it seems to be to have become more aware of its previous problems, I don’t think it can truly move on whilst the current chair is still at the helm. It is time for a registrant to be in charge again, and for Dr Moyes to be moved to some other Quango where he can’t oversee damage to the morale of an entire profession.
Social media is also still a hot topic, and the GDC have now issued a case study on this. Some of the profession are obviously of the opinion that social media is the real world, and seemingly lack the ability to see it in its true context. There is a lack of humility in the profession where social media is concerned, and huge damage can occur to people when they believe that all they see on their iPhone is the unadulterated truth. It isn’t.
The lack of a new NHS contract, or anything really concrete is also concerning. However, I have a fairly simple view on this. We must be deluded as a profession if we think for one moment that there is suddenly going to be a fantastic new contract that will give the patients and us everything we ask for. I will guarantee that any new contract will primarily be worded to the benefit of the DoH so that the dentists can be held responsible for whatever goes wrong with it.
I’ll write more on these subjects in the coming weeks. But for this blog I though I would concentrate on something that has seemed to be brewing for quite a time, and might actually be reaching a tipping point.
Now, I can remember when my indemnity was about £1200 a year, and didn’t particularly change by much annually. But now, as a principal dentist working full time, it is £5800. This increase is over the period of about 10 years. We have seen an increase in both the activity of the GDC and especially negligence solicitors in this time, which it is claimed to account for the increase in our costs.
Indemnity is a little bit like car insurance in that you hope you will never need it, but it is a necessary evil to have. With the costs of legal representation being what they are, and the increase in the amount of cases being brought, it is not really surprising that costs rise year on year.
But how do we know how these costs are calculated individually? If you are a young driver with a fast car (which you will no doubt be flaunting on Facebook!) then you are likely to be a higher risk than an older person in a more sedate family saloon. This doesn’t necessarily translate to your dental indemnity though. It seems that the longer you are in the profession, the more likelihood you are to be sued and thus have higher premiums. Perhaps the reason for this is that when these practitioners retire, often the patients are found to have large amounts of remedial dentistry to be done. This may be the case, and I am aware of some dentists who have built up a good practice on rectifying this type of problem, especially when they perhaps encourage the patient to take some form of action against the previous dentist.
I’m not saying a wrong shouldn’t be corrected in that situation, but there do seem to be some dentists who are quite happy to throw colleagues under the bus in order to ensure they get the benefit of the patient charges to rectify the problems. Perhaps ‘There but for the grace of god go I’ would be an apt phrase to remind those considering this course of action. In addition, they will also find that their indemnity is going to increase also when this happens.
Because that’s how this kind of indemnity really works; the current members are paying for the claims that are currently being made and are going to be made in the future. In much the same way as the state pension works. We can’t have an indemnity company suddenly have empty coffers, so they have a duty to ensure they assess the needs of the society to actively have the funds to cover their expenses. All of this is paid for by the membership.
However, this is where I spot a problem. There are some dentists who for what ever reason have higher indemnity costs. Whilst it always seems unclear why this is (as there is no apparent transparency in the fee structure when applied to an individual member), it is not unreasonable to consider that there might be an increased risk identified by the indemnifier. So they are basically saying there may be claims likely to be made against this person in the future. I have no problem with that in principle, but the issue comes when this person then leaves the society because the costs of indemnity have risen so high it is fundamentally unaffordable for them to keep paying.
What happens then? The costs of these future claims will be potentially met by the rest of the members who are maybe NOT doing the same sort of high risk dentistry as the member who has left. One can argue that this is a socially responsible and indeed professional manner in which a wronged patient can claim recompense. The problem occurs when there are more of the lower risk members paying for the expenses of the higher risk. Add into this situation that the societies offer ‘discretionary cover’, meaning that your claim only has the right to be considered by the society (and not actually guaranteed to be supported), then some people feel that they are paying an increasing amount of money for less than guaranteed and continued support in their time of need.
It seems to me that many of the members of the traditional membership societies are becoming increasingly worried about the inexorable rise in costs, and the discretionary nature of the support offered. I am aware of much conversation about the pros and cons of moving between the societies, and I’m also aware of the increase in membership of the Insurance based companies as a result of the concerns about this. One of the advantages of insurance based cover is the presence of a written contract, and the ability to make a complaint to the Insurance Ombudsman, which doesn’t exist with the discretionary membership. In addition, the insurance companies are also heavily regulated by the likes of the Financial Services Authority; the traditional indemnifiers however seem to have no regulator at all. The counter to this argument is that with discretionary cover the traditional indemnifiers can cover those who are not indeed members at the time of a claim, and for the benefit of the profession. I can recall this publically happening at some point in the past, and if I am not mistaken it was a human rights issue that became clarified as a result. However, just how many times has the discretionary cover been used in that manner, and not just to refuse cover?
The way I see it, we will reach a tipping point if something is not done soon to clarify more robustly the stance of the traditional indemnifiers, especially where their discretionary powers are concerned. I want to know that I have the support of the indemnifier in assisting me in my time of need, and not that at some point they decide to pull the plug due to a disagreement or just because it is easier and cheaper to settle (despite it being morally, ethically, and clinically wrong to do so). Does writing a blog of this nature give them grounds to refuse cover? Your guess is as good as mine since there is no real published criteria to know where you actually stand.
I can see there becoming a tipping point at some time in the future where all the good clients of the protection societies are no longer willing to put up with the uncertainty and the lack of transparency about the decisions made about any individuals’ costs and especially the discretionary element of support. These clients will leave, and since it is a requirement to have appropriate indemnity, there will be no shortage of new style companies happy to disrupt the market place and offer an alternative.
For example, what if the indemnifier needed a million pounds to cover its expenses and it had 10,000 clients? The cost per client is obviously £100 per client. But what if this indemnifier then starts to haemorrhage clients until it only has 1000? The cost per client is then £1000. These remaining clients are not necessarily going to be the high risk ones either, as it’s probably the case that those higher risk clients will have changed society much sooner in order to keep their costs down.
This is probably a gross oversimplification, and I’d actually welcome someone putting me right over this, especially from any of the defence societies. However, fundamentally what I see is an ever increasing demand on the resources of these societies, with a potentially decreasing number of members footing the bill, and those members not actually knowing if they will be fully supported by the society due to the discretionary nature of the membership. This is a prime situation for a tipping point to occur that changes significantly the whole model this operates under. This might be practitioners leaving, or it might be a re-evaluation of the business model to take things into account. However it is not something that can remain the unchanged as it appears to me unsustainable in the long term.
Before anyone says this couldn’t happen as the societies are so big and have so many customers, all I have to remind you of is Kodak not identifying the digital camera revolution, Encyclopaedia Britannica not recognising the threat of the internet, and finally the inexorable rise of Uber in its disruption of how we utilise taxis.
All indemnifiers are also reliant on the need for legal cases to continue. By this I mean there is a symbiotic relationship between the defence and prosecution of dental cases, as without one side the other cant really exist the in the same way. Once a case is begun, then costs accumulate on both sides, and the legal profession feeds from this accordingly. These adversarial sides become dependent on one another, and in particular the defence side of negligence does not necessarily work under a no-win, no-fee basis in my experience and gets paid regardless of winning or losing (by our indemnifiers). Cynically, one would say it is therefore in the financial interests of those in the legal profession to have the current highly litigious situation in dentistry to continue, because there appears to be no shortage of work for them. The practice of dentistry becomes the raison d’etre for the existence of both the societies and those legal firms feeding it until we do something to stop it.
There may be protests from the indemnifiers of the tome of this blog; certainly I have taken no account of some of the truly awful issues that result in harm befalling patients by some practitioners. I am definitely of the opinion that we as a profession most certainly still need to put our house in order, and there is probably no room within it for some of the practices that some of our colleagues routinely feel are acceptable. However, unless you are part of the solution, then you are actually part of the problem, and I feel that there should be much more clarity evident in the world of indemnity, so that the profession can practice with the confidence that our patients need us to have when caring from them.
Otherwise, what’s the point in us continuing to serve our patients? That may well create a further tipping point…..of no one in the profession left to care.
Image credit - Guiseppe Milo under CC licence - not modified.
Tis the season to be jolly
Fah la la la lah, la lah la lah
Well after an autumn break to see how the land takes up the fertiliser of restful thought, we approach the Christmas break with a need for reflection.
What has 2016 thrown at us?
A reason to be cheerful? A season of Goodwill? A sense of hope?
There are three major areas that seem to be affecting the profession at this time.
There is the issue of the GDC and its new Case Examiners.
It is too early to say if this will genuinely make a difference. What we want is for the GDC to stop trying to be a Complaints House, taking everything on no matter how trivial.
Dr Colin Campbell, a widely-respected colleague in the Midlands, with a personal history of the dealings of the bludgeon that is FtP, clearly thinks not – again with personal experience.
But then again, why would CEs make a difference? They have been tasked and trained by the very organisation that had the problem in the first place. And the problem is that the GDC do not reject anything.
Some of the recent cases suggest that the GDC still do not know what a proper complaint is. The whole list of FTP is awash with material that is either better managed locally and or indeed a simple internal disciplinary matter.
So, if you have not done so, get your £900 out for another year of outrageous wasteful use of your money. But do so with a good grace. It could be worse.
Is it me or have we become so numb and subservient that we just accept it as a nuisance nowadays?
NHS Pilots – self funded by dentists!!
Meanwhile, perhaps all is well with new NHS Pilots. We all know there is new money, and we all know that the DH wants to get bodies through the doors, never mind whether anyone does any dentistry. But the idea of a Care Pathway appears to be well received on its own merits.
But there appears to be strange anomaly that the pilot practice may face up to 10% - YES TEN PERCENT – clawback – which if your profit is running at 20% reflects HALF THE PRACTICE PROFIT - which for most Pilot Principals suggests a cold winter looms.
Good on the BDA for highlighting this matter, on stage at the Local Dental Committees Officials Day , with the DH Head of Finance and the “fabulous” Dr Sara Hurley [You did see the Good Morning interview spat between our CDO for NHS England and Dr Tony Kilcoyne didn’t you?] sitting along side as Dr Henry laid into them in no undertain terms.
Indemnity in Crisis?
Maybe all is well with our support network, the Medical Indemnity Organisations. You know – Dental Protection, DDU, MDDUS and the newer companies such as Taylor Defence Services.
Well, who knows? There are stories of some colleagues finding their cover withdrawn in a discretionary manner halfway through a case. There are many stories of colleagues finding their annual cover suddenly approaching 5 figures and beyond. There is still no clear method for subscription calculation although one hears mutterings about the legendary ‘grid’. A sort of Spot the Ball for Indemnity subscriptions!
Whatever the truth, there is a financial crisis in Indemnity, driven by a combination of commercially proactive lawyers and an overzealous GDC. So much so that there is a one day crisis conference being held in January
After many discussions about rising Indemnity and concerns some colleagues have been left with no cover or representation etc., A 1-day Seminar is being organised by Dental Practice at the Hilton Metropole, Birmingham NEC, on Friday 27th January 2017 from 08.30 to 17.30pm.
Concerns are being expressed across the dental sector about the delivery of Professional Indemnity cover and what is and is not included in the various offerings from the MDO’s. As a result, and in conjunction with many key decision makers, it has been decided to hold this 1-day seminar to look at the current situation, with much time for Q&As.
Well that all makes for an energetic start to 2017.
It must be time for another letter to educate the public again, if the recernt rubbish written by Hunter Davies in the Times is anything to go by!
I suggest we all turn to our loved ones and count our blessings. In the year that we have lost Leonard Cohen, AA Gill and Greg Lake, we will not be short of words and music.
Put your practice to bed, and come back refreshed after a nod to the year, raring to go – unless of course you rely on Southern Railway in which case, the very best of luck!
If Christmas is your celebration, may yours be peaceful and joyful. That much we can be assured of
Dr Colin Campbell – the GDC have failed at their first hurdle
Henrik Overgaard-Nielsen, Chair, BDA General Dental Practice Committee, has posted an update about the prototype contracts on the BDA website
Also here for BDA members
http://www.content.digital.nhs.uk/catalogue/PUB22526 for NHS report of Motivation
Dental Working Hours, 2014/15 and 2015/16 Motivation Analysis, Experimental Statistics
Back in April this year All Med Pro teamed up with Hiscox Insurance to provide indemnity cover for Dental Professionals across the UK.
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So if this happens to us, we need to know we’ve got the support and help of organisations that can back us to the hilt. The backing of our indemnifiers is our lifejacket; they take our money and promise to help us keep afloat.
But it is becoming apparent that the support we need to rely on might not always be a given. An increasing number of colleagues seem to be being told by their indemnifier that they wont be supported, or they are supported up to a point and then dropped. No smoke without fire? In reality I’m sure there is a degree of this in these situations. Social media is often full of discussions involving this subject, with some of the participants almost wearing a badge of pride that they’ve used their indemnifier multiple times. I’m left thinking in those cases that the problem here isn’t the indemnifier, but the way these individuals are practicing dentistry and not learning from what appears obvious to others. After all, if you keep on crashing your car into the same wall every time you drove to work, perhaps its about time you either drove a different route, learnt where the wall was, buy a slower car you can control, or just give up driving. In these cases the indemnifier is probably absolutely right to start loading the costs of representation.
Is this always the case though? There seem to be so many rumours flying around that suggest if you ring for advice this counts against you, or that if you settle a certain number of times you’ll see your premiums loaded or even cover withdrawn. There is a definite lack of public clarification from the indemnifiers about the decision processes involved in these situations. One of the indemnifiers has said that ringing for advice does NOT load the premium or count towards a risk analysis. But what about a letter that immediately closes a case or offers a refund (which is usually out of the pocket of the practitioner and not the indemnifier). We don’t know what their process of risk assessment is. We need to.
I’ve been aware for a long time of the discretionary nature of much of the indemnity, and the fact it can be withdrawn, and I’m surprised more dentists aren’t. But I’ve never heard of so much of this discretionary withdrawal actually happening as recently. A good part of this is probably due to the unprecedented increase in complaints, but is this the only reason? There isn’t any public explanation usually as to what discretionary cover is, because it’s at their discretion, which is a fantastic catch all, but that doesn’t help us. We don’t actually know what the criteria are, so we don’t actually know if we are going to be helped when we need to be. Some practitioners will be higher risk that others, but that is not necessarily their fault either. Some of those will work in environments that are naturally more hostile than others, such as prisons, and it is not their practicing style that brings the risk to them or the indemnifier but the nature of the patients they treat. I would also strongly argue that there are certain demographics of patients and even geographic hotspots that increase the risk of complaint and claims, and perhaps we should be made more aware of that in order to mitigate the risk to us. We need to know.
I can see the point that if we don’t know what the reasoning is we wont construct our practice around it. A sort of Indemnity Gaming if you like; if you know the criteria that are used then you know what you can get away with and just stay within the margins (if you are a dodgy practitioner that is). But this is what risk assessment should be about. I’m talking about the risk to our livelihood and careers here. We can lose our home due to a regulator that we accept is not fit for purpose, so we need the security that our indemnifier is going to be transparent and fair with us.
I don’t see any profits warning or indications that their membership reserves are running terminally low from any of the indemnifiers which suggests that they are in reasonable financial health. Given the beautiful offices that many of then operate out of confirms that indemnity is big business. Which leads me to where I think part of the problem lies.
The bigger a business, the more it loses its personal touch. There is a immediate personal contact with the advisors who do so much valued work, but they are not going to be the party that decides if support is withdrawn or not. That is likely to be made at a higher level, lacking in the emotive connection with the dentist. There is so much litigation going on now that the indemnifiers have to be large, and have to have the resources necessary to run such organisations. The costs of the support network in order to run the core business are huge. The cost of the legal representation for its clients is also huge, and shows no apparent sign of getting any less. As more patients complain via the medium of ‘No Win No fee’, or direct through the GDC, then the need for the indemnifier grows symbiotically as does the drain on its resources. With the demand to stay in business, then the indemnifier needs to ensure it is financially solid enough to survive to protect its clients. Its survival then becomes the prime reason for its existence, and it becomes even more risk averse. Thus affecting the very clients it is there to protect. Is this why some dentists are finding themselves without a lifejacket? Will there eventually be a multi million pound business protecting the one or two clients who are so risk averse themselves they will never need the indemnifier as they never see a patient?
This symbiosis is no different to any other supply and demand industry. The more the GDC presses ahead with what appears to be the UK’s largest complaints handling business, the more the indemnifiers will grow on the back of the legislative need for us to protect ourselves. The more they need to protect the finances of the business it becomes.
But we need to know they will be there for us when we are walking the plank. Perhaps the indemnifiers should publically reconnect with us, be more transparent, and show us their human side once more. After all, it’s not all about the money….
It’s about saving lives.
Image credit -Ian Armstrong under CC licence - not modified.