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There are a variety of reasons why patients or their carers resort to complaints or litigation. Complaints are a way of showing their frustration or anger and even indicating a breakdown of communication between the doctor and the patient. Doctors and nurses care a lot about patient complaints. Even a minor complaint from a patient can be quite upsetting and distressing for the doctor, leading to sleepless nights; particularly when they get a complaint from someone they thought had received unblemished care. On a positive note, complaints are an important source of feedback from patients and can be invaluable in improving the quality of care, service and patient safety. They also help in raising the standard of care, improving patient experience and thereby helping in governance and delivering a higher quality care.
Any complaint has a potential to progress into a legal claim. In modern clinical practice any clinical mishap could escalate into a litigation. A complaint and a claim are two different categories. Although a complaint could often help the claimant (patient) in bringing a claim against a hospital or medical professional, it is not necessarily essential for claims of clinical negligence. Complaints, verbal or written, are managed according to the hospital protocol, whereas claims go through a tortuous course with the involvement of legal teams. It is possible to lessen the impact of litigation, even in indefensible cases, by following some ground rules. A good medical practice not only protects the doctor and their patient, also helps to prevent complaints and potential litigation.
The course of clinical negligence is complex, as a claimant takes their medical practitioner to a civil court for compensation. In some cases, there could be a criminal prosecution by the state. The claimant’s solicitors investigate the claim by getting the clinical documents and then send a letter of claim which outlines the facts and sets out the details of breach of duty and causation. In successful civil actions there will be a monetary compensation to the claimant by the doctor’s defence organisation or by their employing Trust. When there is a successful criminal prosecution by the state, the Defendant will get a custodial sentence and referred to the GMC. In any medical litigation, the clinical evidence is important, which means clinical notes are invaluable resources for doctors and the claimants alike and could ultimately determine the outcome. The onus, therefore, is on medical practitioners to follow good medical practice and adhere to the basic principles, thereby helping their own cause in the event of litigation.
Reasons for Complaints
1. Lack of Information. Patients say they did not get enough information or it was not clear. They may claim lesser involvement in decision making.
2. Poor communication, dismissiveness by the doctor, poor comprehension of the treatment options.
3. Slipshod consultations not allowing patients to address their worries, anxieties, insecurities; brushing off patients queries
4. Unprofessional behaviour
5. Inappropriate conduct or communication by the clinician
6. Treatment and its complications; adverse events (AE)
7. Quality of care and patient dignity and respect.
8. Administrative shortcomings - waiting times, delayed treatment, breach of confidentiality, cancellations, not giving enough notice.
Reasons for Litigation
1. Delay in diagnosis resulting in poor prognosis
2. Incorrect procedures/treatment/techniques/medications
3. Medical errors - during surgery, anaesthesia or a medical treatment with wrong dosage.
4. Adverse event
Progress of a Complaint
Once the complaint has been lodged and investigated through the NHS procedure, it could lead to:
1. A written response to the patient, who then has to lead the way further depending on whether they are satisfied. Most of the complaints are settled with an apology and proper analysis and explanation.
2. A disciplinary investigation of the doctor
3. The doctor being referred to the GMC
4. An inquest if the patient has died or institute a procurator fiscal enquiry in Scotland
5. The hospital instituting an audit on doctor’s work
6. Criminal investigation by the hospital.
Prevention
There is no single action that can prevent a complaint or litigation but for prevention. The cardinal rule is to be adhere to good medical practice at all times.
1. Rapport with the patient.
With the advent of the internet, patients do some research on your background and reputation. Be professional, stay out of religion, political beliefs, avoid any compliments on patient’s appearance etc. Eye contact, listening, allowing the patient to express their concerns, showing empathy, appropriate body language. Being nice to them and their relatives are essential precursors for a good rapport. I prefer to give a free hand to my patient at the beginning and just listen to what they are saying. Surprisingly it is quite short and to the point, then I start my questions. Do not show your frustration or anger, which is really unfair and rude. Ideally consultation should go in an order - history taking, examination, investigations, discussion, questions and answers. If the patient forwards the test results to you even before taking any history, refrain from looking at them before taking the history and examination unless they are relevant to what information you are seeking.
When ordering investigations always explain why a specific test is needed and give a brief description how it is done. It is important to discuss the results and explain their significance. It is a dilemma when patient refuses to attend or fails to attend, particularly when they are in need of a further treatment for a life-threatening condition. It is vital to contact the patient or their family doctor in such cases. It is also necessary to do it in writing to the patient and their family doctor.
2. Helping hand, positive interaction and communication
Listening to patients sends a positive signal to the patient, it helps to build trust. Explaining medical jargon in simple language with diagrams is useful in furthering trust. Patients appreciate when you go that extra mile to guide and help them. Contact details, in particular after surgery or hospital treatment, should be readily available to patients.
3. Documentation
Unambiguous record keeping, whether computer or hand-written is extremely important. Start with your name, date, time, place of consultation and type of consultation - new or follow up. Important medical history and allergy should be highlighted at the beginning. Good case records will not only help in the clinical management but also immensely aid in dealing with complaints or litigations. Medical records are crucial elements when a doctor is defending their case. In fact, documentation can make or break legal claims.
4. Discussing the treatment
Explaining the limitations of the treatment with honesty and transparency is our duty. Nobody expects doctors to know everything about every disease or treatment. If you are not aware of a condition, tell the patient you would like to get more information and would come back to them. If you are not sure about the dosage or side effects of a drug, refer to the sources such as BNF but explain to the patient why it is necessary to get the correct information. You could also say new data are added every year and it is obligatory to check all the details. However, it is unprofessional to google and read the contents to the patient. There are several disease/treatment-specific guides published by professional societies/associations and charities which could be given to the patient.
5. Asking for help
It is important for a doctor to know their limitations and when to ask for help, particularly when they are not familiar with a specific condition.
When a patient makes a bizarre decision, which is not in their best interest, and does not listen to your advice, it is important to advise the patient to get a second opinion and also help to facilitate it.
6. Surgical procedures
Make sure that you have the right diagnosis and be clear about the procedure you are performing. For bilateral organs (like kidneys, limbs) the correct side is identified in the notes and marked on the body preoperatively. Pre-operative assessments are necessary to prevent cancellations on medical grounds. Consenting should be preferably done in the outpatient clinic when the patient is booked in for surgery; in the consent all material risks are explained to the patient and also alternative treatments. A copy of the completed consent form should be given to the patient to read and understand the contents so that the patient has opportunity to go through all the aspects of the consent and has enough time to clarify any doubts.
Preoperative and Postoperative Ward Rounds: Before starting your list do the preoperative ward rounds, preferably accompanied by a junior and a nursing staff, introduce yourself to the patients, check the consent and make sure all the imagery is available. Mark the side where indicated. Answer the queries patients/relatives may have. When the patient is on the table, look at the notes again after the theatre checks have been made and make sure that the correct procedure is being planned. Record the procedure step by step in a legible handwriting or on the computer sheet; also, difficulties encountered during the procedure and how they were addressed. If another surgeon is involved, they should write their part of the procedure. Add a diagram if required. Postoperative care instructions and contact number and name at the end of the record must be included in the operation notes. If you have relegated the care to another colleague, their name and number or contact details should be provided.
7. Multi-disciplinary team (MDT) meetings
The main purpose of an MDT meeting is to bring together a group of different specialists to plan the patient’s clinical management. They are a great source of learning and help to improve standard of patients care and outcomes, and successful patient recruitment to the clinical trials. As far as the legal standing is concerned individual’s duty of care still counts, as medical law does not include groups, but MDT documentation is useful in the investigation of complaints and claims.
8. Handling the situation when things go wrong
Any operative intervention, major or minor, should be carefully monitored throughout until the patient is discharged from the hospital. Side effects and complications need to be identified and managed actively, which is only possible by a continuity of care with the help of a competent team and diligent recording of the events. While discharging from the hospital, patients should be advised about signs and symptoms that might warrant medical attention or admission.
Adverse Event (AE) is defined as an injury resulting in prolonged hospitalisation, disability or death caused by healthcare management (Rafter et al, 2015). Generally, a good number of AEs are preventable. It is important to know the protocol.
9. What do I do if I make a mistake?
This can happen to anyone and to those who have a totally unblemished career. Firstly, it is important to identify the problem and take a swift remedial action, and if necessary, take help of a senior colleague. Next contact your medical defence organisation and also the Clinical Director.
Then it is time to explain the events to the patient and/or relatives in an honest, truthful and transparent manner (duty of candour) and a plan of management. Listen to their concerns and explain how they would be addressed. It is important to apologise to the patient or family about the mistake. Please remember not all errors automatically count as clinical negligence and apologising does not necessarily put blame on you.
10. Patients’ expectations
It is natural that patients and their relatives would like to hear positive aspects of their treatment. It is the responsibility of the doctor to give a correct explanation that should include pros and cons, side effects and complications of a treatment; also, other treatment modalities that are available for the condition, not forgetting to explain the likely results of those treatments or procedures. As mentioned above, consenting should be done at least 1-2 weeks in advance.
11. Do not make promises that you cannot keep
For example, you may say that you will definitely see the patient yourself on their next visit; let us assume that on patient’s next visit you are on annual leave. It may erode the trust because patients do not understand how doctors work out their holidays!
12. Continuing Medical Education and Professional Development
Stay up to date with advances in your specialty. Reading relevant papers from specialty journals. Your specialty medical headlines in the lay press. Learn from your colleagues’ mistakes. Maintain a high level of learning by reading specific articles in your specialty journals. Maintaining a logbook would be useful. Get involved in audit projects, writing guidelines and take up projects that are useful to the institution, community and your patients.
13. Appraisals and audits
They are supposed to reflect the clinical performance of a doctor and their competence. Keep them up-to-date. It is useful to document meetings, conferences, MDTs etc as you attend.
14. Administration
Referrals, new and follow-up appointments, results of investigations, MDT clinics, letters and maintenance of clinical records are all managed by non-clinical staff and it is crucial that these staff are well supervised, looked after and helped by the managers and medical staff. Mistakes in administration could be catastrophic in patients’ care.
15. Interdepartmental communication
If the patient is seen in more than one department it makes sense that they communicate with each other about the patient’s management.
References:
[1] Rafter N, Hickey A, Condell S, et al. Adverse events in healthcare: learning from mistakes. QJM 2015; 108: 273-77
Further Reading:
[1] A Review of the NHS Hospitals Complaints System- Putting Patients Back in the Picture. Final Report. Rt Hon Ann Clwyd and Prof Tricia Hart. October 2013.
[2] Panting G. How to avoid being sued in clinical practice. Postgrad Med 2004; 80: 165-167
[3] Good Medical Practice-GMC www.gmc-uk.org
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