Early warning of potential for a complaint - case study
For reasons beyond the health practitioners’ control, a hospital appointment had to be rescheduled for her patient. When the later appointment occurred, the patient was clearly annoyed. The patient was one that always consumed a great deal of time and had strong views on alternative therapies and conspiracies that the doctor had to untangle at each consultation. The patient accused the doctor of stuffing her around and not listening. The doctor snapped and responded:
“Don’t take your anger out on me. I had nothing to do with the bookings. You can make a complaint, me and my team work really hard and have gone the extra mile for you, it would be interesting to see what my colleagues would think of your complaint, after all, I have done for you? 
The main problems with the response are:
It is unprofessional
No matter how hard done by you are, how fantastically you have looked after the patient or how unfair it is to have the anger directed at you, the law starts from the position that in the relationship between you and a patient the greater power is with you. If acting professionally you are obligated to start in the first instance in a patient-centric way, not in a “poor me” way.
The writings of Associate Professor Cunningham help us to see this. He writes:
“Professionalism demands not just that a group holds particular knowledge and skills and is responsible for their teaching, practice and advancement, but that the profession uses these for the benefit of society. The profession must embrace the values of respect for human worth, of trustworthiness and have a commitment to altruism in its dealings with society. The profession must protect vulnerable people and vulnerable social values. Society and the profession are in mutual relationship.”
This expectation of professionalism is enshrined in the patient Code of Rights, which record a patient’s right to complain.
Lacking in empathy
Patients have lives as well. We should not assume we are busier or what we do is of greater worth than what they could have done with the time had we not mucked them around. Often waiting for medical treatment or advice paralyses their ability to get on with their lives. Furthermore, the doctor showed no attempt to understand what was the experience of the patient that had caused the feelings expressed and to show respect for the point of view being expressed (empathy).
The anger of the patient, unpleasant though it is was, was not a complaint – it was feedback. A “bring it on” response turns a remedial situation into a battle. This said, patients have a right to be informed of the right to complain to the Health and Disability Commissioner. However, that right should not be expressed as a threat or prematurely.
Fails the collective responsibility obligation of being part of the profession of health care providers
As members of a profession, your reputation is affected by your own actions and those of other members of your profession. Making it the patient’s responsibility to try to address a problem by a complaint rather than offering a means where you, as a member of the profession, take their feedback to the appropriate person, reveals a culture that does not enhance professional respect. In saying this, I know that health professionals feel disenfranchised in some workplaces and feel that the only way to get resources is for patients to complain, but it’s not fair to ask patient to fight your battles. If your workplace has such problems then through your union or some indemnifiers such as Medicus you can be assisted with advice to raise these workplace issues in a different context informed by the feedback of patients.
How to respond?
Ideally, the health professional would have had the empathy to begin the consultation with an apology for the rescheduling and explanation. If aiming for a 10 out of 10 for her consultation style, containing in that apology reference to an issue of the personal circumstances of the patient is better still.
“I am so sorry that we had to be rescheduled. As you know, I wanted to see you in a fortnight and it was only because of unexpected staff sickness [whatever the reason is] and the need to see the people who are sicker than you/earlier in their treatment than you [if the patient is unlikely to believe anyone could be sicker than him or her] that your time had to be changed. When I learned that you were affected, I immediately thought about how hard the change would have been for you because of fitting in with your son’s work/with the wedding coming up [anything that shows you know the patient as a person with a back story i.e. the relationship is not purely transactional]. The extra week has not affected what we are doing and shows us … What I will do is put a note on your file that we must do everything we can to avoid changing your appointment times in the future.”
If that does not diffuse the anger then you may also want to offer something that can come out of the annoyance such as:
“Would it be OK if I feedback what you have said to management/our team meeting etc. I wouldn’t have to use your name unless you want me to… If you would rather discuss your concerns with an outside agency you can contact the office of the Health and Disability Commissioner. I can write down their details if you want or you can look on the poster in the waiting room.”
By offering to do something and giving the patient a choice about whether you take steps and if their name is used, you help them regain a sense of power and respect that is at the heart of the complaint.
This approach also works when there is a very serious issue of iatrogenic injury. Though a more defined response may be required:
“I am very sorry this has happened. What I want to do is research how this happened and what we can do including whether we should make a claim to ACC. I can phone you back, or better still would you be prepared to come back for a double appointment so we can go through everything and what I have been able to find out? I could also ask one of the other specialists for an opinion. You might also want to bring a friend or family member as they may have questions as well.”
This approach puts another health professional in the mix in case the patient has lost faith in you and so allows the patient and his or her family to be able to trust the health system despite what has happened. It also flags that there are supports for the patient which in NZ we can fortunately access for treatment injury through ACC. It recognises the patient’s right to a support person. Finally, although you may have been involved in the problem, it helps remedy the situation by being part of the solution.
Responding to criticism in a nutshell
1. Listen meaningfully without defensive blocks so you really understand what has concerned the patient.
2. Express empathy and apologise for whatever you immediately consider could have avoided or explain the unhappy situation.
3. Offer a solution or be part of finding a solution.
The reality – “Don’t make me complain”
Actually, most people don’t want to make a complaint especially if they or a loved one are sick or injured, even if in the anger phase of grief most people want to divert their energy elsewhere. Thus, health professionals and patients in most cases at the early stages will have a shared goal to sort the matter out. We know from studies that the incident of complaints is not correlated to how poor the care was.
Seeking advice early
All of the above highlights the importance of objective advice early. That is, advice from someone who you can trust to frankly tell you where they think you could do better and/or provide reassurance if a complaint says more about the complainant than you.
As someone who has manned an advice line for professional indemnifiers since 1990, my response to a doctor seeking advice is to obtain a description of the event which may lead to a complaint or which has led to a complaint (knowing the patient’s name is unnecessary at this time). Consider what risks the doctor is exposed to because of this event. That is, is there the potential for a criminal negligence (medical manslaughter) prosecution? A coroner’s inquiry? In those cases, the health professional should be prepared for the possibility of contact from the Police. Is the matter heading towards a formal complaint, Health and Disability Commissioner or Privacy Commissioner or direct by family or through a lawyer, a medical treatment injury claim from ACC, complaint to the Medical Council or referral from any agency to the Medical Council, and an internal or external inquiry?
In cases where credibility may be at issue, I will take a very detailed note of what is said to assist as an aide-mémoire. I will usually get the doctor to provide a detailed letter addressed to me so subject to legal privilege which includes information such as what else was happening in the day, what the patient was wearing, the weather, other events of the day or anything else that will help trigger memories of the day to assist the doctor in being able to give credible evidence, possibly years after the event.
If the health practitioner is seeking advice as a result of advances from a patient or there are professional boundary issues, then legal advisers are often repositories for copies of letters to ensure this vital evidence is kept securely in more than one place.
When giving advice, the potential forum in which the matter may be considered is an essential element to advising the doctor how, and in what way, any response should be made.
It is also important to ensure the health practitioner has support at what can be a stressful time.
The formal complaint
It would be a rare health practitioner who does not have a heart-sinking feeling upon seeing a letter from their professional body or Health and Disability Commissioner (or, worst still, a lawyer’s letterhead) at the head of a letter.
How to respond to a written complaint
Any written complaint must be acknowledged within five working days.
In responding to the complaint, it is important to bear in mind the patient’s right to a “fair, simple, speedy and efficient resolution of their complaint”. This aside, it looks professional to give appropriate priority, and therefore respect to the matter that is the subject of a complaint. The Code requires that a response is made within 15 working
However, it must be borne in mind that giving effect to that right also means responding in a comprehensive and considered way. Putting the complaint in the drawer and hoping it will go away will, of course, not work. Equally dangerous is to fire off a response. This “communicating in haste” can lead to hours, if not days, of regret. Remember the old saying: “Marry in haste, repent at leisure”. This could equally apply to rattling off a response when the adrenalin is running.
Under the Code of Rights, you have 15 days from the date of the complaint to decide if the complaint is justified or not or if more time is needed to investigate. If more time is needed the patient must be informed of the decision to investigate further unless less than 20 working days is required to complete the investigation.
The code is written as if the process is a complaint then decision process rather than dialogue and resolution process but it is the later process that applies in most health care places throughout New Zealand. It is important to be aware that delay in responding can in itself be a disciplinary matter.
The following checklist is helpful when sitting down to respond to the complaint:
1. Can you respond to the complaint? If writing to the patient or his or her caregiver or the executor of the will then you can disclose private health information.
2. Do you understand what it is that is complained about or do you need to have that clarified? (Doing so carefully, so there no risk of aggravating what could be a resolvable situation.)
3. Do you have all the information you need to respond to the complaint. It is essential to have a copy of your notes. If you have moved practices or employment then regrettably there may be some delay while you access that information. Few things pose a greater risk than putting a statement in your response that is inconsistent with your own written notes. It negatively impacts on how your credibility is viewed and potentially how your competence is viewed.
4. The completeness of information is not just confined to your notes. It may be that the patient is complaining that something was missed which has turned up on a later ultrasound or as a result of subsequent treatment. It is often essential to have that information as well so that you can fully comment on the matters complained of. This may also assist the patient to be able to advance their case for a treatment injury claim with ACC or through their insurers if they have, for example, income protection insurance.
Drafting your response
1. When preparing your response, there should be several iterations of the draft.
2. The first should be a sit-down, write everything to your legal adviser so that it is legally privileged (that is, not something that is required to be made available under the Privacy Act) that allows you to have a record of all information that is potentially relevant to addressing the complaint.
3. Then we start on the process of refinement. Start with a paragraph that will engage with the complainant and shows empathy. It should show a shared feeling rather than ignite a dispute.
4. Ensure that the information in the letter is chronological and then address, with headings, each element of the complaint.
5. Ensure that the letter accurately records exactly what is set out in your notes and any reports. Using the exact quotes is always safer.
6. Avoid getting into debate about facts unless they are key, as this only inflames the situation. There are tactful ways to deal with disputed facts such as highlighting what is in your contemporaneous records which then speaks for itself.
7. Consider the potential places where this letter may be your evidence. The focus of a Coroner is different from the focus of the HDC, which is different from some aspects of what may be considered by your professional body.
8. Acknowledge what could have been done better, show empathy and professionalism. Research shows that complainants are often motivated by a desire to stop anyone else having the experience complained of. In your letter if possible show that this desire is being delivered on by any alterations to practice.
9. Get an objective review from Medicus or your own indemnifier to ensure that your writing reflects what you mean to convey. You would be surprised at the amount of time we lawyers can cross-examine a witness on one paragraph. I always take the view that there are never too many minds that can consider whether the response is delivering what the situation requires. There is no need to include the patient’s name or identifying details in the draft in order to protect the privacy of the patient.
10. If guidelines or journal articles are relevant, refer to them. That is, ensure your report will impress a colleague who is an expert who reads it and better explain what you did to the complainant.
11. Edit your letter again so that a lay person can read and understand it.
12. Offer solutions so there is some benefit to the complaint, e.g. to facilitate specialist referral or further investigations, to meet and go through the issues, or reassure the patient in person about any concerns.
1. address all that is complained about with the possible readers in mind;
2. write to engage with the complainant so that your letter is understandable in the way they need you to communicate and focuses on what is likely to be any shared view or recollection;
3. write to reassure experts of your competence which may require acknowledgement of shortcomings.
I was sorry to read about events (your diagnosis etc) to you after our consultation.
When deciding not to refer you, I followed/referred to guidelines that are set by …
My notes for this consultation are not as comprehensive as is usually the case because …
I considered and excluded meningitis because … I was devastated to hear what happened the night after I saw you and wish the timing had been different so that I was available to see you again.
 One study found that after attitude of staff and diagnostic problems the third highest reason for complaint was treatment delay and the fourth highest administrative problems – “Patient complaints as predictors of patient safety incident”, Croening H, Kerr B, Bruce J and Yardley I (2015) Patient Experience Journal Volume 2, ISS1 Article 14.  This is based on a composite of actual complaints.  A Victorian study (“Analysis of complaints lodged by patients attending Victorian Hospitals, 1997-2001”, David McD Taylor, Rory S Wolfe, Peter Cameron, MJA, Volume 18,1 No 1, 5 July 2004) shows that 29.2% of complaints were about communication, 28.5% access to health, 22.5% the treatment.  “Being a professional general practitioner and using principles of professionalism to consider workforce issues in general practice”, Associate Professor Wayne Cunningham, NZFP, Volume 35, Number 3, June 2008.  Right 10 Right to complain (1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.  In an Australian study (see footnote 3) which looked at patient interactions from 1997 until 2001, from a total pool of 30 million patients only 19,156 patients (or a rate of 1.42 complaints per thousand patients) made a complaint.  (6) Every provider, unless an employee of a provider, must have a complaints procedure that ensures that— (a) the complaint is acknowledged in writing within 5 working days of receipt, unless it has been resolved to the satisfaction of the consumer within that period; and (b) the consumer is informed of any relevant internal and external complaints procedures, including the availability of— (i) independent advocates provided under the Health and Disability Commissioner Act 1994; and (ii) the Health and Disability Commissioner;  That is harm caused by medical treatment.  Preventing Medical Practice Suits, Schutte James, Hogrefe and Huber Publishers, 1995.  In the above book, a whole chapter is devoted to the title “Doctor please don’t make me sue you”.  Indeed, the Australian studies show that of those matters that went to a formal complaint, 84.5% were resolved easily with more than half of them resolved by an apology or explanation.  I am presently one of the advisers on call for the Medicus help line.  Right 10 of The Code of Health and Disability Services Consumers’ Rights1 (the Patient Code of Rights).  Right 10, Patient Code of Rights.  References, Right 10  There are other exceptions you can discuss with your legal advisor.