The receipt of a patient complaint is normally a deeply unsettling experience for any practitioner. Emotions range from guilt and contrition to hurt and indignation. In such circumstances, it is not easy to keep a cool head. But a cool head is what is needed most. Like so many aspects of medical practice today, responding to a patient complaint is as much about a process, as it is about the outcome. From the perspective of a lawyer who represents practitioners faced with patient complaints, the focus of this article is on that process.
Trite as it may seem, the first thing to do upon receipt of a complaint is to stay calm; don’t panic. The second thing is to notify your medical indemnifier right away. Not only does notification enable you to share the problem and to obtain support, it ensures that your cover is not compromised by an unduly late notification.
What you should not to do upon receipt of a complaint is to go back to your clinical notes to “improve” them. However innocent the motivation, any subsequent alteration of the notes will almost certainly be discovered, and will serve only to compromise your credibility, very often irrevocably. If the notes are incomplete or require explanation, there will be an opportunity for that in due course.
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What your lawyer will require
If your indemnifier appoints a lawyer to support or represent you, you will need to provide:
- The complaint.
- Any communications from any agency such as the HDC, the Privacy Commissioner, the Coroner’s Office etc.
- Any internal communications regarding the complaint from your employer.
- The relevant clinical notes and records.
- Any report of an internal or external investigation into the subject matter of the complaint, including any report or any transcript of any interview you provided to the investigator.
- Your draft report.
In the majority of complaints, there is significant time pressure for the practitioner’s response to be provided. This is especially so for complaints made to the HDC. Therefore, it is important that all documents are provided to your lawyer without delay.
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The report provided to the complainant is your report; not that of your legal advisor. You are the person who has full knowledge of the case, particularly of the clinical issues and circumstances; not your legal advisor. It is critical then that the draft report you provide your lawyer for review, is detailed, carefully considered, and expressed and structured to the best of your ability. Ideally, it should be drafted at a time when the circumstances are still fresh in your mind.
The shape and content of your report will depend upon the nature and circumstances of the complaint. Broadly, however, reports provided in response to patient complaints are structured as follows:
- A brief description of the practitioner’s medical qualifications and experience, and of the practitioner’s role or position at the time of the relevant events.
- A detailed narrative of the care provided to the patient by the practitioner (or where the practitioner is providing a report on behalf of his or her clinical team, then the care provided by the team). This should follow the clinical notes and records. It is the opportunity to expand on, or explain the clinical notes, should that be required.
- A specific response to each of the complaints raised by or on behalf of the patient.
- Either a short rebuttal of the substance of the complaint, or alternatively, an acknowledgment of failure or mistake.
- If failure or mistake has been acknowledged, then an appropriate apology, and an account of any changes the practitioner has made to his or her practice in light of the complaint.
In preparing your draft report, you are better to err on the side of more detail rather than less; it will be easier for your legal advisor to “edit out” than to “edit in”.
Be sure to keep the tone of your report measured and professional. It is not the occasion to “vent”. Avoid speculating or expressing opinions beyond the scope of your clinical expertise. And avoid extravagant positions that will serve only to undermine your credibility. Above all, make sure your report is accurate and, as much as possible, substantiated by the clinical record. Once you have committed to the account in your report, it can be difficult to change track later on.
Typically a draft report will go through multiple revisions before it is settled and signed. To expedite the process, it really does help if revisions are in tracked-format. And as with all communications that pass between you and your legal advisor about a complaint, the various drafts of a report will be confidential and the subject of legal professional privilege; that is to say, they are not admissible in evidence.
Finally, before you sign-off on your report, make sure you have reflected carefully on the circumstances, and that you feel able to “own” the responses you will be providing to the complaint. If the complaints process should carry on, whatever you have said in your initial report will very likely set the tone for what is to follow.
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