Patient complaints and early intervention

 

Governments and health professionals around the world understand the importance of early intervention in the context of disease and disorder. As health professionals gain a better understanding of the aetiology of some diseases and disorders the profession necessarily focuses on prevention, early identification and early treatment. The objective is to provide a better outcome for the patient and less of a financial drain on the public purse.

The ideals of prevention and early intervention should not be limited to the clinical context. Why wouldn’t a dentist apply these sensible principals to the management of patient complaints?

Sooner or later all dentists can expect to be presented with a patient complaint and nearly all complaints have the potential to snowball. What may seem an innocuous comment by a patient could escalate into a complaint to a Dental Board or a civil claim. This can be a stressful process for the dentist. Precious time can be taken up with dealing with regulatory bodies and lawyers and outcomes can be unpredictable. There can be a sense of loss of control over the situation and immense frustration.

What this article aims to do is empower the dentist to properly manage a patient complaint. The focus is on early intervention with the assistance of Guild Insurance, your ADA and Guild Lawyers.

Incident management

When dealing with a complaint, no matter how trivial, time is of the essence. An irate patient who does not receive a prompt response may feel ignored and be more likely to take matters further. To help avoid such an outcome the following steps are recommended:

  1. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter. This should convey the message that it is being taken seriously.
  2. Contact the patient as soon as possible. Make it clear that the grievance concerns you and listen. It is important to remain calm but firm—there is no point getting involved in a slanging match, but neither should you put up with abuse. Hopefully the patient will feel better for venting their feelings and you will have gathered further information.
  3. Do not offer compensation or mention your insurance cover. This may encourage further pursuit of a claim. Rather, inform the patient that you will investigate the matter and provide a response as soon as possible. This will buy you time to obtain professional advice.
  4. Notify your ADA of the complaint. If necessary, your ADA will in turn notify Guild Insurance and if legal advice is required, Guild Insurance will retain Guild Lawyers to provide advice.

The key is to maintain control over the situation and seek advice.

Apologies

There has been an historical reluctance to offer an apology to a patient on the basis it may be misconstrued as an admission of fault. In this regard, dentists have often harboured the concern that if they offer an apology to the patient, the patient will rely on that apology to establish a case in negligence before the civil courts.

Legislative reform across all states has put this concern to rest. Put simply, an apology is not an admission of liability. Set out below is a table referring to the legislation in Tasmania, South Australia, Victoria and New South Wales dealing with the treatment of an apology. Whilst there is variation with respect to the wording from State to State, all provide that an apology is not an admission of liability for the purpose of civil proceedings.

Tasmania

Civil Liability Act 2002 –  Section 7

Definition:
“Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.

Application:
An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person, does not constitute an express or implied admission of fault or liability by the person in connection with that matter and is not relevant to the determination of fault or liability in connection with that matter.

Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

South Australia

Civil Liability Act 1936 –  Section 75

Application:
In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

Victoria

Wrongs Act 1958 –  Section 14 I and J

Definition:
“Apology” means an expression of sorrow, regret or sympathy but does not include a clear acknowledgment of fault.

Application:
In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.

New South Wales

Civil Liability Act 2002 –  Sections 67,68 and 69

Definition:
“Apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.

Application:
An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and is not relevant to the determination of fault or liability in connection with that matter.

Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

 

The effect of an apology should not be underestimated. It is the experience of your ADA, Guild Insurance and Guild Lawyers that many civil claims would not have eventuated if a carefully worded, timely and sincere apology had been provided to a patient. Very often a patient may simply feel wronged and want acknowledgement. If ignored they will often take matters further. A further reason to make an apology is that regulatory bodies tend to place weight on an apology when determining the outcome of a disciplinary matter.

Early intervention in practice

Patients need to know that their complaints are recognised and taken seriously. A prompt response and if appropriate, an apology, can go a long way towards averting an expensive and potentially reputation damaging claim.

Guild Insurance works with the your ADA and Guild Lawyers with the aim of providing you with the best legal protection and with a view to minimising damage. In order to demonstrate that objective we have set out below some case studies. Some of these case studies highlight the benefits of early intervention. Sometimes, despite early intervention, a patient will escalate a complaint and so some of the case studies deal with outcomes before Dental Boards.

Case Study 1

Prepared by Marianne Nicolle, Principal, Meridian Lawyers

This case involved an orthodontist based in NSW. The orthodontist sought legal advice when a 15 year old patient called to say that she had left home and wanted her orthodontic appliances removed because she could not afford treatment.

The orthodontist was an extremely caring professional who recognised that this was a tricky situation. He was having difficulty contacting the young patient and did not know if he should contact one of her parents. He did not know whether contacting the parents would put the young patient at risk. He knew the premature removal of the appliances would result is a less than desirable clinical outcome but he knew that he had to respect the wishes of the patient. In other words, a lot of “grey area” and not much “black and white”.

The orthodontist wisely contacted his ADA. With the assistance of Guild Lawyers the legal issues were identified: was the patient legally competent to make the decision to have the appliances removed? Would the orthodontist be breaching his duty of confidentiality and/or offending privacy laws by contacting one of the parents? Would he be criticised by his peers if he removed the appliances?

The orthodontist was advised that the law in NSW recognises that a patient as young as 15 can still have capacity to consent to treatment (or the cessation of treatment). The orthodontist needed to satisfy himself that the patient had the capacity to provide such consent. He was advised not to contact the parents but rather to send a letter to the young patient explaining the consequences of early removal of the appliances. It was advised that the letter suggest that a meeting be arranged between the patient and her parents with a view to reaching an arrangement whereby orthodontic care continued with the fees being paid by the parents. It was recommended that the letter be sent to the patient at her home address and marked “Private and Confidential”.

Within a short period of time the young patient attended the orthodontist. She said that she had “patched things up” with her family. The appliances remained in place and the parents agreed to continue to pay future fees.

When presented with a complex problem such as above it is advisable to obtain the opinion of your peers and seek legal advice. A less savvy practitioner may have simply removed the appliances and in doing faced criticism from the patient and/or parents at a later date. The early intervention in this matter arguably resulted in the best outcome for the orthodontist and the patient.

Case Study 2

Prepared by Don Grant, Senior Associate of Guild Lawyers

A 60 year old female patient of the dentist slipped and fell on the verandah when leaving the dentist’s premises sustaining an injury to her wrist. The dentist’s staff had heard a thud and found the patient getting up on her hands and knees. The patient said that she had slipped on the wet floor boards and fallen forward onto the concrete ramp. It had been raining heavily prior to the incident and the staff had noticed that the heavy rain had been blown onto the verandah at an angle by a stiff breeze. (Guild Lawyers obtained information from the Bureau of Meteorology confirming that heavy rain had fallen in the area during the day and prior to the incident). There was a question as to whether suitable non-slip matting had been appropriately placed at the time.

The patient subsequently submitted her medical treatment costs to the dentist for payment. The dentist was at all times caring and sympathetic to his patient. The dentist held a public liability policy with Guild Insurance and so at an early stage sought advice from his insurer. Whilst it was debatable as to whether the dentist carried a legal liability for this incident it was considered prudent by both the dentist and his insurer that the patient’s relatively small claim for medical out of pocket expenses (radiology, medical and surgical consultations) be paid. The most recent advice from the patient’s surgeon is that he considers it unlikely that there are any foreseeable problems on the horizon.

In the result the dentist’s clear concern for his patient’s wellbeing following an injury sustained at his premises – a concern that was appreciated by his insurer – saw a satisfactory outcome all round. Significantly, the patient did not make any formal claim for compensation.

This dentist followed the rules of early intervention. He dealt with the complaint in a direct manner with the patient. He showed concern whilst not admitting that any failure on his part caused the patient to slip and fall. He sought advice at an early stage. As a result he has maintained a good relationship with his patient and avoided what could have been a long and costly dispute over the cause of the patient’s fall and the nature and extent of her injuries.

Case Study 3

Prepared by Caroline Tuohey, Solicitor of Guild Lawyers

This case involved a dentist in Victoria who was working as an independent contractor with a ‘boutique’ cosmetic dentistry practice.

A patient made a complaint against the dentist to the Dental Practice Board of Victoria (the Board) in connection with the placement of upper and lower veneers. The patient was unsatisfied firstly because the veneers repeatedly failed and secondly because the practice owner refused to accept any responsibility and told the patient to find the individual dentist himself to make a complaint.

The Board alleged that the dentist had engaged in unprofessional conduct on a number of grounds relating both to her treatment of the patient and that her dental records were not compliant with the Board’s Code of Practice on Dental Records.

Specifically, it was alleged that the dentist failed to record her diagnosis and that photographs taken were not maintained with the record.

A practitioner has a professional obligation, in accordance with the Board’s published Code of Practice, to record (at a minimum) the prescribed information set out in the Code. Relevantly to this practitioner, it was alleged she failed to record the diagnosis she had reached, and failed to keep the clinical photographs with her treatment records.

The practitioner was able to direct the Board to a brief reference in her notes of what she says was her diagnosis. She was also able to explain that the photographs were kept in a separate location within the clinic, but cross-referenced against the patient’s record.

Importantly for the dentist, her records were otherwise not criticised. They were computerised and otherwise very detailed, making it clear to the Board that she had taken a detailed history and consulted extensively with the patient during the treatment process.

Whilst computerised records are not mandatory, they do greatly assist a practitioner in cases where the records are being scrutinised by the Board. Practitioners ought to bear in mind that

whilst they may have explained their diagnosis with the patient, it is a requirement that they document this in the treatment record.

Whilst there was an adverse finding made against the practitioner’s treatment, there was no adverse finding about the dental records. The Board did not pursue this allegation once it had the benefit of the practitioner’s explanation.

Interestingly, the Board expressed concerns about the practice manager’s conduct in refusing to assist the patient. It was felt that notwithstanding the dentist was a contractor, to a member of the public the services were performed by the practice, and a patient should not ‘fall between the cracks’ of the practice and the dentist when seeking to have a complaint addressed.

Case Study 4

Prepared by Fiona Dransfield, Principal of Guild Lawyers

For the dentist, responding to a complaint to a Dental Board, can be a time consuming process. One such example is a complaint to the Dental Board of New South Wales (“the Board”), by the daughter of a former patient in relation to the provision of dentures.

The treatment in question was provided over a number of months in 2008. The patient attended upon referral from his general medical practitioner under the EPC Medicare Scheme. At the first appointment, the patient was examined and advised that his options were to have a cobalt chrome or acrylic dentures. The patient elected to have upper and lower cobalt chrome dentures. Subsequently, over a number of appointments, upper and lower impressions were performed and sent to a dental laboratory. Thereafter, the dentures were tried in, adjusted and issued.

Within a day of the dentures being issued, the patient presented complaining of experiencing pain, that the dentures were cutting his tongue and that he was bleeding. Upon objective examination, the practitioner could not detect any lesions present. However, the patient remained unhappy and refused to wear the dentures leaving them at the practitioner’s surgery.

Complaints Handling Process

Within a month after the last consultation with the patient, the practitioner received a letter from the Dental Board of New South Wales indicating that the patient had made a complaint pursuant to Section 48(1) of the Dental Practice Act 2001 (“the Act”). As a result of the complaint being made, the practitioner was required to respond to the complaint within 21 days in accordance with Section 51 of the Act.

In providing a response, the practitioner was required to provide copies of his entire clinical file (including financial details), a typed transcript of any handwritten notes and a typed representation relating to treatment of the patient.

Once the practitioner submitted his response, the Board would investigate the complaint or refer the complaint for further investigation to determine whether the complaint established unsatisfactory professional conduct or professional misconduct.

The majority of complaints to the Board involve treatment which may be tantamount to unsatisfactory professional conduct. Unsatisfactory professional conduct includes any conduct that demonstrates a significant lack of adequate knowledge, skill, judgment or care by a dentist in the practice of dentistry, as defined by Section 41(1) of the Act.

In submitting a response, the practitioner’s representations would then be considered by the Board’s Complaints Committee sitting with the Health Care Complaints Commission and could be referred to the Dental Care Assessment Committee (“the DCAC”). The DCAC may either investigate the complaint, encourage the complainant and practitioner to settle the complaint by consent or make a recommendation to the Board.

Given that a recommendation by the DCAC could be adverse to a practitioner, the Board allows the practitioner to respond in writing to any DCAC recommendation before the recommendation is considered by the Board.

However, at no stage does this prevent a practitioner from attempting to initiate a settlement of the complaint direct with the patient.

Response

Once the practitioner received notification from the Board of a complaint being made by the patient, contact was made with the Dental Defence Advisory Service (DDAS) of the Australian Dental Association (NSW Branch). Assistance was then provided by the DDAS and Guild Lawyers in drafting an appropriately worded letter of reply, responding to all elements of the patient’s complaint and outlining the treatment provided at every consultation with a view to submitting that at all material times the treatment and advice provided was appropriate and in accordance with accepted standards of care. The body of the report therefore provided a summary of clinical treatment and refuted those factual matters that were in dispute as referred to in the patient’s complaint.

Once the letter of reply was settled and the practitioner considered its content to be suitable, the practitioner forwarded the reply to the Board.

Investigation and outcome

Following receipt of the reply by the Board, it determined to refer the matter to the DCAC for further investigation and assessment. The patient was referred to an independent assessor to allow the DCAC to obtain a report as to the treatment provided by the practitioner. Once the independent assessor completed their assessment and report, the report was forwarded to the DCAC in furtherance of its investigation.

Ultimately, the DCAC formed the view, as a result of the independent assessor’s report, that the dentures provided to the patient were of good fit and make. The DCAC then forwarded a recommendation to the Board that the complaint be dismissed.

Subsequently, the Board at a formal meeting resolved to accept the recommendation of the DCAC that the complaint be dismissed. The outcome of the complaint and its investigation was then notified in writing to the patient and the practitioner.

Comment

The result in this instance was extremely pleasing and attributable to the practitioner, after taking advice from the DDAS and Guild Lawyers, submitting a thorough and detailed reply to all complaints and allegations made by the patient and his daughter.

In addition, the DCAC was not doubt assisted by the quality of the practitioner’s notes which included radiographs, study models and ultimately the denture itself which the patient had refused to accept.

Case Study 5

Prepared by Marianne Nicolle, Principal, Meridian Lawyers

The patient attended the dentist concerning tooth 16. The dentist diagnosed a crack on the amalgam of tooth 16. When the amalgam was removed it was noted that the crack ran through to the pulp chamber. The dentist discussed the options for treatment which included extraction or RCT followed by the placement of a ceramic inlay or crown. The patient chose the option of RCT followed by the placement of a ceramic inlay.

The patient subsequently complained to the dentist that the ceramic inlay fractured within 9 months. He asserted that he had been given a guarantee that the ceramic inlay should last for between 5-6 years and that is what influenced his treatment decision. The patient asserted that he consulted another dentist who extracted the tooth. In preparation for an implant he also underwent some bone grafting. He asserted that the bone grafting procedure was complicated by abscess formation requiring drainage and antibiotic therapy.

The patient sent an email to the dentist setting out his complaint and seeking a refund of fees together with compensation for associated out of pocket expenses. The patient said that he had obtained a second opinion to the effect that a crown, as opposed to a ceramic inlay, should have been placed on tooth 16. The patient wanted the dentist to place the implant for free.

The dentist notified his ADA and Guild Insurance of the communication from the patient. The dentist also received assistance from Guild Lawyers. The preliminary view was that the ceramic inlay was not a good treatment option and therefore the dentist was at risk of criticism from his peers (if a complaint was made to a Dental Board) or a judge (if a civil claim was pursued). The dentist accepted advice that he should write a letter to the patient expressing sympathy for his position whilst not admitting liability. The letter offered a full fee refund (around $3,000) as a gesture of goodwill. The dentist recommended that the patient have the implant placed by an oral surgeon.

The patient accepted the proposal. This is an example of early intervention at its best. As soon as the dentist received the patient complaint he obtained peer advice and legal advice. The advice was to the effect that the dentist may have a liability exposure and so an attempt should be made to resolve the dispute as soon as possible. The dentist was provided with advice about the content of the letter to the patient. The complaint was resolved within a short time frame. The patient now has funds to assist with the placement of an implant (which would have been required at some stage in any event) and the dentist has avoided escalation of the complaint.

Prepared by Marianne Nicolle, Principal, Meridian Lawyers


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