Saying sorry

When ‘sorry’ seems to be the hardest word

Sooner or later most health providers can expect to be presented with a patient grievance or claim. Even the pettiest dispute over fees can become protracted, particularly if it is referred to a regulatory organisation such as the Health Care Complaints Commission or your health professions governing bodies.

To provide some guidance on what to do (and what not to do) when dealing with patient grievances Meridian Lawyers, has prepared the following advice, on behalf of Guild Insurance.

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 a practice owner) handle the matter. This should convey the message that it is being taken seriously.
2. Contact the complainant 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 complainant 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 complainant 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 professional indemnity insurer of the incident, even if a formal claim has not been made. Guild Insurance will retain Meridian Lawyers and a solicitor will contact you to discuss an appropriate strategy.

Should you say sorry?

If it is obvious that an error has occurred, in most situations it is appropriate to apologise. While there has been an historical reluctance to offer an apology on the basis it may be misconstrued as an admission of fault, legislative reform has confirmed that an apology is not an admission of liability. For example, the New South Wales Civil Liability Act, 2002 provides that an apology does not constitute an express or implied admission of fault or liability. To remove any doubt, the Act provides that evidence of an apology is not admissible in civil proceedings.

The effect of an apology should not be underestimated. It is the experience of Guild Insurance and Meridian Lawyers that a complainant may simply feel wronged and want acknowledgement. If ignored however they may take matters further. Furthermore, regulatory bodies usually place weight on an apology when determining the outcome of a disciplinary matter.

Apologies in practice

Assume a patient arrives at your practice complaining of pain. Treatment is provided, and patient leaves with decreased pain but later that day you are advised she has been hospitalised, and that  patient alleges your treatment was the cause.

Although the cause of the injury remains unclear, in the circumstances, it would be appropriate to contact the complainant to ascertain her condition and obtain further details. It would also be appropriate to let it known that you are sorry she is ill, along the lines of the following:

‘I am sorry to hear you are unwell and have been to hospital. I will investigate the matter you have raised and review what happened during your treatment.  I will get back to you as soon as I can but in the meantime I am concerned about your health.  Would it be okay for me to contact you later this week to find out how you are?’

This acknowledges the complaint, indicates that it will be investigated and shows sympathy without making an admission of liability.

Complainants need to know that their complaints are recognised and taken seriously. A prompt response and an apology without admission of liability can go a long way towards averting an expensive and potentially reputation damaging claim.

This article was written by David Short, Principal of Meridian Lawyers, on behalf of Guild Insurance