Following his recent webinar healthcare litigation associate, Nigel Wood, gives an introduction to clinical negligence claims dentists may face, and gives an overview of best practices when it comes to handling patient complaints.

Listen to the episode below:

Episode summary

In this episode, Nigel discusses:

00:18 – introduction

01:05 – an introduction to clinical negligence claims

03:28 – Case law: Montgomery, and issues regarding patient consent

07:53 – key milestones in patient complaint cases

12:42 – how do you respond to a patient complaint?

16:46 – investigating patient complaints

17:21 – complaints procedures for patients and staff

20:15 – timescales

21:18 – learning from patient complaints

22:13 – key takeaways

Episode transcript

Hello and welcome to this Hempsons podcast. My name is Nigel Wood and today I’m going to be giving an overview of a recent seminar we did on complaints handling and an introduction to negligence claims.

During the session, we talked about two aspects: an introduction to negligence claims and how they fed into the key topic of complaints handling. How to reduce the chances of complaints being brought, how to handle them, and hopefully how they can help to resolve the matter for you and the patient so that they don’t continue and spiral into lengthier complaints or into claims or any complaints to the GDC. So I’m going to give you an overview of what we discussed. I’ll cover the main points.

And the first half was looking at an introduction to negligence claims. We want to show what patients need to establish so that we can really then look back and consider in the context of how to address that in complaints. So, an overview of negligence, first of all.

A patient needs to show that you breached your duty of care to them. They then need to show that that breach of duty of care caused some harm, caused some loss, and then you need to look at quantifying that loss.

So the first point is the breach of duty of care. The case law dates back many decades. In a nutshell, a doctor or a dentist is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. So to put that in a different way, your treatment is reasonable if it is supported by a reasonable body of professional opinion.

So, to give an example, the main allegations are: you have failed to do something which all reasonable dentists would have done, or you did something which no reasonable dentist would have done. Now, patients in claims, they may have an independent report which supports their allegation and it says you should have done this or you should not have done that. But there’s more than one way of doing things. There are different treatment options; root canal treatment, extraction of a tooth, just monitoring the tooth. And if we have a report, if the court accepts the opinion of an expert who says that your treatment decisions were reasonable even if they could have done it differently, even if you could have done it in a different way and there’s a different body who would, a different group who would have done it in a different way, then your treatment is reasonable.

You have to show – we have to show – that the treatment was reasonable, that the stance and the logic behind it is sensible. There are no hired guns in litigation. But if we can show that there’s a reasonable and responsible body who would have acted in the way that you did, then the treatment is reasonable. Even if someone else would have done it differently.

A topic in particular is consent. Obtaining patient consent and an allegation that we see very often is not advising of the risks involved. Now, I touched on in the seminar the case of Montgomery. In a nutshell, Montgomery, it was a cerebral palsy case, it was an obstetric case and whether a child should have been delivered by Caesarean section or by vaginal delivery, and the child was born by vaginal delivery and suffered shoulder dystopia and other significant injuries, cerebral palsy. And the case related to whether mum should have been provided with the option for Caesarean section. She wasn’t and she should have been.

There was a discussion in the case as to what doctors, dentists, clinicians need to discuss with patients in terms of working in partnership with them, listening to them, responding to their concerns and preferences, giving patients the information they want or what they need – even if they don’t realise, perhaps that they need it – the information they need in a way that they can understand. It’s a Martin Lewis consumer world which we live in. If you think of patients now no longer as the passive recipients of care which is decided by the doctors, but rather they are now consumers, they are widely treated as consumers, exercising choices. They do have discretion and there is a duty on the doctors and the dentists to take reasonable care to ensure that the patient is aware of any material risks which are involved in the recommended treatment and of any reasonable alternative or variant treatments.

In terms of what is material, what do you need to tell a patient? It’s patient specific in terms of that test for what is material. It’s whether in the circumstances of this particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or if the doctor or the dentist is or should reasonably be aware that the particular patient would likely attach significance to it. So it’s not just thinking about patients in general, you need to think about this particular patient. Is there any particular reason why this patient would prefer option one over option two? What specifics, what stage of life are they at? What is their occupation, their pastimes? Apply that to each treatment option and make sure we’re outlined the risks involved. So consent is the big case in terms of complaints we see quite often.

In terms of then what comes for cases, the patient needs to establish that a breach of duty of care meant something, that there was some causation. So what? Even if I wasn’t advised of option one, I was only advised of option two. Well, would you have always have gone for option two? So the starting point is, would the harm have arisen but for the breach of duty of care? Now, in consent cases we need to look at had the patient been properly counseled about all reasonable treatment options and had those risks and benefits of each option been discussed, what would have happened, and that is case specific. But in running through how specific we have to be on treatment options, risks and benefits and consent, this starts to inform us on the complaint side.

It comes before that. It informs what needs to go into your clinical records because the clinical records will form the basis of your reply to any complaint. When you are discussing any treatment options with patients, it’s all about the clinical records, mostly about the clinical records. Make sure there’s plenty of detail in there as to the options which were discussed, the risks and benefits and any patient specific factors.

We then in the seminar touched on how claims start. I think you’d benefit from knowing what is involved in a claim, so I’ll give you an introduction, the key milestones in cases. So the first aspect could be the complaint which we’ll come on to. You receive a complaint and that is responded to. If the matter continues, or even if there is no complaint – if the patient’s considering a claim – then you may receive a request for clinical records. Subject Access Request, usually. You have one month to comply with that and you cannot charge a fee. You need to disclose all documents you have which you hold in relation to this patient. And a word of warning: the complaints file that you have, the investigation you undertake, the documents which are produced as a part of that complaints investigation, they are not normally subject to legal privilege, they are not usually privileged and you cannot normally refrain from disclosing them.

The complaints investigation documentation, you will normally need to disclose them if you receive a request for disclosure, most certainly in litigation, and I’ll come on to that. So you receive the request for records or a subject access request, we have disclosure of the clinical records and then sometime later, it could be a year later, you receive a letter of claim which sets out the allegations against you. Your defence organisation will help you investigate. We, the solicitors, will lead that investigation and respond in a letter of response. That’s usually at least four months after receipt of the letter of claim.

Then what? It depends. If liability is denied and the patient accepts the denial of liability, then the case is withdrawn. If the case is settled because it’s clear the patient is entitled to damages, we try to settle it. If we can’t settle it, if the parties have disagreed as to the scope of the claim or whether there is a valid claim, then the case continues into litigation. You have court proceedings issued, normally within three years of the treatment provided, although it can be within three years of the date of knowledge. So there’s unreasonable treatment, but the injury isn’t realised; the root canal treatment doesn’t fail for twelve months, so it’s not three years the patient has – it’s not three years from the date of treatment – it’s three years from the root canal treatment failed. So four years since the treatment.

Key milestones in the case are service of proceedings similar to the letter of claim, but more formal because we’re in litigation. Service of your defence. There is then a court timetable set where you have disclosure of documents such as the records and the complaints correspondence, witness statements which we prepare and exchange, exchange of expert reports on the allegations and on the value of the case. Those experts, we then put them in a meeting together. If you put two people in a room, they tend to agree more than when they initially prepare those reports. You have them running to trial where you look at resolution, do you want to be making settlement proposals?

Is there any common ground on a lesser value of the case or are we pressing for discontinuance? Can it be discontinued? If the case continues, then it will go to a contested trial. This is potentially 18 months or two years after proceedings are first served, so it’s a slow process. And all of this trial timetable, all of this litigation, I’ve set it out because I want to show you the importance of if we can successfully nip complaints in the bud, then it saves you having to spend two years talking to me.

So all of this goes into the complaints handling aspect and that’s what we’ll touch on now. So why do patients complain? Different reasons. They could be unhappy with the dentist or how the treatment developed. If there’s an unexpected outcome, if the treatment has failed, the patient might want an explanation. They may have an assumption that a bad outcome equates to poor dentistry. They might want that failing remedied. They may want compensation, which could be a refund or payment of a subsequent dentist’s treatment. If they’re no longer with your practice, they may want an apology.

In terms of how to respond to complaints, there are two different pathways, really. We have NHS dentistry and private dentistry.

NHS dentistry, first of all; a patient is supposed to complain to the practice manager. If the treatment was provided on an NHS basis, they should complain to the practice manager. Although not all practices will have a dedicated practice manager. They should complain within twelve months of the treatment. Alternatively, they can contact the local integrated care board, which is responsible for those NHS dental services. If they’re unhappy with how the complaint is handled, they can contact the Parliamentary and Health service Ombudsman and they can make a final decision on unresolved complaints. They should wait six months, though, following the initial complaint. Although if we’re talking six months, that is far too long to respond to a complaint. We are talking weeks. That’s the advice; less than a month. I think 20 working days, four weeks is reasonable. The longer it goes on for, the more duplication you have, the more you’re going back to the dentist or looking at it yourself and you’re going back to old ground to remind yourself what you looked at and what you did the last time.

If it’s private dentistry, then again you can complain to the practice manager, again within twelve months of the treatment. Private patients don’t have the benefit or the protections provided by the NHS complaints system. So no ICB and no PHSO, the Ombudsman. Neither of those options. Instead, patients can contact the dental complaints service. The GDC funds the DCS, The Dental Complaints Service and its staff are formally employed by the GDC. The service is ran at arms length from the GDC and the service provides a free and impartial service to mediate between patient and professional. The DCS is accountable to the GDC and provides regular updates on its performance. It can draw matters to the GDC’s attention.

And a quick word on the General Dental Council; if a complaint is not resolved to the patient’s satisfaction, then bear in mind patients can and at times do contact the GDC. The GDC may then consider the complaint to be worthy of investigation by the GDC themselves.

Quick word on the CQC. CQC does not settle individual disputes. Patient feedback about a practice does help it decide when, where and what to inspect. Although they will not get involved in a specific patient complaint.

In terms of the complaints process, the first step is acknowledging complaints. Acknowledge it. A patient who brings that complaint does not want to be told that they’re in the wrong, or they’re being unreasonable, or that other patients aren’t complaining, so why are you complaining?
You shouldn’t. So you need to ensure the patient feels they are being acknowledged, taken seriously, that they have the opportunity to set out their account in full, and that they feel someone’s listening without interrupting. Someone’s listening and understands what the complaint is about. They want to feel progress is being made, not just for the complaint, not for what’s already been and gone, but what’s next? What’s next for the patient in terms of their treatment? If they’re complaining about treatment which has failed, they want to look at what’s gone to date and what’s coming in the future.That might be two separate parts. You might have the complaint and the treatment plan. So there may be two separate aspects there. The patient doesn’t want to feel like they’re being given lip service, or that they have a standard template response coming their way, or any excuses.

So in terms of the next step, it’s investigating complaints. In terms of investigating the complaints, ensure you understand the grounds of the complaint; what the patient’s unhappy with, what they are seeking. Do agree a timescale for replying to their complaint, then investigate. Obtain written comments from the person who is subject to the complaint. Fact check all accounts.

Consider the HR impact. You need a complaints policy, not just for the patients, but for the staff as well. Think of staff well being; is support available? Any employee assistance programme, occupational health, involving your defence organisation? I appreciate the smaller the practice, the less likely there may be occupational health or separate HR aspect. But we do need to think about that as a potential HR matter as well. So set out the complaint to the staff member clearly. Meet with them, the person who’s subject to the complaint. They may want to bring a colleague to any meeting and that’s reasonable. This investigation, it should be conducted by not the person subject to the complaint. I appreciate it’s difficult if you’re a principal of a small practice, then you have your principal hat on and you might think you’re the person to help address this patient’s concern. But if you can have a practice manager or someone who is independent of or separate to the treatment that’s being provided, complaint being made, then that’s crucial.

Do make sure you produce a contemporaneous written record of all meetings and discussions. Record the employee or the dentist’s stance, thinking of how you resolve a case and then looking back a few years later down the line. First of all, there is no such thing as a trivial complaint. However, if there is a complaint which you can resolve swiftly to the patient’s satisfaction, for example, they’re not happy with a particular treatment and the cost to you in either remedying it free of charge or refunding the patient. If the cost to you in cash terms is less than the cost of this continuing for six months or longer, you may just want to refund the patient. Looking later down the line, you won’t want that to be an assumption that the treatment was poor or substandard. So you might want to record in your complaints file the reason for adopting the approach which you adopted, so that you can see it’s not necessarily an admission of fault, but looking after the patient’s needs and looking forward to the future relationship with them.

Next steps – so the response, I’ve said, it needs to be objective and not prepared by the person who is subject to the complaint. You need to give the patient the opportunity to meet with you and the staff member, if appropriate, once they’ve had time to consider it. One of the nine GDC standards states dentists should have a clear and effective complaints procedure. The GDC, they want patients to feel they are the centre of the complaint and their feedback is important to them.

The next point is timescales. The GDC expect you to respond to complaints within the time limits set out in your complaints procedure, so there’s no specific timeframe set by the GDC. The time scales they will depend on, perhaps the subject matter of the complaint and staff availability. So timescales can be extended in certain circumstances, but we need to be telling the patient of that, managing their expectations in the same way we do for the treatment you provide to them.

So the regulations do, however, say that complaints should be acknowledged within three working days and then it depends how long the investigation takes. Depends what is said in your complaints policy, but in reality the expectation is weeks, not months. Again, 20 working days between receipts of complaint and your response is what I would expect to see for most policies.

And then finally we’re looking at after the complaint has been addressed. So can we look backwards to have a reflective practitioner culture? See what we can learn about both the matter which has been complained of the treatment or the service provided, and the complaints process itself? How could the complaint have been avoided? We need to recognise, identify areas where the practice or the treatment provider needs to focus, so then we can act. Is it behaviour related, person related? Is it a record keeping issue? Are we managing the patient’s expectations in terms of potential treatment risks? And then we look at improving the complaints handling process as well. Consider sharing anonymised feedback with the team or the individual dentist and then implement training if you can.

Few final practical points: practices do need a clear complaints policy. It has to be reviewed periodically and it has to be readily accessible. We’re talking one policy for the patients and one for the staff as well. We need to consider where we’re storing the complaint files, the investigation papers. They’re not routinely stored as part of the clinical records. We wouldn’t want to prejudice the patient or any treating dentist when others are looking at those records, so we tend to keep them separate.

Practices must provide the GDC with a summary of complaints when requested. Evidence of complaints does not mean you’re a bad practice. If you have separate complaints files and folders and you can show that every complaint has been recorded, investigated, responded to and actioned, that’s not a bad practice, that’s a good practice that takes patient complaints seriously and shows that you are thinking about matters. You have that reflective practice in place.

Final point: on receipt of a complaint, do contact your indemnifier for advice. I know you have practitioners who may be on associate contracts. You may want to involve practitioners who have now left your practice. Speak to your defence organisation, they are there to help you. Do keep up to date with GDC guidance, your defence organisation’s guidance, the BDA. You know they all have their own guidance policy documents as well.

And that reaches an end of what we discussed in the seminar. Do sign up for the sessions. I hope they’re helpful. You get the recording, you get the slides, and an opportunity to contact us, the lawyers, afterwards. Our contact details for any one off queries. So thank you very much for listening today. I hope that that was helpful and that’s me for now. Bye.