Dealing with a patient complaint? What health professionals can do to avoid a legal claim
When a patient or a patient’s family member complains about your care or service, you may feel like you are being put on the spot. As a health professional, your goal is to help patients get and feel better. What do you do if a patient is unhappy about the care or services you have provided?
It is easy to respond defensively rather than calm and collected. I have also had clients who may have avoided a claim or College complaint, had they not put their head in the sand wishing the patient complaint would just go away (hint: this is not a strategy I would recommend).
Many complaints can be de-escalated with an appropriate and thoughtful response that demonstrates empathy and respect for the patient. Listening carefully to what the patient has to say and identifying the main concerns is a good first step. For example, was it a case of an unfortunate bedside manner? Did the patient have to wait a long time to receive the services they hoped for? Was a requested treatment or service denied? Was there an adverse effect or outcome? Does the patient believe that a clinical mistake was made? Were records denied? etc.
Once you have a good grasp on the general issue, acknowledge that you have understood their concerns and ask follow-up questions to help you better understand the context. Who was involved? When did the issue occur (date and time)? Where did it happen? Was it a one-time incident or were there multiple occurrences? Did the patient speak with anyone else about the issue?
Thank the patient for bringing the issue to your attention. Being receptive and courteous can help diffuse conflict. Receiving feedback can also help you become a better healthcare provider and better serve your patients in the future.
Keep a Record
Take notes. Write the patient’s concerns down. Not only will this demonstrate that you are taking the patient seriously, but it will also give you an accurate record of the conversation for later reference. (Should you need a lawyer’s help down the road, they will thank you for taking good notes!)
Do keep your notes separate from clinical notes that record care provided to the patient, especially if there has been a demand for compensation or a refund or a threat of legal action. Should the matter escalate to a legal proceeding later on, clinical notes will very likely be disclosed and may become evidence in the context of the proceeding. Conversely, your notes of discussions about a dispute with the patient might be protected by privilege. It is therefore important to keep them separate.
In most situations, it is absolutely OK and appropriate to apologize and express regret. An apology can go a long way to diffuse conflict.
Unless you are dealing with a matter that could involve a criminal or provincial offence, apologies are protected by law under ,Ontario’s, Apology Act., One purpose of this ,legislation is to promote the openness of health professionals in dealing with patients or family members.,
The Apology Act provides that apologies do not, in law, “constitute an express or implied admission of fault or liability by the person in connection with that matter” and “shall not be taken into account in any determination of fault or liability in connection with that matter.”,
An apology should also not affect your entitlement to professional liability insurance coverages. ,
Resolution and follow-up
You may or may not be able to offer an explanation or solution on the spot. It is generally better to provide a fully informed thoughtful response at a later time, rather than a hurried response that may be based on false assumptions and incorrect information. In coming up with a resolution, it is also important to remain mindful of your professional and legal obligations.
If you practice in a larger organization, such as a clinic or hospital, it may be appropriate and necessary to involve others. Consider whether you should direct the individual to a patient relations department or professional in your organization, or bring the matter to the attention of your manager or supervisor. Your organization may have a policy on how patient complaints are to be handled.
In some situations, you may be obligated to provide continuing or ongoing follow-up care to the patient. If you are not able to provide the care yourself or you feel that you can no longer provide care due to a breakdown in your relationship with your patient, consider who may be the appropriate provider to assist. Offer appropriate referrals in a timely manner and offer to facilitate the transfer of care. Be sure to consult your College’s practice standards and guidelines on discharging and referring patients elsewhere.
If the patient is claiming compensation, a complaint to your regulatory College or legal action has been threatened, you may need to notify your professional liability insurer and/or professional association (where applicable), and it is a good idea to seek legal advice.
When a lawyer can help
Disputes with patients can vary widely, just like one patient is different from the next. There is no one-fits-all solution to de-escalating and resolving conflicts with patients. Some concerns raised by patients are relatively minor and can be resolved without the involvement of a lawyer.
If a patient threatens to take legal action such as by making a complaint to your regulatory College, another administrative agency such as the Information and Privacy Commissioner (IPC), the Ministry of Health and Long-Term Care (MOHLTC), the Human Rights Tribunal of Ontario (HRTO), or a claim for damages due to alleged malpractice, it is best to seek legal advice as soon as possible. A lawyer experienced in assisting health care professionals can help you formulate an appropriate strategy and response, and protect your interests in the dispute.
10 Top Tips for De-escalating Patient Complaints
- Remain calm. Don’t act defensively.
- Understand your patient’s concerns. Listen actively and ask questions.
- Demonstrate empathy and respect for your patient.
- Apologize, if appropriate.
- Thank the patient for bringing the issue to your attention.
- Be mindful of your professional obligations.
- Involve others, where appropriate.
- Create a follow-up plan.
- Use your professional judgment.
- Reach out for professional advice.
, The protections are not applicable to proceedings under the Provincial Offences Act. See Apology Act, 2009, section 2(2).
, See for example D.P. v. P.B., 2011 CanLII 11785 at paras 29-30 (ON HPARB).
, See Apology Act, 2009, ss. 2(1)(a) and (c).
, See Apology Act, 2009, ss. 2(1)(b).
Carina Lentsch is an Ontario health lawyer. She specializes in advocating for health professionals, including in College complaints and investigations, fitness-to-practice, registration, and discipline proceedings, privacy and human rights matters.
Carina shares general information relevant to health professionals and her practice in her blog posts. Her articles are not legal advice. If you have a questions about a specific situation, please contact her directly. To find out how Carina may be able to help you,, ,book a free consult. It’s easier than you may think!
To learn more about Carina’s law practice click here. You can subscribe to Carina’s newsletter and follow her on Facebook for updates @aclhealthlaw.