In the first part of this article we discussed the philosophy of containment in risk management, reasons why patients complain, the possible avenues of complaint available to patients and some sensible strategies to adopt when managing a complaint. In this second part we provide a rationale behind some of the strategies recommended and look at three common scenarios and the thought processes to apply when considering how to manage the situation.

General strategies for complaint management

Acknowledge the complaint

• When people get a response to their complaint, they often see this as a sign that their concerns are being taken seriously. Ensure that you or another senior person (such as the proprietor of the dental practice) handles the matter to reinforce the message that the issue raised is important to you.
• Acknowledge their concerns and experiences, and take responsibility for what happened. This can immediately take some of the “heat” out of the matter. Assure them that their grievance concerns you and It’s 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’ll have gathered further information.
• Give the person a clear time frame in which the complaint will be addressed and the contact details of the person involved. This buys you time to obtain professional advice.
• Outline the plan of action for investigating and responding to the complaint.

Try to resolve the complaint directly with the complainant

• It may not be possible in all complaint scenarios but, where it is, invite the person who made the complaint to talk directly. While you may not feel at ease with this approach it presents an opportunity to clarify the issues and the desired outcomes.
• Not everyone writes beautifully and with clarity. It may be difficult to glean the reason for the patient’s dissatisfaction from their written contact with you. Many people will greatly value the opportunity to talk about what happened and give their point of view and this can be immensely beneficial for you in structuring your response.
• If you’re fortunate enough to reach a resolution at this stage, confirm the agreed action with the complainant in writing.

Be aware of differing views of what happened and what was said

Communication is at the heart of many complaints. The dentist and the patient may have very different perceptions and understandings about what happened and what was said. Reasons for this could include:

• Patients in the health care environment often feel vulnerable and may not process information properly.
• The dentist assumes that their information or explanation has been clear when in fact the patient or their family may not have understood it at all. The extra time taken to ensure the information has been understood is time invaluably spent.
• Confusion may arise as the patient seeks information from other sources which may conflict with that given by you. Such information may come from other practitioners, the opinions of other people, media organisations or even “Dr Google”.

Who is telling the truth?

• If the whole issue swings on factors of communication and perception the “truth question” might not be of relevance. In your initial management acknowledge that there are differing accounts or points of view and, in particular, don’t be dismissive of the complainant’s point of view.

The perception of a cover-up

• Many patients believe that descriptions of incidents and conversations would be included in their treatment records. If there is no record of an incident or a conversation they may form the opinion that records have in some way been tampered with or that there is an element of cover-up. The recording of conversations should be factually correct and not contain any inflammatory or derogatory comments and it’s important to train your staff to record professionally. It’s also important that you don’t record advice obtained from your professional advisors (including lawyers) in the clinical By all means record the advice you’re provided but this should be done on a separate document and form part of your business or legal record. Remember that everything you record in the clinical record may be revealed to the patient under our National privacy laws.
• Many complainants also form the view that their point of view won’t be listened to and that staff in a practice will simply stick together and defend each other. Your early responses when a complaint is received need to, where possible, leave the complainant comfortable that due process will be followed.

Reassure the complainant

• It’s not easy for many people to complain. Often they’re worried that in doing so there’ll be some kind of negative consequence for them and/or their ongoing care. Reassure them throughout the complaint handling process that this isn’t the case.
• Ensure the complainant isn’t victimised or discriminated against as a result of making the complaint.
• Reassure that the complaint will be kept confidential and only broached with those necessary for its investigation.

Have a complaint handling mechanism already in place

• Evidence suggests that effective complaint handling and resolution decreases the risk of a directly-made complaint proceeding to legal action.
• Responding is easier if you already have your system in place. You should institute a mechanism by which complaints are welcomed, received, acknowledged, investigated and resolved.
• Advise the patient about your intended management of the matter and stick to that plan of action.

Let’s consider a few common scenarios.

The patient who refuses to pay

The rules and laws of society dictate that payment must be made in return for services rendered. Although there are procedures available for the recovery of debts, you should think carefully before instituting proceedings. One of the key questions to ask is: Why has payment not been made? Is the patient:

• In financial difficulties?
• Disputing the bill?
• Dissatisfied with treatment?

Only pursue payment formally if you’re confident the resources exist and you’re prepared to expend the time in obtaining a judgement against the debtor. If finances are clearly not available then there is little point in commencing formal action. Perhaps you could arrange for payment to be made in instalments or, at worst, write off the debt. All of these options assume, of course, that the debtor accepts that he or she is responsible for the debt in the first place.

If the bill is in dispute, discuss the person’s concerns and explain your fees and charges in more detail. Sometimes discounting the bill may be the simplest way of resolving the matter, bearing in mind that clients are an important referral source and may choose to complain elsewhere if a satisfactory outcome isn’t achieved. Pre-treatment quotations should avoid this dilemma.

If the patient is dissatisfied with treatment, pursuing payment of outstanding fees is a recipe for further grief and should be avoided.

The patient who has made a court claim of negligence

Before you embark on a defence of a negligence claim you should take account of the following issues:

• If a claim is filed in court, it’s open to the public and can attract media attention. It is impossible to predict what the media will report and much depends on the facts of the case and whether it’s a “slow news day”. There is no doubt there will be a greater chance of negative publicity in local and regional newspapers. Ordinarily it’s cases involving allegations of sexual assault upon patients or serious injury due to negligence that attract media attention. If scheduled for court your name will appear in the “court list” at the back of the newspaper or on the relevant court webpage with other scheduled actions. No other detail is published. However, anyone can enter a court room and view proceedings. While there is no guarantee against publicity, the risk will be greatly diminished by an out-of-court settlement.
• Defending a negligence claim can take an enormous amount of time. This includes time to report to your insurer; time to instruct your lawyers; time to comment on the allegations against you; time away from your practice and family; and time in court if the matter proceeds to trial. While the majority of cases are settled before they reach a courtroom, those that aren’t cause considerable anxiety for the participants and their families.
• Settlement terms. A settlement doesn’t necessarily mean an admission of liability. In order to make clear the balance between principle and the necessity of a settlement for commercial or other purposes, settlement documents can be drafted to protect your position with respect to admissions, future claims and confidentiality. It is not uncommon for cases to settle without any admission of liability on the part of the dentist and with an agreement that the terms of the settlement will remain confidential.
• Obligations to professional organisations. Make sure that you know what your responsibilities are with respect to your registration, your governing body and your insurer.

The patient who requests a refund

The main reason a refund or other payment is offered, or demanded, is usually in circumstances where some unexpected and untoward mishap or misunderstanding has occurred during treatment, and the incident risks escalating into a serious dispute between the parties. This, of course, doesn’t presuppose that the problem can be attributed to either the dentist or the patient, because in most situations the question of fault shouldn’t be a factor, only that the best solution is to resolve the matter as promptly as possible.

Whether we should or should not refund is a decision that’s usually best made by the involved practitioner. When all issues are considered it is what is best for the practitioner’s peace of mind, and what’s in the best interests of the long-term reputation of the practice, which will prove to be important when making the final decision. As well, there’s the always present concern for the patient’s welfare.

And again remember: a refund or other assistance is not in any way an admission of liability. It’s purely a goodwill gesture.

Most untoward incidents fall into one of the following categories, and an agreement to refund needs to be considered in the context of which category applies:

• Where it’s likely that the incident is negligent. An example would be the extraction of the wrong tooth and the patient is harmed or disadvantaged by the error.
• Where the untoward outcome is a foreseeable complication of the procedure. Examples include fracture of endodontic files and paraesthesia subsequent to third molar surgery. These are not necessarily negligent provided the patient was warned of the risk before treatment, the treatment was performed competently and the patient was advised immediately after the adverse event occurred.
• Where the dentist considers that the patient’s dissatisfaction is because of unacceptable patient expectations. In cases where the dentist is not in any way responsible for the patient’s dissatisfaction, the decision to refund fees would be made purely on the basis of expediency and to avoid further complications.

The decision as to how to act ultimately rests with the practitioner. That does not mean, however, that you should not seek the advice of your ADA advisor and your insurer. If a decision is made to refund it’s important that the appropriate document is drawn up (examples include a Letter of Offer and a Deed of Release) and for this you should seek assistance.

Certainly, however, there are times when the “commercial decision” is not appropriate. It is not being advocated here that the practitioner should never defend the principle, or always accede to a patient’s demands, or immediately give up on patients at the first hint of dissatisfaction. Each matter needs to be assessed on its merits and seeking advice is a good way to help you reach your decision.

At the end of the day, dentistry is a “people business.” Personal contact with you and your team, whether positive or negative, is the most memorable aspect of dental care for patients. Any part of the interaction with the patient can become a “moment of truth” during which the patient forms an impression of the quality of care provided. How you handle the human element is at the core of how successful you will be in resolving a complaint. It all comes down to communication.

Remember that the Peer Advisors at the Dental Defence Advisory Service are here to help you. Whether you need advice, support or just an ear to hear your concerns – we are all dentists and are happy to help in any way we can. We welcome your calls and the opportunity to assist you.

References

• Articles prepared by the Dental Defence Advisory Service and published between 2004 and 2012 in the New South Wales Dentist Magazine (details available on request).
• Articles appearing between 2002 and 2011 in the Australian Dento-Legal Review Magazine published annually by Guild insurance Limited (details available on request).
• Power Point presentations prepared by Dr Roger Dennett in 2006 and 2008.
• An audio presentation by Dr David Roessler appearing on the Dental Files Program Six disc of 2011.
• Resource documents on the Health Care Complaints Commission of New South Wales website.

Craig Brown, DDAS Peer Advisor