Managing (legal) complaints Sarah Reid LLB LLM BL

Litigation in Ireland Litigation (generally) is on the rise in this jurisdiction but with some disciplines increasing out of proportion with others. €165 million was paid out to patients & families for negligence occurring in HSE run facilities for the year 2015. In 2016 over 1,000 new cases were lodged in the High Court arising from medical negligence compares to SCA figures from 2013 when they had 3,000 cases on their books in total.

Indicators for litigation Basis: Patients felt rushed No explanations given Felt less time spent / felt ignored by staff Patients wanted their perceptions of the event validated The need for an apology Desire for financial compensation Motivation 91% wanted to prevent a recurrence. 90% wanted an explanation. 68% wanted the doctor to know how they felt. 45% due to attitude of hospital staff following the error. (Stephen et al – A study of medical negligence claims in Scotland 2012)

Topics Record keeping as evidence in a case Exposure to litigation at ward / nursing level Managing patient expectations Perceptions of legitimacy Open disclosure policies

Records as evidence in a case How does your work end up being involved in litigation? Documentary Evidence Discovery Freedom of Information

1. Documentary Evidence This refers to the content of a relevant document and includes all permanent legible information including computer records, file notes, photographs and diagnostic imaging. It also includes letters or correspondence issued and notes of dealings you had with the patient. 6 6

2. Discovery This is the process by which documents relating to a legal claim can be sought from another party and that other party is obliged to furnish them, unedited and in full to the other party. The procedure is governed by the Superior Court Rules and the documents are accompanied by an affidavit swearing that they are the true versions. (Perjury)

2. Discovery S.I. 93 of 2009 introduced new rules for electronic documents and allows inspection and search of internal IT facilities using the IT systems owned or operated by the party controlling the electronically stored information. This means that documents can be sought from an internal IT system including emails & text messages if they are sent through a work account or on a device part-paid for by the healthcare employer.

3. Freedom of Information The Freedom of Information Act 1997 (as amended) requires statutory bodies & agencies to publish information on their activities and to make personal information available to citizens. A legal right for each person to have official information relating to himself/herself amended where it is incomplete, incorrect or misleading A legal right to obtain reasons for decisions affecting himself/herself.

Record keeping Medical records are the first thing sought in a legal complaint. Handwriting – if you can’t read it, it didn’t happen Do NOT use post its! If a check up is needed – set a reminder on the system to follow up

Do’s and Don’ts of record keeping Litigation comes many years after the event so relying on a clear recollection of events is not realistic. Do not put anything in writing you would not like to see read out in Court. Use the documents to remind your future self of when/why/how something was done or not done

Timeline of a claim Event occurs Patient suspects something Medical staff are distant Poor communication occurs Patient feels lied to / distrustful Trust is lost and replaced by anger David v Goliath mindset kicks in r

Important factors Timeline of events Managing patients expectations Keeping promises V Making ones you cant keep Communication is key Communication is key

Timeline of dispute escalation Shelf life of shock/hurt before it turns to ANGER The quicker the acknowledgment (as distinct from solution) the less likely it is to escalate If there is a sense that things are not being resolved, matters will proceed & litigation is a one way street

Managing expectations Power imbalance – Hospital v Patient Historic deference to professionals A patient can feel that they are being ignored or lied to about what happened Perceptions of legitimacy

Dealing with legal complaints Just because there is a legal issue does not mean only the lawyers should be the ones to talk! Get legal advice but a total disengagement being replaced by legal protectionism is likely to escalate matters from the patient perspective

Open disclosure HSE and the SCA have developed a policy of open disclosure which includes helpful supporting documents such as a patient information leaflet, a staff support booklet and a staff briefing guide. Policy introduces equality into the dialogue with patients afforded rights on how the complaint/aftermath will be handled HSE douments and policies - Reference

Issues to consider Not all the facts in relation to what happened may be available in the aftermath of an event so staff may not be able to answer some of the patients questions until a later date. When something goes wrong it is distressing for everyone involved including staff who are also often traumatised by an event.

Open disclosure - What it is not A chance for the situation to be concluded once and for all – ongoing process. A blame / deflection exercise. Mediation – information only

Open disclosure of errors / concerns One of the largest barriers in the present system is the failure by healthcare practitioners to speak up. Fear of litigation, being demoted or professional embarrassment are often factors but learning from mistakes is a key component in avoiding future mistakes.

Open disclosure - National Policy Requirements 1. Incidents are identified, managed, disclosed and reported. The service user must be informed in a timely manner of the facts relating to the incident and an apology provided, where appropriate. Suspected Adverse Event: The service user should also be informed if an adverse event is suspected but not yet confirmed. No Harm Events: “No harm events” should generally be disclosed. Near Miss Events: Near miss events should be assessed on a case by case basis, depending on the potential impact it could have had on the service user. If there is a risk of/potential for future harm from the event then this should be discussed with the service user. Self explanatory

National Policy Requirements 2. The HSE will provide an environment in which staff feel supported in the identification and reporting of adverse events and also during the open disclosure and review process following an adverse event. 3. When a clinician makes a decision, based on his/her clinical judgement, not to disclose to the service user that an adverse event has occurred, the rationale for this decision must be clearly documented in the service user’s healthcare record and this decision may need to be reviewed by the clinician at a later date, depending on the circumstances involved. Self explanatory

National Policy Requirements 4. The salient points discussed with service users during open disclosure meetings, including the details of any apology provided, should be documented in the service user’s healthcare record. 5. All health and social care services must have the required governance processes in place to ensure that open disclosure occurs and to address situations where there is a difference of opinion as to whether open disclosure should occur or not. 6. All health and social care staff have an obligation under the National Standards for Safer Better Healthcare 2012 to “fully and openly inform and support service users as soon as possible after an adverse event affecting them has occurred, or becomes known and continue to provide information and support as needed.” Self explanatory

How to pre-empt issues Communication styles – put yourself in the patients shoes and consider the interaction. Be honest about limitations (human interaction) Keep the patient in the loop (holding position) Encourage them to ask questions Keeping the patient involved in their care and any fall out is the single best way to avoid litigation Keeping the patient involved in their care and any fall out is the single best way to avoid litigation

Timeline of a claim Event occurs Patient suspects something Medical staff are distant Poor communication occurs Patient feels lied to / distrustful Trust is lost and replaced by anger David v Goliath mindset kicks in r

Questions?