Medical treatment is not entirely risk free. The doctor-patient relationship involves two individuals -- both human, and therefore fallible. One seeks assistance with a problem and the other has the skills to deal with that problem. In this human interaction anything can go wrong. A doctor may be responsible for a negligent act or omission, or a patient may wrongly accuse a doctor of negligence. Preventing things from going wrong is called risk management, which, in Australian medicine, is in its infancy. A term more acceptable to clinicians is "quality assurance". The subtle difference is that quality assurance programs focus on "getting things right", whereas risk management programs focus on "not getting things wrong". Clinical quality assurance programs in Australia largely analyse technical performance, but, unlike most other service industries, rarely focus on consumer satisfaction, or dis-satisfaction. Thus, the article by Daniel et al in this issue of the Journal,1 which reports a survey of 290 complainants to the New South Wales Health Care Complaints Commission (HCCC) in 1996 and 1997, is a welcome addition to the scant literature in this area. There are now multiple avenues in Australia for patients to address complaints or concerns about medical management: the doctor involved or the hospital or practice management, the State-based medical ombudsmen (variously described as Health Rights Commissioners, Health Services Commissioners, and, in New South Wales, the HCCC), the Medical Board, the police, or civil litigation through the courts. The role of the medical ombudsmen -- to conciliate or mediate and not to judge or punish -- is, as Daniel et al found, often misunderstood by aggrieved patients. Daniel et al report the same four motivators for complaints to the HCCC as other studies2 have found: Punishment -- this is largely a function of the criminal courts; Regulation -- this is the responsibility of the registration boards, which exist primarily to protect public safety and not to deliver "justice" to complainants; Compensation -- this is still most commonly sought through civil litigation, but increasingly is negotiated outside litigation, perhaps using the conciliation services of the medical ombudsmen; and Accountability -- this is sought by many complainants, who want to see the "guilty" parties brought to account and systems changed so that what happened to them will not happen to other patients in the future. Doctors are now sensitised, if only by the rising cost of professional liability protection, to the increasing incidence and cost of patient complaint and litigation. However, despite their increased medicolegal anxiety, the medical profession has not adapted to this consumer-driven environment. The same rigorous standards used in the management of disease have not been applied to an examination of the causes -- and hence the prevention -- of patient dissatisfaction. It would appear that many doctors prefer the medical defence organisations, or other professional organisations, to do whatever is necessary to make these problems go away, rather than adapt to them by changing long-established habits of practice. Despite evidence to the contrary from the Harvard Medical Practice Study,3 the belief remains prevalent that most litigation results from gross errors in medical diagnosis and treatment, and that these are best minimised through clinical quality control. While clinical errors are usually involved, the likely precipitant is more likely to be a communication error. It is not sufficient for a doctor to reach a conclusion regarding diagnosis and optimal treatment. This must be conveyed to the patient and then skill exercised to motivate the patient to adopt that same point of view. The patient is the one with the problem and it is for the patient to decide, on the basis of the information provided, whether or not to take the doctor's advice. It is no longer "doctor's orders", it is "patient's choice". Furthermore, "informed refusal" is as important as "informed consent". How much non-compliance is uninformed refusal? The results of the Harvard Medical Practice Study (HMPS)3 not only suggested that if you are sued you are unlikely to have been negligent, but also that if you are negligent you are unlikely to have been sued! In about 300 of the 30 000 New York hospital records reviewed, it was assessed that an adverse outcome had resulted from avoidable negligence -- but in only about one in eight of these had a claim for compensation been made. Conversely, of all the legal actions commenced against the surveyed hospitals in that period, only about a third involved one of those 300-odd files. Two conclusions can be inferred from the HMPS. Firstly, that other intervening factors, such as communication failures in the doctor-patient relationship, determine whether or not an adverse event will result in litigation, and, secondly, that a negligent act or omission is a necessary, but not the sole, condition for a successful claim in negligence. A third possible conclusion, of course, is that patients do not sue when they have no inkling that their adverse outcome arose from a negligent error! The Bristol case4 shows that, even when a negligent error is reported, instead of facilitating communication the first response of the medical community may be to suppress the information by "killing the messenger". The factors driving a patient to sue were surveyed in a 1994 study in the United Kingdom of 227 patients who had commenced legal action for alleged medical negligence.2 Only about a quarter said their primary motive was money (compensation). The rest were evenly spread between "it was the only way we could find out what really happened" (information/communication), "we wanted someone brought to account for what happened" (acknowledgement/accountability) and "we want to ensure this doesn't happen again" (regulation/discipline). Litigation (seeking compensation through a civil action) can only provide money, and a poultice of money does not cure all ills. These UK and US findings are reflected in the study by Daniel et al, which found that "Only a few [of the complainants] want compensation; more want acknowledgement of the harm done; most want the doctor punished." The study by Daniel et al, however, is not directly comparable with the UK study; they surveyed patients lodging complaints, whereas the UK study was of litigants. Moreover, Daniel's study may not necessarily reflect the experience in other Australian States because of the different roles of the NSW HCCC (includes prosecution) and other States' medical ombudsmen services (principally mediation). It would be interesting to make a comparable survey of complainants finalised through (for example) the Victorian Heath Service Commissioner's office. When something goes wrong in any area of human endeavour, the instinctive response is to ask, "What happened?" and "How did it happen?". If answers to these questions are not provided quickly, anger explodes and the questions become "Whose fault was it?" and "Who's going to pay?". The NSW study confirms that anger fuels a demand for retribution. Doctors, being human, rarely, but inevitably, make mistakes. Some of these satisfy the legal test of negligence. But not all result in actions in negligence. A doctor's behaviour after an adverse event, or after receipt of a complaint (Box), is often the major factor determining whether the patient proceeds to litigation or chooses another avenue of complaint or does nothing. Paul Nisselle Chief Executive, The Medical Indemnity Protection Society Melbourne, VIC Daniel AE, Burn RJ, Horarik S. Patients' complaints about medical practice. Med J Aust 1999; 170: 598-601. Vincent C, Young M, Phillips A. Why do people sue doctors? A study of patients and relatives taking legal action. Lancet 1994; 343: 1609-1613. Weiler PC, Hiatt HH, Newhouse JP, et al. A measure of malpractice. Medical injury, malpractice, litigation and patient compensation. Cambridge, Mass: Harvard University Press, 1993. Bolsin SN. Professional misconduct: the Bristol case. Med J Aust 1998; 169: 369-372. ©MJA 1999 Home | Issues | eMJA shop | My account | Classifieds | More... | Contact | Topics | Search The Medical Journal of Australia    eMJA   Readers may print a single copy for personal use. No further reproduction or distribution of the articles should proceed without the permission of the publisher. For permission, contact the Australasian Medical Publishing Company. Journalists are welcome to write news stories based on what they read here, but should acknowledge their source as "an article published on the Internet by The Medical Journal of Australia <http://www.mja.com.au>". <URL: http://www.mja.com.au/> © 1999 Medical Journal of Australia.
	What to do when an adverse event occurs Inform the patient as soon as possible If a letter of complaint is received, forward a reply promptly Supply information which is detailed and factual but contains neither positive nor negative "spin" Self-flagellation by the doctor or the hospital involved is inappropriate, but so is denial Acknowledge the effect ("I appreciate how distressing this is to you") Express sincere regret and genuine concern for the patient's welfare ("I'm sorry this has happened to you") Do not admit liability ("I'm sorry I did this to you"). It is inappropriate to admit liability in the heat of the moment; calmer reflection, and after seeking advice, may lead to the conclusion that there is no liability.
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