Many clinicians believe the practice of medicine is all about the science and that patient experience of care is an ill-defined, unquantifiable intrusion into the practice of medicine. Thus, this administrative imperative, aimed at non-outcomes-based metrics, is nothing more than marketing noise and a loss of focus on quality of care. Admittedly, the quality and quantity of research is limited regarding patient experience of care, formerly referred to as patient satisfaction. Many who don’t believe this is important clinically support its invalidation on this point. However, just because there isn’t enough evidence to convince some or even many doesn’t mean that the hypotheses aren’t true. In other words, we shouldn’t wait for clear and convincing evidence before accepting that there is some value in addressing experience of care. Satisfying patients provides some value, albeit variable, perhaps, among providers, geographic regions, and subsets of patient populations. Experience of care costs nothing — at least it shouldn’t — and may positively affect clinical outcomes, provider medical malpractice risk profiles, and reduce the administrative burden of addressing and dispositioning patient complaints. Valid criticism exists regarding the expansion of experience of care data beyond its intended use for over-broad purposes, with reliance on precision and accuracy of the results generated, which simply cannot always be supported by their methodological design. Although vendors often are the targets of such criticism, considerable responsibility rests with those using the data. Hospital administrators find themselves in a difficult position. Whether founded with credible data or not, it is believed that experience of care drives market share, which drives the bottom line. Although the bottom line sounds too financially oriented for most clinicians, these are the metrics to which hospital administrators perform. Furthermore, it is that very bottom line that funds hospitals, allowing them to serve their communities. This concept is not new: “No margin, no mission.”

Experience of care is not perfect, but when it comes to the baby and the bathwater, I’ll keep the baby. Clinicians cannot conveniently ignore the importance of margin, while administrators must not be blinded to the limitations of these metrics. Simultanously, administrators also must realize that overreliance on such metrics may destabilize the provider base responsible for carrying out the mission. Are there areas of common thinking and shared goals on which clinicians and administrators can agree? Certainly. Hospital administrators don’t just perform to the numbers, they take pride in providing high quality of care, making certain the ship doesn’t run a ground. Most clinicians recognize, for a variety of reasons, that happy patients are better than unhappy patients.

From a risk management perspective, the benefits of happy patients, compared to unhappy patients, are compelling. The data isn’t perfect, but it never will be. When exploring associations, and in particular cause and effect relationships, between uncontrolled variables (i.e., subjective observations) and claims data, the number of claims and lawsuits compared to the number of exposures (patient encounters) is so much smaller in magnitude that it creates inherent and unresolvable limitations for any study attempting to measure this relationship. However, the outcomes for patients, clinicians, hospitals, and insurers often are so devastating that risk managers accept the limitations in the data to avoid delays in intervention. In other words, medical professionals don’t need more or better data to act, and they cannot afford to wait for the day when that data may be available.

Unhappy patients are one thing, but those who escalate their concerns to generating a formal complaint are another thing altogether. Intuitively, one can make the leap that many, if not most, patients who report a complaint are, on average, more disgruntled than those who are unsatisfied, but choose not to complain. Additionally, those that take the time to report their concerns are looking for action and may be providing an opportunity for satisfactory resolution. Avoiding a claim, and an associated lawsuit, is critical. Effective complaint management is about risk mitigation, while poor complaint management results in lost opportunity, regret, and, perhaps, 39 months of one’s life disappeared (the average number of months to earn a defense verdict at trial).1

Complaints and Professional Liability

Complaints are inevitable, with a frequency of 1.65 to 3.14 per thousand ED visits reported.2 The correlation between experience of care and complaints is clear, and the concept that complaints correlate with lawsuits has been well published. Although not specific to emergency medicine, Hickson et al reported that unsolicited patient complaints correlated with a more adverse physician risk profile.3 Stelfox et al compared patient satisfaction, broken into tertiles, to unsolicited complaints and risk management events. Comparing the first tertile (high satisfaction scores) to the third tertile (lowest satisfaction scores) over a three year period, 200 complaints were received in the first tertile and 492 in the third. Additionally, malpractice lawsuit rates were 110% higher.4 A study published in 2011 identified 375 complaints and 61 risk management episodes from 2,462,617 ED visits. Patient satisfaction scores were not noted to be associated with increased risk management episodes. However, the odds ratio for generating a complaint was 1.84, almost twice as likely, for those in the lowest quartile for patient satisfaction. Those with two or more patient complaints in a quarter were 4.13 times more likely to experience a risk management event.5

It is very important to recognize at-risk populations for complaint generation, which may increase risk for professional liability. A common misconception is that indigent patients or those in lower income groups are more likely to complain and file lawsuits. The facts tell a different story. In an analysis of 277,210 ED visits, generating 675 complaints, patients living in higher income ZIP codes were more likely to complain than those from lower income areas.2 McClellan et al performed a systematic review of the medical and social literature, identifying studies studying the malpractice rates among socioeconomically disadvantaged patients compared to other groups. They also found that lower income patients were less likely to sue.6 The reasons for this phenomenon are unknown. However, clinicians should be mindful of the potential for unconscious bias, assuming these patients are more likely to complain and file lawsuits, which may affect interpersonal interactions and care delivery.

Complaint Avoidance

Although it may appear to oversimplify the issue, avoiding complaints before they happen should be the primary goal. It is ideal to recognize a concern in evolution prior to the generation of a formal complaint. There are some misconceptions about who complains. Providers tend to view situations from their perspective, noting that their role is to save lives and deliver healthcare in an environment that often is chaotic and largely dictated by factors out of their control. However, like it or not, healthcare is a service industry, and patients have choices. Although the nature of the services provided are vastly different, the operations and basic consumer expectations, whether they are consuming healthcare or a meal at a restaurant, are similar. At a minimum, patients and their families/significant others expect to be treated with respect, receive treatment in a reasonable timeframe, receive high-quality (or at least satisfactory) service in a clean environment, and receive an explanation when the aforementioned won’t or didn’t occur. Recognizing these basic expectations and empowering ED staff to intervene is necessary for the early resolution of complaints.

Baseline operations should include a streamlined intake process, at least acknowledging the patient has arrived and documenting a medical complaint. Perform each process of care and transition in a reasonable timeframe. All care areas should be clean, and all clinicians, from triage to the cath lab, should be competent and well qualified, treating all patients with respect.

Of course, rarely does a shift go according to plan, but the plan should include trying to satisfy patients. Although medical professionals aren’t all alike, the golden rule applies, “Do unto others as you would have them do unto you.” It’s worth mentioning that clinicians often are judged on how patients observe their interactions with others, and not only their personal interaction with the clinician.

When these imperatives aren’t met, that’s when communication should begin. Silence does not imply satisfaction. When delays are expected or have occurred, the patient should be advised. If the bed is not clean, apologize and address it. If someone seemed discourteous, note it and apologize. Most patients will accept the inherent unpredictable nature of an ED visit, but there are limits.

Several studies have reported similar findings with respect to the cause of the complaint. Taylor et al reported that 2,419 ED patients reported concerns about 3,418 issues during a 61-month period. Of these, 63.1% were made by someone other than the patient, underscoring the importance of families, significant others, and visitors. Further, 33.4% were related to patient treatment (inadequate diagnosis and inadequate treatment), while 31.6% were related to communication issues (e.g., poor staff attitude and rudeness). Meanwhile, 11.9% were related to delays in treatment.7 A 12-year study in a university ED noted that waiting time was the most common reason for complaints (46.35%), while interpersonal issues were less common (attitude, 8.67%; communication skills, 3.35%).8 A Turkish complaint database collected 218,186 complaints from 2005 through 2011, with 48.9% of complaints reported in the final year. Not benefiting from services was the most common complaint (35.4%). Not receiving treatment in a respectable manner and in comfortable conditions followed (17.8%), with not receiving timely information the next most common (13.5%).9

Although the order of frequency of complaint types vary, the themes remain relatively constant, emphasizing the importance of efficient operations, high quality care, professionalism (attitude), and effective communication.

Resolution

There are two critical times when complaints can be resolved: prior to ED departure and when a formal complaint has been filed. Of course, the former is preferred. As noted above, there are proactive strategies for avoiding common sources of complaints and real-time identification when complaints occur. However, many EDs receive complaints after the patient’s departure.

Such complaints must be handled carefully, with sensitivity and consistency. Since one of the goals of complaint management is risk mitigation, one must be mindful that all written and verbal communications are discoverable. Choose words and carry out actions carefully. It is critical to know if a state passed an “apology law,” making either expressions of sympathy and/or an admission of fault inadmissible in court.

There should be a standard mechanism for distribution of complaints to the responsible party. The nursing director should address nursing complaints, the medical director should address physician complaints, and accounting should handle billing complaints. It is likely that some complaints may include several components. Thus, multiple individuals may be necessary to evaluate and resolve the complaint. There are several key principles involved with successful complaint resolution:

  1. Be prompt in responding, usually by phone and follow up in writing.
  2. Acknowledge the concern.
  3. Gather the necessary facts before determining the validity of the complaint or the outcome.
  4. If the point of contact reports he or she has retained legal counsel, discontinue the communication and notify risk management (i.e., hospital and group).
  5. Patient complaints are not always based on a legitimate foundation. However, always address their concerns respectfully.
  6. Although complaints most often are resolved with compromise and negotiation, the complaint manager should not feel compelled to offer restitution of any kind when not warranted.
  7. Document and keep records of all written and verbal communications with patients or their designee(s).
  8. Service recovery may be used. However, exercise caution to make certain that what has been offered is compliant with regulatory requirements. For instance, “OIG has advised that Medicare or Medicaid providers must limit service recovery gifts to a retail value of no more than $10 individually, and no more than $50 in the aggregate per patient. The gift may not consist of cash or a cash equivalent.” Additionally, routine forgiveness of co-pays may constitute fraud under state and federal statutes. Waiver of co-pays may be acceptable with some private insurers under certain circumstances outlined in the provider’s agreement. Waiver of Medicare co-pays or deductibles may be acceptable for specific reasons such as financial hardship. When this happens routinely or without appropriate justification, this has been viewed as a fraudulent misrepresentation of physician charges. For example, if physicians receive 80% of the allowable amount under Medicare, the patient is responsible for $20 of a $100 bill, and Medicare is responsible for $80. However, if the co-pay is waived, that reduces the total to $80, and 80% of $80 is now $64, and billing the full $80 may be deemed fraudulent. If one waives fees for one payer (the patient), it may be safest to waive the entire bill. Waiving the co-pay while still billing the insurance carrier, particularly for service recovery, can be problematic.

Conclusion

Poor patient experience of care leads to complaints, and patient complaints often are the gateway to medical malpractice. However, using a proactive approach to avoid common sources of complaints and developing a robust, structured mechanism to address them, either real-time or following the patient’s departure, will substantially reduce professional liability exposure for the clinicians, hospital, and other stakeholders involved.

REFERENCES

  1. Jena AB, Chandra A, Lakdawalla D, Seabury S. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med 2012;172:892-894.
  2. Dennis B, Overton DT, Schwartz LR, Strait M. Emergency department complaint frequency: Variation by patient median household income. Ann Emerg Med 1992;21:746-748.
  3. Hickson GB, Federspiel CF, Pichert JW, et al. Patient complaints and malpractice risk. JAMA 2002;287:2951-2957.
  4. Stelfox HT, Gandhi TK, Orav EJ, Gustafson ML. The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. Am J Med 2005;118:1126-1133.
  5. Cydulka RK, Tamayo-Sarver J, Gage A, Bagnoli D. Association of patient satisfaction with complaints and risk management among emergency physicians. J Emerg Med 2011;41:405-411.
  6. McClellan FM, White AA, Jimenez RL, Fahmy S. Do poor people sue doctors more frequently? Confronting unconscious bias and the role of cultural competency. Clin Orthop Relat Res 2012;470:1393-1397.
  7. Taylor DM, Wolfe R, Cameron PA. Complaints from emergency department patients largely result from treatment and communication problems. Emerg Med (Fremantle) 2002;14:43-49.
  8. Salazar A, Ortiga B, Escarrabill J, Corbella X. Emergency department complaints: A 12-year study in a university hospital. Ann Emerg Med 2004;44:Supplement.
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