Reduce legal risks of complaints

ED managers can do a lot to reduce liability risks presented by patient complaints, says Michelle Regan-Donovan, RN, BSN, CEN, principal of Millennium Strategies, based in Charlottesville, VA and Ambulatory Care Advisory Group, based in Chicago, IL. "A comprehensive complaint management system for most ED’s is highly time and resource consumptive. However, if complaints are well managed, that may ward off any number of liability concerns," says Regan-Donovan.

If a patient’s complaint is not properly managed, the patient may report the

problem to other bodies, such as the Office of Quality Monitoring at the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) or their state Peer Review Organization, warns Sue Dill Calloway, RN, MSN, JD, director of risk management for the Ohio Hospital Association in Columbus.

"Many organizations now post toll-free numbers for patients to voice any concerns or comments," notes Dill Calloway. "Hospitals in our state have recently seen a significant increase in the past year of unannounced surveys by HCFA [Health Care Financing Administration], which occurred after the patient lodged a complaint," she reports.

Hospitals have also had visits from the Office of the Inspector General when patients lodge complaints of fraud and abuse, notes Dill Calloway. "Articles covered in the newspaper could have a negative effect on the hospital and compromise patient trust in the facility," she says.

Here are ways to reduce legal risks posed by complaints:

Listen to patients. Proper handling of patient complaints can reduce or prevent lawsuits, says Dill Calloway. "Patients who are disgruntled often file lawsuits. When I defended nurses and physicians who had been named in medical malpractice lawsuits, we were able to settle about 78% of all the claims for this company without one penny of payment," she reports. "These were considered to be nonmeritorous claims."

However, in taking the depositions of these plaintiffs, it became clear why the suits were filed, says Dill Calloway. "Patients usually filed the lawsuits because they had complaints that fell on deaf ears," she explains. "Simply listening to the patient’s concern and complaints may have been all that would have been needed to deter a lawsuit."

Keep a paper trail. Legal counsel should be pursued after meetings of the medical director, nursing director and hospital administration, or as a direct result of an alleged lawsuit or maloccurence, Regan-Donovan notes. "A paper trail of some sort (even if only a file) is recommended to show that indeed there is a system for tracking and following up on various types of patient complaints," she says.

Know which complaints to refer to risk management. "Any allegation which meets the JCAHO’s definition of [a] sentinel event should be reported, because the facility only has 45 days to complete a thorough and credible root cause analysis," says Dill Calloway. "Also, any complaints alleging serious criminal activity, fraud and abuse, potential litigation, or violations of federal or state statutes and regulations should all be reported to risk management."

Risk managers should always be advised of any threat (formal or telephoned) that intimates lawsuit, misdiagnosis, or bad outcome, as soon as possible, stresses Regan-Donovan. "A short memo to the directors (medical, nursing) and the director of the department is sufficient," she says. "This should not negate the return call to the patient, however, since much crisis intervention might be achieved with the phone call and empathetic conversation."

Don’t acknowledge error. "Written or phone responses to a complaint should always be documented, and admission of error or libel never acknowledged to the complainant until legal counsel is notified, even if it is known to be true," stresses Regan-Donovan.

Always indicate that the management team will be doing everything in their power to correct the situation, without suggesting or promising any disciplinary action or an ongoing problem, Regan-Donovan says. "Instead, thank them for identifying a very important issue, and suggest that you will be addressing this with others as appropriate," she advises.