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Handling a patient complaint well can make the difference between resolution and litigation. Owen Stacey, trainee solicitor at Maulin Law, sets out how clinicians should respond – from the first acknowledgement through to the final letter – without inadvertently admitting fault.
Receiving a patient complaint can be stressful for clinicians. Even when they are confident in the care provided, a clinician may feel tempted to defend their position immediately.
From a legal perspective, however, the initial response can be crucial. A well-handled complaint may resolve a patient’s concerns before the matter even escalates, avoiding implications for indemnity cover and future litigation.
That is why early notification to a clinicians’ insurer matters. It allows the insurer to consider the clinician’s position and provide key support at an earlier stage before the complaint escalates.
Start by listening, not defending
Once a complaint has been received, clinicians should be aware of the complaints process as the immediate priority is typically to acknowledge it rather than attempt to answer every allegation on the spot.
In that acknowledgment, it is important to make the patient aware of this process, how the complaint will be investigated, what evidence will be considered, how communications will take place and when a response is expected. Its purpose is to set expectations, and demonstrate that the complaint has been taken seriously. The tone matters; clinicians should always look to be polite, sensitive and empathetic.
As part of this acknowledgement phase of the response, it may be useful to request a meeting with them to clarify and explore their complaint. This allows the clinician the opportunity to get an understanding of what the patient’s concerns and expectations are, even if that is just an apology for what happened.
Where allegations appear unfair or inaccurate there may be a natural instinct to correct the patient immediately. However, it is usually better to understand their concerns first and establish the facts before reaching conclusions.
Where there will be a delay, the complainant should be kept informed.
Confidentiality should not be overlooked. Complaints can be made by family members, friends or other representatives, but clinicians should not assume that they can disclose confidential clinical information simply because somebody else has raised the complaint. Appropriate consent should be obtained, with particular care where the patient lacks capacity or is deceased.
Investigate before reaching a conclusion
A robust response depends on a proper investigation.
Medical records should be reviewed carefully, including consultation notes, consent records, follow-up documentation, treatment history and information given to the patient. The purpose is to establish what actually happened before deciding how to respond.
If it is found that something had gone wrong negatively impacting the patient, then it is important to disclose this to them. This is part of your professional obligations, having a duty of candour. This disclosure does not automatically require an admission of legal liability.
When any issue or complication occurred during the patient’s care journey, it is likely that there would already have been an open and honest discussion with them pursuant to the duty of candour prior to the complaint. Therefore, anything that has been discussed as part of this needs to be borne in mind during any subsequent complaint investigation and response.
It is also important to consider that in many complaint situations, all a patient may want is for the clinician to apologise, even if there was no blame or fault involved. Apologising here would not be a legally binding admission of liability.
It is, however, important not to go beyond this. The distinction matters because an early admission of fault can potentially make a claim more difficult to defend and may also raise issues with the clinician’s insurance.
The lesson is not that clinicians should be defensive or evasive. It is that honesty needs to be combined with care over the legal wording of the response.
What should the final response contain?
A final complaint response should be structured so that the patient can see that their concerns have actually been fully addressed.
It should acknowledge the concerns raised, identify each part of the complaint, explain how the investigation was carried out, including the evidence considered, who was involved, and the outcome.
Including a brief chronology can provide useful context to address in turn each part of the complaint.
Where the clinician agrees with the complaint, that should be made clear. The response should explain any changes made, or being made, to clinical practice or systems to reduce the risk of the same problem recurring.
A patient will often simply want a reassurance that the adverse event they suffered can’t happen to someone else, so evidencing any changes made where appropriate will be crucial.
Where they disagree, the response should explain why.
It is also necessary for the clinician to know if their response is being provided as part of a wider private hospital complaint response. It is important for that clinician to have the opportunity to review the final complaint response letter before the hospital sends this out, to ensure that it does not prejudice their position.
Be careful when money is involved
One area where a seemingly straightforward attempt to resolve a complaint can create unexpected consequences is payment.
A refund is not the same as compensation. A refund cannot exceed the amount paid by the patient for the care provided; anything above that is compensation.
If a clinician goes beyond a refund or free revision surgery, and provides a goodwill payment to the patient, it is possible that this payment could be considered compensation. This can have wider consequences for the clinician.
Giving compensation would trigger a statutory duty to register the compensation with the DWP. This would then mean that the clinician becomes liable for any recoverable benefits that the patient has received as a result of the care concerned.
The broader point is straightforward: before agreeing to make a payment, clinicians should understand exactly what they are being asked to pay and what the payment represents.
Three common pitfalls
Late reporting: Delaying notification to the insurer may create coverage issues and may make the position more difficult.
Admitting fault too early: Clinicians should respond honestly, including acknowledging where something went wrong, but should take care not to make premature admissions of legal fault or negligence.
Poor record keeping: When a complaint arises, the medical record is often central to understanding and defending what happened. It should show what the clinician knew, what they did, why they did it and what they told the patient. Incomplete records can make it much harder to demonstrate that the appropriate standard of care was met.
Ultimately, the best complaint response is not necessarily the most defensive one. It is one that shows the patient has been heard, the facts have been made clear, and their concerns have been addressed.
Treat a complaint seriously from the outset, notify promptly where required, think carefully before making admissions or agreeing payments, and make sure the records tell the story. It can provide an opportunity to learn, improve practice and, in some cases, prevent a complaint from becoming a claim.
