We have so far reviewed the following themes of the disclosure–apology-forgiveness-compensation process:
- The imperative and benefits of patient safety incident disclosure
- The challenges hindering patient safety incident disclosure
- How to effectively disclose patient safety incidents
- The downsides of patient safety incident disclosure
- Apologising after patient safety incidents
- Forgiveness after patient safety incidents
- Compensation after patient safety incidents
These themes all show how te disclosure and apology process is geared toward preventing or resolving patient dissatisfaction following safety incidents. It may however fail to achieve this goal, in which case the patient may seek non-judicial approaches to achieve justice and compensation. The first of these is usually through the hospital’s complaint handling system.
According to Judith Allsop and Linda Mulcahy, in their article on complaints in the book Clinical Risk Management: Enhancing Patient Safety, a robust complaint handling process involves the following components:
- Understanding what the complaint is about
- Establishing what the complainant wants
- Acknowledging the feelings of the complainant
- Addressing all the concerns they raised
- Keeping them informed of the progress of their complaint
- Offering sincere apology if this is appropriate
- Acting on issues raised by the investigation of the complaint
In approaching complaints, Allsop and Mulcahy urged organisations to view them in a positive light because they ‘present an opportunity for engagement with the service user’. Explaining that complaints help the hospital to understand ‘what causes dissatisfaction, they stressed that not dealing with complaints comes at a high cost – losing the value of complaints in helping to ‘identify practices which, if repeated, could be a danger to other patients’.
Mediation is another non-judicial approach to resolving disputes that arise following patient safety incidents. In their paper titled A mediation skills model to manage disclosure of errors and adverse events to patients, Carol Liebman and Chris Hyman defined mediation as ‘an informal, private, voluntary, and confidential process in which a neutral third party – the mediator – helps the participants negotiate their differences and craft a mutually acceptable resolution to their dispute’. They pointed out that mediation by a neutral party helps to mitigate the effect of the health practitioner’s non-neutrality, and of the influence of their strong emotions such as guilt, shame, remorse, and fear. They also identified ‘three core principles‘ of mediation which are:
- Party autonomy
- Informed decision making
To attain the best outcomes from mediation, Liebman and Hyman recommended that ‘parties should mediate cases soon after the claim has been filed’, and that claims should be settled ‘as soon as the parties have adequate information to evaluate the case and to give participants the opportunity to consider noneconomic concerns‘. Liebman and Hyman also pointed out that any agreement made at the end of the mediation process is binding on both parties although either party may withdraw during the process. They however noted that some patient safety incidents are not suitable for early mediation, and these include cases where:
- ‘The long-term consequences and the future costs of the adverse event are unclear’
- ‘The plaintiff is not emotionally ready to consider settlement’
- ‘There are concerns that information is being withheld or is not yet available’
Whilst compensation is the major focus of mediation, Liebman and Hyman explained that the process may also serve as a forum for the injured party to listen to the physician’s ‘explanation of the medical facts of the case and the events that caused the claim to be filed’. They pointed out that ‘often this is the plaintiff’s first opportunity to hear a coherent explanation of what happened and to ask previously unanswered questions‘. They also added that mediation may offer the injured party an opportunity ‘to understand the complexities of the case, and to defuse their emotions such as anger’. The authors also noted that non-monetary measures, such as the implementation of new procedural checklists or training to prevent harm to future patients may make the offer of monetary compensation ‘acceptable’.
Other non-judicial alternatives to litigation are discussed by Arnold Simanowitz and Henry Brown in their paper about resolving clinical accident disputes published in the book Clinical Risk Management: Enhancing Patient Safety. These include:
- Expert determination
- Ombudsman systems
- Neutral evaluation
In the following posts, we will review the judicial approach to resolving patient safety incidents.