Dr Gerard Panting, of the Medical Protection Society, answers questions on medico-legal issues in general practice


 

 

 

Q I have received a complaint which can only be described as a venomous pack of lies. What action can I take against the patient who has caused me so much grief?

A This is a distressing experience, particularly if the complainant's version of events is exaggerated and drafted in extravagant or abusive language. Unsurprisingly, in these circumstances, many doctors ask what redress they have for the distress they have suffered.

It is extremely rare for a doctor to have any comeback in this situation. Patients have a right to complain and although the contents of the complaint letter may be defamatory, that does not mean that complainants can be sued for libel.

There are two reasons for this. The first is where someone is making a statement to an appropriate authority, two legal defences come into play:

  • Qualified privilege, which simply means that unless the doctor can prove that the complaint was generated by malice, the courts would not allow recovery of damages from the patient
  • Justification,which simply means that provided the complainant thought the comments that he/she made were true at the time of writing the letter, there can be no recovery of damages.

Also, as a matter of public policy, the courts would be reluctant to deter complainants with bona fide grievances by allowing a defamation action to proceed.

Second, as well as the legal considerations, there are practical considerations. Defamation proceedings are notoriously long, drawn out, expensive, time-consuming and expose both parties to intense scrutiny of every aspect of their lives.

In legal proceedings, the only realistic remedy is the payment of compensation, so you have to be sure that the complainant has sufficient funds to meet any compensation award and your own costs which, in defamation, will be tens of thousands of pounds.

Rarely complainants indulge in a hate campaign against their doctor. Under these circumstances it is possible to take action, including obtaining an injunction from the court, restraining the complainant from pursuing his/her campaign or making further contact.

 

Q I have made a mistake. I meant to refer a patient with a lump in her thyroid gland to the local surgeon but the notes were somehow taken out of my consulting room and I forgot about it. It only came to light 2 months later when the patient rang up to ask when she would get her appointment. What should I do?

A When something has gone wrong, the best thing to do is explain what has happened to the patient, apologise if it is your fault and do what you can to put matters right.

Tempting though it may be to say nothing and hope there is no complaint, failure to come clean just makes it worse should the issue be raised later on.

Certainly in response to a complaint, the doctor's clear duty is to provide a full explanation once all the facts have been established. Any attempt to mislead at that stage could have serious consequences, in particular through the General Medical Council's conduct procedures.

Some doctors may still be concerned that saying sorry is tantamount to admission of liability, and simply opens the door to a clinical negligence claim.

It may do, but determining whether or not the patient is entitled to compensation is for the lawyers to decide not the clinicians. Stonewalling will only cause resentment and feed the notion that the doctor has something to hide, hindering final resolution of the complaint.

In addition, GP principals are required, under their terms of service, to cooperate with the NHS complaints procedure. In Good Medical Practice,1 the GMC sets out the requirement for doctors to be open and honest and to react constructively to complaints.

  1. Good Medical Practice. 2nd edn. London: GMC, July 1998.

 

Q We have received a letter that appears slightly critical from a relative of an elderly demented patient who lives in a local residential home. We are not sure whether to treat this as a complaint or not.

A It sounds as if this is a complaint. If the care you provided is subject to criticism, classifying it as anything else might just be wishful thinking.

The problem here is that the complaint is being made by someone who is not the patient, and given her mental state there is no prospect of obtaining her consent to disclosing details of her care.

That does not mean that the complaint should be ignored, but you should check who the complainant is so that you can judge whether or not it is appropriate to respond in detail.

If the complainant is a near relative raising bona fide concerns, you should respond providing relevant medical information so long as there is no reason to believe that the patient would not have wished to have that information passed on to the complainant.

The NHS complaints procedure does allow complaints from people other than the patient where, through frailty or old age, the patient cannot complain him/herself. The exact response to the complainant will depend on whether or not it is felt appropriate to disclose confidential information about the patient.

In any event, the complainant must be assured that the points raised are being taken seriously, will be investigated, and appropriate action taken if necessary. In addition, where appropriate, answers to the specific clinical complaints can also be set out.

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Guidelines in Practice, November 2001, Volume 4(11)
© 2001 MGP Ltd
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