Negligence and Litigation

• NHS constitution explains patients' rights to complain:

  • Right to complain and have complaint dealt with
  • Know the outcome of any investigation
  • Receive compensation if you've been harmed
• Handling complaints:

  • Local resolution
  • Always preferable
  • In-house complaints procedure
  • Consult defence union
  • Invaluable
  • Local NHS organisation involvement
  • GDC involvement
  • Hearings
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.1 It is part of your responsibility as a dental professional to deal with complaints properly and professionally. You must:
  • Ensure that there is an effective written complaints procedure where you work
  • Follow the complaints procedure at all times
  • Respond to complaints within the time limits set out in the procedure
  • Provide a constructive response to the complaint
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.2 You should make sure that everyone (dental professionals, other staff and pts) knows about the complaints procedure and understands how it works. If you are an employer, or you manage a team, you must ensure that all staff are trained in handling complaints.
  • 5.1.3 If you work for a practice that provides NHS treatment, or if you work in a hospital, you should follow the procedure set down by that organisation.
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.4 If you work in private practice, including private practice owned by a dental body corporate, you should make sure that it has a procedure which sets similar standards and time limits to the NHS (or equivalent health service) procedure.
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.5 You should make sure that your complaints procedure:
  • Is displayed where pts can see it - pts should not have to ask for a copy
  • Is clearly written in plain language and is available in other formats if needed
  • Is easy for pts to understand and follow
  • Provides info on other independent organisations that pts can contact to raise concerns
  • Allows you to deal with complaints promptly and efficiently
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.5 You should make sure that your complaints procedure:
  • Allows you to investigate complaints in a full and fair way; explains the possible outcomes
  • Allows information that can be used to improve services to pass back to your practice management or equivalent
  • Respect pts' confidentiality
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.6 Complaints can be an opportunity to improve your service. You should analyse any complaints that you receive to help you improve the service you offer, and share lessons learnt from complaints with all team members
• GDC Principle 5:

  • Standard 5.1 You must make sure that there is an effective complaints procedure readily available for pts to use, and follow that procedure at all times
  • 5.1.7 You should keep a written record of all complaints together with your responses. This record should be separate from your pt records so that pts are not discouraged from making a complaint. You should use your record of complaints to monitor your performance in handling complaints and identify any areas that need to be improved.
• Standard 5.2 You must respect a pt's right to complain

  • 5.2.1 You should not react defensively to complaints. You should listen carefully to pts who complain and involve them fully in the complaints process. You should find out what outcome pts want from their complaint.
• Standard 5.3 You must give pts who complain a prompt and constructive response.

  • 5.3.1 You should give the pt a copy of the complaints procedure when you acknowledge their complaint so that they understand the stages involved and the timescales.
  • 5.3.2 You should deal with complaints in a calm and constructive way and in line with the complaints procedure.
  • 5.3.3 You should aim to resolve complaints as efficiently, effectively and politely as possible.
  • 5.3.4 You must respond to complaints within the time limits set out in your complaints procedure.
• Standard 5.3 You must give pts who complain a prompt and constructive response.

  • 5.3.5 If you need more time to investigate a complaint, you should tell the pt when you will respond.
  • 5.3.6 If there are exceptional circumstances which mean that the complaint cannot be resolved within the usual timescale, you should give the pt regular updates (at least every 10 days) on progress.
  • 5.3.7 You should try to deal with all the points raised in the complaint and, where possible, offer a solution for each one.
• Standard 5.3 You must give pts who complain a prompt and constructive response.

  • 5.3.8 You should offer an apology and a practical solution where appropriate.
  • 5.3.9 If a complaint is justified, you should offer a fair solution. This may include offering to put things right at your own expense if you have made a mistake.
  • 5.3.10 You should respond to the pt in writing, setting out your findings and any practical solutions you are prepared to offer. Make sure that the letter is clear, deals with the pt's concerns and is easy for them to understand.
• Standard 5.3 You must give pts who complain a prompt and constructive response.

  • 5.3.11 If the pt is not satisfied despite your best efforts to resolve their complaint, you should tell them about other avenues that are open to them, such as the relevant Ombudsman for health service complaints or the Dental Complaints Service for complaints about private dental treatment.
• Local resolution - the NHS and social care complaints procedure:

  • Procedure covers dental practices
  • Can complain to practice, primary care provider or commissioning group
  • Should be within 12 months of incident/knowledge of problem
  • Pts can complain on their own behalf/nominated person (solicitor)
  • Acknowledge receipt of written complaint in 3 working days
  • Oral complaints - resolution in 24 hours
  • Complaints manager records dates & invites complainant to discuss - agree timescale
  • Must be investigated and complaintant kept informed
  • If not happy at resolution can take complain to ombudsman
• Negligence = conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.
• Negligence:

  • Claimants must prove
  • Duty of care was breached
  • Causation
  • Harm/injury resulted
  • Burden of proof falls on claimant - they must prove failure by the dental professional, and that failure caused the injuries of which the patient is complaining
• Duty of Care = you have the responsibility to provide care and welfare of the profession or community OR an obligation on one party to prevent harm being suffered by another.
• Causation = that your actions have resulted in harm.
• Causation:

  • In civil cases causation is based on the balance of probabilities i.e. - harm probably did result from the action/inaction
  • Only criminal cases must be proved beyond reasonable doubt
  • Was the injury caused by the dentist's act or omission
• Harm/injury:

  • Claimants must demonstrate physical injury
  • Expert evidence required to support nature of injury
  • If the claimant can prove breach of duty of care, causation and physical harm then they can be awarded compensation as a civil claim
• Stages of litigation:

  • Patient's solicitor may request a copy of the records
  • Dentist must respond within 40 days, and should contact defence union
  • Waiting...as expert reports may be collected etc
  • If the case is pursued by the patient the dentist will receive a letter of claim
  • This will set out the fact, main allegations of negligence, causation, harm, prognosis and financial losses
  • Defence union can take advice on whether the claim is valid, defensible or if it should be settled
  • Respond to claimant's solicitor within 90 days