Only a small proportion of recorded complaints and claims related to a previously reported clinical incident
And yet, very few of these reported incidents resulted in a complaint or a claim by the patients concerned or their families.
While the minimal overlap could mean that complainants and claimants are highlighting additional problems which have not been notified by staff, Dr Goldsmith believes it is more likely to reflect the different factors driving these processes. As the MDU and the NHSLA have previously pointed out, the spiraling rate of claims is largely influenced by non-clinical factors such as the legal changes to 'no win no fee' arrangements and the economic climate. In addition, in Dr Goldsmith's experience, the allegations made by complainants tend to be less specific and are more likely to concern an apparent breakdown in communication or a perceived lack of compassion by clinicians.
'In my own specialty of neurology, we see patients with functional disorders who can occasionally get very frustrated with the diagnostic label,' he says. 'These patients are more likely to complain and their complaint might include 30 different points which each have to be addressed by the doctor and complaints manager.
'This means that a comparatively small number of patients can take up a disproportionate amount of time and consume more resources than staff incident reporting. We found that the neuroscience directorate manager spends eight to ten hours every week dealing with complaints.'
Dr Goldsmith argues it is time to reappraise a complaints system. 'If we start from the premise that patient feedback can help us improve standards, let's consider how to facilitate useful and actionable observations, without necessarily triggering a formal complaint. Equally, we should try to minimise the negative consequences of the complaints system in terms of resources, as well as other hidden costs.'
He is particularly concerned that undue emphasis on complaints and claims is having a harmful effect on staff within the health sector. 'I've seen at first-hand the stress that being the subject of a complaint causes clinicians and nurses, with associated sick leave and even early retirement, particularly if people feel unsupported. Can we afford to lose these staff?'
Time for change?
It is sometimes suggested that doctors should change their practice if they want to avoid medico-legal difficulties. However improving clinical outcomes and survival rates suggest that standards of practice have never been higher and Dr Goldsmith's study found little evidence that complaints and claims are an inevitable consequence of 'medical errors'.
And he reflects, 'In my experience doctors are already making efforts to improve their communication skills, but simply trying to avoid complaints is not necessarily a good thing. For example, if we expedite appointments, prescribe unnecessary antibiotics or don't tell a patient something that might upset them, we might avoid a complaint. But it is not compassionate - which is not always the same as being 'nice', nor it is fair on other patients, and it's also not a good use of available resources.'
Simply trying to avoid complaints is not necessarily a good thing
Dr Goldsmith has similar concerns about the wider cost of civil litigation in the UK where there has been a steep rise in the frequency and cost of clinical negligence claims in recent years. While patients who have been negligently harmed should receive compensation, he believes that the current system provides disproportionately high awards and legal costs for a few patients and their solicitors at the expense of the majority.
'Consider two patients. One has had a spontaneous spinal cord stroke and the other an identical deficit but resulting from abdominal surgery. Both have the same neurological deficit and will require similar rehab but only one will be able to make a multi-million pound claim against the NHS. Wouldn't it be more fair and equitable for this money to be spent on better rehab facilities for both patients, and on process improvement to reduce the risks of harm for future patients?
'Our civil litigation system was designed for a world when there was no NHS rehab or social care available. But we are now in a position where the NHS has £28.3 billion set aside to pay successful claimants for private care and we don't even know how this money is being spent. As the MDU has pointed out, this isn't fair on the majority of patients and it isn't sustainable.'
Dr Goldsmith has received a positive response to his study and hopes it prompts further discussion about the different mechanisms used to improve standards. 'We need to ask what each process is achieving, the consequences for all concerned and whether each is the best use of the finite resources available,' he says.
'The NHS has always been an organisation where everything is interdependent; if a disproportionate amount is spent managing a small proportion of complaints and claims, the impact will be felt elsewhere. On the other hand, if we unite to find better ways to identify and learn from incidents, we can all ultimately benefit.'
Interview by Susan Field.
Dr Paul Goldsmith
Dr Paul Goldsmith is a consultant neurologist and MDU board member. His PhD assessed and showed that the simplicity of developmental biology could be use to understand complex human disease. He then went on to co-found and help build both drug and digital health companies. He also has NHS systems and strategic experience, including clinical networks, vanguard and clinical senate roles
See more by Dr Paul Goldsmith