Michael Ford (post until Oct. 31/19)

It's vital to show complaints panel a path to correct decision: Rosen

Health professionals subjected to a College investigation can go a long way towards avoiding serious consequences for minor complaints if they answer the complaint appropriately, Toronto health lawyer Lonny Rosen tells AdvocateDaily.com.

“Recognize that responding to complaints is an obligation of all professionals, and is, unfortunately, a cost of doing business,” says Rosen, partner with Rosen Sunshine LLP.

Doctors, dentists and other health professionals, like any other business person, face the prospect of disagreements with clients (patients) over fees or work undertaken, Rosen says.

But health professionals differ from most in that, in addition to being sued, they can face regulatory proceedings that could result in the suspension or revocation of their licence, he adds.

And unlike a lawsuit, it costs nothing for a person to submit a complaint to a College, Rosen says.

Typically, a complaint will result in a panel of a College’s Inquiries, Complaints and Reports Committee (ICRC) investigating the allegations and deciding what, if any, action to take, he says.  

Complainants may allege serious misconduct such as conduct that would constitute a breach of trust, a failure to maintain the standard of practice of the profession, or conduct that would reasonably be regarded by members as “disgraceful, dishonourable or unprofessional.”

"While some complaints, of course, have merit, many times they can boil down to miscommunication, a misapprehension of the facts, or allegations that are simply unfounded,” Rosen says.

Many complaints, if answered appropriately, will result in the ICRC taking no action or an action short of a referral of allegations to the discipline committee, he says.

The manner in which health professionals respond to complaints can go a long way toward achieving that result, Rosen says. “However, the response to a complaint can also exacerbate a situation and create ‘a major headache.’”

Rosen offers this guidance:

Get advice from the outset

When you receive a complaint, it is an affront to your professionalism and integrity. You may lack the objectivity to respond appropriately. So first get advice from a lawyer experienced in health law. Even if you draft your response and your lawyer simply reviews it to tone down your language, and ensure all issues are addressed, the final product can become more clinical and therefore more persuasive.

Maintain reliable and helpful records

Typically, you will be asked to provide your patient’s chart. Good records speak for themselves and can be your best friend. Poor records make it difficult to respond to an allegation about a patient’s symptoms, care, consent, the instructions they gave or the advice they were given. If so, your lawyer will try to help you deal with this shortcoming by:

  • providing evidence as to your usual practice
  • obtaining supportive evidence from staff or colleagues as to their observations 
  • referring to other documents to support your response

Commit now to making your counsel’s job easier by maintaining reliable and helpful patient records. Financial records can also be vital when responding to a complaint about fees or a perceived poor outcome, so ensure that these are always complete and clear.

Never alter patient records

If your records are lacking or not supportive, the worst thing you can do is alter them or create new ones. Although it is sometimes appropriate to prepare a “late entry,” this should never be done when you are notified of a complaint. Altering or creating a record after the fact without indicating when it was created is a serious act of professional misconduct.

Distil the complaint to its essence

Complainants rarely have legal or health backgrounds or seek advice before preparing their complaint. Accordingly, complaints often consist of diatribes, accusations and a version of the facts which lacks  context or reality. Even such complaints need to be taken seriously. An experienced health lawyer can help you respond most effectively by distilling the complaint to its essence and responding to each aspect. This involves:

  • identifying the allegations requiring a response
  • providing a chronological summary of the case for context
  • fully responding to each allegation

Show the ICRC panel the way

The ICRC panel must dispose of the complaint in a “reasonable” manner. Otherwise, it risks having its decision overturned by the Health Professions Appeal and Review Board (HPARB). Your response should provide the ICRC with enough information and context so that sense can be made of both the complaint and the response. Show the panel that the complaint indicates no or minimal risk and that it is reasonable and appropriate to take no action.

It ain’t over till it’s over

Even after the ICRC disposes of the complaint by taking no further action or providing advice or a caution, either party may ask the HPARB to review the decision. Since the board’s review is based on the documents submitted to the ICRC panel, it is important to provide the panel with all the information that you wish to rely on at the review.  

Consider a proposal

Sometimes the complaint gives rise to legitimate concerns. These may relate to your record-keeping, billing practices, or a concern that your care falls below standard.

It is often valuable to self-identify such shortcomings and propose a remediation plan that could include further education, mentorship, or monitoring. Such terms could be contained in an agreement you make with the College to avoid further action. Remedial steps must be proposed carefully, with the assistance of a lawyer, and where possible, “without prejudice.” Such proposals often provide the ICRC panel with an alternative to referring the allegations to the College’s discipline committee.

“It is always upsetting to receive a complaint,” Rosen says.

However, with the early assistance of an experienced health lawyer and a careful, complete and honest assessment of the complaint, you can craft a response that shows the ICRC panel a path to the correct decision, he says.

“In this way, you can ensure that a relatively minor complaint does not become a very serious problem,” Rosen says.

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