So, after a couple of months where I’ve been mediating quite a few complaints against health providers, I’m noticing a bit of a pattern.
The kind of complaints I am talking about are those that involve a perception by a patient that they, or a relative or loved one, have been subjected to negligent or inadequate care or treatment. Sometimes they are looking for compensation, but often they are not.
When the complainant is definitely after a payout, they may proceed straight to litigation, or they may try ‘mediation’. I say ‘mediation’, because the ‘mediation’ that healthcare providers or their lawyers prefer is actually a process of evaluative case settlement. A legal practitioner manages a conference in which he/she evaluates both the complainant’s claim and the respondent’s defence and a compromise is often struck. This then precludes the expensive lottery of litigation. Not quite what I call mediation, but often provides what some people need.
However, in the cases that I mostly get to mediate, which are often the non-financial ones, there is something else going on. Provided we get the referral of the case early enough, before the battle lines have been truly drawn, the complainant is not looking for the big wad, but rather is seeking something else altogether, often one or more of these three things:
- An explanation, preferably from the person whose decisions led to the alleged negligence, of what happened and why.
- An expression of understanding for how people were affected by the allegedly negligent actions affected, and
- An assurance that the same thing(s) will not happen to anyone else
Now, by ‘explanation’, what I mean is a narrative of how the actions taken by the healthcare provider (procedures followed, care administered, treatments applied) followed logically and rationally from the evidence available at the time.
And by ‘expression of understanding’, I am talking here about the respondent listening, empathising, and especially demonstrating some concern for the complainant or their relative/loved one’s predicament.
Then, the ‘assurance’ completes the picture, which is when the provider genuinely and convincingly lets the aggrieved person know that everything is being done to ensure that no-one else will experience the same distress for a similar reason.
A recent large-scale study by researchers at the Ohio State University, published in the Journal of Negotiation and Conflict Management*, looked at the nature of what we refer to as ‘apology’, and is interesting in the context that I am referring to. The study proved empirically what many mediators already know, and what has certainly been my own experience having done this work for the last eighteen years. What the researchers found, amongst other things, is that apologies can be more or less effective depending on their content and how they are given. In particular, a ‘real’ apology has to be sincere, the giver has to be authentic (i.e. not just ‘acting sorry’), they have to acknowledge responsibility, and they must offer repair.
Given that legal practitioners, in my experience, often assume that all complainants must be after a big payout, healthcare providers are very quick to pull up the hospital drawbridge and to hide behind tight-lipped correspondence instead of making every effort to give the proper apology: the one that the Ohio State University researchers have shown is needed. This obviously inflames situations, and again in my experience, probably leads to more financial claims because the complainant feels that they are not being heard, or that the provider is trying to absolve itself of any blame.
The key for me is for the healthcare provider to respond quickly to complaints: to sincerely try and see a situation through the complainant’s eyes, and where possible to explain what went wrong, to accept their failings, and to offer assurances about protecting future patients from the same mistakes. This is a short-term investment of time, to avoid a massive long-term expense when the complainant turns into a claimant: seeking monetary compensation for something that could have been resolved early on by a genuine apology.
* Lewicki, R. J., Lount, R. & Polin, B. An Exploration of the Structure of Effective Apologies. Negotiation and Conflict Management Research, May 2016