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ANNUAL REPORT 2013 Adjudicating Complaints for the Independent Healthcare Sector

Goodwill Payments, Anonymised Vignette

When a complaint reaches stage 3, the independent adjudicator is able to consider a wide range of remedies, of which one is to award a goodwill payment. Under the new code a goodwill payment can be awarded ‘in recognition of shortfalls in the complaint handling, inconvenience, distress, or any combination of these, up to a limit of £5,000’. Often the award of a goodwill payment reflects all of these things, but issues have arisen over what the phrase ‘shortfalls in the complaint handling’ means in practice.

One case that illustrates this point concerns a complainant who underwent major surgery. Pre-operatively, the patient had been assessed as having three factors that increased her risk of Venous Thromboembolism (VTE) and identified her as needing anti-embolic (TED) stockings from admission until she was fully mobile. However, when she arrived at hospital, stockings in this patient’s size were not available. Alternative mechanical prophylaxis was used to assist the prevention of VTE, but this was for only 24 hours and she was discharged from hospital without any support stockings. On two occasions after discharge home, the patient complained to hospital nursing staff about pain in her upper legs; these concerns were not escalated to her consultant. When she saw the consultant, he diagnosed bilateral deep vein thrombosis (DVT) and she later developed a pulmonary embolism (PE).

It was beyond the scope of the complaints procedures to establish whether the absence of support stockings caused, or contributed, to the development of this patient’s DVTs and, subsequently, the PE. The adjudicator instead focused on how the hospital responded to the issues raised by the complainant, and found that the hospital did not respond adequately regarding its failure to provide the stockings that the patient had been identified as needing, that there was no evidence that consideration was given to postponing the procedure, and that it was not clear why stockings were not provided for use post discharge. The adjudicator also found that this patient was not well served during interactions with nursing staff post-discharge.

Positively, the handling of this complaint had been within the timeframes set out in the code and the adjudicator did not uphold heads of complaint that related to specific aspects of complaint handling. However, complaints handling covers the whole process, from responding to complaints within timeframes, the investigation and inquiry, as well as

the remedies offered to the complainant. The adjudicator considered that as part of remedying the core complaint as set out above, the hospital should have made a gesture of goodwill.

The hospital considered the goodwill award made by the adjudicator – which fell into the category of ‘very serious’ – to be ‘excessive’. It was concerned that the adjudicator had implied causality between the care delivered by the hospital and the complications the patient had experienced, and thought this was reflected in the goodwill payment awarded. The hospital was concerned that in paying the award, it risked implying acceptance of causality should the patient proceed to litigation.

The adjudicator responded that the size of the award reflected the seriousness of the issues and the distress caused to the complainant and her spouse. Paying it need not imply any acceptance of causality and appropriate caveats could be attached, such as expressly stating that it was made on an ex gratia basis, without prejudice and without any admission of liability. It was therefore incorrect to suggest that it would prejudice any clinical negligence claim in the event that the complainant decided to pursue this avenue.

This case highlighted the difficult path that ISCAS members and adjudicators often tread when handling complaints about issues that could potentially give rise to a clinical negligence claim. It also exposed a lack of transparency about the basis for determining the size of an award. This is something that the team of adjudicators are planning to address with ISCAS by developing guidance on the type of circumstances in which an award may be appropriate and the factors to consider in deciding the level of award. Such guidance can only be indicative, as each case must be considered on its own merits, but it should help to increase transparency of the formulation of awards.


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