The ‘real crisis’ of an imminent collapse of obs-gynae practices needs to be tackled with innovative, new sustainable solutions warns the SA Health Department.
The SA Society of Obstetricians and Gynaecologists (SASOG) has warned of the likely collapse over the next three years of private obstetrics practices collapse, as indemnity insurance costs climb and litigation increases.
Norton Rose Fulbright attorney, Natasha Naidoo, suggests that the opportunity is ripe for the introduction of a no-fault liability based system. And Volker von Widdern, managing director of Constantia, which has launched a SA-based medical risk indemnity product, warns that while mediation does reduce legal costs, “when will the trickle down effects be fully measurable?” There is a range of interventions such as capping claims may create a form of relief, but these “may not address the underlying cause of high claims – high legal costs, the lengthy litigation processes, conservative estimates on the requirements for future care and inappropriate benchmarking of claims.”
SA Health Department spokesperson Joe Maila said the department had met SASOG to work together to find sustainable solutions. Maila has warned that if they leave active practice, the health sector would not cope. “We are aware that they are being litigated out of practice and that the indemnity cover is expensive,” he said.
The organisation’s president, Johannes van Waart, said: “This is a real, real crisis. Our indemnity insurance in the last four years has gone from R250,000, to R330,000, to R650,000 last year, to R850,000 this year.”
He said obstetricians would need to do 17 deliveries per specialist monthly just to cover insurance. Last year, obstetricians would need to do 13 deliveries per specialist monthly.
Van Waart said obstetricians were constantly trying to improve their service through the BetterObs Programme, devised with the intention of promoting safer deliveries, healthier babies, better outcomes all-round and, consequently, decreased opportunities for litigation.
Without private obstetricians, the state health system would not be able to manage the 140,000 deliveries in the country yearly, he added. “It is not sustainable. “If it continues like this, private obstetricians will collapse in the next three years. There will likely not be private obstetrics practice, or it will cost a fortune.”
Health-care management company PPO Serve says in the report that insurance providers attribute high fees to the inconsistent way maternity care is practised in South Africa. “There is a lot of deviation from standard-care protocols, and treatment decisions aren’t well documented. Insurers won’t risk court when doctors are sued, they choose rather to settle in the face of too little evidence over how treatment decisions were made,” said PPO Serve CEO Brian Ruff.
According to Ruff, structural change requires the re-organisation of maternity care to a team approach. “Obstetricians should head up multidisciplinary teams of health-care professionals who share patient information, treatment plans and the fee for their collective services.
“Indemnity insurers offer lower rates to teams because they have the capacity for holistic and proactive care, better record-keeping and better communication with patients and their families.”
Rising insurance costs are likely to lead to medical practitioners in private healthcare moving to state hospitals to avoid personal liability for the financial consequences of medical malpractice claims. In the meantime, this does not ease the challenges faced by the Department of Health in its attempt to reduce medical malpractice claims pay-outs.
Naidoo’s writes: “The SA Society of Obstetricians and Gynaecologists recently approached the Minister of Health regarding the rise in medical negligence claims against obstetricians and gynaecologists. The suggestions put forward include: capping of pay-outs; structuring of pay-outs: either monthly or annually; if doctors are found not to have been negligent, lawyers who sponsored the claim must pay the cost of the litigation; and mandatory mediation before a claim goes to court.
“The introduction of capping legislation may decrease the number and quantum of claims. This is dependent on the nature, form and extent of the capping. American jurisdictions which have implemented capping legislation show that such legislation comes with its own hurdles.
“Medical professionals in some states in the US that have imposed capping legislation are not required to carry malpractice insurance unless they are employed by healthcare facilities. They may elect to obtain malpractice insurance should they wish to qualify for capped liabilities. Malpractice insurance is very costly.
“In South African law, it may be that the capping of claims unjustifiably infringes on some fundamental Constitutional rights such as the right to equality, dignity and security of a person. This would result in a court scrutinising the legislation in terms of the limitation clause contained in the Constitution. The court is likely to consider the relevance of such legislation and its purpose, the impact it has on claimants and any alternative means by which the same purpose can be achieved.
“In Jooste v Score Supermarket Trading (Pty) Ltd, the Constitutional Court considered the constitutionality of a provision in the Compensation for Occupational Diseases and Injuries Act (COIDA) preventing employees from claiming damages from their employers, unless provided for in COIDA.
“The Constitutional Court stated that COIDA provides a system of compensation for employees for disability or death caused by injuries or diseases in the workplace. This system ousts the common law right of the employee to damages from a negligent employer. The challenged provision was held to be rationally connected to the legitimate purpose of the COIDA and that law is not unconstitutional. Properly drafted, a capping law may also be upheld.
“Damages for medical malpractice are usually awarded by means of lump sum pay-outs. The introduction of periodic payment terms could put an end to the misuse of funds which are paid for the benefit of claimants. This may also avoid payments being made towards medical expenses for a claimant who dies prior to deriving benefit from an award for future medical expenses.
“In a recent judgment handed down by a federal judge in Columbus, Georgia, the court held that it would not hesitate to impose sanctions and monetary penalties on attorneys who bring frivolous cases before the courts. Perhaps our courts should be urged to follow this example.
“Mediation has the potential to result in a speedy resolution, settlement and reduction in indemnity premiums for medical professionals. It is, however, uncertain whether complex matters requiring opposing expert inputs are likely to be resolved by mediation. Mediation also requires compromise between the parties.
“The Law Reform Commission is said to be revisiting the laws relating to contingency fees which is aimed at maintaining equal footing between wealthy and indigent claimants by granting everyone access to justice. A further cap on contingency fees might result in a decline of frivolous claims and free-up the courts.
“A solution may be to move to a no-fault compensation scheme where emphasis is placed on compensating claimants for expenses incurred without the need to prove another party’s liability in certain cases. Claimants will have coverage regardless of the event giving rise to the claim. While there may be concerns that this could lead to an increase in the number of claims, such a system may reduce frivolous and vexatious claims by legal practitioners who pursue cases that lack merit.
“The success of the system will depend on the system’s design. Compensation will be paid without the need to prove fault which may avoid parties becoming embroiled in lengthy litigation. It might also result in medical malpractice insurance premiums becoming more affordable to practitioners. Our law of delict is based on fault but medical mishaps are an unfortunate and sometimes unavoidable reality. That does not necessarily equate to medical negligence. This is based on the notion that medical practitioners are also fallible. Perhaps it is time to move to a system focused on a solution rather than an ‘eye for an eye’ method of compensation.”
In similar vein, Constantia‘s Von Widdern argues that “the challenge is to execute on any of the proposed mitigations and interventions in a meaningful and consistent manner”.
“Surely claims capping will be challenged constitutionally? And we cannot force doctors to work in group practices simply to access insurance cover. Mediation does reduce legal costs, but when will the trickle down effects be fully measurable? There will be evolutionary progress in these areas, but the substantial industry change is what is needed urgently.
“Insurance is a highly effective ‘aggregator’ and pooling mechanism for risk management concepts and provides the critical mass and medium-term perspective in which the key interventions can receive the required capital, resources, coordination, focus and technical support.
“Efficient insurers can operate at margins of less than 10% while delivering risk exposure reductions of 50% – this translates to immediate savings and further reductions in premiums over time. With our new product, EthiQal, these benefits are measured and communicated to policyholders, with immediate rewards and differentiation for well-applied risk management.”Cape Times report