North West surgeon Dr Samuel Smith's detailed motivation to a patient's medical scheme for keyhole surgery instead of riskier open surgery finally, after two years of litigation, tipped the legal scales in his favour. The Supreme Court of Appeal dismissed a negligence claim that there had not been informed consent and that Smith had not explained the risks of the procedure.
The Times reports that he patient sued Smith because the complications she suffered after keyhole surgery left her with a damaged colon and a blood infection, and she spent months in hospital. Rabia Beukes blamed the doctor for her complications, saying he did not explain the risks of the procedure. She said she had not given “informed” consent, despite signing a consent form.
The report says Smith endured more than two years of litigation through the High Court and then the Supreme Court of Appeal, which found in his favour. What swayed the court were detailed notes Smith had written to the patient’s medical aid, asking for funding for keyhole surgery instead of riskier open surgery. The court found that he must have explained the different options and risks to Beukes if he had written such a detailed motivation to the medical aid.
Natasha Naidoo of Norton Rose Fulbright, said the lesson for doctors was for them to keep notes proving how they explained the risks to the patient. This would reduce the probability of lengthy legal battles.
The report says the incidence of medical negligence cases against doctors has been rising over the past years, with patients often blaming doctors when something goes wrong. Health minister Aaron Motsoaledi has attributed the rise in such cases to changes at the Road Accident Fund, whereby claimants no longer need to claim from the fund. This has seen more lawyers moving into medical negligence, with high claim rates “wreaking havoc” on the state’s medical provision.
Beukes, a high-risk patient, had a laparoscopy to repair a hernia after she had sought help for abdominal pain. The report says during the surgery her colon was perforated and she developed sepsis, a dangerous blood infection. She spent two months in hospital for further treatment. She blamed the doctor, saying she would have chosen a different procedure had she known the risks of keyhole surgery. Naidoo explained: “She claimed that the doctor failed to provide her with any information relating to the options available to her, or inform her of the risks and benefits associated with each procedure.”
But, the report said, the High Court and Supreme Court sided with the doctor, finding he must have explained the risks to her, even though he did not have notes recording how he did so.
“The judgment highlights the importance of keeping clearly and accurately written medical records,” said Naidoo. “Medical records serve as evidence of professional competence and ignorance in cases where it is the patient’s word against the healthcare practitioner’s word.”
[link url="https://www.timeslive.co.za/news/south-africa/2019-05-28-malpractice-mania-one-doc-fights-back-and-wins/"]The Times report[/link]