Each time Dr Franelise Hofmeyr has a consultation with a patient at Cape Town’s Netcare Christiaan Barnard Memorial Hospital she doesn’t simply jot down notes as most doctors do, she captures part of the discussion on her audio recorder to store electronically for years – a precaution against any potential legal action
The gynaecologist and obstetrician says she chose the profession for the privilege of seeing new life and caring for pregnant women, but she finds it daunting at times as she has to practise “defensive medicine” because of the high risk of being sued.
Part of defensive medicine includes asking women who want to deliver their babies naturally to first provide consent, due to the high litigation rates linked to this option.
“We have started implementing consent for normal birth . . . it opens up a discussion regarding what will happen, and is not just ‘do you want to play music during birth or do you want lights dimmed?’, it’s also about ‘how do you feel about delayed cord clamping, how do you feel about episiotomy, do you give me permission’?”
Hofmeyr is one of about 900 South African gynaecologists and obstetricians faced with skyrocketing medico-legal claims that have driven some out of business through having to pay more than R1m a year for medical indemnity cover.
While defensive medicine has pushed up the rate of Caesarean sections, Hofmeyr said other aspects of practising medicine had changed too.
“It has completely changed the face of medicine. It’s not just the C-section rate going up. Defensive medicine has also changed how we keep our notes,” she told the Sunday Times.
In July, health minister Joe Phaahla said government had paid out R4bn in medico-legal claims in just three financial years, and this week, the office of the auditor-general (AGSA) told the National Council of Provinces’ appropriations committee that the medico-legal claims balance had increased from R70bn in 2018 to R77bn this year.
Most gynaecologists in the private sector have – over the past few years – asked patients to sign a pre-mediation meeting clause as a condition for treatment.
Initiated by the South African Society of Obstetricians and Gynaecologists (Sasog), it requires patients and doctors to agree to attend a free pre-mediation meeting in the event of a dispute, to help decide whether to mediate or proceed with litigation.
Sasog president Prof Ismail Bhorat said while it was too soon to see the impact of this intervention, the trajectory of medico-legal litigation had become “unsustainable and consequences are becoming dire”.
“The major advantage of mediation is that it is an efficient process; the environment is non-adversarial, where proper scientific causation can be discussed, where patients can ask relevant questions about the adverse event, and often closure for patients is reached in a relatively short space of time.
“Further complicating the scenario is that a court process is a legal one and not a scientific one, and thus judgments are often based on eloquent legal argument rather than true scientific causality, and therefore, judgments can be flawed,” he said.
Hofmeyr, who has been called as an expert witness in legal trials, said some cases brought to court involved births from 20 years ago.
“That’s where record-keeping is so critical, because recollection of what exactly happened and what was supposed to happen is going to fade.”
Christa Koelewyn of the South African Medico-Legal Association said despite the benefits of mediation, such as low costs and shorter time frames, this method of dispute resolution “is not widely appreciated in SA”.
As a result, “trained mediators are not used to full capacity as the demand for their services has not increased to a significant extent”.
See more from MedicalBrief archives:
Provinces ignore system to slash medical negligence claims
SIU to probe suspicious medical negligence claims
Ethiqal: What is indemnity cover and why do doctors need it?
Myths and misconceptions about State indemnity