Thursday, 28 October, 2021
HomeMPS ColumnHow much risk are YOU willing to bear?

How much risk are YOU willing to bear?

Dr Volker Hitzeroth, Medicolegal Consultant for Medical Protection, writes on the breadth of medicolegal risk that Health Care Practitioners (HCPs) face while practising their profession. He also illuminates the possible consequences that may follow an adverse clinical incident.

Dr Hitzeroth writes:

Private practitioners require comprehensive indemnity in order to request assistance in relation to both clinical negligence claims and a range of other medicolegal issues that could arise from clinical practice such as complaints, disciplinaries and regulatory matters. A state employed practitioner, while indemnified for clinical negligence by the state as per SA Treasury regulations, still requires protection for the other medicolegal issues that may arise. While these regulations oblige the state to indemnify employees for a claim in negligence, they do not provide any assistance for the myriad of other medicolegal complications faced by HCPs across SA every day. Furthermore, the Treasury regulations list several exclusions that could lead to the HCP’s state indemnity being forfeited. This, in turn, would leave the individual HCP unprotected and having to carry the significant personal, financial, and reputational burden alone.

The practice of medicine is riddled with uncertainty. No patient or disease is the same as another. An individual’s response to medication remains unpredictable and the development of complications or an adverse outcome can occur despite the best circumstances. Unfortunately, even the most dedicated care and the most advanced treatments do not guarantee recovery, respite or relief.

Newly qualified HCPs are highly trained, exceptionally skilled, and very motivated to help their patients. However, they are largely unaware of the clinical risk they are exposed to as soon as they enter the consultation room to see their first patient as an independent practitioner. Moreover, they are not usually apprised of the medicolegal consequences that could follow an adverse clinical event. Very few HCPs have a deeper understanding of the medicolegal landscape and will likely be unaware of how the medicolegal risk they face every day could impact them, their practice, their families and their future.

The realisation that clinical care is synonymous with clinical risk becomes more apparent to HCPs once they have experienced the rough and tumble of clinical practice, the tragedy of unintended adverse outcomes, and had difficult conversations with patients who are dissatisfied about aspects of their clinical care. The current reality of mismanaged institutions, systems errors, limited resources and administrative burdens compound the medicolegal risk they are exposed to.

Many HCPs are vaguely aware that a patient may complain about their conduct, but they are rarely conscious that such a complaint can be made to the Health Professions Council of South Africa (HPCSA), their Head of Department (HoD), the hospital management and numerous other institutions – even simultaneously. Similarly, alongside such multiple complaints, a patient or their family may choose to institute a claim in alleged clinical negligence and, in the event of a patient’s death, the South African Police Service (SAPS) may proceed with an inquest resulting in the state pursuing criminal charges of culpable homicide or even murder. Any one of these medicolegal consequences can have deleterious outcomes for the practitioner, but in combination they will undoubtedly take a very heavy toll on even the most experienced and robust HCP.

Complaints

In the state sector patients and families often complain to the hospital manager or the HoD who are then obliged to investigate the allegations. In the private sector a patient or family member is likely to write directly to the practice or the private hospital manager. Alternatively, patients or family members may respond critically to a patient satisfaction survey, which is then flagged up by the hospital’s complaints management team. In both the state and private sector, the HCP is subsequently approached for comment and a written response is expected. While HCPs may regard such informal complaints as a minor inconvenience and prefer to focus on patient care they would be well advised to take any expression of dissatisfaction seriously and spend time reviewing the relevant concerns and formulating a comprehensive response to any complaint. Even a relatively minor complaint could result in very unpleasant outcomes for any HCP. In the state sector a practitioner may be called to attend a disciplinary hearing. A resultant adverse finding may impact on their employment and career progression. In the private sector the hospital management may likewise proceed to revoke a practitioner’s admission and practicing privileges.

It is also not unheard of for a patient or family member to send multiple complaints to various institutions, such as the Office of Health Standards Compliance (OHSC), the Human Rights Commission and numerous other foundations and organisations all of which would require a written, and well worded, response – keeping in mind the (usually) adversarial undertones of the complaint, the legalistic nature of the various forums and the possible pitfalls facing the HCP.

Finally, on occasion, a complaint is lodged by a fellow HCP, nurse or hospital manager who sees sufficient offence to escalate their concerns to a higher authority.

Regulatory complaints

The HPCSA, as the regulator of all healthcare professions in South Africa, is tasked with ensuring that its registrants act ethically and professionally when caring for patients and interacting with colleagues. In order to enforce this duty, it has investigative and disciplinary powers. When a complaint against a HCP is received by the HPCSA, they will notify the practitioner and inquire into the matter. In the event of a minor complaint, such a disciplinary process may be referred to, and resolved, by the HPCSA ombudsman. Sadly, many complaints still escalate to the Preliminary Committee of Inquiry and even the Professional Conduct Committee. This process could take many years and ultimately end in a “guilty” finding with either a substantial fine being imposed or, in a minority of cases, suspension or erasure from the register and hence a prohibition to practice. If a decision is made to appeal the HPCSA’s findings, the matter would have to proceed before the High Court of South Africa with further delays and significant costs.

Claims in negligence

An aggrieved patient or family member, who believes that a HCP’s acts or omissions might have caused harm or injury, may institute a claim in alleged negligence. When a matter has firmly been placed into the legal arena, immediate and specialist legal advice and subsequent representation is paramount. A claim in alleged negligence is a protracted and costly legal process that requires detailed investigations and the instructions of one or more experts to opine on the matter. If, after review, it is agreed that the HCP is vulnerable to liability, a decision may be made to settle the matter out of court. Such a settlement usually includes the payment of agreed damages, no admission of liability, a confidentiality clause, as well as an undertaking that the matter ends in its totality. If, on the other hand, the HCP and their legal representatives are confident that the clinical conduct was defensible, the matter may proceed to trial.

In court each party to the action has an opportunity to state their case, with subsequent examination and rigorous cross examination by counsel. At the conclusion of a trial, the presiding officer will make a judgement, and in most cases, this would conclude the legalities. If the HCP is found guilty of negligence, they or their indemnifier / insurer is obliged to pay the patient’s legal costs and the damages, in addition to their own. In the event of an appeal by either party, the whole process becomes even more drawn out, arduous and costly. Investigating and defending a claim in alleged negligence is an expensive endeavour and takes much time and commitment away from patient care and the practice of medicine. Needless to say, it is also extremely stressful to all concerned.

Inquests

In the event of a patient’s death from non-natural causes, a HCP is obliged to inform the SAPS who in turn liaise with the appropriate forensic pathology service. The SAPS usually open an inquest docket; various records, reports and statements are requested from relevant role players and placed inside the docket. Upon the completion of a preliminary investigation the docket is passed to the state prosecutor who could, even at this early stage, decide to pursue criminal charges against a HCP. Alternatively, the docket may be referred to an inquest magistrate for perusal in order to decide whether a formal or informal inquest should be held. The purpose of an inquest is to confirm the identity of the deceased, the date of death, the cause of death and whether the death was caused by an act or omission that, on the face of it, involves or amounts to an offence.

An informal (paper) inquest is usually a mere formality and rarely impacts on the HCP. A formal inquest, on the other hand, is very legalistic and may have serious consequences for the HCP. All relevant parties (including the patient’s family) are permitted legal representation and may be subpoenaed, examined and cross examined. Ultimately, the inquest magistrate makes a determination and if there was reasonable suspicion that a HCP committed an act or omission that could be construed to be criminal in nature, the docket is passed to the National Prosecution Authority (NPA) who, in turn, may investigate criminal charges against the HCP. This is likely to be either culpable homicide or a charge of murder.

Criminal charges

It is a sorrowful day for the profession when a HCP is accused of criminal conduct and charged with a criminal offence. The matter is compounded when they are subsequently found guilty and, on occasion, imprisoned. Fortunately, this is a rare occurrence. However, for the individual concerned an allegation of criminal conduct, and the possibility of a guilty finding and subsequent incarceration can be devastating and is likely to be catastrophic, career ending and life altering.

Common criminal charges relate to alleged fraud, sexual assault, rape and, in the event of a patient’s death, culpable homicide or even murder. Any HCP accused of such conduct should seek immediate and specialist legal advice.

Allegations of fraud commonly relate to dubious financial transactions, attempts to defraud various institutions, falsifying documents and receiving kickbacks. Charges of sexual assault and rape mostly relate to allegations of boundary crossing during an intimate physical examination such as a chest, genital or rectal examination. Poor communication and the absence of a chaperone often compound the issue. Finally, in the event of a patient’s death, the SAPS and the NPA may investigate the events surrounding the patient’s demise and bring criminal charges of culpable homicide or murder against the HCP – which is likely to progress to a gruelling, lengthy, and public criminal trial.

Indemnity / insurance

Many HCPs remain largely unaware of the medicolegal climate that they are working in and of the risk they carry when they practice their profession. Unfortunately, the current medicolegal burden will most likely continue to be an unwelcome partner and an unwanted menace throughout their career. Every HCP would therefore be well advised to ensure that they have appropriate professional indemnity or insurance in place.

Fortunately, with prompt and specialist medicolegal support, advice, protection and defence by their side, a HCP can weather the most severe medicolegal storms, continue caring for their patients and have a rewarding and fulfilling career.

Medical Protection will be hosting a webinar for state doctors: Am I protected? Why state doctors need more than just state indemnity on Monday 14 June 2021. For more details and to register click here: https://medicalprotection-org.zoom.us/webinar/register/WN_E0QCPE9OQkmT_8Hug6YnSQ

 

See other recent MPS columns in the MedicalBrief archives:

 

POPIA is coming into force – are you ready?

 

Wellbeing and psychological health for health care practitioners

 

Best practice: COVID-19 vaccinations

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