Dr Yash Naidoo, case manager at Medical Protection, answers the oft-asked question of who is responsible for paying the fine when a practitioner is found guilty of an offence by the Health Professions Council of South Africa (HPCSA).
Dr Naidoo writes:
It’s a cold winter evening and you’re on call at the hospital. It’s not busy; it’s the middle of the week and the payday-weekend casualty rush has come and gone. You expect it to be a quiet shift, so you convince yourself to go home and be on standby from the comfort of your couch. If there is an emergency, you’ll drive back in no time, you reason.
A few hours later, you wake up on your couch with a start, your phone buzzing on your chest. You notice three missed call notifications on your screen, all from the hospital. You answer the phone, and sure enough there is a frantic colleague on the other end, urging you to come in for an emergency. As you speed back to the hospital, you notice a sudden quick bright flash of a camera on the side of the road, and you know what that means but it doesn’t concern you too much as time is of the essence. You rush into theatre and are met by the colleague who called you just a moment ago. Sadly, it’s too late – the patient’s condition has worsened and, while they survive, they will now require long-term treatment.
The family of the patient submits a complaint to your hospital and an investigation ensues. The findings of the internal investigation are damning and implicate you. The family is upset, and reports you to your professional regulator, the Health Professions Council of South Africa (HPCSA). Despite this, you are comforted in the knowledge that you are a member of Medical Protection, and you call on them for support.
Swiftly, with their in-house experts, they appoint a highly skilled and experienced team of healthcare lawyers to assist you with a formal response to the HPCSA.
Your defence team consults with you and, with the benefit of their medico-legal expertise, can warn you of your vulnerability upfront. They assist you to prepare a letter of explanation, which is submitted to the HPCSA within the imposed deadline.
Not unexpectedly, a few months later your team is notified of the outcome of the HPCSA’s deliberations. You have been found guilty of unprofessional conduct and as a penalty, have been given the option to pay a fine of R70,000. Your team of experts advises you that this is the best possible outcome in the circumstances. To add insult to injury, while you sit at home and ponder whether to pay the fine or take your chances at a formal inquiry, a letter arrives in the post from the traffic department. You open the envelope to find a reminder of the flashing light you saw on your way to the hospital that fateful evening. Another fine.
Who pays the fines?
While the gravity of the HPCSA fine may be greater than the traffic department’s fine, the two have one thing in common. They are punitive. They are a form of sanction for breaking the rules. The former, for unprofessional conduct as a healthcare practitioner, the latter for contravening the laws of the road as a public citizen. The answer to the question of who must pay the fine ought to be straightforward – the person contravening the rules. You would not turn to your car insurer to pay your speeding ticket. And if you did, they would not pay.
Likewise, an HPCSA fine is for you to pay, and not for your medical defence organisation (MDO). But every now and then the question arises, and practitioners can be disappointed with the answer.
Why not?
Fines imposed by the HPCSA are intended as a disciplinary or regulatory penalty against the practitioner. They are paid to the HPCSA. They range from around R2,000 to R70,000, depending on the nature of the charges. If there are multiple charges, the fines can be compounded. For example, if you are charged with negligence and incompetence, you could be fined a total of R120,000. The money does not go to the patient or the family – the HPCSA is not empowered to compensate such third parties. It is kept by the HPCSA.
It is almost certain that you will not find any insurer, professional indemnity provider or defence organisation that pays or reimburses a practitioner for a regulatory fine. That could lead to undesirable professional practice and can be harmful to the welfare of society as a whole. Think of the potential unwanted consequences such an arrangement might have for patient safety or road safety: what might happen if doctors or drivers go about their business with little concern for the sanctions they might face if the rules are broken?
Benefits of membership
Should a patient or their representative desire compensation for any alleged harm caused by a Medical Protection member, they would have to bring a claim for clinical negligence against that member through civil proceedings. And if the member is found liable for harm to a patient due to clinical negligence, Medical Protection may compensate the claimant. The benefits of membership in relation to clinical negligence claims would include the provision of expert legal representation and payment of damages if due, without cost to the member.
Similarly, as stated on our website under the benefits of membership, members may request advice and legal representation for HPCSA investigations, disciplinary and regulatory proceedings. Where assistance is granted, Medical Protection will focus on providing assistance with and mitigating the outcome of such proceedings for our members. This would include the provision of legal representation and expert assistance without cost to the member. As is generally the case with insurers and other defence organisations, the benefits of Medical Protection membership do not extend to the payment of punitive sanctions, such as regulatory fines.
Sanctioning registrants with fines, when professional standards are not upheld, forms part of the HPCSA’s role in protecting the public. If those fines were to be paid by anyone other than the practitioner, they would be rendered meaningless. However, if an excessive fine has been imposed on a member, every effort is made by Medical Protection and its panel attorneys to reach an agreement on a more suitable penalty.
Perhaps most importantly, Medical Protection is committed to support safe practice by helping to avert problems in the first place. This often entails assisting to resolve complaints before they escalate to the HPCSA. So, while a fine will be for the member to pay, Medical Protection’s overwhelming focus is to improve patient safety and prevent the fine being imposed in the first place.
See more MPS columns from MedicalBrief archives:
Coming into line with international practice on criminalisation of doctors
Myths and misconceptions about State indemnity
Social media complaints and how to deal with them