It’s a myth that doctors working in the public sector do not need indemnity and that they are fully indemnified against adverse events by the State, writes Chris Bateman for MedicalBrief. The truth is that they remain cripplingly vulnerable on many fronts where additional cover may prove vital.
This emerged from a Medical Protection Society, (MPS), webinar last week, (14 September), aimed at clearing up misconceptions, identifying red flag areas and advising doctors working across both the public and private sectors in South Africa. With resources limited and large patient burdens aggravated by COVID-19, one of the top sources of anxiety for local healthcare practitioners remains dealing with the medico-legal aspects of clinical practice.
Dr Graham Howarth, MPS Head of Medical Services for Africa, says that State indemnity covers State employees (as opposed to locums, supernumeraries and sessional doctors) only for claims – and not for the “slings and arrows of outrageous fortune”.
He outlined several areas where public sector doctors, routinely protected by Treasury regulations against medical negligence, remain highly vulnerable. These include a complaint from a hospital manager to the Health Professions Council of South Africa, (HPCSA), a dissatisfied patient or a disgruntled colleague lodging a formal complaint with the HPCSA, criminal charges arising from clinical practice, and any inquest when a conflict arises between the individual healthcare practitioner and the state. Any one of these could also result in “trial by media” and lasting reputational damage. While the legal principle of vicarious liability applied to the State (and provinces), thus shielding healthcare practitioners in its employ, there were several circumstances where a doctor could find themselves “out on your own, facing possible career, reputational, or financial ruin”.
The potholed road includes acting recklessly or intentionally, (negligence itself being inadvertent), while knowing you are placing someone else in danger, failing to comply with, or ignoring a standing instruction, or talking to a patient who has been adversely affected, thus making an admission detrimental to the State, all rendering yourself instantly vulnerable to action. This “obviously” included the illegal use of alcohol or drugs.
Howarth stressed that none of these acts was covered by the Treasury indemnity regulations. He emphasised the importance of becoming familiar with the standing instructions of your own departmental or hospital.
Slings and arrows…
“Unfortunately, the slings and arrows of outrageous fortune extend well beyond the negligence claims area,” he said.
Volker Hitzeroth, a medico-legal consultant to the MPS, told the webinar that anyone supervising an intern automatically accepts liability for the student. The supervisor, who has to be approved by the relevant professional board and be working at an approved facility, is solely responsible for all acts and omissions by the intern. Any conduct deemed by an HPCSA inquiry to be unprofessional, would be attributed to the supervisor, not the intern, which Volker added, “can be a hard pill to swallow”.
The test applied to the supervisor in holding the State vicariously liable included reasonableness, professionalism, treatment guidelines, hospital protocols and academic guidelines. Hitzeroth warned both private practitioners working in the state sector or state sector doctors doing remunerative work outside the public sector, (aka RWOPS), that they need to ensure they meet all the relevant criteria to avoid exposing themselves to legal action.
“To qualify as an employee of the state, (and thus automatic coverage for medical negligence), make sure you have a Persal number, a job contract and that you get a monthly salary from the State – otherwise you’re not covered,” he warned.
Exposed to the elements
He explained that certain groups of healthcare practitioners like supernumeraries, volunteers, those solely employed by universities, or those doing sessions or locums might easily make the mistake of thinking the State had them covered. He said that the burden of proof in civil negligence claims stood at 51% on a “balance of probabilities”, versus the far higher threshold of “beyond a reasonable doubt’ in criminal cases.
Hitzeroth said pitfalls for interns, (and thus supervisors), included failing to take adequate patient histories, failing to follow examination instructions or failing to report serious matters.
“Where criminal law applies, vicarious liability does not exist. The State cannot be held liable for your criminal actions and here the conduct of the supervisor and the trainee are examined separately and independently. We deal with plenty of murder and culpable homicide cases at MPS,” he revealed.
Keep records religiously
Hitzeroth appealed to both interns and their supervisors to take appropriate patient histories, make comprehensive examinations, and conduct all relevant special investigations, and to keep a written record of all patient contact, presentations, telephone calls, instructions, and advice given and received. Supervisors should repeat instructions and check if the trainee understood by asking them to recite them back.
Both MPS men advised doctors to join some union as insurance against employer abuse and proffered free advice should more doctors find themselves in situations where there was little or no training or support and/or an absence of vital equipment and grossly insufficient staff. The MPS revealed last week that it recently surveyed 590 South African doctors (among its 30,000 South African members), among whom 92% believe healthcare workers must be in an environment where they can admit errors, apologise and learn from mistakes without fear of personal recrimination – if patient safety were to be continuously improved.
Doctor fears of blame, regulatory action or even criminal charges following an adverse incident were currently a major barrier to open disclosure – and this had to be broken down.
Adds Howarth, “Our risk prevention programme equips members with a range of resources and training to combat the common causes of complaints and claims, including improved communication. The MPS also advises members that they should be open and honest with patients, and that it is often appropriate to communicate regret and empathy following an adverse outcome – doing so is not necessarily an admission of liability.”
Instead, transparency and human connection often greatly mitigated the consequences.
See more from MedicalBrief archives:
SA doctors want an ‘open disclosure’ culture over medical mistakes
Practitioner burnout contributing to clinical errors — MPS survey
Meticulous record keeping — a tedious but necessary task