While there are well-established processes to deal with medico-legal claims in South Africa, they may not provide sufficient relief to the affected parties; an aggrieved party may wish to know the reasons why a particular error occurred and why a healthcare practitioner acted in a particular manner. In addition to this, they may want a sincere apology.
Medical practitioners may also want to communicate with patients or family of a patient who has died as a result of an iatrogenic event, but they may be fearful of litigation, write MS Khan and MC Laubscher in the SA Medical Journal.
Their article considers the current position in relation to issuing an apology related to an iatrogenic event, and consults foreign jurisdictions for further guidance on the topic.
They write:
South Africa has a significant incidence of medical negligence claims, with litigation normally conducted in the civil courts, and in some instances, in a criminal court.
Matters can also be reported to the HPCSA, and various alternative dispute resolution (ADR) processes used, including mediation and arbitration. While these all offer various types of compensation or redress, they might not fully alleviate the aggrieved party of their pain or enable them to move on.
The patient or their family might wish to receive a sincere apology but healthcare practitioners are reluctant, for various reasons, including fear of litigation.
There is a lack of academic literature that addresses this clash of interests in the SA context.
Section 39(1) of the SA Constitution states than when interpreting the Bill of Rights, a court, tribunal or forum may consider foreign law. While not necessarily binding as such, it provides us with the opportunity to consult foreign jurisdictions that have a more developed jurisprudence relating to disclosure of information relating to iatrogenic events.
South African law
There is no legislation in SA protecting healthcare practitioners from litigation if they want to apologise to a patient. If a practitioner issues an apology, such communication can be used by a prospective plaintiff in court. For evidence to be admissible, the general rule is that it must be relevant.
Zeffert and Paizes make reference to several judgments, including R v Mpanza, which held that “any facts are … relevant if from their existence inferences may be properly drawn as to the existence of the fact in issue”.
Inferring from this, if a medical practitioner apologised to a patient for a particular act, this would be relevant, as an inference could be drawn … to prove a fact, and thus would be admissible in court.
This may be construed as an admission of liability by the healthcare practitioners. Even if they wished to make an apology, they would refrain from doing so because of there being no protection.
An apology could be offered as part of settlement negotiations under rule 34 of the Uniform Rules of Court, or rule 18 of the Rules Regulating the Conduct of Proceedings in the Magistrates’ Court, but this would mean litigation has already been initiated, and would not address the issue.
It is clear there’s a gap in SA law that needs to be considered.
The USA and Ireland have relatively well-developed bodies of law on the matter. At least 37 states and the District of Columbia have laws offering physicians some kind of legal protection for expressing regret or empathy to patients who experience some kind of negative results at the physician’s hand.
Nevertheless, there is still a variance of laws regarding what can protect a doctor from evidence being admissible in court, and as a result, doctors are discouraged from apologising for fear of being sued.
At a federal level in the USA, much like the SA position, “there is almost no evidentiary protection provided to apologies; they are generally admissible to prove liability”.
However, state regulations do provide some protection, the most famous being the Massachusetts statute – admissibility of benevolent statements, writings or gestures relating to accident victims.
This Act basically provides protection for expression of sympathy by an individual involved in an accident to one who was injured or their family, and renders any such statement, writing or benevolent gestures inadmissible as evidence of an admission of liability.
Several states have promulgated similar legislation that protects practitioners in similar contexts, albeit not in all circumstances.
In Ireland, the Civil Liability (Amendment) Act 2017 was passed.
Section 9 reads thus: “Where a health services provider discloses, in accordance with this Part, at an open disclosure meeting, to – (a) a patient that a … safety incident has occurred in the course of the provision of a health service, (b) a relevant person that a patient safety incident has occurred in the course of the provision of a health service to the patient concerned, or (c) a patient and a relevant person that a patient safety incident has occurred in the course of the provision of a health service to the patient, that disclosure shall be treated as an open disclosure by the health services provider of that patient safety incident and section 10 shall apply to – (i) the information, in respect of the patient safety incident, provided to the patient or relevant person (or both of them) at the open disclosure meeting, additional information provided at the additional information meeting and information provided in a clarification under section 19, (ii) an apology, in respect of the patient safety incident, where an apology is made at that meeting, or the additional information meeting.”
Some believe the enactment of this law is significant as it advances legislative protection for medical practitioners making apologies but that it has limited remit.
In the USA, a medical liability programme (the Communication and Resolution Programme – CRP), was developed to address issues of unexpected healthcare outcomes and errors.
CARe programe
In 2012, in Massachusetts, six hospitals implemented a programme called CARe – (Communication, Apology and Resolution). This aimed to allow hospitals and liability insurers “to communicate with patients when adverse events occur; investigate and explain what happened; and, where appropriate, apologise and proactively offer compensation”.
The objective clearly is to avoid litigation and reach a settlement, and deal with more than just financial compensation – in this way, reach a more amicable resolution for all concerned.
This involves a series of conversations between the patient and healthcare provider, and often offers opportunities to work with healthcare to gain some suggestions and even implement safeguards to prevent this type of harm from happening again.
It is important to note that authentic CRPs are comprehensive, systematic and have clear principles driven by a culture change that is fundamental and highlights patient safety and learning.
In October 2017, an article was published that documented research at two of these six hospitals to ascertain the effectiveness of the programme. The results were promising.
By August 2016, of the 47 of the 929 cases that ultimately resulted in legal action, 14 had been deemed ineligible for compensation by insurers, 22 had been deemed as qualifying for compensation and of those, 20 were settled at the time of the collection of the data.
At that same stage, 11 cases still remained undetermined.
Additionally, the programme did not trigger an escalation in litigation.
Implementation of such a programme seemed to have been a step in the right direction in dealing with medical negligence claims in a timeous and more effective manner, and fostering more amicable relationships between patients and health professionals.
It might also be something the SA health fraternity should be investigating.
However, programmes like this offer various challenges, ranging from support from institutional leaders and risk management, substantial investment in educating physicians, cultivation of relationships between stakeholders, and establishing protocols and guidelines, to enhanced collaboration.
A study at six healthcare facilities in Washington found implementing such a programme required time and commitment from all stakeholders.
In the study, the insurer and academic researchers, with legal practitioners and other project team members, developed a set of key elements and guiding principles for CRP, and added event eligibility.
This process took 20 months and culminated in a 50-page workbook that assisted in aligning the policies and procedures with the CRP key elements.
Team members also conducted interviews with relevant parties, and training was supplied to the various relevant staff and stakeholders.
Participant feedback indicated that a well-implemented CRP programme has great value, but it was clear that active engagement from the leaders was essential for it to be truly effective.
SA offers its own unique challenges. Individuals may have differing beliefs on how iatrogenic events should be dealt with, and may not take kindly to a simple apology being issued.
Medical practitioners might also be hesitant to participate in such programmes, particularly if this is not legislated.
For a practitioner to be absolved of liability, legislation would, in all likelihood, have to be implemented.
The Civil Liability (Amendment) Act 2017 of Ireland could be used as a point of departure. The promulgation of legislation, however, can take a significant amount of time, so this is not an overnight solution. Another option would be to develop existing HPCSA booklets, for example, including a section in the general ethical guidelines.
This could include a provision along the lines of expressing sympathy for how the patient feels and what has transpired, without admitting liability.
With that said, it is important to note that the HPCSA guidelines are not legislation, and do not supersede the common law or any statute that regulates a person’s right to institute litigation should they wish to do so.
Last, this matter lends itself to international co-operation and knowledge exchange. SA healthcare practitioners can learn from experiences in other countries, potentially through conferences, seminars, or collaborative research initiatives.
MS Khan, LLB, LLM – Steve Biko Centre for Bioethics, School of Clinical Medicine, Faculty of Health Sciences, University of the Witwatersrand;
MC Laubscher, LLB, LLM – Faculty of Law, North-West University, Potchefstroom.
See more from MedicalBrief archives:
SA doctors want an ‘open disclosure’ culture over medical mistakes
Look to Scotland and New Zealand on criminal liability of doctors, urge experts
Progressive interventions needed to stem medical litigation ‘explosion’
The need for medico-legal reform: A welcome chance to speak up
MPLA calls for law change over medical negligence claims