The nuances of procedure-related deaths, and the knowledge and application of the law linked to these, is poor in South Africa, says Dr Graham Howarth, head of Medical Services – Africa, Medical Protection, who clarifies some of the blurred areas and definitions.
Imagine, as a healthcare practitioner, attending the funeral of an elderly family friend, and being somewhat uncomfortable at what you have heard regarding the death.
She had undergone hip surgery several weeks ago and due to a combination of her age and the pain, had been immobilised.
A week after hospital discharge, a DVT was diagnosed and two days later she was found dead in her bed. Apparently, her GP considered cause of death to have been a pulmonary embolism.
Given the proximity of the funeral to her death, it must have been classified as due to natural causes.
You know that, given the history, a pulmonary embolism was not an unreasonable call, but you have a nagging concern that, considering the recent procedure, death was probably procedure-related, should have been classified as of unnatural causes, and been further investigated.
Are you right and what are your obligations as a healthcare practitioner?
When a patient dies, the Births and Deaths Registration Act places an obligation upon the practitioner to classify the cause as either natural or unnatural. The decision may be made either by a practitioner who attended the patient before death or one who examined the deceased afterwards.
This examination cannot be cursory; the whole body needs to be examined, as a practitioner must be satisfied death was due to natural causes – according to the Act.
Deaths from unnatural causes misclassified as of natural causes evade the scrutiny of investigation, while deaths due to natural causes misclassified as unnatural causes congest the already resource-restrained Forensic Pathology Service.
Clearly, it is important that practitioners know what causes are considered to be unnatural.
The regulations of the National Health Act consider deaths from the following causes to be due to unnatural causes if:
• They result from a physical or chemical influence, direct or indirect, and/or related to complications.
• Any death, including those that would normally be considered to be from natural causes, which in the opinion of the medical practitioner, is the result of an act or omission that may be criminal in nature.
• Any procedure-related (including anaesthesia-related) death as contemplated in section 48 of the Health Professions Amendment Act 29 of 20075.
• Where death is sudden and unexpected, or unexplained, or where the cause is not apparent.
While it is important for perioperative practitioners to understand the nuances of procedure-related deaths, the knowledge and application of the law related to these is poor in South Africa.
In 2007, the Health Professions Act was amended to broaden the concept of anaesthesia-related deaths to procedure-related deaths – a term that clearly extends beyond the former. A death is considered to be procedure-related if:
“The death of a person undergoing, or as the result of, a procedure of a therapeutic, diagnostic or palliative nature, or of which any aspect of such has been a contributory cause, shall not be deemed to be a death from natural causes as contemplated by the Inquest Act, 1959 (Act 58 of 1959), or the Births and Deaths Registration Act, 1992 (Act 51 of 1992).”
The Act does not qualify the procedures nor when a procedure is deemed to have started or ended. It has been suggested that a surgical procedure begins when the anaesthetist starts the placement of the anaesthetic paraphernalia and ends when the patient is transferred from the recovery room.
Does this mean one only includes deaths that occur in theatre or the recovery room? Given the inclusion of the sub-clause – or of which any aspect of such a procedure has been a contributory cause – the answer is a resounding no.
It would be prudent to strongly reflect upon any death related to a surgical procedure where the patient dies before hospital discharge, as a procedure-related death. Obviously, any death related to an acknowledged complication of the procedure, either before or after discharge, also fulfils the criteria of a procedure-related death.
So a post-discharge pulmonary embolism, despite prophylactic anticoagulation, would qualify to be included as a procedure-related death.
It is important to remember that a maternal death associated with a Caesarean section constitutes not only an unnatural death but also a notifiable medical condition.
The reason for including procedure-related deaths in deaths whose cause is considered to be unnatural is so they can be fully investigated and open to independent review of the care given.
Prudence dictates that any death related to a procedure be considered a procedure-related death, particularly if the person dies while still an in-patient.
One does not want an allegation that a death was misclassified in an attempt to circumvent scrutiny. If there is uncertainty, the advice is to contact the local Forensic Pathology Service and contemporaneously document the conversation – particularly if they advise against classifying it as being procedure-related.
Unless there is a belief that the case has or will be reported to the police, the Inquest Act places an obligation to report a death considered to be unnatural to the police as soon as possible. The responsibilities of those at the health facility include:
• Reporting the death to SAPS;
• Ensuring the body is not removed by an undertaker;
• The body should be handed over as it was when the patient died, so medical paraphernalia (drips/lines/catheters/drains etc) should not be removed;
• Provide the deceased person’s full medical records, including special investigation results;
• A Death Notification Form (DHA-1663) should not be completed; and
• The responsible clinician/s needs to complete the GW7/24 form – Report of a Person Whose Death is Associated with the Administration of an Anaesthetic or Diagnostic or Therapeutic Procedure. The form makes provision for both the individual who performed the procedure as well as the anaesthesiologist (if anaesthesia were administered).
Once all of the relevant information is available a magistrate will decide whether to hold a formal or informal inquest. The former involves a prosecutor and witnesses and is rare in South Africa while, in the latter, the magistrate reviews the death based on the documents available.
Given the importance of the topic and the statutory nature of the obligations, it should come as no surprise that failure to comply with one’s obligations is punishable. Were it determined that a practitioner made a false statement, particularly knowingly, punishment could include a criminal record, the possibility of a fine and even imprisonment. Likewise, registered professionals, if in violation of their obligations, may be investigated, prosecuted, and if found guilty, disciplinary steps taken by their regulator.
So to return to you at the funeral – it could be argued that, despite the patient having been discharged, the procedure could have been a contributory cause to her death. That being the case, the death should not have been deemed to be from natural causes as contemplated by the Inquest Act.
So you are now aware of a death that was probably not from natural causes and the Inquest Act places obligations on you to report such deaths to the police – somewhat of a dilemma.
Medical Protection members can contact us to request support and advice on range of medico-legal issues and dilemmas.
See more from MPS columns from MedicalBrief archives:
How to navigate medico-legal matters in healthcare practice
Clinical report writing – tips and common pitfalls
The need for medico-legal reform: A welcome chance to speak up