The worst experience for a medical practitioner is to harm a patient through the failure to do something which should have been done or by doing something which should not have been done. Where the omission or action falls short of the standard which is required of the medical practitioner, the practitioner is said to have been negligent. An error of judgment is not necessarily negligence.
The standard required of a Specialist is higher than that of a General Practitioner.
CONSEQUENCES OF NEGLIGENCE
The consequences of negligent conduct are far reaching. The patient may sue the Doctor for damages. There may be a disciplinary enquiry in terms of the Health Professions Act. This could result in suspension or striking off. In the case of death an investigation as to the cause of the death may be held in the form of an Inquest. The worst scenario is a charge of culpable homicide (i.e. negligently causing a death).
Doctors in South Africa have an enviable reputation for advanced skills. Media publicity of individual incidents would suggest that medical errors are common. This is not so. It is not recommended that a Doctor should discuss claims with the media. Little is to be gained and much could be lost.
However, no Doctor or for that matter any person can be certain he or she will never make a mistake.
Hence the need for insurance cover if such mistake occurs. Without indemnity cover the consequences of Court or other action could ruin a professional practitioner, not only financially but also as an individual.
The importance of keeping up to date with medical changes should not be overlooked. Knowledge undoubtedly reduces the risk of error.
MANAGEMENT OF RISK
The American experience now endorsed by South African Courts requires that a patient prior to surgery or treatment be fully informed of:
• The diagnosis
• The nature and purpose of the medical procedures
• The risk and consequences of the procedures
• An assessment of the likelihood that the procedures will accomplish the desired result
• Possible alternatives
• Prognosis if no treatment is given.
This has become known as 'informed consent' and is aimed at creating intelligent decision making before the surgery/treatment.
The uncertainty of human memory dictates that:
• A form embodying these steps be signed by the patient and the Doctor
• The form be retained permanently
• A copy should be handed to the patient who should sign for its receipt
• The form must be signed by the patient or the patient's lawful representative and both are required to have capacity to sign.
A hospital consent form is not an adequate substitute for the Doctor's own form.
Naturally there will be exceptions such as emergencies and where the patient is unconscious. In such circumstances the consultative procedure must be followed as soon as possible after the surgery or treatment. Any subsequent steps need to be managed by way of consent forms.
AFTERMATH OF A MISHAP
If the predicted medical outcome is not achieved it is important that:
• The patient again be informed of alternatives
• The Doctor should show proper concern for the patient
• In appropriate cases a colleague's assistance should be sought
• The impact of what has happened be medically managed.
Patients may forgive their Doctor for an unpredicted outcome. However the patient never forgets a lack of care. Sometimes this is the determining factor as to whether the Doctor is to be sued.
If the practitioner believes the consequences of a failed procedure may be serious:
• Hospital records should be copied and retained
• The Doctor's own records should be correct
• The practitioner should keep an independent contemporary note of the procedures, treatment, etc
• Identify the details of potential witnesses
• Retain all relevant evidence (e.g. X-rays etc)
• Report the matter to insurers for guidance.
If a claim is made on the Doctor orally or by way of a letter, this must be reported to the insurers immediately. The practitioner must avoid any admission of liability as this could place the insurance indemnity in jeopardy.
The Doctor may advise the patient that the potential claim has been referred to insurers.
After a claim is notified the insurers usually appoint Attorneys or Assessors to ascertain the facts and to report on them with recommendations.
These recommendations will invariably suggest an objective assessment by a medical expert in the same discipline as the insured.
The insured will be involved in the decision whether to contest the claim or to settle it.
An Advocate is invariably introduced as part of the defence team at this or an even earlier stage.
The objective is to protect the practitioner against unfair accusations. It must also be to compensate the patient for any damages which may be provable when, if viewed objectively, a Court is likely to award damages after hearing all the evidence.
A Court action is a stressful experience. No one enjoys having his/her honesty and credibility challenged under cross-examination. When this extends to a practitioner's medical skills it is even more hurtful.
In properly prepared cases there are inevitably differences of medical opinion.
It is usual for the media to give more publicity to the case of the claimant.
These aspects are mentioned to encourage the practitioner to avoid incidents which may give rise to claims. However, if they do arise it is important that adequate insurance is in place.
If the insured is unhappy about a decision to defend rather than settle a claim, it is important that this concern is dealt with through discussion with the Insurance Company or its representative. It is important that an insured is happy with the terms of an Indemnity Policy. It is even more important that an insured is satisfied with the way his/her interests are handled if and when there is a claim.
For more information please feel free to contact our litigation division on +27 41 396 9220.