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The test for negligence

24 May 2022 Myra Knoesen

The COVID-19 vaccine presents a number of unique insurance challenges and liability claims issues. With this topic in mind, Auto & General hosted a liability broker engagement session where Donald Dinnie, Director at Norton Rose Fulbright South Africa Inc spoke about insurance and possible liability claims arising from vaccines.

The perfect storm for claims

Dinnie started the session by highlighting that COVID-19 seemingly creates the perfect storm for medical malpractice claims. “Overworked frontline healthcare practitioners often practising outside of their specialisation, and healthcare providers grappling with mounting deaths and hospitalisations, insufficient resources and a highly contagious virus. And yet, more than a year since South Africa’s first lockdown, there has been no reported medical malpractice litigation related to COVID-19 in South Africa.”

“A person who is misdiagnosed, inadequately treated or infected as a result of the conduct of a healthcare provider may claim for any loss or damages that they suffer. If the person dies as a result of negligent treatment, then their dependants may claim for the loss of support from the breadwinner,” he said.

“In order to successfully claim for medical malpractice, two of the key elements one must prove are: firstly, fault on the part of the medical practitioner or healthcare provider; and secondly, that the conduct of the practitioner or provider caused the loss or damage,” he continued.

Fault in medical malpractice claims, according to Dinnie, is usually in the form of negligence. “In South Africa, the test for establishing negligence is whether the medical practitioner failed to exercise the degree of skill and care of a reasonably skilled practitioner in their field of practice in the circumstances. Reasonableness is determined objectively. Whilst the test for negligence will not change for COVID-related claims, the courts are likely to take into account the crisis that medical practitioners are operating in and the limited resources available in determining whether a healthcare practitioner acted reasonably in the circumstances.”

Outside the normal scope of profession

Similarly, Dinnie mentioned that the Health Professions Council of South Africa (HPCSA) has indicated that complaints it receives from the public against healthcare practitioners will be considered in light of the extraordinary and unprecedented circumstances in which practitioners are working and the extreme demands placed on their professional duties.

“Due to the overwhelming need for frontline healthcare workers to deal with COVID-19 cases (and the surge in numbers from time to time), many healthcare practitioners, including the retired, have been redeployed and required to practice outside their scope of expertise. This increases the scope for error. The HSPCA has advised its members that if they are called on to perform professional acts which are outside the scope of their profession, the individual healthcare practitioner should give due consideration to their ability to perform such professional acts with reasonable skills and safety based on their education, training and experience. Therefore, healthcare practitioners who are acting outside their normal scope of profession should notify their Professional Indemnity insurer and ensure that they are covered in the event of a medical malpractice claim,” emphasised Dinnie.

Difficulty in proving causation

“In addition to establishing fault in the form of negligence, an injured party must also prove that the act or omission on the part of the healthcare practitioner caused their injury. Where the injured party alleges that they were infected with COVID-19, whilst in a hospital or being treated by a healthcare practitioner, it may be extremely difficult to prove that that is where and when they became infected. It may be impossible to rule out other sources of infection; even more so with a virulent airborne virus and when many infected people are asymptomatic. A further difficulty in proving causation is that many COVID-19 patients who experience severe injury or death have underlying co-morbidities. It may be difficult to show that it was the conduct of the health practitioner that caused the injury or death of someone who already had contracted the virus and who had underlying conditions which exacerbated their condition,” highlighted Dinnie.

“The pandemic has presented a host of ethical challenges for healthcare practitioners with some of the biggest concerns being the shortage of ventilators in intensive care units and the need for healthcare practitioners to triage patients to determine who can and should be treated most urgently. Whilst the Constitution enshrines the right of access to health care services, this right is not absolute and may be limited in certain instances, particularly where there are limited resources available to treat all of those in need. Some countries have taken steps to implement legislation to grant immunity to healthcare practitioners against medical malpractice claims relating to COVID-19. Many states in the United States of America have enacted laws which strictly limit civil (and, in certain instances, criminal) liability of healthcare practitioners and vaccine manufacturers for COVID-related claims,” said Dinnie.

Application of the principle

The test for negligence is straightforward and summarised in the frequently cited judgment of Kruger v Coetzee 1966 2 SA 428 A at 430 E-H. “If a reasonable person would have foreseen the reasonable possibility of harm and would have taken reasonable steps to prevent it happening, and the person in question did not do so, negligence is established. It is the facts of each case which may complicate the application of the principle. The judgment of Tilana Alida Louw v Dr Stephen Grobler and Netcare Universitas Hospital [2021] ZAFSHC 223 is a reminder that the approach in any case is no more than a specific application of the generally expressed test for negligence.” 

“In the case of a medical malpractice claim, a medical practitioner diagnosing and treating a patient is expected to exercise the level of skill, care and diligence exercised at the time by members of the profession to which they belong. A deviation from that standard, which causes harm, results in culpability. The same principles apply where the claim is for negligence against any expert in their field. What level of skill, care and diligence may be expected in the particular context is often the subject of extensive and much debated expert evidence and legal argument,” added Dinnie. 

Immunity from liability

In June 2020, the South African Ministerial Advisory Committee (MAC) on COVID-19 recognised that healthcare workers are required to work under resource constraints including facilities, consumables and human resources. “This makes them more vulnerable to regulatory or disciplinary sanction, negligence claims in civil law, as well as charges of a criminal nature when they operate in a context of increased patient numbers, limited staff and resources, and where a number or practitioners will be required to work outside of their area of specialisation during the COVID-19 pandemic.”

“The MAC recognised that the risk of potential medical malpractice litigation against healthcare practitioners may undermine South Africa’s ability to deliver care across the public and private sectors. It accordingly recommended that regulations under the Disaster Management Act be developed to provide that no person is entitled to compensation or damage arising out of any bona fide action or omission or any negligent act by a healthcare worker. This would provide healthcare workers with an indemnity against civil and criminal sanction for healthcare interventions provided by any part of the healthcare system for COVID-19 related care in the private and public sectors. However, so far, no such regulations to this effect have been published,” he said.

“In April 2021, the COVID-19 Vaccination Injury No-Fault Compensation Scheme was established under the Disaster Management Act. The purpose of the scheme is to provide for the expeditious and easy access to compensation for persons who suffer vaccine injury by the government as a consequence of the administration of a duly registered COVID-19 vaccine. The Scheme will not cover other COVID-19 related claims but will provide immunity for vaccine manufacturers and other parties involved in the distribution and administering of COVID-19 vaccinations for vaccine related injuries. Directives relating to how claims must be submitted, and the causality and quantum adjudication thereof, are yet to be published,” added Dinnie.

“The extent to which claimants choose to avail themselves of the COVID-19 Vaccine Injury No-Fault Compensation Scheme rather than litigate will in part be dependent on the cost effective, accessible and timeous claims process and the extent of the loss,” he continued.

“COVID-19 is a public health emergency and unprecedented in recent times. Public policy requires our courts to take this into account when considering whether a healthcare practitioner or healthcare provider has acted negligently. We have yet to see whether South Africa will follow in the steps of other countries in granting immunity from civil or criminal liability to practitioners and providers for COVID-19 related claims, although that currently seems to be unlikely,” he concluded.

Writer’s Thoughts:
The vaccine presents a number of unique insurance challenges and liability claims issues. As mentioned above, however, there has been no reported medical malpractice litigation related to COVID-19 in South Africa. Do you believe things could change? Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts [email protected]

                                             

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