Will SA’s healthcare overhaul fuel a surge in medical mistakes
As South Africa transforms into a more litigious society, with a heightened awareness of rights under the Consumer Protection Act (CPA), the incidence of medical malpractice claims is on the rise.
FAnews spoke to Fia Samuels, Product Head of Medical Malpractice at ITOO Special Risks about medical malpractice claims in South Africa, the latest trends and developments and more.
Claims have risen
Medical malpractice claims, according to Samuels, can be influenced by various factors, including an increase in awareness of consumer rights, changes in healthcare standards, and a more litigious environment.
“In South Africa, we are experiencing an increase in awareness of rights under the Consumer Protection Act (CPA) not only in healthcare. Our concerns lie with the level of care that is being provided and this is evident in the headlines we have seen in the past year, in September 2023 the Auditor General raised concerns noting that medical claims have now risen to R125 billion in the public health sector,” she said.
“As a provider of Medical Malpractice Cover to medical practitioners and institutions, we have seen an increase in claims/circumstances relating to improper techniques used, the wrong diagnosis or misdiagnosis, practitioners practising outside of their scope of practice, the wrong procedure done or the wrong treatment given, the lack of communication, the lack of informed consent and the delay in the diagnosis and treatment of a condition,” added Samuels.
A duty of care
Healthcare professionals have a responsibility to exercise a duty of care towards their patients. However, the implications of this duty are particularly significant in the present scenario, marked by an increase in medical malpractice lawsuits.
Samuels said the duty of care owed by doctors to their patients is set out in various regulations and legal frameworks such as the Patient Charter, the National Health Act, and our Constitution to name a few. “This obligation dictates that healthcare professionals should deliver a level of care consistent with what a reasonably careful and knowledgeable practitioner, possessing comparable training and experience, would deliver. Nevertheless, the particulars of this duty of care may vary based on factors such as the patient's condition, prevailing medical standards, and the resources at hand.”
“Specialists such as gynaecologists, obstetricians, and neurosurgeons may be at a higher risk of facing legal claims. These specialists often deal with complex medical issues and procedures, and any deviation from the accepted standards of care can lead to adverse outcomes, raising the potential for malpractice allegations. It is worth noting that we have seen an increase in claims against practitioners in emergency medicine i.e. accident and emergency medicine as this is a high-stakes environment where time-sensitive decisions need to be made,” she added.
Contributing factors
The factors, according to Samuels, contributing to the elevated risk of claims against specialists include:
- The complexity of cases: specialists often manage intricate medical cases that entail complex procedures and higher stakes.
- The lack of informed consent: issues related to informed consent are especially pertinent in specialities like neurosurgery and obstetrics, where patients may encounter substantial risks. Failure to sufficiently inform patients about the potential risks and alternatives could result in legal claims.
- Patient expectations: patients often hold elevated expectations when seeking care from specialists. Any perceived deviation from these expectations has the potential to lead to legal action.
- Communication challenges: Effective communication between healthcare professionals and patients is paramount. Insufficient explanations of procedures or postoperative care can contribute to malpractice claims, underscoring the importance of clear and comprehensive communication.
Potential challenges within the NHI framework
With thinly spread specialists in both the public and private sector… we question whether National Health Insurance (NHI) will worsen the situation.
Already, Samuels said critics argue that the existing Bill lacks a thorough consideration of the implications, with insufficient review and consultation with businesses and stakeholders. “A major worry is the potential impact on the quality of care, given the strain on the already overburdened public healthcare system. The concern is amplified by the anticipated surge in demand for services, which may result in prolonged waiting periods for patients.”
“Turning to the realm of medical malpractice, a significant issue lies in the lack of clarity regarding the party responsible for clinical negligence under the NHI. This ambiguity has been underscored through parliamentary submissions from various bodies representing medical practitioners. Unfortunately, a clear resolution to this uncertainty is yet to be provided. The unresolved nature of this matter has left medical practitioners uneasy, emphasising the importance of well-defined guidelines and definitions to navigate potential challenges related to medical malpractice within the framework of the NHI,” she said.
Ensuring effective risk mitigation
“We need to create a sustainable market for medical practitioners and institutions to have cover in instances of negligence, and this requires an approach from us, insurers, and the broker industry in educating clients,” emphasised Samuels.
“When reviewing coverage with clients, consider the limits of the indemnity purchased, and factor in increased legal costs, and costs of medical procedures as medical inflation is constantly increasing. It's imperative to ensure that your client has effective risk mitigation tools in place, particularly regarding informed consent and record-keeping, given the nuanced nature of medical malpractice matters. Timely notification of all potential claims, circumstances, or regulatory body complaints is crucial to enable effective management and assessment of the claim,” she added.
“Medical malpractice insurance plays a vital role in managing risks within the healthcare industry. It safeguards healthcare providers, their patients, and their financial stability, contributing significantly to the overall integrity and resilience of the healthcare system,” she concluded.
Writer’s Thoughts
The landscape of medical malpractice in South Africa is evolving alongside the country's transition to a more litigious society and heightened consumer awareness of rights. Effective risk mitigation strategies are crucial, requiring collaboration between insurers, brokers, and medical practitioners to ensure adequate coverage, informed consent, and timely management of claims. Do you agree? Please comment below, interact with us on Twitter at @fanews_online or email me - [email protected]
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