A look at nuisance claims

06 May 2021 Vanessa Rogers on behalf of Natmed Medical Defence

Where should the checks and balances lie in professional indemnity claims, and how do we stem the tide of claims which would not have arisen had it not been for COVID-19?

Unjustified medical malpractice claims against healthcare practitioners could result in professional indemnity insurance premiums skyrocketing to the extent that medical malpractice insurance will become unaffordable. If healthcare practitioners in the private sphere cannot afford the premiums, we will see more healthcare practitioners moving over to the public healthcare sector – where it is not compulsory for them to take up cover. This already is the case with obstetricians and gynaecologists.

Such an occurrence would be unfortunate when considering that these same healthcare practitioners have, since the start of the COVID-19 pandemic, risked their health and lives by working on the frontline under emergency circumstances. Indeed, many healthcare practitioners and workers have turned their focus to saving the lives of COVID patients as a matter of priority.

COVID has resulted in a further crisis – a rise in medical malpractice claims against healthcare practitioners since the beginning of 2021. In many instances, claims that are unfounded and lack any merit are instituted due to litigants being advised that they have good prospects of succeeding with their claims. This then results in a waste of both the litigant’s and the court’s time, and in the litigants’ hopes being dashed in the process.

There are numerous reasons for the rise in medical malpractice claims following a pandemic such as COVID. Other than litigants being incorrectly advised, and in certain instances being misled into believing that there is a likelihood of their claims succeeding, claims of this nature are likely to result in some monetary gain where a settlement offer is made on a purely commercial basis – that is, where the healthcare practitioner makes an offer in settlement with a view to disposing of the claim in order to avoid unnecessary legal costs being incurred. It is also likely that the courts will be sympathetic towards litigants who are allegedly victims of medical malpractice during the COVID-19 pandemic.

Healthcare practitioners have taken strain of late due to a constrained earning capacity. This has resulted in our healthcare practitioners being placed at increased risk of being exposed to claims being instituted against them for medical malpractice, which is further exacerbated by the fact that claims have increased in light of the pandemic.

Each legal case should be assessed according to the circumstances that gave rise to the claim. Various factors should be taken into account.

These include:
• whether there was a valid cause of action and any breach of duty on the part of the healthcare practitioner as a result of a substandard level of treatment and care being provided;
• whether the standard of care and treatment provided resulted in any harm, injury, death and/or financial loss to the patient.

A proper assessment must be performed and a litigant should be informed of the prospects of succeeding with a claim. Unfortunately, this is not always the case and it is a rather unfortunate state of affairs given the great sacrifices our healthcare fraternity has made on a personal and professional level since the start of the pandemic.

Healthcare professionals pay their premiums and, in return, they are covered in circumstances
where a claim is instituted against them and an adverse finding is made, provided that they have met the terms and conditions of their professional indemnity policies. The insurer is there to fit the bill in accordance with the limits of the policy schedule.

The position in the public sector differs in that the Department of Health is allocated a fixed amount in terms of the Minister of Finance’s national budget. These funds are used for the upkeep of hospitals, the payment of hospital staff salaries, as well as for purposes of settling medico-legal claims and attorney costs.

The legal acts which govern this industry would not see it eroded by a plethora of nuisance claims demanding inappropriate compensation – especially as the courts’ approach in general is to afford a plaintiff his/her day in court. What tends, then, to transpire is that a “nuisance offer” is made as soon as possible to dispose of a claim to avoid unnecessary legal costs being incurred.

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