Malpractice claims are a boom industry
More and more South Africans are suing their doctors for malpractice, causing medical specialists to hike their fees and perform unnecessary tests in anticipation of being sued.
As some private doctors have to spend as much as R220 000 a year on malpractice insurance, the trend is threatening the quality of medical care, with many practitioners viewing their patients as legal risks and others not wanting to specialise in fields which carry greater chances of litigation.
A research paper by Professor Michael Pepper of the University of Pretoria’s department of immunology, published in the South African Journal of Bioethics and Law, reveals that South Africans are fast becoming like Americans when it comes to suing their doctors.
“Until recently, South Africa appeared to have been spared the rapidly escalating global trend towards increasing litigation for medical malpractice.
"Recent data, however, indicates that the country is on the verge of a medical malpractice litigation storm,” he says.
In a letter to members last year, the Medical Protection Society, a malpractice insurance company, said there had been a staggering 550% increase in claims in the previous 10 years.
Furthermore, claims of more than R5 million had increased by a whopping 900%, with a number of claims topping the R30-million mark.
The insurer also said that at the beginning of last year it was helping more than 895 members in South Africa with negligence suits and there were approximately 1 000 more potential claims against them.
Obstetricians are most often sued by their patients and their premiums stood at R220 700 for this year.
Next are neurosurgeons and spinal surgeons, who paid R209 470.
Other specialists who pay hefty insurance costs are trauma surgeons, orthopaedic surgeons, plastic and reconstructive surgeons, bariatric (weight-loss) surgeons and fertility specialists.
One gynaecologist in Pepper’s report says: “I have to do several Caesarean sections at the beginning of every month just to pay my malpractice premiums; this before I can start covering my practice overheads and taking something home to the family.”
No long-term statistics on negligence claims exist in South Africa, but in the US 40% of doctors are sued at some point in their careers.
About 90% of general practitioners over the age of 55 have been sued at least once.
Only about 5% of claims ended up in court, but doctors won 90% of cases.
This indicates very high numbers of spurious claims, but ever more malpractice suits are filed in the US, incentivised by the huge payouts when cases are successful.
South Africa appears to be on the same track – there has been a rapid increase in the number of law firms advertising their expertise and successes in this area.
Also contributing to the phenomenon is the new Consumer Protection Act, which brought with it additional liability for doctors.
In terms of the act, doctors are liable even for faulty equipment they have no control over.
If a cardiologist fits a pacemaker to a patient and the pacemaker fails, the cardiologist can be held liable, Pepper explains.
“A patient previously had to prove that the premature failure of the pacemaker was the result of negligence on the part of the manufacturer of the pacemaker.
"He or she now only needs to prove that the pacemaker failed prematurely and that he or she suffered harm or loss as a result of this,” he says.
“Moreover, the patient need not institute a claim against the manufacturer of the pacemaker, but may claim damages from anyone in the supply chain, which includes the cardiologist as the person who supplies the pacemaker to the patient.
“There is a move away from compassion-centred care towards so-called ‘defensive medicine’,” Pepper says, “many additional tests are done in anticipation of potential legal action, and their necessity is debatable.”
High litigation trends in some medical fields also appear to reduce the number of specialists choosing to work in those areas.
And research abroad has shown that doctors are increasingly reluctant to help at accident scenes or with medical emergencies because they fear being sued afterwards.
Medical malpractice lawyer Stephen Flowers, of specialist firm Munro Flowers Vermaak Attorneys, says more patients are suing because they now know they can.
He also says many lawyers who previously focused on Road Accident Fund cases moved to medical malpractice as changes in the law reduced the profitability of accident claims.
Pepper believes litigation can be avoided if an alternative health dispute resolution mechanism is found, and malpractice payouts are capped, as they are in 30 US states.
He believes this will sustain quality in the industry.
“Paradoxically, it is the patient that has the most to lose if the current situation continues.” Pepper says.
State battles malpractice
It is not only the private sector which has been severely affected by increasing medical malpractice claims.
Although doctors who work for the state are not held personally liable under South African law, claims are instead brought against the department of health.
Here, too, has there been a marked increase in the number and quantity of the claims awarded.
In April, the South Gauteng High Court ordered the provincial health department to pay more than R11.5 million in damages for a brain injury suffered by Ntokozo Skosana during childbirth at the Far East Rand Hospital.
The department also faced a total of R573 million in claims in the 2010 financial year.
The other eight provincial health departments are also battling law suits amounting to hundreds of millions
As the health department does not have malpractice insurance, claims have to be paid from running budgets.
For provincial departments that are already experiencing budgetary problems, the additional burden of increased payouts could be highly problematic.
A case in point is the death of Rita Nel (45) of Carolina, Mpumalanga.
On April 2 she was admitted to the Steve Biko Academic Hospital in Pretoria with a lung condition, and had to undergo a diagnostic CT scan.
However, the scanner was broken and, because the Gauteng health department had failed to pay their suppliers, they had refused to repair the machine.
For three weeks, Nel lay untreated in the hospital, waiting in vain for the scan.
She died untreated on April 23.