Who is liable when resource shortages harm mothers and children in public hospitals?

It is possible that more than one person could be held jointly and severally liable for damages (Getty Images)
It is possible that more than one person could be held jointly and severally liable for damages (Getty Images)

Dr Tim De Maayer, a paediatrician at Rahima Moosa Mother and Child Hospital in Johannesburg, has 21 years of experience in the public sector. He has worked at this hospital since 2009, but just recently published an open letter, addressed to the administrators of the hospital and the Gauteng Department of Health, calling them out on the dismal state of the institution.

In the letter, first published by The Daily Maverick, he describes how children are dying because of the horrendous state of South African public hospitals, citing heart-breaking examples of harm, and even the death of children in his care, adding that "things are falling apart". 

He asks the administrators if they would trust "the overburdened and burnt-out healthcare staff" to look after their own children in their hour of greatest need, adding "And if you wouldn't, how do you manage to come to work every day, fail at your job of ensuring basic healthcare for the people you serve and still sleep at night?" 

Must read: Open letter from Gauteng doctor to health dept: 'How do you sleep at night?'

Maayer is indeed brave to step forward and shine a light into this darkness, and we can only hope that his letter is the catalyst that get's the public health sector moving towards a better place.

In the meantime, resource shortages harm patients, often mothers in labour, newborn babies and vulnerable children in our hospitals every day. These issues sometimes even lead to unnecessary deaths. 

DSC Attorneys' partner Kirstie Haslam backs up Maayer's claims, sharing that many South African public sector patients suffer the consequences of resource deficits, which include extremely long ambulance delays and critical shortages of beds, medicines, equipment and staff. She adds that serious training shortfalls also exist.

Medical malpractice

What exactly constitutes medical malpractice, and who is liable when an under-resourced hospital harms a patient?

While resource shortages are currently an inescapable reality in South African state hospitals and clinics, Haslam points out that a lack of funding is not an adequate excuse for gross malpractice.

She explains that medical malpractice is defined as a negligent act or omission by a medical professional that results in injury to the patient. Or in other words, when a medical professional's actions don't meet the accepted standards of care, she clarifies. 

Haslam describes how this can include "A mistake during diagnosis or treatment, a failure to provide adequate treatment within a reasonable timeframe or a surgery taking place without informed consent from the patient."

Liability for negligence in hospitals

As resource shortages alone are unlikely to be sufficient grounds for a medical negligence case, if mismanagement or negligence by the state, hospital management or health practitioners can be proven, Haslam says they may be held liable for the resulting harm to patients.

Even in a resource-starved hospital environment, the ethical rules for healthcare professionals apply. "Barring an emergency, it would be negligent for hospital administrators to knowingly accept patients for procedures that can't be performed adequately due to shortages," Haslam stresses. 

What to do if you have a medical negligence claim

Haslam advises anyone with a medical negligence claim to seek the services of a firm of attorneys that work on a no-win, no-fee basis. 

Look for one that has a medico-legal team that specialises in, or has extensive experience in, handling medical malpractice claims, including those involving resource shortages in South African hospitals.

Haslam explains that such a firm will be able to assess your medical negligence claim before representing you in legal proceedings, to give you the best chance of receiving the compensation you deserve.

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An example of medical malpractice

Haslam shares as an example this case of medical malpractice published in the South African Medical Journal, where a young woman lost her baby due to a hospital being under resourced. 

A 23-year-old woman is at full-term pregnancy and about to give birth. Due to a hospital transport shortage, her transfer from a district hospital to a provincial hospital is delayed by three hours.

At the hospital, no foetal monitor is available because most are broken. The baby's severe distress goes unnoticed until the patient has been in the labour ward for 45 minutes.

An emergency C-section is delayed because the operating theatres are occupied, and the lift in the building doesn't work. The patient's uterus ruptures, and the baby dies.

It is clear that multiple hold-ups, a lack of resources and a delayed C-section compounded to cause the baby's death.

In the case of this pregnant patient, Haslam says that healthcare managers could be held liable if resources (the ambulance) were negligently diverted, if they failed to carry out repairs to equipment (the lift) or if they failed to obtain medical items (foetal monitors) that are readily available.

South Africa's ambulance shortage is a potential source of negligence claims. A 2018 survey by Bhekisisa found that there are only enough state-run ambulances for a third of the population. "This has resulted in injured people waiting unreasonably long times for ambulances to arrive," Haslam says.

In the case of the patient in this scenario, it is possible that more than one person could be held jointly and severally liable for her damages.


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