Mounting concerns over the dramatic rise in medical litigation in SA and the impact it is having on the sustainability of the country’s health system as a whole has spurred the medical fraternity and other interested parties into action to investigate measures that could avert a looming disaster.
They are now suggesting government considers tort reform measures similar to those implemented in countries such as New Zealand, Australia and the UK in a desperate bid to limit the escalating legal costs associated with these claims and the huge amounts awarded to claimants. Proposals include special courts to deal with medical litigation, the establishment of a ring-fenced fund for the compensation of patients who suffered injury in the state sector, capping the amounts that can be awarded for damages and restricting the fees of malpractice lawyers.
While there is consensus among medical practitioners that patients should be compensated fairly when harmed, their concerns relate to the huge amounts being channelled away from patient care into the pockets of the legal profession, the rising cost of indemnity insurance for at-risk specialties and the cost associated with the practice of defensive medicine to safeguard doctors against malpractice claims.
The latest figures from the Medical Protection Society (MPS), the largest indemnifier of medical practitioners in SA, show a 132% hike in the reported claim costs over the past two years while the costs of settling the five highest claims more than doubled compared to five years ago. This year, the MPS settled its highest ever claim in SA at a total cost of close to R24m.
Addressing the situation
Last month, MPS met with representatives of the SA Colleges of Medicine, Sama and 12 clinical groupings to discuss the many issues that have given rise to the current situation and how they can work together to temper the increasing litigation spiral.
It followed earlier discussions between the MPS, representatives of at-risk specialties and health minister, Dr Aaron Motsoaledi. According to Dr Motsoaledi, he is now considering the appointment of a national task team to investigate the reasons behind the spike and measures to reduce the cost and incidence of malpractice claims.
Driving the high costs are the increased amounts paid out for catastrophic neurological damage and the costs associated with technological and clinical advances that have enabled clinicians to keep patients alive for longer.
“If we turn back the clock to 40-50 years ago, more people died after an adverse event and as harsh as it may sound, a dead patient is cheaper to ‘settle and compensate’ than one who is seriously damaged. We now have all sorts of innovative, cutting-edge processes and procedures but it all come at a price, particularly when it comes to infants who might need special medical and other care for the rest of their lives,” said Dr Stephanie Bown, MPS director of policy and communications.
SA’s progressive Bill of Rights and the HPCSA’s education campaigns also contributed to patients becoming more aware of their rights and being more prepared to challenge doctors if something goes wrong.
The RAF factor
However, the tipping point that propelled SA into the same litigation mess other countries experienced 10 years ago was the capping of payouts and legal fees claimed from the Road Accident Fund (RAF) that prompted many lawyers to pursue medical malpractice as a means of making up for lost income.
Motivated by the contingency fee system that allows them to prosecute cases on a ‘no win no fee’ basis and to take a significant cut of the payout (up to 25% or more) when they win, lawyers have become much more sophisticated and aggressive in the way they plead cases and market themselves to the public.
Most targeted are gynaecologists/obstetricians, spinal and neurosurgeons, and paediatricians doing neonatal care, who have experienced a more than double increase in claim costs since 2006, resulting in an exponential increase in annual indemnity premiums. Hardest hit are obstetricians who have this year paid R187 830 for indemnity, up from R76 000 in 2006, followed by neuro- and spinal surgeons.
These costs coupled with an increased fear of being sued are now causing more and more private gynaecologists to consider giving up obstetrics, exacerbating the burden on public health facilities while putting more patients at risk of suffering harm, adding to the already sky-high litigation costs in the state sector, said Prof Leon Snyman from the department obstetrics and gynaecology at the University of Pretoria.
“Even if all measures to prevent avoidable harm are put in place and adhered to, the chances of being sued remain high as the risk of something going wrong can never be totally eliminated.”
According to Prof Snyman many claims relate to complications following surgery rather than medical error or negligence.
Even if no evidence can be found to show that the doctor was negligent, lawyers will ‘shoot wide’, investigating everyone who had been involved in the care of the patient to find something technical that cannot defend the case such as incomplete notes or missing medical records, Prof Snyman said.
“Some of the claims I have seen border on the ridiculous but still generate considerable expenses as these claims require expert witness reports and lawyers costs” Some lawyers make use of expert witnesses from other countries contributing to many cases not being fairly judged. Lack of oversight and control over the use of payouts to patients or their families is an added concern as there is no guarantee that it will be spent on the patient’s care, Prof Snyman said.
Getting government involved
Welcoming the health minister’s willingness to engage with the profession in finding solutions, Prof Snyman said government intervention was crucial to implement measures that will reduce the impact of medical litigation on the medical profession and the health system as a whole.
“If drastic steps are not taken, SA is destined to land up in the same situation as other countries that waited until everything collapsed before their governments took action.”
Pointing out that doctors support patients being compensated if they suffer adverse outcomes, Cape Town neurosurgeon, Dr Norman Fisher-Jeffes said it is imperative that the legal costs of medical litigation are reduced and deserving cases fast-tracked for compensation.
He said SA should look at possibly implementing a ‘no-fault’ system such as in New Zealand where patients who suffer harm can claim compensation without having to prove negligence and the case is settled outside of the court system. The extent of damage and the amount of compensation are determined and calculated by a panel of experts, resulting in cases being investigated and settled promptly, reducing legal and administrative costs.
Not aimed at protecting doctors
“It is not an attempt to get negligent doctors off the hook, as they should still be referred to a disciplinary body such as the HPCSA for an inquiry, but it is an attempt to to avoid protracted court cases and to facilitate and expedite compensation to the patient,” Dr Fisher-Jeffes explained. Another possible solution, he said, is to cap the compensation pay-outs and legal fees.
“We need to get all interested parties together to review the situation while making it very clear from the medical side that it is not an effort to stop litigation against doctors. If there is negligence, due process must take its course but the adverse outcome needs to be assessed by acknowledged and respected experts practising in the defendant’s field of medicine. There has to be a national independent body or court comprising legal and medical experts without any vested interests in the outcome of the case to obviate the expert witnesses from tailoring their stories to fit the version of whoever is paying them to testify,” Dr Fisher-Jeffes added.
Statistics provided by the HPCSA to Medical Chronicle show a significant increase in the number of complaints received by the council – from 1675 in 2006 to 2903 this year. However, less than half of these cases were considered serious enough to make it to the preliminary inquiry stage. According to the HPCSA’s senior manager, public relations and service delivery, Bertha Peters-Scheepers, the council maintains that the rise in registered complaints can be attributed to patients being more informed about their rights rather than an increase in negligence or avoidable medical error.
Dr Fisher-Jeffes pointed out that in many instances, lawyers will wait for the outcome of an HPCSA inquiry to take on a case, particularly when there is an opportunity for a high claim. In many cases, doctors are advised to pay an admission of guilt fine to the council to ‘make the case go away ‘and spare themselves the time and trouble of a drawn-out inquiry just to find themselves the target of a malpractice claims. Allegations of nurses being paid by lawyers to tip them off about possible adverse events are also rife in the state sector.
Keeping patients and practitioners safe
Although a change in legislation could bring relief to the current situation, experts warn that it would take a long time to implement. In the meantime, doctors will have to become more vigilant to minimise the risk of being sued, said Dr Bown.
She urged doctors to ensure that their notes and patients’ medical records are comprehensive, accurate and up to date. “The strength of a case is dependant on the quality of evidence and if you find yourself in front of a judge and the records are poor, there is a risk that the inference will be drawn that poor records amount to poor care.”
Citing a lack of communication or miscommunication as the ‘commonest’ trigger for a patient’s decision to take action against a practitioner, she pointed out that research has shown that only about one third of all claims instituted are a direct result of negligence.
Claims arise when you have a combination of predisposing and precipitating factors, she explained. Predisposing factors include issues such as the clinician being discourteous, dismissive, not paying attention to what the patient says or not properly informing the patient about his/her condition and treatment. If something then goes wrong (precipitating factor), even if it is not caused by negligence, such a patient would be much more likely to sue, said Dr Bown.
In addition, it is imperative that adverse events are managed efficiently and effectively because ‘the way you respond has a huge impact on a patient’s decision to sue or complain’, she noted. According to Dr Bown, it may be advisable to get someone ‘who is immediately accessible with authority and leadership to convey the message to the patient or family if something very serious does go wrong rather than necessarily expecting the doctor to do it, when they too are distressed’.
Also important, is the sharing of data between doctors and societies to identify recurring themes, pinpoint the reasons for claims and come up with solutions and interventions that could mitigate the risk to both patients and practitioners.
“No doctor goes to work not wanting to do the best for the patients. But it is a reality that in an environment where systems are not robust, an error is almost inevitable – it is just a matter of when it is going to happen. We need to understand why things go wrong, and developing a system of reporting adverse events and near misses is important. It is only through analysis of this data that we can implement measures to stop it from happening again, which is absolutely crucial to improving patient safety in the long term,” Dr Bown.