Medical malpractice – when bad things happen to good people

Imagine a scenario of visiting your friendly family GP with a pain in your chest and he assures you it is nothing to worry about. You leave trusting that you’re in good hands, only to discover months later that you are in a life and death situation – you have a potentially terminal illness. 

When this happened to Addi Lang, her world was thrown into turmoil. After her GP had assured her that she had nothing to worry about, she discovered she had breast cancer that had spread to the lymph nodes.

It has taken enormous courage and strength for her to face the reality of the illness and its impact on her life. Lang has undergone a mastectomy and axillary lymph node dissection as well as grueling chemotherapy, and is currently confined to a wheelchair due to a fracture in her leg caused by brittle bones and lowered bone density, which is all too often a common side effect of the treatment.

Medical malpractice is when a healthcare professional breaches their duty of care to a patient, resulting in severe illness, injury or death.

According to a description on the American Board of Professional liability Attorneys website, medical malpractice occurs when a hospital, doctor or other healthcare professional, through a negligent act or omission, causes an injury or death to a patient.

Do you grin and bear it, or do you sue the doctor?

More and more South Africans are heading for the courts. Their actions are definitely in line with trends elsewhere in the world, where malpractice payouts have grown by a steady 6,2% per year, according to the organisation Public Citizen. In South Africa there has been a sharp increase in the cost of liability insurance for doctors since 2005.

All practicing health professionals have to be registered with The Health Professions Council of South Africa (HPCSA). This organisation regularly issues guidelines for good practice in these professions, and deals with complaints from the public.

“Many people don’t know what their rights are,” says Thandiwe Msiza from the HPCSA. “They also don’t know how or where to complain.”

Negligence may be the result of errors in diagnosis, treatment, aftercare or health management. Or as in Addi Lang’s case, failure to diagnose, which is considered a common type of medical malpractice.

Unfortunately, although the doctor is typically the ultimate decision maker with regard to a patient’s care, he or she is seldom held liable for errors or failures to diagnose. Instead, patients must usually prove three things to prevail on these types of claims:

(1) The existence of a doctor-patient relationship

(2) That the doctor was actually negligent

(3) That the doctor’s negligence was the direct cause of additional harm or death to the patient (i.e., the harm was something other than whatever brought the patient to the doctor in the first place).

Before a patient can consider suing for medical malpractice, there needs to be four elements present:

• A duty must exist, where a hospital or healthcare provider undertakes care or treatment of a patient.

• This duty is breached if the provider does not conform to the relevant standard of care.

• This breach causes an injury to the patient.

• This injury leads to losses, either financial or emotional.

It doesn’t take a genius to work out that there are several difficult issues here.

Who decides whether duty has been breached, how serious is the injury to the patient and how do damages, especially emotional damages, get calculated? If a doctor is found guilty, the HPCSA can issue fines, suspend the doctor for various periods of time, or the doctor may be required to complete a course in medical ethics before being allowed to practice again.

While suspension can affect a doctor’s career most adversely, the fines seem low enough to represent a mere rap over the knuckles. What medical specialist is really going to feel a fine of even R10 000? So where does this leave the patient?

Suing health professionals 

A patient can either complain to the HPCSA, or can make a civil case and take the doctor to court and sue for damages. “It must be remembered that the HPCSA does not deal with issues surrounding compensation to victims, merely with breaches of ethical conduct within the profession,” according to Thandiwe.

“If a health professional is found guilty of misconduct by the HPCSA, then the patient or family concerned can decide to make a civil case against that practitioner, but it is then out of the hands of the HPCSA.” Unless a patient or medical scheme has a very obvious case, lawyers frequently discourage patients from going to court with medical malpractice suits. The legal fees can be ruinous and the chances are high that these can in fact end up being more expensive than the total amount awarded in a successful medical malpractice suit.

But that doesn’t mean that no one ever succeeds in taking a doctor to court.

As a member of the medical profession, a physician must recognise responsibility to patients first and foremost ultimately protecting and improving their health. Sadly not all doctors are committed to their work and patients. The reality is that they are responsible for human lives and as such are expected to live by the Hippocratic oath they are sworn to abide by. To leave all avenues exhausted before giving final diagnosis and treatment. A physician’s failure to diagnose tops the chart as the most common allegation in medical liability lawsuits, legal consequences including malpractice suits.

Who sets the standards? 

The HPCSA sets the standards in South Africa, but where negligence is alleged, the opinion of another health professional, usually an expert in the field, must obviously be obtained. The burden of proof lies with the complainant, which can often be very intimidating. Many South Africans are unable to afford the services of attorneys, advocates and expert health professionals, especially with court cases that could go on for as long as two years.

Written by Addi Lang

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