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Updated 26 February 2014

Suing doctors in SA

Your appendix op went seriously wrong and landed you in the ICU for a week with septicaemia. Do you grin and bear it, or do you sue the doctor? Here's more about your options.

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Your appendix op went seriously wrong and landed you in the ICU for a week with septicaemia. Do you grin and bear it, or do you sue the doctor? More and more South Africans are heading for the courts. But how much success are they having?

Their actions are definitely in line with trends elsewhere in the world, specifically the United States, 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 practising 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 against the medical profession.

"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 if they feel they have not been dealt with in an ethical manner."

Misconduct and SA health practitioners
Common charges on which health professionals are brought to book often include the following:

  • failure to keep proper records
  • contravening rules on advertising
  • dishonesty during written examinations
  • changing medical records
  • defrauding medical schemes
  • inadequate treatment of patients
  • medical negligence
  • incorrect accounting practices
  • inadequate monitoring of injured patients
  • not following accepted medical procedures with a post-operative patient

If the doctors are found guilty, the HPCSA can issue fines, suspended for different periods of time, or be required to complete a course in medical ethics before being allowed to practice again.

But before you decide to opt for DIY medical care from now on, it must be remembered that the vast majority of health professionals are never taken to court. In America, only 5% of doctors are responsible for 54% of malpractice suits and there is no reason to believe that South African statistics are very different.

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? Is it the professional disgrace and the damaged reputation that are supposed to be the real punishment? So where does this leave our appendix-op-gone-wrong guy?

Suing health professionals
A patient can either complain to the HPCSA, or can make a civil case and take the doctor to court himself 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 Msiza. "If a health professional is found guilty of misconduct by the HPSCA, 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 HPSCA."

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. They do.

There need to be four elements present, before a patient can consider suing for medical malpractice:

  • A duty must exist, where a hospital or health care 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?

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. 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 months.

What is the likely outcome?
The likely outcome of cases can be illustrated by the story of Pretoria plastic surgeon, Dr Hennie Roos, who faced 26 complaints between 1994 and 1998. Sixteen of these complaints fell by the wayside at the preliminary enquiry stage, but one complainant sued him successfully - Jennifer Reichlin was given a settlement of R692 000 after suing Dr Hennie Roos for leaving her scarred after performing a face and forehead lift. He has since disappeared from the medical scene. His website was last updated in the year 2003.

In October 2007 a Mpumalanga couple sued a Pretoria hospital and gynaecologist for R20 million for negligence after their daughter suffered severe brain damage during birth in 2001. Mr John Thomas Lourens and his wife Lelanie had reached a confidential settlement with the Wilgers Hospital and local gynaecologist Dr A Shaw, according to newspaper reports of the time.

It is often a feature of settlements in South Africa that the settlement amount not be made public or the case is settled out of court.

This was also the case with the lawsuit of Mr Clifford Robert van Ass and his son Nolan against Dr Corlia van den Berg in 2007. Mr van Ass's wife died after a hysterectomy operation in 2003.

How to sue a health professional
If you have had an unfortunate experience with a health professional and would like to take further steps, you can contact the complaints department of the HPCSA at 012 338 9330 or follow these steps as outlined on the HPCSA website.

(Susan Erasmus, Health24, updated February 2014)

 
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