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.

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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
There are currently 23 South African doctors and health professionals whose names have been published by the council after having been found guilty of misconduct (one of them, a Dr C.M. Tjale on 14 separate counts). The date on this list is February 2008. The charges on which these health professionals have been found guilty 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

Most of the above professionals were fined amounts ranging from R1500 to R10 000 by the HPCSA. Several of them were suspended for periods from three months to five years. Some were asked to complete a course in medical ethics before being allowed to practice again. One individual was erased from the register for five years. See the full list here.

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 has faced 26 complaints since 1994. 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.

More recently, 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 last year. 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, April 2008)
 

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	doctors band together 5/5/2008 11:22:43 AM It isn't easy to sue a doctor in SA - they tend to close ranks when you're trying to get them to testify for you. - William   suing 5/5/2008 12:15:22 PM Why are legal fees so astonishingly high? Some lawyers charge R2000 an hour. How can this be justified? - Rochelle   suing clinics 5/5/2008 12:22:00 PM some info - Arminda   One sided story 5/5/2008 12:32:00 PM I'm a medical specialist, the article is very one sided. Consider the American situation, it boils down to doctors vs laywers. The patient gets very little in the end, however, medical fees will skyrocket if lawsuits increase. The consumer WILL foot the bill. So in the end medical care becomes a lottery, with doctors doing the absolute minimum, to avoid risk, laywers suing for everything, and patients paying for it all. - Johan   Medical Aid Fraud not serious? 5/5/2008 12:45:41 PM I noticed that a dr got away with a R10 000 fine for 14 counts of defrauding medical aids. Seems to be R10 000 for all charges combined, not R10 000 per charge. If a Dr could defraud a medical aid, can he be trusted to treat a patient? - Jack   Suing Drs 5/5/2008 12:47:31 PM very interesting - Sharon Preddy   Suing doctors in SA 5/5/2008 1:21:45 PM I havent read the article but thought it might be of interest. Amanda - Sinazo   Suing doctors/hospitals in SA 5/5/2008 1:28:09 PM We all have to sign a disclaimer before they agree to operate, that is why we never succeed in suing them, its an expensive and pointless exercise. - Jacqui Bradley   Complications are not always the dr's fault 5/5/2008 2:07:50 PM Contrary to popular belief,complications after surgery have a multitude of causes and is not always only the dr's fault. Complications can originate from patient factors (i.e. smoking, diabetes,obesity,underlying infections,severity of pathology,non-cooperative re therapy/rehabilitation etc), surgical factors(equipment problems, infection control problems,staff/theatre issues) and doctor factors(wrong indication,wrong surgery,wrong timing). Keep this in mind before the blaming begins! - Another Specialist   paul 5/5/2008 2:10:34 PM I agree with the specialist's comment above. But I do also think that it is the duty of the doctor to make people aware of the risks involved - a friend of mine died after an op and was never fully informed by the doctor how high the risk was, otherwise she would not have done it. - complications   @Johan 5/5/2008 4:12:40 PM Go right ahead buddy, we find air fare quite cheap these days. If you feel like it, kill your own field in this country - why should we care if you don't? I guess all I am saying is that patients can be just as spiteful as doctors are. Be more professional - you are delivering a service! - Johan 2   Check this out 5/5/2008 4:20:53 PM I have'nt read it as yet. Thought you might find this interesting considering Palm's issues. - Yestina Veeriah   Face up to YOUR mistakes 5/5/2008 4:43:37 PM To All Specialist, at the end of the day a patient is under the doctors care, and hospitals care, with peoples lives you do not mess around, patients pay for a job to be done, top fees charged deserve top levels of skill, an electrician does a job at your home and makes a mistake who do you blame,him, no one else but the electrician, if somebody dies, hurt by the electrician big trouble is waiting, doctors chose thier profession, face up to the mistakes that you make dont hide and blame others - Victim   Face up to YOUR mistakes 5/5/2008 4:55:16 PM If mistakes are made, as in my wife and i instance we do not expect to be told "its one of those things that happen" very professional statement!! - Victim   Medcine an Art and Science 5/5/2008 5:15:09 PM Dear Victim.If medicine was as simple as electric wiring all electricians would have been doctors.That is what the general public does not understand.Two almost identical patients with the same disease subjected to the same treatment/surgery CAN have 2 different outcomes WITHOUT anyone being negligent.Different outcomes are not the norm but is accepted as being possible.Medicine is not an exact science although we do our best to make our examination, diagnosis and treatment as exact as possible. - Medical Doctor   Medicine an Art and Science 5/5/2008 5:27:08 PM It is very important that doctors discuss the most likely and serious possible outcomes/complications and discuss the fact that complications do sometimes occur without someone neccasserily being negligent.No one can guarantee a specific outcome.That is only possible in an exact science.Don't consult the popular media for expert medical advice on negligence.Ultimately negligence must be proven and that's where the good doctors salvation lies: in an expert medical witness and a wise judge. - Medical Doctor   Medicine an Art and Science 5/7/2008 9:39:00 AM Medical doctor you should know that there is no such thing as "identical patients". - Vat   Face up to your mistakes 5/7/2008 12:23:53 PM As a victim of a botched eye operation 20 yrs ago and left blind in my one eye I see the happy Dr still practicing his trade benefiting from his proffession while ruining mine. To this day he has never enquired about my well being. I sued but ended up being another poor victim. To the writer commenting on signing a disclaimer. By signing this document you do not give the medical proffession the right to destroy your life. You cannot indemnify anyone against negligence.Take them on. - John   Is it fair 5/7/2008 1:09:19 PM Is it fairwhen after treating hundreds of sick persons one operation goes wrong, not as a result of neglegence but as a result of a number of factors, and you are then sued putting your career at stake? - Practioner   Medical negligence 5/7/2008 8:50:38 PM Dear John, I see that the operation also botched your ability to spell. There is no doctor that decides, when getting up in the morning, today is the day I am going to do harm; there are, however, some icompetent doctors around. Do your homework by asking around and expect to pay more than what your so-called medical aid allows to get better service! - Hendrik   LADY DIED AFTER HAVING OPERATION.... 5/7/2008 10:03:09 PM Last year a friend of my daugther died. She was 34 years old. She had to have a big op done. She told the specialist she had small clots in her legs. The specialist said that was not a problem and that he would proceed with the operation which in actual fact could even have been done a few months later. She died as a result of Dr proceeding with op due to small clots she had in her legs!!!! Shocking!!! - Menants   SUE ME DO ME A FAVOUR 5/7/2008 11:23:26 PM So i am a dr. What i do is wake up and do my best to heal and please. If i could change my occupation to a plumber and get paid the minute i completed my work i would. Instead i deal with a sore left ear that has been there for 5days at 3:12am in a EMERGENCY unit Medicine is not an exact science. Varaition does occur. Death does occur, complications do arise. This due to nature sometimes due to negligence. And thank goodness for science that they occur. How else could the same event be avoided - p   Malpractice suits are not the way to go... 5/7/2008 11:41:02 PM The medical profession provides a valuable service to the public, yes when gross negligence is shown the doctor should be struck off the role and fault attributed. But in many instances mere negligence on the behalf a doctor will not provide the necessary prerequisite for a court to impute liablity. The court in the end has to take into account many factors including public policy, our courts have clearly shown that they do not want the same situation that is occuring in the states. - Lawyer   continued Malpractice suits are not the way to go. 5/7/2008 11:49:16 PM Therefore the answer in the end should really rests on the HPCSA dealing with the matter in a more pro-active manner, on behalf of the patient who has suffered an instance of malpractice. In the end they have the requisite knowledge to judge reasonably and sensibly the allegations alledged, even more so than a court. (perhaps it is time for a re-think on the powers of the HPCSA) Malpractice suits are certainly not the recommended way to go... - Lawyer
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