Doctors in fear of litigation
How South Africa’s health system could take a hit from coronavirus pandemic lawsuits
AS THE Covid-19 pandemic spreads around the world, there’s been an outpouring of gratitude and support for health-care professionals.
Communities have made extraordinary efforts to support them. These include ensuring they have personal protective equipment, meals and priority access in supermarkets.
They’ve been given a break from indemnity payments and will most likely be prioritised for critical care and ventilators if they get sick themselves. That’s because they are risking their lives to save others.
By the beginning of May, it was estimated that more than 1 000 healthcare workers from 64 countries had died.
Civil society’s goodwill towards the health profession is justified. But how long will it last?
Doctors and hospitals have to make difficult decisions when treating Covid-19 patients. These include withdrawing patients from ventilators. And patients with other conditions might suffer because care was unavoidably diverted to Covid-19. It’s possible that patients or their families could litigate.
In South Africa, the health profession has been operating in a highly litigious context over the past decade. One of the reasons is the growing awareness of patient rights. That’s coupled with aggressive marketing by personal injury lawyers eager to capitalise on this awareness.
It’s a concern for private and public hospitals, indemnity insurers and civil society, because when doctors are preoccupied about future litigation over decisions they are forced to make during the pandemic, they will be obliged to practise defensive medicine.
Based on malpractice claims, costs for indemnity insurance cover have spiralled. This has caused many specialists to reduce their scope of practice, or increase their consultation fees.
For example, many doctors who qualified as obstetricians and gynaecologists no longer practise obstetrics because of exorbitant indemnity cover and claims in this field of practice.
Such claims are considerably higher than in other fields of work; one reason is the lifetime costs of caring for a person who was disabled at birth.
This vicious cycle of litigation claims and more expensive service is having a negative impact on health service delivery. For one thing, spiralling claims in the public health sector mean the health budget is spent on settling legal claims instead of on health care. It’s possible that the huge pressures on the health system created by the Covid-19 pandemic could make the situation even worse.
The public health response to the Covid-19 pandemic requires some extraordinary measures. Professional bodies globally, including the Health Professions Council of South Africa, have recognised this. They have issued updated guidance on practising outside one’s profession, telemedicine and registration extensions.
The greatest concern for healthcare professionals working in critical care is the need to withdraw ventilation because there aren’t enough ventilators available.
The country’s Constitution says a person’s rights – such as access to health care – can be limited. And the withdrawal of care is accepted by the Health Professions Council of South Africa, as indicated in its published guidance. But withholding or withdrawing treatment refers to futile care.
During Covid-19 care, futility might not be the reason patients are removed from a ventilator. It might rather be deterioration in their condition while other patients with a better prognosis need intensive care.
The New York state governor issued directives to provide temporary immunity from civil liability for injury and death as a result of an act or omission during the pandemic for a limited period.
In the UK the British Medical Association issued guidance, but this has been met with legal challenges.
The Health Professions Council of South Africa acknowledges that its response to complaints from the public will “consider the extraordinary circumstances in which practitioners are working, and the heavy demands on them during this period”.
The council’s mandate is to serve the profession and protect the public.
But Parliament has remained silent on any form of temporary legal indemnity for health-care professionals.
Gross negligence in health care will not be excused under any circumstances. But we think standards for reasonableness will certainly not be the same as in pre-Covid-19 times.
Awaited national guidance on the allocation of scarce resources, when developed, might protect health-care professionals working in the public sector. It’s not known whether private-sector doctors and independent practitioners will be included.
It’s also not clear how the legal and professional systems in South Africa will make provision for negligence claims and complaints that arise out of retired doctors and nurses returning to work in the pandemic, or doctors working outside of their medical specialisation.
This is a legal hiatus that needs to be addressed urgently.