SA CAN CURE MEDICAL MALPRACTICE ILLS
MEDICAL malpractice claims in South Africa have reached a point of diminishing returns, with doctors and hospitals being sued for ever greater amounts.
Auditor-General Tsakani Maluleke, recently revealed that (unpaid) medical negligence awards cost the state around R105 billion.
The figure is horrifying when compared with the 2021/22 budget for health of only R248.8bn.
What some have called a medical malpractice storm shows no signs of abating. And yet there is a way to cure some of these ills.
Medical malpractice is usually thought of as the negligent conduct of a doctor in treating a patient, such as bungling an operation.
The courts, however, have declined to find that every nicked artery is malpractice. This is because health-care interventions carry an inherent risk which a patient essentially consents to bear. Malpractice thus is associated with truly avoidable errors.
Human rights considerations, however, infuse medical law. Patient autonomy is as much a right as the medical care or beneficence a doctor provides. Patient autonomy and self-determination are embodied in the Constitution under the rights to dignity, privacy, life, bodily and psychological integrity.
Patients must thus not only be optimally treated, but doctors must also acquire their “informed consent” to treatment. It becomes the treating doctor's duty to lay-out all alternatives, side effects, costs and to estimate risks.
The National Health Act of 2003 essentially provides that this information must be conveyed to the patient in a language they understand, and the doctor must field their questions and ascertain whether they are being unduly influenced in their decisions. This is often a dynamic and emotionally fraught process of communication in the real world.
One of the drivers of growing malpractice lawsuits is that healthcare professionals have few standards against which to measure the extent to which they must communicate necessary information to patients to obtain informed consent.
At the same time, many treating physicians simply do not have the time (or interpersonal skills) to work through the onerous processes described above.
It is these doctors who increasingly face lawsuits alleging that the treatment regime they undertook with a patient lacked informed consent.
This is especially where something unavoidably goes wrong during treatment and the patient sues, not based on the medical outcome itself, but for lack of information on the risks or alternatives. Some doctors are even sued after a successful operation the patient claims they did not want.
The financial and legal risks have forced an unwelcome shift from a “compassion-centred care” approach to a “defensive medicine” approach. Many doctors now deviate “from sound medical practice induced primarily by a threat of liability”.
Especially during the Covid19 pandemic, there is a need to bridge the gap between a patient's understanding and right to information, and the medical practitioners' perception of how much information is needed and how to convey it to the patient.
A partial solution to the conundrum is the introduction of information therapists (by consent) into the doctor-patient relationship. Such a medically or pharmaceutically trained person needs to be a good communicator capable of working through with the patient the main and generic areas of concern and consent related to medical procedures.
The physician must be brought into the conversation where necessary, but it will be the therapist's job to handle the lengthier processes of ensuring patients' peace of mind thorough discussions of the specific treatment to be undergone and its known risks.
In addition, medical information therapists are vital in talking to children in an age-appropriate manner.
Ultimately, medical information therapy will reduce successful malpractice claims by ensuring that the legal element of “informed consent” is fully present with all the paperwork to prove it, too.