Best Practice vs Medical Malpractice
The rates of medical malpractice vary worldwide. However, a quick online search for “medical malpractice in South Africa” brings up numerous articles regarding the exponential rise in medical malpractice claims. Commentators attribute this increase in litigation to numerous factors including stretched resources in state hospitals. However, medical negligence is not limited to state hospitals.
At the recent Ethics, Human Rights & Medical Law Conference, part of the Africa Health Exhibition & Congress 2018 held at Gallagher Estate in Midrand, Margaret Janeke, wife of the late Dr Johan Janeke, provided insight from the patient’s perspective.
The human impact of medical malpractice
Janeke explained in moving terms the circumstances under which she lost her husband, himself a doctor. “My husband was a gifted and talented ENT specialist who was both nationally and internationally qualified,” said Janeke. “Gross negligence of a para-spinal abscess resulted in his paralysis in 2013. Had the medical practitioner treating my husband chosen to listen to every symptom and studied the diagnostic tests more carefully, this could have been avoided.”
In late 2017 Dr. Janeke succumbed to pneumonia, following a long struggle against several complications of which the most debilitating included Cauda Equina syndrome (a condition resulting from damage to the bundle of nerves below the end of the spinal cord) and arachnoiditis (a pain disorder caused by inflammation of the arachnoid, one of the membranes that surrounds and protects the nerves of the spinal cord). These conditions robbed Dr. Janeke of his quality of life and necessitated the use of opioids for management of his extreme pain. “I don’t need to elaborate on how this tragedy has impacted my family. But yes, it has without a doubt changed my view of the medical profession,” his widow said.
Whilst medical practitioners need to raise standards, it is argued that the deluge of medical malpractice claims is affecting the provision of medical services. The need for increased insurance contributions to provide for the possibility of litigation has resulted in increased costs to patients. This burden and the fear of claims have led some practitioners to change their field of practice to limit the risk of claims or practice defensive medicine.
The number of malpractice claims is growing
“The reality is that the number of claims against healthcare professionals has grown, and continues to grow, exponentially. In the not too distant past, the chances of a medical practitioner being hauled into court for negligence were minimal. This possibility is now very real and will continue to increase,” says Professor Emeritus Ken Boffard of the Department of Surgery at the University of the Witwatersrand and Trauma Director and Academic Head at Milpark Hospital.
“In South Africa, changes are happening everywhere. Government resources are stretched ever thinner, and thus the resources, both material and human, are increasingly rationed. Medical practitioners must do ‘the best for the most’, and this can mean ‘cutting corners’, less supervision, and poorer support systems,” he adds. “In the private sector, pressure from the medical insurance companies in many instances has meant compromising the quality of care, and what may have been available in the past no longer takes place.”
Best practice is the solution to malpractice
Janeke argues that the solution is best practice. “If medical practitioners take time to consider the vast impact on families and patients and uphold their oath to serve and sacrifice for the highest calling – that of preserving life – we will see different outcomes.”
John Saner SC (MA (cum laude) LLB (Wits), is the author of Medical Malpractice in South Africa: A Guide for Medical and Legal Practitioners. He has specialized in medical negligence litigation for twenty years and has extensive practical experience, from case selection through to appeals. “We have seen a rapid increase in medical negligence in recent years,” he says.
“The burgeoning of medical malpractice (or negligence) litigation has meant that the body of jurisprudence in the medico-legal field has grown concomitantly in size and complexity and continues to do so. Healthcare professionals have a real and growing need to understand and keep abreast of this rapidly developing branch of the law, the object being to improve patient care and avoid negligence lawsuits.”
For the medical profession, forewarned is forearmed: to know what conduct the law regards as negligent or remiss is to be armed against incurring liability.
“Medical practitioners therefore need a thorough understanding of what is expected, legally, from the reasonable doctor, because any act which conforms to the standard of the reasonable doctor will not be negligent,” he adds.
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