SEQUENCE OF LEGAL PROCESS
Initial consultation with attorney
It is vital that they attorney receive a detailed description of the alleged negligent incident, treatment leading up to this event and very importantly, the result or sequelae of the alleged negligent event.
The Patient will then sign an agreement with this attorney (mandate) appointing them as their attorneys of record, allowing the attorneys to do what they need to do in order to prove whether there is negligence in this case and obtain reasonable compensation for the damages that ensued therefrom.
What is Medical Negligence?
- Sir William Blackstone was the first to use the phrase medical negligence in 1768 - “how trust is broken between the patient and the practitioner”.
- According to Carstens and Pearman, Medical negligence in South Africa started with an 1877 case where Judge de Villiers brought medical negligence to the fore when he stated that:
‘There can be no doubt that a medical practitioner, like any professional man, is called upon to bring to bear a reasonable amount of skill and care in any case to which he has to attend: and that where it is shown that he has not exercised such skill and care, he will be liable in damages.’
Three components to proving Medical Negligence:
What is the standard of care required?
“that of a Reasonably Competent Practitioner, in the same branch of the profession, under the same circumstances…..” (expert)
- The test is whether a REASONABLE PRACTITIONER in the same profession would have foreseen the likelihood of harm and taken steps to prevent it.
- No legal liability for unforeseeable complications.
- The same standard of care is not expected from a doctor called out at night in a rural setting as from a doctor working in a fully equipped and staffed hospital.
Why patients litigate: 3 A’s
THE MOST COMMON INCIDENCES OF NEGLIGENCE THROUGHOUT ALL SPHERES OF MEDICINE:
Usually negligence is as a result of one of the following or a combination of a few of the following:
- Failure to examine properly,
- take a proper history,
- use available diagnostic tools
- Errors in Judgment:
“ I tugged too hard on the tumour which resulted in a tear in the vena cava during a medias-tinos-copy”
- Volksmann Cases:
Negligently Omitting to Diagnose Foreseeable Complications (volksmann ischaemic contractures)
- Failure to communicate a diagnosis
- Failure to complete the treatment
- Failure to refer to another hospital / specialist – “if he had been brought to me in time I could have successfully done a mechanical embolectomy, he would be walking today, the stroke unit is a mere 20 km away, you should have known…”
- Failure to follow up and render post-operative care
Application of the Act
- The Act came into operation on 1 April 2011.
- ‘Consumer’ A person who purchases goods or services / enters into a transaction with a supplier, and therefore includes a patient.
- ‘Goods’ Anything marketed for human consumption, including medicines, medical devices and consumables.
- ‘Service’ Any work or undertaking performed for the direct or indirect benefit of another;
- ‘Service Provider’ : ‘A person who promotes, supplies or offers to supply any service’.
Section 51(1)(b) of the CPA provides:
A supplier must not make a transaction or agreement subject to any term or condition if
it directly or indirectly purports to –
(i) waive or deprive a consumer of a right in terms of this Act;
(ii) avoid a supplier’s obligation or duty in terms of this Act;
(iii) set aside or override the effect of any provision of this Act; or
(iv) authorise the supplier to –
(aa) do anything that is unlawful in terms of this Act; or
(bb) fail to do anything that is required in terms of this Act … .’
As such, an exclusionary clause in a hospital contract would generally amount to an attempt to avoid a supplier’s obligations under the CPA and also deprive a patient of his rights under the CPA.
A Hospital/ Practitioner is obliged under the CPA to provide quality service to its patients. Section 54(1)(b) of the CPA provides:
When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to –
the performance of the services in a manner and quality that persons are generally entitled to expect; …having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services’.
Most exclusionary clauses would contravene the above requirement because, by excluding a hospital’s liability, the clause would shield the hospital from its duty under the CPA to perform ‘in a manner and quality that persons are generally entitled to expect’.
Consequently, the effect of the above provisions, specifically ss 54(1)(b) and 51(1)(c)(i) of the CPA, will inarguably render most exclusionary clauses / indemnities in hospital contracts void.
- THE consumer has a right to expect goods to be reasonably suitable for the purposes for which they are intended, in good working order and free from defects, and that they are usable and durable for a reasonable period of time. In the medical context, this would relate to, for example, medical devices and prostheses, as well as medication.
- All those in the supply chain (a producer, importer, distributor or retailer) can be held jointly and severally liable for any harm (injury, illness or death, for example) caused as a result of supplying unsafe goods, a product failure, insufficient instructions or warnings relating to any hazard associated with the goods – irrespective of whether the harm was the result of negligence on the part of any of the parties involved. The consumer would only need to prove harm caused by the faulty, unsafe or hazardous product.
- Since the Medical Practitioner who delivered the treatment is the most easily identifiable person in the supply chain, she/he can be held strictly liable for the cost of the damages that may follow.
THE PATIENT’S RIGHT TO FAIR, JUST AND REASONABLE CONTRACT TERMS
IS condition / agreement fair and reasonable ?
This depends on:
The parties’ relationship;
Their relative capacity, education, experience, sophistication and bargaining position ( knowledge gradient), and
Negotiations and extent thereof.
Discuss MATERIAL RISKS by asking the question:
Would the reasonable patient, if warned of the risk or danger, be likely to attach significance to the risk and would the reasonable doctor be aware that the patient may attach significance to the risk?
In the Medical Context it is also important to note that the provisions of the National Health Act which prescribe the manner in which the patient must be INFORMED with regard to –
- His/ her health status, subject to a form of therapeutic privilege;
- The range of diagnostic procedures and treatment options available;
- The benefits, risks, costs and consequences associated with such options;
- The patient’s right to refuse medical treatment and the implications; and
- The risks and obligations of such refusal.
- The patient must be informed as far as possible in a language that he understands and in a manner that takes the patient’s level of literacy and education into account.
- Medical / Clinical Notes have to be considered not only as medical documents but also as legal documents - “if it’s not in the notes, it didn’t happen”
- Passing off rewritten notes as contemporaneous is a criminal offence;
- Retrospective changes have to be clearly marked as such and dated and signed;
- Disclosure of authentic, original clinical notes is essential when a claim is brought, failure to do so can make the claim indefensible.
The current complicated and entrenched nature of the medical litigation system in South Africa has caused a much publicised “medical malpractice crisis”. This has required a multifaceted look at various solutions incorporating both the public and private health sectors.
Medical practitioners as well as personal injury lawyers need to consider alternative forms of dispute resolution, in line with constitutional values as well as fair practice within the framework of the law.
Mediation, as an alternative form of dispute resolution, may be a tool capable of addressing the non-financial needs of parties involved in a medical negligence/malpractice disputes. Much of this potential is as a result of the opportunity afforded to both the patient and the alleged medical practitioner to tell their stories/explain their actions respectively, without the constraints and interruptions of litigation rules and procedures.
Mediation moves the parties away from a blame and punishment narrative to a more conciliatory relationship where each party can feel heard by the other. This results in the letting go of anger and clearing up of misunderstanding and miscommunication.
Nature of mediation
Mediation is a confidential and without prejudice process in which the mediator assists the participants to reach an agreement through joint-problem solving. It is voluntary and any participant may at any stage terminate the mediation. To encourage discussion, the mediator will not disclose to the other participant any information that has been conveyed to him in private by a participant, unless the participant had given him express permission to disclose such information.
Mediation is non-binding until everything is agreed, reduced to writing and signed by both participants. The participants retain all their rights and legal remedies, if the mediation is not successful. The mediator may assist the participants to generate settlement options, but he/she will not impose his/her views or solutions on them. The mediator has an ethical obligation to work equally hard on behalf of all participants during the mediation.
That participants who appear on behalf of principals, shall have settlement authority, or have a person with settlement authority on standby, telephonically during the mediation. The mediator’s fee shall be for time spent with the participants and for time required studying documents, researching issues, corresponding, drafting and finalising agreements. Most mediation agreements require that the Mediators fees be shared between all parties in the mediation.
Time and time again, patients proceed to seek legal advice with the aim of claiming damages as a result of a mere breakdown in communication between the parties. Historically, this has been backed by the medical professionals’ indemnity insurers’ fear of the medical practitioner incriminating themselves or providing an “admission of guilt”. This merely fuels the practitioner’s frustration in not being able to defend or give reasons for the treatment rendered.
Medical negligence/malpractice complaints affect medical practitioners emotionally and escalates already burdened schedules and stress levels. These allegations have the potential to harm not only their reputation and career, but also their confidence in their trade and the delivery of treatment to future patients.
It has been realised that hearing a healthcare practitioner apologise with genuine remorse could be pivotal in resulting in an acceptance of a settlement or in the resolution of a dispute in total.
Medical negligence cases are usually complicated, involving contested facts and legal principles. This results in a monumental power gradient between the patient and medical practitioner. It is accordingly vital that the medical mediators are trained to bridge this communication gap by having the ability to deal with the complex subject matter of the dispute, as well as be familiar with medical terminology and culture.
The medical mediator should be sensitive to the fact that the injured patient or her family may be incredibly emotional or be experience intense grief. This should be respected, yet contained in ways which are specifically taught. The mediator must also continuously urge both parties to participate in making sure complex wording and ideologies are simplified to maintain a balance of power and promote open communication.
In general the negative aspect of the litigation process includes:
- The inability of the litigation to deter medical negligence.
- The detrimental effect on the doctor/patient relationship.
- The high emotional and financial costs to litigants.
- The procedurally inefficient cumbersome and time consuming process of litigation.
Moreover, the litigation system has been found lacking in that it does not adequately address compensation for patients that suffer injuries due to negligence and fails to encourage improvement in the quality of service. (Sybblis S ‘mediation in the health care system: creative problem solving’ 2006 (6:3) Pepperdine Dispute Resolution Law Journal 502 – 503)
Medical negligence litigation is also regarded as, “an extremely expensive, inequitable and unsatisfactory process for every party involved.” Both plaintiffs and defendants in the action must spend an inordinate amount of money to prepare for possibly go through a trial. The litigation process is a very long one, participants tend to leave the process emotionally exhausted, and the consequences of litigation are high for both sides, especially when parties walk away having spent a lot of money but are not necessarily made better of from their respective perspectives. (Natasha C & Meruelo JD ‘mediation and medical malpractice’ 2008 (29:3) Journal of Legal Medicine 285ff).
Mediation processes are regarded as well-suited to resolve medical negligence disputes for the following reasons:
- Mediation is a confidential process that is capable of avoiding unwanted and unnecessary adverse publicity for the medical professional or institution.
- Mediation is more expedient and cost effective than the usual form of litigation which takes on an average of 4-5 years.
- The parties to the mediation retain a greater degree of control over the process and outcomes than in litigation.
- The process of mediation is much more likely to leave the doctor/patient relationship intact as it is far less acrimonious than litigation.
- If a negotiated solution cannot be achieved in the mediation the parties can revert to litigation so as to protect the patient’s rights.
- In addition to compensation the process may provide the patients with an opportunity for therapeutic resolution of their claims by addressing the following:
(a) an opportunity to explain or receive an explanation
(b) an expression of regret
(c) an apology
(d) an expression of sympathy
(e) an expression of empathy
(f) the ability to gain closure
(g) the conveyance of forgiveness
(h) restoration of a valued relationship (Emanuel L and Mills M ‘Medical negligence, litigation and mediation’ 2002 (5:4) ADR Bulletin Art2 1 ff; Bogdanoski T ‘Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation’ 2009 (20:2) Australasian Dispute Resolution Journal 77)
When is the best time to mediate?
This is dependent on the complexity of the dispute. There will often be a need to make sure that all relevant medical and hospital documents are collected and provided to an expert to assess. An independent joint expert would be preferable in mediation cases to assess liability.
It is our opinion that the sooner the mediation process is started, the better. The process can be ongoing, but the sooner the parties are in agreement about confidentiality and documents are exchanged on a “without prejudice” basis, the more time and money can be saved.