Doctors call for a re-look at medical negligence laws

By Mervyn Naidoo Time of article published Nov 28, 2021

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PRESSURE is building to change laws dealing with medical negligence claims, which have apparently become a cash-cow for some law firms that specialise in taking up matters on behalf of patients.

A few doctors have also been in the firing line of some criminal court proceedings, resulting in medical practitioners doing jail time for their alleged indiscretions.

Earlier this month the South African Law Reform Commission (SALRC), an organisation that constantly looks at reforming the country’s laws, in line with the Constitution, published a document, which is presently out for public comment, calling for a rethink in the handling of medical negligence claims.

Two key suggestions raised in the nearly 500-page long document was that mediation be made compulsory in such matters as opposed to going to court, and payouts for claims be made in intervals and not lump sums.

Doctor Danie van der Walt, a gynaecologist and obstetrician would have hoped the SALRC’s proposed reforms were already in place when a medical negligence allegation was first brought against him in 2005.

He was eventually convicted criminally in 2019 and sentenced to five years of imprisonment.

The doctor had assisted a woman with delivery of her child, but she bled profusely thereafter and died.

Van der Walt who had been in practice for more than 40 years, during which time he delivered thousands of babies, was eventually released after spending eight months in prison after the Constitutional Court heard his matter.

It emerged that the lower courts had made some technical errors.

Since his release, the 69-year-old doctor gave his first media interview this week, expressed his disappointment and has since bowed out of the profession.

Accordingly, doctor rights groups and others in the medical profession have expressed concern and complained about flaws in the legal system.

Similar sentiments were expressed in a letter sent to Minister Ronald Lamola of the Department of Justice and Constitutional Development by the Medical Protection Society (MPS), also earlier this month, which was endorsed by other local medical bodies.

Previously, doctors would generally back their experience and training in making diagnosis, administering treatment and dispensing medication.

But the fear of possible legal action has caused many to become “over cautious”.

They now, regularly, subject patients to more check-ups, tests and x-rays, for peace of mind.

That then adversely affects the State healthcare facilities’ expense bills and private patients are required to dip deeper into their pockets to afford the necessary medical aid benefits.

A few of the country’s leading medical aid service providers were approached for comment on this phenomenon, but they did not respond.

Professor Leon Snyman is the acting head in the obstetrics and gynaecology department at Pretoria’s Kalafong Provincial Tertiary Hospital and University, and also the chairman of South African Society of Obstetricians and Gynaecologists (Sasog) medical legal committee.

He confirmed that doctors were “doing unnecessary things to cover themselves”.

“It has been researched and it is true.”

Snyman said van der Walt’s case had a telling impact, especially on gynaecologists and obstetricians.

He also touched on the plight of Professor Peter Beale, a surgeon who faces murder and fraud charges over the 2019 death of a 10-year-old patient that he and Doctor Abdulhay Munshi treated.

Munshi was shot dead in September last year.

“It is scary to think you can go work and years later you can land in jail for something that went wrong previously.”

Snyman said the Sasog were co-signatories of the MPS letter sent to the minister and wanted the bar for someone to become a criminal be lifted higher than what it was presently.

“One colleague said that every patient who walks through your doors is a potential court case.”

He said they noticed when the Road Accident Fund (RAF) taps were closed, many legal firms were making a living from medical negligence matters.

“It has become a soft target and spiralled out of control.”

He said Sasog was trying to address such problems with the relevant stakeholders since 2009.

“Much of what we have been saying has been incorporated in the SALRC document.”

He accepted it was a long process before results were achieved.

Doctor Conrad Mashiloane, an obstetrician, a director of the KZN Specialist Network and a member of SASOG’s legal committee said there were legal claims against many doctors.

He explained that errors happened, given the number of patients a doctor consults daily.

But errors don’t necessarily lead to complications and people sue because of complications.

Mashiloane reiterated that the problem lay with the country’s legal system, in particular the common law aspect, which was not understood by most doctors.

“Our matters of medical negligence have to go to the High Court because the quantum of claims are usually more than R400 000.”

As opposed to lower courts, high courts are run differently and those legal teams that put up better arguments receive their desired outcomes, Mashiloane said.

“The problem was not mainly about a patient’s medical complications, doctors or lawyers, but how our civil proceedings are run.

“With the RAF, a motorist doesn’t have to fear the damages he may cause while driving on the road because the government will pay the bills.”

He said similarly, when a worker had an accident in a factory, the Workmen's Compensation Fund handled the damages, just as mineworkers had similar cover.

“But doctors don't have the same protection from the law.”.

Doctor Kajal Lutchminarian, a plastic and reconstructive surgeon and also a member of the KZN Specialist Network said the negative cycle of doctors being afraid to make mistakes needed to end.

Lutchminarain appreciated that moves were afoot to address the relevant legal issues.

“Clinical judgment is something we spend years attaining and one should be confident to rely more on this and less on lab tests and redundant investigations.”

“If you've crossed your T's and dotted your I's, do not be fearful of doing the right thing,” she encouraged.

Dr van der Walt said, after the turn of events in his matter, he received a letter from the court saying they were in the wrong, it was unfair procedure and he got no apology.

Chrispin Phiri, spokesperson for the justice ministry, said with regards to blameworthiness of medical practitioners, the law demanded of experts, including doctors, a higher standard of care where the conduct complained of relates to their area of expertise.

Phiri confirmed that the ministry received correspondence from the MPS, its content were being considered and feedback will be given.


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