By Muhammad Suliman, Specialist Underwriter: Medical Malpractice
Marissa van der Westhuizen, Specialist Claims Manager: Medical Malpractice and General Liability
The Accident and Emergency (A&E) space is inherently high risk and this risk is further exacerbated by increasing patient volumes, the complexity of cases and the fast-paced nature of emergencies. Examples of errors are ample, misdiagnosis of a heart attack as simple heartburn or a diagnosis of gastroenteritis instead of appendicitis, etc.
Typical pitfalls in emergency care as evidenced from claims handling for A&E Units are:
- Over-Diagnosing and Testing: Fear of litigation can lead to excessive testing and inflated costs, straining patient-practitioner relationships.
- Communication Issues: Breakdowns in communication in the high-pressure environment can result in misunderstandings which may result in fatal outcomes.
- Staff Challenges: A lack of experienced staff and specialists during critical times complicates care, contributing to the potential for misdiagnoses.
- Resource Limitations: It is well known that public facilities often struggle with limited resources, leading to long wait times and rushed evaluations/assessment of patients, but private facilities are not immune to such limitations.
To navigate these challenges, A&E units may consider:
- Training Programs to enhance communication skills to improve interactions with patients and colleagues, to improve record keeping and to obtain appropriate informed consent given the type of emergency on a case-by-case basis.
- Regular reviews to identify areas for improvement in patient care protocols.
- Protocols for Specialists: Establishing on-call specialist protocols to ensure appropriate evaluations and referrals in critical cases.
The result of the abovementioned challenges is seen in the growing number of claims against A&E Units. Plaintiff’s attorneys may take a broad paint brush approach to join all related entities and practitioners to litigation following an adverse event, often without much consideration or investigation into where actual negligence lies, if any. At the very least, this creates a defense costs exposure for A&E units even if the treating practitioners are independent contractors with their own medical malpractice cover. Establishing liability is complex and requires careful investigation of the employment relationships of the various role players (nurses and doctors) and contractual arrangements may play a significant role.
It is a well-established principle in law that a principal (in this case the A&E unit) cannot be vicariously liable for the wrongdoing of an independent contractor.
In the case of Mohun and Another v Phillips N O abo S and Another (1219/2021) [2022] ZASCA, the court declined to introduce the concept of a “non-delegable duty of care” into South African law. If imposed, there would be a stricter standard to which entities are held where entities are not only under a duty to exercise reasonable care itself but must also ensure that independent contractors exercise reasonable care as well. Fortunately, the court declined to extend vicarious liability in this manner.
A&E units in South Africa operate within a complex landscape fraught with malpractice risks. Pro-active risk management, although valuable and necessary, does not make the entity immune to claims and complaints. The ongoing goal is to manage and reduce claims and allow healthcare providers to focus on delivering quality care. Entities and practitioners alike should ensure that they are adequately covered for claims arising out of their professional conduct.
