The Public Health Medical Negligence Claims Conundrum
01 December 2021 14:00
A comprehensive analysis by Professor Hennie Klopper of the problem of medical negligence claims in the public sector, and a discussion of proposed solutions to address the issue. It is one which has rapidly escalated to crisis proportions and needs to be addressed.
In broad overview:
Negligence in the public health sector has been thrust in the limelight by the resulting astronomical financial consequences. The reaction to this phenomenon has largely been a knee jerk and are essentially attempts at damage control. Yet very few voices have articulated the case of the real victims – the patients of the public health system who are largely the voiceless poor. An analysis undertaken in this article shows that up to sixty percent of the victims of the public health care sector are cerebral palsied minors who suffer debilitating consequences and indignity of the worst imaginable kind.
Approaching the crisis purely from a financial perspective creates the subliminal message that public health care is operating optimally, and the patient safety incidents are mere unavoidable tolerable collateral damage incidents.
This is far from the truth considering that the cerebral palsy births of our public health system are five times higher than the international average. During the analysis of public health care medical negligence judgments an argument propagating a different standard for judging medical negligence of public hospitals surfaced. The standard of health care in the public sector is predicated by the Constitution as is the relationship between the public health sector. A further disturbing phenomenon was indications that litigation was being abused to manage the cash flow crisis created by medical negligence claims where the public health sector spent approximately R148 million in the 2018/19 financial year on litigation.
All is not well
An approach that proceeds from the thesis that if the cause of damages in the public health system is eliminated, the currently prejudiced patient’s interests will be served and the financial consequences of negligent adverse events will disappear or at least or be contained, is faced with the difficulty of paucity of patient safety incident information. This lacuna has prompted a further analysis of reported medical negligence cases in the public sector. These analyses indicate that all is not well with the public health sector system and that the leading cause of patient safety incidents in obstetrics (which make up 60% of claims) and which are all high value claims (ranging from R4 million to R25 million) are non-response to clinical indications and failure to consistently follow protocols. An adjunct to these professional lapses is the phenomenon of poor record keeping and retention of patient records which impacts on the ability of a claimant to frame his case and the public health system to mount and effective defence against claims for negligent adverse events.
A Constitutional duty to provide adequate healthcare
The primary solutions of structured payments and payment of damages in specie which are currently actively being propagated (the so-called public health defence) and which have been sympathetically entertained by our courts are effectively solutions that manage the financial aftermath of devastating personal consequences of negligent adverse events in the public health care sector. The duty to deliver adequate and quality healthcare to those who cannot afford to pay is created by the Constitution. Not doing so is a breach of such constitutional duty. Any measure aiding the government and/or the use of the government of its Constitutional legislative power to manage the consequences of the serial breach of its constitutional duty to render adequate and proper healthcare is in effect a constructive condonation of such breach – especially where the measures are at the sole expense of the victims of substandard healthcare. Other solutions proposed deal mostly deal with consequences and not cause, may assist in ameliorating the consequences but do not offer lasting solutions.
Difficult and complicated solutions
Framing a solution to this vexing problem is eminently difficult and complicated. Not only the problem of the high frequency of negligent adverse events, but also the environment and circumstances in which these events occur, create difficulty. The public health system is beset with a variety of operational environment problems such as ageing infrastructure, inadequate funding, over-utilisation, poor working conditions, understaffing, ineffective management, and lack of accountability. Without minimising or excusing lapses of medical professionalism in the public health sector, any proposals for and remedial action undertaken should be viewed against this backdrop.
One of the primary immediate and most important steps to be implemented, is the introduction of a standardised Electronic Health Record system (EHR) which integrates both patient safety incident reporting and clinical protocol management. A framework for patient incident reporting does exist. Implementing an Electronic Health Record system will to a large extent remove the contributory factors of medical negligence claims and manage causative risks such as non-adherence to protocols. Not only will it assist in managing risk, but it has substantial benefits for patients and the quality of health care. To ensure compliance, accountability must be ensured in a way which recognises the challenges faced by medical professionals in the public health system but nonetheless ensures that negligent adverse events have behaviour-changing consequences. Furthermore, research into CP indicating that current knowledge of the causes of CP is defective should be heeded and recommendations in this regard considered.
Patient’s interests are paramount
Finally, the focus on and apparent obsession with the financial consequences of negligent adverse events in the public health sector completely ignores the oft devastating and far-reaching personal consequences of an ailing public health system for patients unable to pay for health care. In all deliberations over and measures proposed and implemented to remedy the public health care malady, the interests of the public health care patient should be paramount – it is a Constitutional imperative.