Medical Negligence and Common Factors Contributing To Medical Negligence Cases In South African Hospitals
Medical negligence definition is derived from the Law of Delict, which comprises the evaluation of medical practitioner’s conduct according to acceptable societal standards. It is also defined as when the conduct of the medical professional does not meet the standard of a reasonable person. Such conduct is blame-worthy in South African law, therefore any medical practitioner who violates this will be at fault. Given such a context, medical malpractice is a negligent act or omission by the medical professional that results in damage to property or personal injury of the patient. The definition of negligence requires inter alia the following;
- wrongful conduct,
- causation; and
- damage or personal injury.
The skill and care of a reasonable medical practitioner under the same circumstances will be used as a yardstick to measure the reasonableness of the medical practitioner’s conduct.
The Common Claims In South Africa Are As Follows:
- Botched operation.
- Faulty Blood Transfusions.
- Treatment delays.
- Anaesthesia accidents.
- Prescription Errors.
- Misread X – Rays.
- Dental Malpractice.
- Emergency room negligence.
A Contractual Obligation Between The Doctor/Hospital And Patient
The medical profession is considered a noble profession because it helps in preserving life. We believe life is God given. A patient generally approaches a doctor/hospital based on his/its reputation. Expectations of a patient are two-fold: doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times. He is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carry out necessary investigations or seeks a report from the patient.
Furthermore, unless it is an emergency, he ought to obtain an informed consent of the patient before proceeding with any major treatment, surgical operation, or even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam) and breach that attracts judicial intervention by way of awarding damages. Thus, a patient’s right to receive medical attention from doctors and hospitals is essentially a civil right.
The relationship takes the shape of a contract to some extent because of informed consent, payment of fee, and performance of surgery/provision of treatment, etc. while retaining essential elements of tort.
Factors That Contribute To Increased Medical Negligence Claims
Countries face different challenges in respect of medical negligence claims. Of which reporting at times can be affected by socio-economic status and dynamics that affect the provision of health services. In South Africa, public hospitals by and large tend to be the epitome of the medical negligence cases. Thus in comparison to private hospitals. The same trend can be observed in other developing countries. Potential reasons for this are explored below.
i) Shortage of Staff and unfavourable working conditions: The shortage of staff in public hospitals contributes to the increase of medical negligence in South Africa. The shortage of medical practitioners including doctors, nurses or paramedics has a knock on effect in escalating the rate and percentage of medical negligence. A case in point is that there is a high ratio of nurse to patient (more patients than nurses); therefore the nurses are not able to provide qualitative medical service expected from reasonable medical practitioners.
ii) Shortage of qualified Medical Practitioners: The assignment of medical practitioners that are still in training, when given tasks outside of their scope, knowledge and skills also has a knock on effect on increased medical negligence cases, especially in rural areas. To avoid such cases, more trained and skilled medical practitioners should be recruited by the Department of Health. To ensure that medical interns have sufficient guidance during their training. In addition, only trained and rightly qualified medical professionals should be assigned to task regardless of the task’s magnitude or unless sufficiently guided.
iii) Working Hours and Workload: It is common cause that medical practitioners are human beings, who can equally be exposed to mental exhaustion. ‘Mental overload’ (ie fatigue and diminished concentration) can interfere with one’s ability to process other stimuli.
iv) The public awareness of their rights: The Constitution of South Africa, provides the Bill of Rights that have been cemented through Consumer Protection and National Health Insurance. The general populace has been empowered with the knowledge regarding their rights. Hence, can now easily trigger litigation and/or claims against public hospitals. This is exacerbated by lawyers who are now keen to work on the contingency fee basis which is No Win No Fee basis. The lawyers carry the costs for medical negligence cases and only claim their legal costs should they win the claim in courts or through negotiation.
In conclusion the medical practitioners are entrusted with a duty of care towards the patients. The patients are always required to sign for informed consent as a result creating a contractual relationship between the doctor and patient. Although there are various factors contributing to the increase. The increase in medical negligence is noted in public hospitals vis-à-vis private hospitals. Thus according to reported medical negligence in South Africa. The public awareness regarding constitutional rights should equally prompt the shift of public policy in addressing such a perennial problem.
We acknowledge Dr Maribanyana Lebeko who is part of the advisory for Simanye Clinic for his assistance with respect to compilation, editing and proofreading of this article.
Image credit: Getty Images.
Written By Advocate Dennis Chamisa and Dr Kim Lamont-Mbawuli (Legal Practitioner). In collaboration with Dech Legal & Associates and Simanye Mobile Clinic.
aYo Zambia launches Family Cover in response to ‘overwhelming’ demand
aYo Zambia CEO, Andrew Nkolola
microinsurer aYo Zambia has has just launched Family Cover, which allows Zambians to get hospital and life cover for themselves as well as their direct and extended families without filling in a single form. The new product will also see all premiums collected (and claims paid) via the MTN Mobile Money (MoMo) platform. Until now, aYo has offered hospital and life cover to individuals only through two insurance products, ‘Send with Care’ and ‘Recharge with Care’. But a growing market demand for insurance for the whole family prompted the company to create the new Family Cover product, which allows policy holders to add up to seven people, including themselves.
“As of today, we have had over 3.5 million customers purchase cover to protect themselves for hospitalisation in the event of illness or injury, or loss of life,” said aYo Zambia CEO Andrew Nkolola. “But many of our customers have been asking us: ‘How will we safeguard our children and families if something happens to them? We don’t want benefits only when something happens to us.’ We realised it was a huge gap in the market and have responded accordingly.”
As with aYo’s existing products, Family Cover customers must maintain active Mobile Money (MoMo) accounts to pay premiums and claim. This will allow them to insure up to three other family members per benefit, for a total of seven people. Family Cover allows policyholders to add extended family as well as direct relatives between the ages of 1 and 69.
Customers can enrol family members by dialling the USSD code *296* and selecting the Family cover option to enrol and manage cover. As with ‘Send with Care’ and ‘Recharge with Care’, valid Family Cover claims are paid directly to the claimant’s mobile money wallet without any hassles.
aYo was recognised as the Most Innovative Ecommerce Product in Zambia by the Institute of Finance and Economics in October, and followed that up in November with three awards at the Pensions and Insurance Authority Industry awards: Microinsurance product of the year, Best Customer Centric Experience, and Product and Service Innovation of the Year.
“The market perception of insurance in general is changing. Today, every Zambian consumer can purchase insurance on the go, using their mobile phones. Offerings like Family Cover provide a much-needed social safety net that helps vulnerable people and particularly people with low incomes to stay afloat when the unexpected happens,” said Nkolola.
mPharma acquires majority stake in HealthPlus
mPharma, Africa’s leading patient-centered technology-driven healthcare company, has acquired the majority stake in HealthPlus, the leading pharmacy chain in Nigeria. mPharma and the former investor, Alta Semper, have signed an agreement leading to the acquisition of a majority stake in the HealthPlus Group.
According to the Chief Executive Officer and Co-founder of mPharma, Gregory Rockson, the acquisition is in line with the company’s mission to build an Africa that is in good health by delivering life-changing healthcare services and drugs to improve health outcomes for patients. He stated that the acquisition of the HealthPlus Pharmacy chain by mPharma complements mPharma’s deep commitment to increasing patient access to affordable and quality healthcare in Nigeria.
“mPharma is deepening its long-standing commitment to Africa by reimagining primary healthcare in some of the most vulnerable communities on the continent. We continue to transform community pharmacies into primary care centers to provide affordable and accessible healthcare to all patients so they can live not just longer but healthier lives. We are optimistic about the future of healthcare for Nigerians through the acquisition of HealthPlus.”, said Rockson.
In her remarks on the acquisition, Afsane Jetha, Co-founder and CEO at Alta Semper Capital, said: “We are delighted about HealthPlus’ partnership with mPharma. We have a strong conviction in mPharma’s strategy of revolutionizing primary care across Africa and believe mPharma is the ideal steward for HealthPlus’s next chapter of growth. We believe mPharma’s vision is consistent with that of HealthPlus’s shareholders and employees, and we are enthusiastic to support the business through a relationship with mPharma going forward”.
While mPharma plans to continue to keep and strengthen HealthPlus as Nigeria’s leading pharmacy brand in Nigeria, the acquisition will also provide expansion opportunities for mPharma within Nigeria and a platform to expand mPharma’s mutti pharmacy retail footprint across the continent through its fast-growing QualityRx program. Powered by mPharma’s proprietary Bloom software, HealthPlus will provide patients access to affordable primary care services within its pharmacies, in addition to affordable and quality medications it currently retails across 12 states in Nigeria. The HealthPlus pharmacy chain will also launch mutti®, mPharma’s health membership program, which will provide both existing and new customers with discounts, interest-free “heal-now-pay-later” plans, free health screenings, and other primary care services.
By combining HealthPlus pharmacies with mPharma’s growing portfolio of partner mutti pharmacies and GoodHealth shops (PPMVs),mPharma’s network will grow from 224 to over 320 health facilities in Nigeria and will provide care to more than 100,000 Nigerians each month.
Chantel Cooper: The Epitome of Empathy and Care
Chantel Cooper, CEO of The Children’s Hospital Trust (Image: Supplied)
Chantel joined the Children’s Hospital Trust in 2013 as the Head of Fundraising and Communication and was appointed as CEO in 2019. For her, 2020 was a year that reinforced the importance of the core purpose of the Trust and the difference the organisation wants to make in the lives of children. “Our cause is driven by the need to make a difference in the lives of sick and injured children. We are people who work together to save the lives of the children who matter. We all have a purpose!” she says.
Sharing excerpts from her journey, Chantel says:
“My purpose in life is to serve those who are most vulnerable: women and children. My career was driven by my passion to make a real difference in the lives of women and children. When I was 18 years old, I volunteered for an organisation that provided support for women who had been raped. While volunteering, I started working with women in rural areas in the Eastern Cape where we found opportunities to grow their businesses.
“My passion for women led me to Cape Town where I became Director of Rape Crisis Cape Town when I was 27 years old. After the birth of my two children, I moved to an organisation called St Joseph’s Home for chronically Ill Children. St Joseph’s is a step-down facility for tertiary hospitals like the Red Cross War Memorial Children’s Hospital. It was a profound move for me as I was able to work with children who inspired me.
“One of the most valuable lessons I learnt is the power of love. You can offer a child the best healthcare in the world, but what a child wants most is their parents to love them and be by their side. This is the value I most appreciate about the Red Cross War Memorial Children’s Hospital and my past experiences. This hospital believes in child-centered care and knows that a child heals when their parent or caregiver is by their side – even during the COVID-19 pandemic. All other hospitals had restricted access to patients, but the presence of a parent is imperative to their sick or injured child’s healing.”
“The COVID-19 pandemic taught our team that life can change in a blink of an eye and that we need to be prepared for all possibilities. The pandemic hit the world with such speed and velocity that we had no choice but to find a way to not only sail through the storm but also find ways to get out of the situation stronger than before.”
Chantel also states that 2020 provided the Children’s Hospital Trust with the opportunity to learn extraordinary lessons that they would not have normally had the opportunity to learn and some of these include:
- The value of deep listening and the importance of demonstrating kindness.
- Working in collaboration created the opportunity for meaningful impact for our beneficiaries.
- Opportunities do exist during challenging times; positivity exposed the opportunities.
- Adapting to change during uncertain times helped to build a resilient team.
“Our Trust team demonstrated ingenuity, compassion, resilience, commitment, and fortitude during a very difficult time. As a result, we surpassed our goals, and this enabled our organisation to reach more children and families. We are grateful for the contribution from every individual,” adds Chantel.
“Walking through the corridors of a children’s hospital during a crisis gave perspective on the real value of care, kindness, and collaboration. While children were not the face of the COVID-19 pandemic, the Social Work Department experienced first-hand the profound impact the pandemic had on children’s health and well-being.
“Unemployment, food insecurity, child safety and schooling were common concerns for many patients and their parents who entered the doors of the Hospital. The Red Cross War Memorial Children’s Hospital values patient and family-centred care which includes care for the whole family from a holistic perspective.
“In response to the needs of the families, the Trust secured funding to enable the social workers to provide additional counselling services and material support such as the provision of food, hygiene, and home-schooling supplies to vulnerable families when children were discharged from the Hospital.” Read more on the Family Care Project here.
The core to achieving our vision is upholding our values of Integrity, Accountability, Kindness, Dynamism, and Collaboration in every aspect of our work. The Trust has a sound financial record in administration and good governance. For the past 28 years, we have raised funds to address many pressing needs, but much has yet to be done. With the help of many donors, we continue to give hope and healing to our little ones who need it most.
The Trust raises funds for the upgrade and expansion of the Hospital’s buildings, the purchase of state-of-the-art medical equipment, and new medical treatment projects and funds the training of medical professionals across Africa – ensuring that the Hospital not only retains its world-class stature but is able to continue providing life-changing and life-saving care for children.
The Trust relies on donations to fund these needs. When you donate to the Trust, 100% of your donation goes towards funding projects that change children’s lives (and the lives of the people who love them). The operational costs of the Trust are funded from an endowment, so your generous contributions are never used to cover administration costs.
Donate to the Children’s Hospital Trust today! www.childrenshospitaltrust.org.za