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Should you sue your doctor?

Mar 17 2011 14:19 Helena Wasserman

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MEDICAL malpractice lawsuits are fast becoming big business.

The number of medical malpractice claims in excess of R5m rocketed by 900% over the past decade. These kinds of cases started gaining traction at the end of the 1990s, when attorneys could for the first time to work on contingency (they only get money if they win the case).

But it seems like changes to the Road Accident Fund (RAF), which make it more difficult for lawyers to get involved in claims, are giving the trend massive momentum.

"A big part of our job was to prepare medical claims for the RAF, so shifting our focus to personal injury lawsuits against the health profession was a natural progression," says a Gauteng attorney.
Attorneys are now actively pursuing medical negligence claims due to the high earning potential that they offer, says Jerome Fanning, client services manager of Alexander Forbes Risk Services.

A single gynaecology claim was recently settled for R27m. According to Fanning, the Medical Protection Society, which assists doctors with legal matters, is currently facing a backlog of more than 1 000 complaints of negligence against medical practitioners.

Widespread advertising, encouraging the public to pursue medical malpractice, is contributing to greater awareness. Doctors aren't treated like gods any more, says one attorney.

The explosion in lawsuits coincides with the apparent implosion in public health. The Gauteng department of health paid more than R573m in malpractice claims last year, while many lawyers are focusing solely on the Eastern Cape health department as a source of massive claims, says one lawyer.
 
Paul du Plessis, a Gauteng attorney who specialises in cases involving children left blind by negligent medical care, says 70% of his cases involve state hospitals – in particular their neonatal wards.

He says state departments are inundated with claims, which it appears they are not geared to cope with.

Sunelle van Heerden of Pretoria-based CP Van Zyl Attorneys is experiencing a daily increase in possible medical negligence queries. About 80% of cases can be pursued, with more than 60% of possible cases involving state healthcare.

The rise in lawsuits is pushing up healthcare prices – bad news for consumers. Doctors are forced to take out professional indemnity cover, and the rising costs feed through to patients. A gynaecologist told Fin24 she abandoned plans to return to practice after calculating that insurance will come to two months' worth of income out of every year.

The rise in lawsuits is also changing how doctors treat patients.

There is a greater awareness among doctors of the danger of litigation, says Brian Warren, professor and executive head of the department of surgical sciences at the University of Stellenbosch. He thinks in one sense this may help improve care - particularly in the state sector where there is "diluted" responsibility.

In many instances litigation may be avoided by better communication between doctor and patient, says Dr Graham Howarth, head of the Medical Protection Society's services in Africa.

Some doctors are irritable with the family of a patient and don't react well emotionally to questions when things go wrong, says Warren. "They have to learn that they can't take out their frustration on patients."

He thinks that, due to financial pressure, doctors are also often forced to take on more procedures than they should, which may lead to problems. Another very common issue is the surgeon-going-away-for-the-weekend syndrome, he adds, where stand-ins are not fully advised about cases.

However, a litigious climate also has major drawbacks. Overseas studies have shown that "defensive" healthcare forces doctors to do unnecessary tests just to back up their decisions, and may lead to an overcautious attitude.

The danger of constantly worrying about litigation has contributed to SA's high Caesarian section rate, says Warren. Many doctors don't encourage natural childbirth because they are afraid of the risks (particularly brain damage) which could end up in big lawsuits.
 
"As long as a doctor can look back and justify any treatment decisions in accordance with best practice, then their business and reputation will be safeguarded. This is why it is so important to keep quality notes, so that the clinical reasoning behind any decisions can be demonstrated and understood later," says Howarth.

Do you have a valid medical claim?

If something went wrong during a procedure or you've had a "bad outcome", you could have a possible medical negligence claim.

But at the same time, it is important to know that not all complications or bad outcomes are necessarily due to negligence from the healthcare provider or institution, says Van Heerden.

Even if the doctor made a mistake – a common example is the surgeon accidentally damaging your bowel or urinary tract during laparoscopic surgery – you will have to prove that he or she did not follow "accepted" standards when trying to address the problems.

You will also have to prove that the injury caused a substantially different clinical outcome (ie caused harm) which could be in the form of medical expenses, loss of earning capacity and life enjoyment and functions, says Du Plessis.

Doctors can also protect themselves against medical negligence claims if they warn patients of the risks of any procedure. Key to your case will be the agreement of a specialist that there was negligence.
 
You can improve your case by immediately getting a second medical opinion. By law you are also entitled to have access to your medical records. Insist on a copy of your treatment file, advises Du Plessis.

There is a time limit on claims, so you have to contact a legal expert as soon as possible. You will have to give a full, detailed statement of what happened. Keep records of all your bills and other documentation.

How much can you expect to claim?

According to Du Plessis, the purpose of a claim is to compensate for the financial and physical effects of the injury.

"You can expect to recover compensation in relation to the harm suffered. In other words, the more substantial your harm, the more substantial your claim."

General damages (lump sum for pain and suffering and loss of the enjoyment of life) can range between R10 000 (broken finger) and R2m (quadriplegia) depending on the seriousness of the harm. Serious injuries such as blindness, serious brain damage, paraplegia and quadriplegia bring with them considerable consequential losses such as future medical and associated care expenses and also loss of earning capacity, he adds.
 
What will you pay the attorney?


The Contingency Fees Act allows attorneys to assist the public on a success fee basis. In the event of success the client can expect to pay about 25% of capital (excluding VAT) in fees, says Du Plessis.

If the court case fails, the client will pay no fees. "There could be cases where clients may be asked to cover the cost of investigations into the merits of the claim, but in most cases we bear all the expenses."

- Fin24



healthcare  |  lawyers
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