Should you sue your doctor?

2011-03-17 14:19

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

  • Realist - 2011-03-17 15:59

    It is ok suing if you are still alive. Doctors often bury their mistakes.

  • koos - 2011-03-18 09:13

    If the doctors weren't there to provide an optioin of treatment, more people would die or suffer in any case. So, why sue them if they are actually providing you with an option to improve your life? If they were not there, who will you sue for suffering from illness? Doctors are also just human and people make mistakes, but at least they are trying to make a difference. Haven't we chased away enough doctors already? People should rather be sueing government for not providing state funded hospitals with proper equipment and staff. Why not sue more ministers for not doing their jobs properly? This minister "mal-practice" and corruption actually affects much more people than the odd patient not recovering as expected.

      Serame - 2011-03-18 14:51

      we sue dem bcos we entrust dem with our lives..and we pay dem dearly..

  • Protect - 2011-03-18 11:10


  • Protect - 2011-03-18 11:41

    What is the time frame - can somebody maybe tell me ?

  • aa gone - 2011-03-18 12:17


  • Peter - 2011-03-18 17:25

    Well i am a medical practitioner, and I can tell you that with these enormous paypouts and the increase in premiums to ensure one against such claims(gynaes now pay over R200,000 pa on premiums),I will be practicing much more "defensive medicine".This means many more totally unnecessary Scans,MRI's and lab tests.In the end the patient will have to pay for this madness.A relative of mine had a sore throat in Denver in the US and the doctors bill was $1000!(throat swabs, blood tests and then more than one consultation).In the good old days a doctor could make a clinical diagnosis(and keep the unlikely rare disorders in the back of his mind).He would then treat according to his "working diagnosis" and have a plan of action if things did not go right.Now one will have to do a battery of tests and obviously charge a lot more to help cover malpractice insurance.How sad.Very few bright kids who would otherwise want to do medicine are looking at this as a calling.I mean, would you sue your clergyman? I hope alternative medical practitioners such as homeopaths, naturopaths etc will also be faced with litigation and be sued if the miss a diagnosis.Strange how they can treat the patient even without a correct diagnosis and if things go wrong, they can merely claim not to be a medical doctor, and be immune from litigation.

      Argo - 2011-03-20 05:01

      I agree so much with that I am not even practising in SA anymore. I 'commute' to a country where my skills and knowledge are appreciated. This culture of suing for trivial matters without regard will just lead to increased costs and inconvenience for patients.

      Lizelle - 2011-03-22 22:37

      @Peter I agree with you but there is doctors who does not care about their patients I quick example my daughter was 5 months old and started projectile vomiting I took her to the ER and the dr told me I'm over reacting - and sent me home my daughter nearly died that night of dehydration if I did not have my GP's cell number and on his advice took her to another hospital where she ended up staying for 10 days in hospital (i would not have my beautiful little blond angel today)now please tell me. Is that a human error or plain useless as a mother to 5 month old baby I do over react this is what we do because we do not know what else to do with this tiny little baby. Like in any profession you get the bad and you get the good but the bad must be brought to book for their actions. I did take it up with top management and I was assured that, something like that will never happen again the particular doctor even prescribed medicine for kids over the age of 12 for nausea. I understand what you are saying but what about things like this and this is not an isolated case this is common in private hospitals. Let's not even go down the public hospital road.

  • Dexter Morgan - 2011-03-21 04:56

    "The explosion in lawsuits coincides with the apparent implosion in public health." Many would attribute this "explosion" to presence of frivilous lawsuits. Frivilous lawsuits are driving up costs across the board... a problem that President Obama looks to restrict.

  • Blackstone - 2011-03-21 08:08

    Consider this : The surgeons fee for a Laparoscopic Cholecystectomy (Gallbladder removal) would cost R 3000 in South Africa, R 7000 in Canada and wait for it R 64'000 in the USA. All due to medical malpractice lawyers. Suing doctors will increase service levels and exponentially increase costs.

      Uncle Spud - 2011-03-21 10:04

      Money really is the root of all evil, isn't it????????

      Chris - 2011-03-21 18:59

      Uncle Spud it is actually the "Love of money"

      FearoPhobia - 2011-03-22 07:57

      R 3000? Please tell me where you can get it for R 3000. My wife had her gallbladder removed last year and the surgeon's fees totaled about R18 000 (Sunninghill). With hospital fees it totaled about R45,000. No complications or anything. Just a plain straightforward gallbladder removal.

  • Chris - 2011-03-21 15:01

    The last paragraph is false - If your case fails you will be liable for the legal fees of opposing Counsel - Let the buyer beware and never trust a ambulance chaser!

  • Lizelle - 2011-03-22 22:56

    The problem is where we pay for a service and we get rubbish service I have a few examples 1. I went into labour in a private hospital after 17 hours of pain my husband went to call the nurse who was sleeping for the 20th time and grabbed her by her arm and said you will go and see if my wife and baby is ok, the was no gas, there was no anesthetist on call I had to give birth without any pain medication and this was NEVER an option. 2. My daughter was 5 months old and was projectile vomiting and a dr at the ER (private hospital) told me I'm over reacting i must go home to say the least she ended up in hospital for 10 days at another hospital, she nearly died of dehydration. 3. I took my daughter for a MRI scan and she needed anesthetic because she is only 4 we left the hospital without her vitals being checked because the nurses on duty was to busy chatting to realize that is was not done. This is 3 incidents in 4 years and 3 different hospitals please tell me who is to blame money hungry people or should our medical professionals who took a oath just do their job properly and then there won't be any problems (just for the record I have not sued any dr or hospital) but think what could of happened if my husband did not drag the nurse to me my daughter was crowning already and she was sleeping at the desk, what could of happened if I listened to the dr at the ER if I went home and believed I was a over reacting mother? ????????????????

      Taylor - 2011-06-13 13:28

      Lizelle You are not the only one that has had a bad experience in hospitals. My husband went in for a simple hernia op and died two weeks later from polybacterial septesemia - all because the nursing staff did not take him or his symtoms seriously. I have, subsequently, discovered that at the same private hospital three more people have died after contracting setecemia. Needless, to say, I am suing the hospital and have also laid criminal charges against the nursing staff.

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