A View on Medical Malpractice
South Africa has become increasingly more litigious in recent years, with medical malpractice claims being a significant contributor. Numerous articles have documented the adverse effects of medical malpractice claims with particular reference to the economic consequences, and how these claims may have a negative impact upon the future quality and delivery of health care.
A quick evaluation of the medical malpractice claims in South Africa reveal that the bulk of medical malpractice claims arise from orthopaedics, neurology and obstetrics/gynaecology. The Gauteng Department of Health and Social Development experienced claims of R573 million in 2010. In the past 5 years, claims in excess of R5 million have increased by 900%. The Medical Protection Society reports that 1 in 5 claims are in excess of R1 million, reflecting a 550% increase in the past decade.
Whilst the bulk of these claims are believed to have arisen from negligence by medical practitioners, another contributing factor that should not be overlooked is the increased patient awareness of compensatory recourse (aided by the implementation of the Consumer Protection Act 2008) and the significant increase in marketing campaigns of medical malpractice lawyers. Thus, it may be said that a considerable portion of claims made against medical personnel are initiated with the wrong intentions and may not be as a result of carelessness on behalf of the medical practitioner , but rather opportunistic behaviour on behalf of patients. Another contributing factor to the higher cost of these claims are due to the compensation payouts to children/infants which are commonly seen to be long-term.
Thus, the accumulation of these factors is what has resulted in the increased severity and frequency of claims. This increase in compensation culture has greatly impacted upon the delivery of health care and the availability of professional indemnity cover offered by insurers.
With respect to practitioners, there has been a move towards the practice of defensive medicine. That is, medical practitioners perform a wider battery of tests and other examinations in order to cover all possible areas from which negligence can arise. Hence, if taken to court, the medical practitioner will be able to present all the diagnostic tests performed, maintaining that when advising the patient the doctor practiced prudence, diligence and skill of care. The negative spin-off of this behaviour of defensive medicine is the unnecessary overutilization of diagnostic resources, increased patient time and ultimately higher cost of care to the patient.
In terms of the insurer, there is the greater probability of a claim payout and/or larger associated claims payment, leading to higher premiums.
With the increased amounts of compensation and frequency of claims, some insurers have simply withdrawn from the market.
Taking an international perspective, a far more severe and serious situation is seen in the Italian market. Italy currently has the highest number of medical malpractice claims filed annually; with US$15.5 billion paid out in compensation annually. Once again this is a direct result of a ‘compensation culture’ arising from increased litigation leading to increased frequency and size of claims. Medical practitioners have adopted a highly defensive approach to practising medicine due to medical practitioners’ unwillingness to purchase exorbitantly priced professional indemnity cover.
There is also insufficient demand for professional indemnity cover in the Italian market due to poor offerings in cover, especially for medical malpractice. Currently, the degree of cover is very limited with high premiums and higher excesses. Additionally, there is no standard professional indemnity policy wording. Thus, this inability of Italian insurers to meet the markets’ needs has seen Italian practitioners seeking professional indemnity cover in the UK market. Furthermore, the increase in malpractice claims (coupled with Italian insurers’ inability to offer adequate cover) has seen Italy follow suit with respect to their EU counterparts: the implementation of legal reform making professional indemnity cover mandatory.
It may be concluded that the task of underwriting medical malpractice is becoming increasingly more challenging. With the practice of medicine becoming more advanced (requiring doctors to become more flexible in their approach of practising) advances in treatments and its delivery becoming subject to an increasing amount of legislation; it requires underwriters to adapt rapidly to a dynamic environment that rewards flexibility and information-gathering capacity to properly assess such risks.
All roads may lead to Rome, but in the case of medical malpractice, South Africa should find a path less-travelled that does not follow the Italian example.