LIBERTY EXISTS IN PROPORTION TO WHOLESOME RESTRAINT
The role of the legal profession is mostly misunderstood and vilified. A human rights and consumer protection driven society aims to protect the civil liberties of its citizens, including the right to healthcare and the right to have a medical malpractice lawsuit decided by a court of law. The rise in medical malpractice litigation is multi factorial and complex. Contingency fee litigation is the endgame in this quagmire, but provides the checks and balances to realise these rights in society
Let there be no doubt – the role of the legal profession, particularly in the field of personal injury law, is mostly misunderstood and vilified.
Examples abound in the body of fictional literature of “Lawyers are” quotes:
“One skilled in the circumvention of the law”
“A learned gentleman who rescues your estate from your enemies and keeps it to himself”
From Dick the Butcher’s famous pronouncement to Jack Cade in Shakespeare’s Henry VI, Part 2 – “First thing we do, let’s kill all the lawyers” – through Dickens’ Mr Tulkinghorn or Vholes – “a sallow man with pinched lips that looked as if they were cold” and Galsworthy’s Soams Forsyte, literature treated lawyers poorly. Few of us have not heard the odd: “How do you get a group of personal injury lawyers to smile for a picture? Just say “Fees!”.
In the real world, more recently, various articles authorised by members of the Medical Protection Society, academics and statements by Health Minister Dr Aaron Motsoaledi have taken issue with the sharp increase in medical malpractice litigation leading Dr Motsoaledi to telling the Medical Chronicle: “I want a system that will put doctors back in hospital and lawyers in courts – not the other way as we are now seeing. Medical litigation and the practice of defensive medicine are the main contributing factors to the outrageous costs of healthcare in the USA because, there, doctors don’t just treat patients – they also have to treat the lawyer behind the patients and we can not allow this to happen in SA.”
Despite various assertions by these authors that these issues are raised and solutions offered “to open and stimulate debate,” and that “resolution will not be achieved through emotional debate,” the Medical Protection Society authors open this debate with reference to “a number of contributory factors” causing “this sharp rise in claims frequency and value,” but inevitably and disappointingly reach the conclusion that: “Clearly the debate has to extend beyond the obstetric or indeed the medical community and urgent serious consideration will have to be given to tort reform” apart from leaving the distinct impression that the overriding cancer consuming the patient is driven by “claimant lawyers” having “wised up to the opportunities on offer,” having “stepped up their advertising”, “appear to be taking cases on a contingency basis (no win, no fee)” and that “their claims are becoming more sophisticated with increasing experience and confidence.”
(I) RIGHT TO HEALTHCARE:
Good health is a state of complete physical, mental and social well being and not merely the absence of disease and infirmity. Implicit herein is the right of men and women to have access to safe, effective and affordable healthcare. Access to healthcare is a constitutionally recognised right, under Section 27 of the South African Constitution (act 108 of 1996). The South African Human Rights Commission evaluated the realisation of access to health care in a 2009 report and found the public health care system to be in a “lamentable state”. Obstacles on the road to progressive realisation of access to healthcare in South Africa are inter alia:
1. Skills shortages (“the brain drain”);
2. The HIV/Aids epidemic placing a huge burden on public health;
3. Corruption and bad management of public health;
4. The high income in equality gap;
5. The gap between public and private healthcare in terms of affordability;
6. The current economic uncertainty;
7. Practices within the private healthcare community;
Farmer and Campos ask: “What does it mean when a person with renal failure experiences no abuse of his or her civil and political rights, but dies without ever having been offered access to dialysis, to say nothing of transplant?” Meyer states that: “There is a need for a practical implementation of current ethico-legal and human rights principles through every phase of the healthcare system to serve as monitors to ensure the success of this guaranteed right that so few people have genuinely seen realised. The findings of the SAHRC, together with the response from the Department of Health, serve as a basis for planning towards successful implementation of an equitable health service system that is of an excellent standard.” To ensure realisation of the right to healthcare the Department of Health developed the Patients’ Rights Charter which states:
Every patient has the right to:
1. A healthy and safe environment
2. Access to safe healthcare
3. Emergency care in life threatening situations
4. Confidentiality and privacy;
5. Be treated with courtesy and consideration by staff
6. Be informed about his/her illness/condition and treatment, so as to be in a position to give informed consent
7. Exercise choice in healthcare services
8. Participate in decision-making that affects his/her health
9. Be referred for a second opinion’
10. Continuity of care
11. Complain about healthcare services
12. Be treated by a named healthcare provider
13. Refuse treatment or information about his/her illness
(II) STANDARD OF CARE:
South African courts regard negligence merely as fault and use an objective test in ascertainment thereof. In Kruger v Coetzee the appeal court expressed the test of negligence as follows:
“For the purposes of liability, culpa (guilt) arises if:
1. A diligens paterfamilias (responsible head of the family) in the position of the defendant would:
(I) foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(II) would take reasonable steps to guard against such occurrence; and
2. The defendant failed to take such steps.”
In Van Wyk v Lewis reasonable conduct was described as follows: “A medical practitioner is not to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care. And in deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.”
Where a person enters a profession he becomes an expert and the standard of care expected is raised to the level of a practitioner of such vocation. The circumstances in which the medical negligence occurs are taken into account. Similarly existing knowledge and methods of treatment are taken into account as is knowledge of new developments in medicine. The practitioner must ensure that he acquaints himself with new developments and that his patient is not prejudiced by use of outdated methods. Lack of skill is reckoned as fault but the law does not require the doctor to be infallible in his conduct, an error of judgment will not constitute negligence where the proper standard of care has been followed.
(III) PROOF OF NEGLIGENCE:
Proof of negligence in civil cases is on a balance of probabilities. The onus of proof rests on the plaintiff, and negligence as well as damage due to the negligence must be proven. Expert evidence is usually needed to assist the court in determining the reasonable man standard.
(IV) A MEDICAL MALPRACTICE LAW FIRM’S EXPERIENCE OF NEGLIGENCE:
There is reason to worry. A review of cases recently successfully brought to trial coupled with the frequency with which similar enquiries are made reveals alarming trends:
1. Lack of skill/experience:
Numerous examples exist of spinal surgery undertaken by specialists not suitably skilled resulting in devastating consequences such as paraplegia and lifelong permanent disability for the patients.
2. Over servicing/Unnecessary surgery:
In order to generate more income surgery seems to be utilised as a first line of treatment without considering and/or exhausting conservative measures e.g. performing colostomies on patients suffering from constipation or performing back fusions without any prior physiotherapy and/or medication.
3. Commitment/Morale issues:
Examples of callous treatment by nurses abound due to commitment/morale/attitude issues e.g.
3.1 An irritable nurse ripping a central venous line out of a patient’s neck resulting in a stroke and lifelong disability for the patient;
3.2 Uncaring nurses ignoring pleas of pregnant mothers about to give birth resulting in the babies suffering intrapartum compromise and consequent cerebral palsy;
3.3 A nurse warming a saline solution in a coffee urn for use during an operative procedure causing the patient’s bladder to be irreparably burnt;
4. Lack of follow up:
Due to doctors being too busy or simply not deeming it necessary, follow up after surgery seems to be on the decline, resulting in crucial post operative complications being missed leading to loss of limbs, brain damage and death.
5. Failure to adhere to basics:
Basic principles in the treatment of patients such as testing the unborn foetus for Downs Syndrome, implementing spinal precautions when moving a patient following a high impact accident to prevent paraplegia or referring the patient for a radiological study to diagnose e.g. a subdural hemorrhage that needs urgent surgery, seem not to be adhered to.
6. Overburdened public healthcare facilities:
The general theme relating to cases brought against public healthcare facilities seems to be a total lack of treatment e.g. mothers in need of urgent caesarean sections being left for days with cerebral palsy or death the consequence for the infant or radiological studies being booked two months hence for a patient requiring urgent treatment, resulting in loss of limbs and/or brain damage.
Interestingly, the same issues manifest in the private healthcare sector which serves just 14% of the population. Millions of rands are paid out by private hospitals in out of court settlements which very seldom come to the public knowledge because of confidentiality clauses. This lack of coverage of abuses which occur in the private healthcare sector has thus created a perception in the mind of the public that a higher standard of care and professionalism exists in the private healthcare sector as opposed to the public healthcare sector, which may be incorrect.
(V) RIGHT TO HAVE CASE DECIDED BY A COURT:
Section 34 of the Bill of Rights in the Constitution says everyone has the right to have any legal problem or case decided by a court or an independent body. This right inter alia implies equality before the law, the right to legal representation and the right to a fair trial.
Mr Justice Mathew stated: “Justice is open to all – like the Ritz hotel”. Funding of legal cases is central to the ability of the man in the street to access justice. Medical malpractice affects all races, all socio-economic groups and all genders. Most people cannot afford to pay for an attorney or pay the expenses incurred in running a case to trial. Often the crippling costs of medical expenses following the medical negligence, coupled with the loss of income, push people to the brink of bankruptcy. Obtaining relief (and hope) in these circumstances is difficult.
(VI) CONTINGENCY FEES ACT:
The South African Law Reform Commission approved its report relating to contingency fees on 30 November 1996. The need for an investigation into contingency fees emanated from an indication by the former Chief Justice that a system of speculative fees, approved by the Association of Law Societies, was not acceptable in terms of the common law. The Commission recommended that such agreements be legalised and that common law prohibitions on such fees be removed.
A contingency fee agreement is an agreement between a legal practitioner and his/her client to the effect that the legal practitioner will charge no fees if the client’s court case is conducted unsuccessfully. The litigant may thus instruct a legal practitioner on a “no win, no pay” basis. The Commission concluded that such system could contribute significantly to promote access to the courts and that such a system is desirable.
Should the client win the case, the fee payable to the legal practitioner may be recovered from the proceeds of the litigation, namely double the legal practitioners normal hourly fee – to a maximum of 25% (Twenty five percent) of the capital recovered. As the Commission pointed out this is so because
the legal practitioner bears the risk of not being compensated in a number of cases, i.e. a classic case of put your money where your mouth is. Numerous safeguards were included in the Contingency Fees Act to protect the public.
(VII) A MEDICAL MALPRACTICE LAW FIRM’S EXPERIENCE OF CONTINGENCY FEE LITIGATION:
“Tough”, “not for the faint-hearted”, “cut-throat”, “David v Goliath”, “Rewarding ...”
To vilify contingency fee-litigation frankly displays ignorance relating to the role and purpose of the legal practitioner:
1. Inspector: “Tough”
Both the client and the legal practitioner are presented with a medical outcome following treatment, the cause of which is often unknown. Mere common sense or the magnitude of the medical complications causes patients to question the treatment administered or the lack of treatment. The legal practitioner needs to embark on a slow process to solve the riddle, to find the pieces in the puzzle, before any decision may be made as to the viability of a claim. This is easier said than done. In practice:
1.1 An accurate history needs to be obtained from an uninformed, traumatised, depressed, sometimes head injured client and their family of circumstances leading to the complaint.
1.2 All treatment records relating to the patient’s prior medical history, treatment at the hands of the suspected transgressor and subsequent history needs to be obtained.
1.3 All relevant literature relating to the medical conditions involved, appropriate treatment, acceptable complications and the like needs to be obtained.
1.4 All biographical information relating to the patient’s family medical history, educational and employment history needs to be obtained.
1.5 Appropriate medical experts needs to be identified to opine on the information collected.
1.6 Lay witnesses need to be identified and interviewed to explain or confirm events.
1.7 All medical costs relating to the events needs to be identified and vouched for as well as arrangements made with medical aids (where applicable) who insist on being reimbursed in the event of a successful claim.
1.8 The veracity of documentation received needs to be established and confirmed.
1.9 The applicable law relating to the nature of the complaint and remedies available to the client needs to be researched.
1.10 An overview needs to be made as to whether there is any prospect of success in pursuing a claim.
It is interesting to note that out of every ten enquiries made, approximately only two are pursued by litigation, without charge to the client or cost to the Defendant.
2. Banker: “Not for the faint-hearted”
The legal practitioner accepts the risk on a “no win – no pay” basis i.e. the legal practitioner finances all expenses relating to inter alia:
2.1 Obtaining treatment and other records.
2.2 Briefing and obtaining medico-legal opinions from experts and securing their attendance at court to give evidence.
2.3 Briefing an advocate on advice, pre-trial preparation and trial.
2.4 Obtaining radiological and/or pathological studies.
2.5 Travelling and accommodation expenses.
The legal practitioner does not earn any money until successful conclusion of the claim, mostly 3 – 4 years after taking the instruction. Considering that a day in court with a senior and junior advocate, medical experts and the like costs in the region of R60 000,00, it is not surprising that the expenses incurred in respect of a matter total hundreds of thousands of rands if not sometimes millions of rands. This is paid for by the legal practitioner at his own risk.
3. Chess champion: “Cut throat” “David v Goliath”
Garry Kasparov the former Russian chess grandmaster would have been bemused by the strategies and techniques employed by Defendants to frustrate the accumulation of information, employment of experts, identifying the correct defendants, securing of trial dates and generally bringing the matter to finalisation. Strategies are employed ranging from exhausting every conceivable rule of court to delay, obstruct or nullify or to generally simply not reacting to any actions and/or requests from a Plaintiff.
Generally the rule seems to be: “Put them through each and every hoop – they might just trip somewhere”, despite prior knowledge (as is sometimes revealed later on) an acknowledgement by the insured medical practitioner and/or care facility that negligence had occurred. Often the conduct of the Defendant particularly in litigation against the State (infrequently where the Medical Protection Society is involved) borders on reprehensible conduct leading to punitive cost orders against them. This is particularly concerning that in this firm’s experience punitive cost orders (in one form or another) against the Gauteng Department of Health have been obtained in almost fifty percent of cases brought against them. It is telling that the Head of Communications in the Gauteng Provincial Government in reaction to a public outcry relating to a medical negligence-award-appeal stated “That means that all legal avenues have to be thoroughly exhausted before agreement to any settlement”. The experience is furthermore in claims against the State that once a court has ruled in favour of the patient, obtaining payment
rarely occurs without attachment of State assets. The contents of the National Patient’s Right Charter seem hollow.
The Medical Protection Society is the world’s leading medical indemnifier with currently approximately £1 .6 billion in assets. It is consequently bemusing that the MPS author laments: “Additionally, contingency fee arrangements where the lawyers have a vested interest in elevating the value of a claim introduce an uneasy tension into the equation.”
David meets Goliath.
4. Lawyer: “Rewarding . . .”
The MPS author states: “Claimant lawyers will justify their actions by saying, quite rightly, that in the absence of negligence there would be no problem. They are merely assisting patients who have been injured by negligent care and we must get our house in order – a difficult argument to refute.”
Medical malpractice litigation is the endgame in a quagmire which has its roots in many causes far removed from the presence of lawyers or contingency fees. The doctor’s changing role in society, the country becoming a democracy, access to information, an awareness of rights, the recognition of self determination, strict consent procedures, higher patient expectations and financial considerations in the medical community, set the stage for the lawyer to provide “the uneasy tension” to ensure “justice is done and manifestly seen to be done.”
Many a legal practitioner will attest to the rewarding feeling of providing a prosthesis to a patient with a lost limb, care giving to a cerebral palsied child, wheelchairs to a paralysed patient or a much needed operation to provide pain relief. The fact that legal practitioners earn a living in the process of doing so is surely ethically no different from a doctor treating a sick patient......
(VIII) PROFESSIONAL LIABILITY INSURANCE:
Professional liability insurance (errors and omissions) is a form of liability insurance that helps protect professional advice-providing individuals from bearing the full cost of defending against a negligence claim made by a client, and damages awarded in such a civil lawsuit. The cover focuses on alleged failure to perform on the part of, financial loss caused by, and error or omission in the service by the policy holder.
Regulations published in the Government Gazette on 30 August 2010 under the Health Professions Act would make it compulsory for medical practitioners “to obtain professional indemnity cover, which must be fully maintained at all times”. For various technical reasons the regulations have been withdrawn, but as the Medical Protection Society author points out “being un-indemnified does save on subscription or premium fees; however, the costs of litigation, particularly when sued successfully, are unsustainable for an individual. The claimant would be inadequately compensated and the doctor would be financially ruined.” Compulsory insurance is therefore a prudent and necessary safeguard.
The point not alluded to by any of these authors is that all individuals rendering a professional service, which include accounting and financial services, consultants, brokers, construction and maintenance consultants and importantly legal practitioners, need such insurance.
Legal Practitioners are subjected to the same scrutiny in the execution of their duties as the medical profession. Claims are frequently brought against legal practitioners. According to the Risk Alert Bulletin claims ranging from prescription of clients’ claims, under settlement of claims and general incompetence were lodged during the 2010 year. Furthermore they “urge practitioners to be extremely cautious when settling any personal injury matters. This area is a highly specialised one”.
The South African Medical Journal lists the annual premiums of obstetricians as R187 830.00, spinal surgeons as R174 700.00, gynaecologists and orthopaedic surgeons as R101 830.00. A single legal practitioner with R30 million rand insurance cover pays an annual premium of R148 474.20.
It is interesting to note that academic studies on the effects of tort reform on medical malpractice insurers’ ultimate losses refer to “distinct rounds” of tort reform and cycles in claim frequency. Born, Viscusi, and Baker state that: “Because reported losses are heavily weighted toward reserves for claim to be paid in future, the earlier work largely measured the effect that insurers predicted that tort reform would have on damages awards and settlements, as opposed to the actual effect that tort reform had on awards and settlements. Using developed losses, this research confirms that tort reforms do have the intended effect on the overall level of awards that insurers pay, and the effect appears to be even larger than insurers predicted. But the effect is not evenly distributed throughout the insurance market. In general, insurers with the largest losses obtain the greatest reductions in those losses from tort reform, suggesting that the impact of tort reform is greatest on large claims” (i.e. the most deserving or most seriously injured). Social-policy considerations militate against such reform.
(IX) QUO VADIS:
Various recommendations have been made by authors regarding the way forward. The following is recommended to stimulate this debate:
1. Better self-regulation by the medical profession.
2. Establishment of special health courts and policing by the medical profession of those offering expert opinion.
3. Dispute resolution.
4. Better self-regulation by the legal profession and improved education of the public on the role of the profession.
5. Amended rules of court to expedite the process, facilitate the exchange of information and seek appropriate cost orders.
A human rights and consumer-protection driven society aims to protect the civil liberties of its citizens. Respect, dignity and inevitably standards in realisation of such liberties are consequently highlighted. Checks and balances provide the necessary tension to fulfil such aims. Liberty therefore exists in proportion to wholesome restraint.
CHIEF OPERATING OFFICER: JOSEPH’S INCORPORATED ATTORNEYS – SPECIALISTS IN MEDICAL MALPRACTICE CLAIMS.