Membership information 0800 225 677
Medicolegal advice 0800 982 766

On deadly ground

It is a harsh reality of medicine that doctors face multiple avenues of complaint related to their practice. In Casebook we focus on the learning points afforded when a doctor is sued for clinical negligence, but members come to MPS requesting assistance with a wide range of other matters, such as ethical queries, complaints and regulatory body investigations.

Here we present six diverse cases from MPS’s files, listed by theme and not including claims. They are drawn from incidents in South Africa and some facts have been altered to preserve confidentiality.

Confidentiality

GP Dr W was visited by 20-year-old patient Miss B, who had a history of drug dependency. Miss B was accompanied by her mother, Mrs V. During the consultation, Dr W inadvertently made reference to the fact that Miss B was HIV positive; Mrs V was not aware of this. Dr W immediately apologised for this disclosure. He wrote to Miss B that evening acknowledging the breach of confidentiality and again apologising for it.

Miss B was very angry and complained to the HPCSA, forwarding Dr W’s letter, making reference to other concerns about the care she had received.

The Registrar of the HPCSA had passed the complaint on to the Ombudsman and the Ombudsman asked Dr W for an explanation. Dr W approached MPS for assistance in responding to the HPCSA. In his letter of response, Dr W admitted the inadvertent breach of confidentiality but clearly showed insight into his oversight and extended his apologies, once again, to the patient. The Ombudsman accepted the apology. 

Learning points

Dr W should not have assumed that the mother was aware of her daughter’s HIV status. At the start of the consultation he should have asked Miss B whether she was happy for her mother to stay and should not have mentioned anything the patient or mother had not brought up themselves. If it had been necessary to mention Miss B’s HIV status he should have asked the mother to leave as he had a potentially sensitive matter to explore with her daughter.

MPS offered to review his letter to the patient and advise if necessary.

Medical Council matter

Dr L received a letter from the HPCSA regarding a complaint from a patient, Ms D. Dr L was infuriated. The complaint related to a minor clinical oversight which had had no clinical effect on Ms D.

Dr L felt that the complainant was suggesting he had completely missed an obvious diagnosis and was not competent to practise as a result. He felt that the complaint was defamatory and immediately wrote a curt letter of response, rebutting the allegations and outlining his concerns that they had been raised in the first place.

He then contacted MPS and informed the medicolegal adviser that although he had received a spurious complaint, he had dealt with it. Dr L also requested assistance in suing Ms D for defamation. 

Dr L felt that the complainant was suggesting he had completely missed an obvious diagnosis and was not competent to practise as a result

Learning points

However spurious or frivolous a complaint may seem, all complaints should be thoroughly investigated and responded to appropriately. If a patient makes a complaint, the HPCSA is duty-bound to investigate it.

If you are the subject of a complaint, take a moment to stop and think before responding. A well-thought-out letter of response is far more likely to be successful than an intemperate one, which will only serve to make matters worse.

It would have been preferable if Dr L contacted MPS before responding to the complaint, as MPS would have written a letter of response on Dr L’s behalf, through one of our panel law firms. MPS is unlikely to assist members in suing for defamation in response to a complaint made by a patient.

Acting as a witness of fact

Dr A arrived at his surgery first thing Monday morning to find a letter addressed to him from the HPCSA. The letter explained that the HPCSA was investigating a complaint against Dr A’s colleague, Dr P.

The patient, Mr M, had complained after he was prescribed amoxicillin for an acute ear infection, which resulted in a severe rash and vomiting. Mr M claimed that his previous adverse reaction to the drug should have been recorded in his notes, as he had been similarly unwell after taking the drug a few years previously. He felt the prescribing error was a combination of Dr P’s negligence and inefficient systems at the practice to flag medication allergies.

The HPCSA requested Dr A to write a report, as a witness of fact, in relation to the complaint. This was because Dr A had seen Mr M when he presented with the rash. Dr A contacted MPS for advice about what he should include.

Learning points

If you are asked to write a report as a witness of fact, it is important to make the distinction between whether the HPCSA is investigating you, or a colleague. The HPCSA’s investigation will be based on the patient’s letter of complaint in the first instance, but the remit of the investigation may well broaden as it progresses. MPS explained to Dr A how the investigation might progress, and the possibility that Dr A might be investigated, and advised accordingly.

MPS advised Dr A that he could only comment on his factual involvement. Therefore, he could only say that the rash followed the apparent administration of antibiotics and on his examination he felt it might fit in with recognised side effects of amoxicillin.

Although the witness of fact report had to be thorough, Dr A could not reveal confidential patient information. MPS also provided advice on queries relating to patient confidentiality.

Social media

Dr B was working as an intern in general surgery. Three months into her new post she received a “friend request” on Facebook from a former patient, Mr T. She had got to know him whilst doing her medical school psychiatry attachment as he had been an inpatient for a brief period of time.

Mr T told her that he was doing really well and was off all his medication. He had started a course at the local college. Dr B accepted his friend request. Initially she enjoyed reading Mr T’s posts, but gradually she noticed his comments were becoming more bizarre, culminating in the statement that he felt he was being followed by the CIA. She recognised this as being a symptom of his mental illness and sent him a personal message urging him to go and see his GP. Mr T replied stating that he didn’t trust his GP.

He asked to meet up with Dr B. She told him that she couldn’t do so and suggested she speak to his GP on his behalf. He became angry and upset. Dr B was concerned about Mr T so she contacted his consultant psychiatrist who arranged to review him later that week. Mr T ‘de-friended’ Dr B a few days later.

A month later Mr T complained to Dr B’s consultant superviser. He was unhappy that Dr B had declined to meet him as he had felt that they were friends. He was disappointed that she had contacted his psychiatrist, although he admitted that he was feeling a lot better and back on his medication.

The consultant and Dr B met with Mr T to discuss his concerns. Dr B apologised to Mr T and stated that she should never have accepted his friend request. She told him that she had been concerned about him and had felt she had to contact his psychiatrist to try to access help for him. Mr T accepted Dr B’s apology. He asked her to share the experience, anonymously, with her colleagues, so that they could all learn from this incident. 

Learning points

Doctors should ensure that their conduct justifies patient and public trust in themselves and the profession as a whole. This applies equally online as it does in the consultation room. Using social media creates new risks, particularly where social and professional boundaries become unclear.

If a patient contacts you about their care or other professional matters through your private profile, you should indicate that you cannot mix social and professional relationships, and decline any friend requests. 

Using social media creates new risks, particularly where social and professional boundaries become unclear

Writing a report

Dr G was asked to write a report for the Road Accident Fund, after a medical assessment of patient Mr Z. Mr Z had been involved in a minor collision a few weeks ago and was complaining of whiplash. As a labourer, he had been unable to carry out manual tasks since the accident. He had made a claim for loss of earnings through his insurance firm.

Learning points

All reports should be chronological and stick to the facts; don’t speculate. Split the statement up into short paragraphs, which may be numbered for ease of reference. Sign and date it, and keep a copy. MPS can provide assistance with writing a report, or we can look over a report once it has been written.

MPS has also produced a factsheet, Notes on writing witness statements and reports, which provides more information on the format to follow when writing a report.

Medical aid investigation

Dr S was a urology consultant based in a large private hospital. She received a letter from a leading medical aid, which stated that following some discrepancies raised by patients, she was under investigation for allegations of over-servicing.

The medical aid alleged that Dr S had added additional procedural codes (not performed during the consultation) to a number of bills, and had been charging patients for expensive medication, when in actual fact cheaper alternatives had been dispensed. Dr S was invited to a meeting with the medical aid to discuss the matter further. Before she confirmed her attendance, she telephoned MPS for advice. 

Doctors should ensure they act with probity and professionalism when submitting claims

Learning points

Any dispute between a doctor and a medical aid with respect to fees does not fall within the benefits of MPS membership. MPS provides advice and assistance to members with legal problems arising directly from their clinical practice.

As allegations of fraud or theft arise from the business aspects of practice, we would not provide assistance. However, we would always advise members to ensure that they take a legal representative along with them to any such meeting.

Doctors should ensure they act with probity and professionalism when submitting claims and never submit inappropriate, false or inflated claims. If such claims are made intentionally, it is regarded as fraud, in which case MPS would be unlikely to provide assistance. The doctor would also probably be investigated by the HPCSA. 

How can MPS help?

Members sometimes come up against problems that are out of the ordinary.

MPS considers borderline requests for assistance on their merits, balancing the individual member’s needs against their responsibility to use members’ funds wisely and in the interests of the membership as a whole.

The following are examples of problems where detailed consideration of the exercising of discretion to assist may be warranted.

Criminal proceedings arising from non-clinical practice

We can exercise our discretion to assist with criminal allegations, but this does not usually extend to allegations of fraud or theft, on the basis that these offences arise from the business aspects of practice.

Allegations of fraud

It is unlikely that we would provide assistance in connection with allegations of fraud arising from business dealings. Occasionally, allegations of fraud may have arisen from professional life, for example, errors on a CV, or in research. Such cases are considered on their individual merits.

Defamation

If a member is the named defendant in a defamation claim, we may assist if the alleged defamation stems from their professional practice and their professional reputation is likely to suffer serious harm.

Other employment and disciplinary issues MPS is unlikely to assist where a member faces a disciplinary investigation or hearing arising from:

  • Employment or contractual issues
  • Working relationships with colleagues
  • The business of practice.

Personal conduct

Assistance is very unlikely to be offered with complaints or claims arising from a member’s conduct that is of a wholly personal nature clearly unrelated to professional practice, or only loosely related to the practice of medicine (for example, by virtue of having been committed at the work/practice premises, or because they happened to involve an employee or working colleague).

Taken from MPS cases handled between June 2012 and May 2013. Words by Sarah Whitehouse

Leave a comment