You have recently qualified and don’t have a worry in the world – well, not from a professional perspective anyway. You are virtually guaranteed of employment for at least the next three years and, as an employee, you don’t have to worry about being sued for medical negligence, as your employer is responsible for settling any claims of that nature. The lawyers refer to this as vicarious liability – where your employer is responsible for any negligence that may occur as a result of your negligent acts or omissions.
Given that your employer is vicariously liable for you and will pick up the tab if you are sued for medical negligence, then there is no need to belong to an organisation like MPS. Is this true? If so, you could save yourself a few Rand a month.
Unfortunately, it is not true and a few Rand spent now could be the best investment you ever make. Professionals are not only vulnerable to litigation; there are other threats out there. Probably the two most important are attending an inquest and having to defend yourself following a complaint to the Health Professions Council of South Africa (HPCSA).
True, if there is an inquest and there are problems, then your employer will probably have lawyers there to represent the hospital and by default you as well. The problem is that, understandably, lawyers representing the hospital are paid by the hospital and their first concern is protecting the hospital and not necessarily the hospital’s employees. It is not inconceivable that there may be a conflict of interests and the lawyers cannot really look after you as well as you would like to be looked after.
This is compounded if you are open to criticism and are vulnerable. Essentially, in your moment of greatest need, the hospital is not there for you – on the contrary, they may be looking for a scapegoat. Were those few Rand saved really worth it? If you are criticised during the inquest, it is possible that a complaint to the HPCSA may follow.
The other area where your employer definitely will not help you is with a complaint to the HPCSA – indeed, it may be your employer that refers you there in the first place. As a student, you were registered with the HPCSA and one of their important functions, that you are probably aware of, is determining the standards of professional education and training. One of their responsibilities is to ensure that the training of health professionals comes up to acceptable standards.
The HPCSA is a statutory body established in terms of the Health Professions Act No. 56 of 1974. It is an autonomous organisation funded solely by health professions – the annual registration fee that you have to pay - and its other two major functions are promoting the health of South Africa’s population and setting and maintaining fair standards of professional practice. It also maintains a list of registered practitioners and you cannot practise as a doctor in South Africa unless you are on the register – to do so would be unlawful.
As a junior doctor, there are also restrictions on your registration and it would indeed be unlawful for you to do any private practice; were you to be caught doing private practice, then you run the risk of a criminal record and censure by the HPCSA. Imagine being a couple of years out of medical school and having to pay a fine to the HPCSA, or worse still having a criminal record – suddenly those carefree days would seem far, far away.
Any patient or relative can complain at any time to the HPCSA and, given that your future registration may be on the line, it is always a good idea to have expert advice when responding to any HPCSA complaint. An MPS medicolegal consultant is only a telephone call away to give you that advice and, should things look serious, they will undoubtedly call in the assistance of one of the law firms that we use, who have lawyers experienced in dealing with HPCSA matters.
If you are interested in seeing what sort of things colleagues have been found guilty of and how they were punished, then you can access this information on the HPCSA website. Visit the HPCSA website, click on “Legal” and, once on that webpage, click on “Guilty Verdicts”. Remember that this is the tip of the iceberg. Many complaints will have been resolved with a good early response or a doctor will have not been found guilty at an HPCSA inquiry.
If you want to see what the inquiries are about, you can access that information from the home page by clicking on “Newsroom” and then go into “Upcoming Inquiries”.
To be able to work overseas, you will have to be on the register of the local registration authority. To be able to register you will require a Certificate of Standing; if there is an outstanding complaint the HPCSA will only issue an endorsed Certificate of Standing – saying that there is an outstanding complaint. It is unlikely that any other registering authority will register you under these circumstances. Even if you are already on an overseas register, most registration authorities will now expect you to inform them if a complaint is made to another registration authority.
Case study
John was a recently-qualified doctor. He worked hard, so he felt when he partied he should party hard as well. One evening he went to a particularly good party and over-indulged. Being responsible and realising he was over the limit, he took a taxi home. The next morning a friend gave him a lift so he could pick up his car.
While driving home, he made a phone call while driving and the police saw and stopped him. While speaking to him, the policeman smelled alcohol and John was breathalysed. Unfortunately, he was still over the limit. As the police were now going to charge him, they decided to search his car. Unbeknown to him a friend, to whom he had given a lift to the party, had taken some drugs along but decided not to take them in.
John was arrested and was landed with a criminal record for drinking and driving and being in possession of drugs. He was also censured by the HPCSA. He had hoped to get some experience overseas but, given his criminal record and censure by the HPCSA, that is out of the question.