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Counting the cost of GP claims

The cost of claims in South Africa is escalating. Not only is such an increase having a financial impact, it is changing the way some GPs practise, says Sarah Whitehouse

The cost of clinical negligence continues to rise in South Africa. At the same time, there has been a rise in the number of HPCSA complaints. These increases are so significant that some specialists have been left questioning whether they should even continue to practise. Others have adopted a more defensive approach to try and safeguard themselves against the increased risk of complaints and claims.

In the four years up to 2011, MPS experienced a 30% increase in the frequency of medical negligence claims reported in South Africa. Some of these claims start off as complaints. In the period between April 2011 and March 2012, the HPCSA received 2,403 complaints, many of which related to claims of misdiagnosis, practising outside the scope of practice, and refusal to treat patients.1

“The cost of an average claim has roughly doubled every five years,” says Dr Graham Howarth, Head of Medical Services (Africa). “A claim which would have settled for R1 million in 2002 would cost R4 million in 2012. MPS is concerned that this rising trend will continue.” But why are the volume and costs of claims increasing? It’s not necessarily an indicator of poor professionalism, or inadequate clinical skills.

There has been an increase in the size of awards for catastrophic neurological damage – technological advances and improved life expectancy mean that the cost of care for affected patients has escalated; which is reflected in the size of financial award. The reaction of lawyers to the Road Accident Fund (RAF) Amendment Act, which capped the amount of compensation payable to road accident victims, and lawyers’ more extensive advertising, are likely to have had an effect in increasing the volume of clinical negligence claims, as lawyers have to look for other avenues to generate income.

In addition, Dr Howarth explains that patients in a developing country, like South Africa, were always likely to become increasingly aware of their constitutional rights, making them more likely to lodge a medical negligence claim, or a complaint, particularly following the HPCSA’s awareness campaign.

Another possible factor is the increasingly stressful, hostile and pressurised environment in which doctors today have to practise medicine. Higher patient expectations and the fear of the consequences of making an error can, paradoxically, lead to more errors occurring. There is uncertainty around National Health Insurance, relationships with private medical schemes are increasingly trying, resources are being stretched, and the gap between patient expectations and the reality of what can be delivered continues to widen.

Higher patient expectations and the fear of the consequences of making an error can, paradoxically, lead to more errors occurring

Defending the risk

Against this backdrop, it is no wonder that some doctors feel they must practise defensively to minimise the increased risk of receiving a complaint or a claim.

In an MPS survey of private GPs in 2012, 76% of members said they were very aware of significant growth in medical negligence claims and complaints in South Africa.2 Fifty eight per cent said they had changed the way they practise as a result. Some of the changes cited are undoubtedly positive: 86% of doctors revealed that they keep more detailed medical records as a result of increased complaints and claims.3

Good medical records are the cornerstone of a successful defence, but equally provide the basis for quality and consistent clinical care. One MPS member said: “I have improved my note taking of a patient’s condition; even the time of day that I saw the patient is written down in the file. I keep copies of referral letters and other administrative papers that patients request of me. I use computer-based recordings of sent SMS -messages.”

Good medical records are the cornerstone of a successful defence, but equally provide the basis for quality and consistent clinical care

Eighty three per cent said they are more careful to ensure that suitable follow-up arrangements are in place.Another member described a heightened awareness of the need for good communication: “I spend more time with patients. Consultations are taking longer as I try and explain risks, benefits, and complications with patients.” Perhaps an increase in claims has helped to focus minds on the importance of following existing HPCSA guidance.

Mindful medicine does have its advantages. Yet not all the changes in practice in an increasingly litigious world are as positive, or in the patient’s best interests. It is important not to create a culture of fear, or a culture of practising medicine defensively for the doctor’s, rather than the patient’s, sake. Defensive medicine is different from defensible practice, which is good practice. Defensive medicine is commonly defined as the ordering of tests or treatments to help protect the doctor rather than to further the patient’s diagnosis.

Professor David Studdert, ARC Laureate Fellow at the University of Melbourne, identified two types of defensive medicine:

  • Assurance behaviour (positive defensive medicine) – providing services of no medical value with the aim of reducing adverse outcomes, or persuading the legal system that the standard of care was met, eg, ordering tests, referring patients, increased follow up, prescribing unnecessary drugs.  
  • Avoidance behaviour (negative defensive medicine) – reflects doctors’ attempts to distance themselves from sources of legal risk, eg, forgoing invasive procedures, removing high-risk patients from lists.5

Sixty five per cent of GPs interviewed acknowledged that they conduct more investigations as a result of increased complaints and higher value claims, with 67% revealing that they now refer more patients for a second opinion – typical assurance behaviour.6

One MPS member said: “We are forced to do unnecessary tests that drive costs of healthcare up because of pressure from medicolegal actions.” Some tests may be invasive and have their own inherent risks, and doctors could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient).

Avoidance behaviour is evident in the fact that 61% have chosen to stop dealing with certain conditions or performing certain procedures. Twenty nine per cent say they had a lower threshold for removing patients from the practice list.7

Such decisive action may resolve a difficult situation with a challenging patient quickly in the short term, but it may also encourage complaints from those who feel they have received poor care, or who have not been given an open and honest explanation of what went wrong, and why, if there has been an adverse event. What is defensive medicine to one person may be high quality care to another.8

A good rule of thumb is to remember the HPCSA’s advice that all doctors should: “Always regard concern for the best interests or well-being of their patients as their primary professional duty.”9 Dr Howarth says: “If a claim for clinical negligence is brought against a doctor, they will be asked why they did or did not do something. A defence will not be based on the number of tests they did, but the clinical reasoning behind their actions. As long as a doctor can look back and justify their decision in accordance with a responsible body of opinion, they are safeguarding their practice.”

Action is being taken to address the costs and causes of clinical negligence. MPS has met with the Department of Health to discuss working together to control these rising costs. Change won’t be immediate, however. In the meantime, it remains important for all general practitioners to ensure that their indemnity arrangements cover their area of practice, and to ensure that they start each new consultation from a principle of defensible practice – rather than defensive medicine.

It remains important for all general practitioners to ensure that their indemnity arrangements cover their area of practice, and to ensure that they start each new consultation from a principle of defensible practice – rather than defensive medicine

Strategies to minimise defensive medical practices

  • Communicate effectively with patients, explaining what you are doing and why
  • Have robust systems for follow-up
  • Be open about risk
  • Offer an appropriate standard of care
  • Only order tests based on a thorough clinical history and examination
  • Discuss difficult cases with colleagues
  • Keep clear and detailed documentation
  • Know what it is you seek to exclude or confirm with a test to determine if it’s necessary
  • Identify learning needs (find a good mentor)
  • Undertake courses or independent study.

References

  1. Malherbe J, Counting the cost: The consequences of increased medical malpractice litigation in South Africa, S Afr Med J 103(2):83-84, (2013) 
  2. South Africa Member Survey – 2012 GPs (695 private GPs)
  3. Ibid
  4. Ibid
  5. Studdert D et al, Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, J Am Med Assoc (2005)
  6. South Africa Member Survey – 2012 GPs (695 private GPs)
  7. Ibid
  8. Kravitz R et al, Omission-Related Malpractice Claims and the Limits of Defensive Medicine, Med Care Res Rev (1997)
  9. HPCSA, General Ethical Guidelines for the Healthcare Professions, Section 5.1.1 (2008)
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