Dr Graham Howarth, Medical Protection Lead for South Africa, offers his insights into state-provided indemnity, and the benefits of Medical Protection membership by comparison.

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Medical Protection is fielding an increasing number of queries from Provincial and State employed doctors about the need for indemnity. Doctors are asking why, given the province or state covers them for claims, is there any reason to subscribe to a medical defence organisation? 

Understanding state-provided indemnity

In responding it is important to understand what the state does, and does not, cover.

The concept of vicarious liability is where an employer is responsible for settling claims on behalf of employees. So if there is a medical negligence claim regarding the care of a State patient in a State facility then the state takes the primary responsibility of managing and potentially settling the claim on behalf its employees. The Treasury regulations set out this responsibility clearly – not only is the State primarily responsible for resolving the claim but unless there are extraordinary circumstances, well articulated in the Treasury regulation, the State cannot claw back any money from the employee.

So the first question you have to ask yourself is would the State likely consider you to be an employee? If you are in a full-time State post and have a Persal number the answer is inevitably yes. However, it is unlikely that the State considers doctors performing sessional work as employees.

Likewise supernumerary, registrar or consultant, posts may well not enjoy the option of State assistance. Academics who hold university posts or joint university and State posts would be well advised to confirm their indemnity arrangements.

Even if you are in a full-time permanent post you may still need extra assistance especially, as has become the habit now, not only is the State named as a defendant, but the claimant also names individual doctors. This has happened on a number of occasions where Medical Protection has helped a member in State practice remind the State Advocate of the State’s obligations under the Treasury regulations.

Likewise, on one occasion, we assisted a member when bailiffs arrived to attach some of his assets as the State had not met its financial obligations in a case where they, and the member, were named defendants.

Further limitations of state indemnity

Additionally State doctors who work in the private sector doing private practice need to remember that their State claims indemnity will not extend to the private sector and they need to ensure that they make adequate arrangements for any private work they perform.

Indeed, while province or state doctors are covered for claims by their employer, but that is where their cover begins and ends. There are several circumstances in which a province or State doctor could be left entirely without support, despite being covered by their employer for claims.

Whilst the pressures on South African healthcare practitioners (HCPs) are numerous, varied and challenging, it is contending with the medicolegal aspects of clinical practice on a near daily basis that seems to provoke the most anxiety.

This is understandable, since unlike many other clinical or practice related challenges, medicolegal issues may have a significant impact on a practitioner’s wellbeing as well as their career – and in isolated cases may even be career ending.

Wider risks beyond negligence claims

The situation is aggravated by the fact that many seemingly mundane daily activities relating to routine patient care, as well as the associated family interactions, may result in a plethora of medicolegal consequences.

Some common examples include: an internal complaint by a patient’s family; a formal complaint lodged at the HPCSA; a disciplinary hearing in response to a nursing colleague’s allegation; a head of department request for a report of a doctor’s clinical involvement in a case; an inquest or even a criminal trial following a patient’s demise.

In today’s world of employment rights, it is not unheard of for a hospital manager to complain to the HPCSA about an employee rather than proceed along the internal disciplinary route. Likewise, it is easy for a dissatisfied patient or a disgruntled colleague to lodge a formal complaint at the HPCSA.

State cover would only extend to claims, and such complaints would fall through the cracks, leaving a practitioner facing thousands of Rand and potentially years of anxiety on their own. Rarer, but infinitely worse, is the possibility of criminal charges arising from clinical practice. Criminal charges, again, would fall through the cracks of State indemnity. Likewise, at an inquest, while the State may appoint the State Attorney on a doctor’s behalf, the primary role of the State Attorney is to defend the interests of the state.

If there is a conflict and the State Attorney must choose between the individual clinician and the State, the doctor is likely to become collateral damage. So the real question is – how much risk are doctors willing to bear?

The value of Medical Protection membership

Medical Protection offers advice on medicolegal or bioethical matters and this advice is available 24 hours a day for urgent advice. It is not uncommon for State doctors to be confronted with serious medicolegal issues where immediate advice is not available in the State sector. Peace of mind is at hand.

Moreover - Medical Protection offers a free counselling service, to support a member through these challenges, is also available. Furthermore Medical Protection membership also gives one access to digital publications, factsheets, case studies, CPD courses and online learning making it easier to fulfil your on-going HPCSA training obligations.

So finally, as the State provides for indemnity only in relation to claims in alleged negligence, it is advisable that all state employed HCPs seek additional indemnity or insurance to protect themselves and their careers in the event that they become embroiled in any of the numerous other medicolegal challenges common in clinical practice.

So a State doctor without Medical Protection membership would miss out on:

•     •  Freely available advice,
•     •  Assistance in writing and submitting reports,
•     •  Advice and support in responding to a subpoena,
•     •  Assistance in responding to a complaint or a disciplinary hearing,
•     •  Support for HPCSA complaints,
•     •  Support for you as an individual at inquests,
•     •  Defence against criminal charges related to your work, media attention or issues arising from Good Samaritan acts,
•     •  Counselling service and access to webinars, guidance, and further educational resources.

Mind the gap - be aware and beware of the gap and protect against it – join Medical Protection.