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MPS membership vs state indemnity

Being a member of MPS offers many benefits. Dr Angela Bramley, MPS senior medicolegal adviser on the South Africa team, looks at the key areas where the state leaves off but MPS can pick up

When it comes to professional protection, most doctors recognise the value of having arrangements in place should something go wrong. However, some of those who are members of MPS in addition to having state indemnity do not use the many resources offered by MPS to help in everyday situations, even before a complaint or a claim is made.

While state indemnity is provided for all doctors who are employed in the public sector and covers them if there is a claim, it does not necessarily extend to assistance for internal disciplinaries or HPCSA investigations. Indeed, in internal disciplinaries or HPCSA complaints it is quite possible that the employer is the complainant and thus they are most unlikely to assist. Whilst the state probably will assist in the case of an inquest, it is usually only on the coat tails of their own defence.

If a doctor is vulnerable to individual criticism, or there is a conflict of interest between the state and the doctor, individual representation is preferable. Therefore, those state doctors who do not make alternative arrangements may find themselves vulnerable in any forum other than a claim.

The following case shows how MPS membership goes beyond the support offered by the state:

Dr K is working in the Emergency Centre of a busy hospital on a particularly demanding Saturday night when a patient, Mr O, arrives in a semi-conscious state. Mr O is well-known to the department; his medical notes reveal a history of alcohol abuse following years of hardship. This was not the first time Mr O had arrived at the Emergency Centre following a binge and he was usually kept in to sleep it off.

It was a busy evening and Dr K was pushed for time. History taking was difficult as Mr O seemed very sleepy and incoherent, but the sweet smell of imbibed alcohol was enough for Dr K to dismiss his symptoms as simply the effects of excessive alcohol consumption. An examination did nothing to change Dr K’s mind. Bloods were taken and sent to the lab and an entry was made in the nursing notes for the results to be followed up later. Dr K then took Mr O to a quiet corner of the ward to sleep it off and continued to attend to other patients. Unfortunately, the next morning Mr O was found dead.

Everyone in the department was shocked to hear of the regular attender’s death but worse was to come when his bloods were reviewed and it was noted that his blood glucose had been 33mmol/l with a high potassium level. When Dr K had assumed Mr O was drunk, he was actually in ketoacidosis, meaning his death that night was probably preventable.

What happens next...

Scenario 1: If Dr K had state indemnity only

On realising that he had to justify his actions to the hospital, his seniors and also to Mr O’s family, Dr K had no-one to turn to. He spoke to his employer but they couldn’t help him. To make matters worse, by the time the hospital’s internal review came round six months later, Mr O’s medical notes had gone missing. This left Dr K extremely vulnerable, as he had no contemporaneous notes to back up his actions, and there was the fact that the blood results had not been reviewed.

As expected, the patient’s family brought a claim against the hospital and against Dr K. The hospital used its state indemnity to attempt to defend its systems and protocols, but Dr K – without the medical notes – was clearly vulnerable to criticism. Dr K was then investigated by the HPCSA, following complaints by both the family and concerns raised by the employer. The story attracted some media interest and once Dr K’s local community found out that he was being investigated by the HPCSA, he lost the trust of many of his patients. The damage to his reputation – and subsequently, his livelihood – was difficult to repair.

Scenario 2: If Dr K had been a member of MPS

When Dr K was told that Mr O had died, he immediately phoned MPS’s 24-hour helpline for advice. A medicolegal adviser advised Dr K to write up a full report of the circumstances leading to the patient’s death, and also suggested that he write to the hospital superintendent requesting that a copy of Mr O’s anonymised medical notes be retained for safe keeping. MPS then investigated the hospital protocol for managing patients in the Emergency Centre and prepared to help with the inquest and hospital investigation.

When the internal review came around, a copy of the notes were available as the hospital superintendent had retained a copy as requested (the originals, however, had gone missing) and the full report written by Dr K immediately after the event was available. During the internal review it was pointed out his attempt to take a history, and the clinical examination: Dr K’s recollection was that he had wanted to do bedside testing for glucose but the necessary sticks were out of stock, so he had been forced to send away blood for testing instead.

The investigation of hospital protocols in the Emergency Centre also revealed there was no set protocol for following up blood results and, although Dr K had recorded that he had taken blood, the nurses had failed to follow up on it, despite a request being made in the notes. While the hospital used state indemnity to defend its actions when the claim was made, Dr K was able to turn to MPS for assistance in writing his statement. On the basis that he had written a report of his recollection of the event immediately, and could refer back to the nursing notes and the patient’s past medical notes, Dr K was able to show that his management of the patient was not unreasonable.

A complaint to the HPCSA was still made by the family; however, MPS guided Dr K through the process. MPS instructed solicitors to represent Dr K and a meeting was arranged at their offices to go through the case with Dr K. Thereafter, MPS’s solicitors drafted a letter on Dr K’s behalf to the HPCSA. This served to convince the HPCSA’s preliminary proceeding committee there was no prima facie case to answer, and the case was closed with no further action.

The MPS press office was also on hand to help Dr K deal with the media intrusion. A statement was compiled to be issued to the press, which helped Dr K retain his reputation. On closing the case with Dr K, MPS reminded him of the importance of taking detailed notes in case he had to justify his actions again. Dr K took heed of this advice, and booked a place on one of MPS’s risk management workshops to develop his skills further.

The benefits of membership

As an MPS member, you have access to medicolegal support and assistance that includes:

  • Telephone advice 24/7
  • Specialist legal advice and representation (for situations not supported by state indemnity)
  • Disciplinary processes
  • Handling complaints
  • Coroner’s report writing
  • Inquest preparation
  • Media and press relations
  • Police investigations arising from the provision of clinical care
  • HPCSA investigations
  • Good Samaritan acts.
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