Medical Protection’s Dr Volker Hitzeroth, Medicolegal Consultant, and Dr Graham Howarth, Head of Medical Services – Africa, look at what clinical indemnity means for state practitioners

Medical Protection has been fielding an increasing number of queries from province and state-employed doctors about indemnity. Doctors are asking that, given the province or state covers them for claims, is there any reason to subscribe to a medical defence organisation? This is a good question with a better answer. Indeed, 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.

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 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 Rands 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?

Setting the scene

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. 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.

Regretfully, over recent years there appears to be a significant increase in medicolegal developments across all clinical groups in both the state and private sector. Several reasons have been cited to explain this phenomenon, leading one to conclude that this development is most likely to be multifactorial in origin. It is worth remembering that the consequences of such an escalating trend of medicolegal events have the potential to impact notably and tragically, not only on the affected patient and their family, but also on the lives of the treating practitioners and their families. Such medicolegal consequences are not only measured in terms of the financial costs of legal advice and representation, but also in the awarding of ever-increasing damages by the courts. This has unfortunately, yet understandably, had the knock-on effect of escalating indemnity and insurance premiums. In addition to the financial impact on the healthcare sector, the mental and physical health complications for all parties are staggering and often persist far beyond the final payment of legal fees and damages awarded. Consequently, patient care and the overall provision of healthcare services in South Africa are firmly in the spotlight, resulting in enormous strain and the risk of the healthcare sector collapsing under this pressure.

The principle of state indemnity

The South African Treasury Regulations, issued in terms of the Public Finance Management Act (1999), provides the legal framework regarding the requirements for medical indemnity for state employees. It is worth noting that the Treasury Regulations apply to all state employees and not just HCPs. Section 12.2 of the Treasury Regulations explains that an institution (“state hospital” or “health department”) must accept liability for any loss or damage suffered by another person (“patient”), which arose from an act or omission of an official (“state employee”). The state institution may not recover compensation from the employee unless certain and specific conditions exist (see below). Section 12.2 therefore explains that, in the event that a state employee is alleged to have acted negligently, the state is obliged to indemnify that individual and may not recover any compensation from them, except in a number of specific instances.

This raises the important question on who is deemed to be a state employee. For the majority of public sector HCPs this question is likely to be irrelevant as they have an employment contract, a PERSAL number and receive their monthly salary from the state. However, for those HCPs who locum, do sessional or charitable work for the state, or volunteer in the state sector, the issue is more pertinent. Section 12.2 obliges the state to indemnify its employees – and only its employees. Hence, if an HCP engages in locum, sessional, charitable or voluntary work at a state institution they may not have an employment contract or a PERSAL number, and potentially may not be receiving a monthly salary. They may therefore be deemed not to be employed and hence the state is not obliged to indemnify them. It would therefore be prudent for such practitioners to receive written confirmation that they are indemnified by the state in the event of an allegation of negligence arising from their clinical work. Alternatively, such practitioners would be wise to ensure alternative indemnity arrangements are in place for their public sector work, as the state is likely to abjure any liability in the event of allegations of clinical negligence and the related medicolegal developments and financial consequences.

Limits to state indemnity

Section 12.2.1 of the Treasury Regulations highlights certain situations where a state employee forfeits their state-backed indemnity cover. This would become relevant if they, with regards to the alleged act or omission, are liable in law and if any one of the following scenarios occur:

1. Where the practitioner intentionally exceeded their powers
2. Where the practitioner made use of alcohol or drugs
3. Where the practitioner did not act in the course and scope of their employment
4. Where the practitioner acted recklessly or intentionally
5. Where the practitioner acted without prior consultation with the state attorney, and made an admission that was detrimental to the state
6. Where the practitioner failed to comply with, or ignored, standing instructions, of which they were aware of, or should have been aware of, which led to the loss, damage, or reason for the claim.

Hence, while the state indemnifies its employees, some situations exist where an employee, by virtue of their actions or lack thereof, may forfeit their state indemnity. In such cases, an employee is likely left to fund their own legal costs as it is improbable that a mutual indemnifier or commercial insurer would be willing to assist in these circumstances.

A final point of clarification worth bearing in mind is that state indemnity for state employees provides only for the investigation, defence and payment of damages and costs (in the event of early settlement or defeat in court) in relation to a claim in alleged clinical negligence. State indemnity does not provide for advice, support, defence or protection in the event of any other medicolegal developments arising from day-to-day clinical practice in the state sector.

This means no support for HPCSA complaints, requests for reports, receipt of subpoenas, departmental complaints, disciplinary hearings, inquests, criminal charges, media attention or issues arising from Good Samaritan acts.

These medicolegal issues can have an equally devastating impact on an HCP’s career, wellbeing and family, and would have to be managed and funded privately by the employee, unless they have separate, additional indemnity or insurance that enables them to request assistance with these issues.

Need for additional protection

It is evident from recent trends that all HCPs, in both the private and public sector, are ever more frequently exposed to medicolegal complications arising from their clinical practice. Although state employed HCPs working in the South African public sector enjoy state-backed indemnity in the event of a claim in alleged negligence, it should be noted that there are several circumstances where a state employed HCP could forfeit their state indemnity, resulting in personal liability. It would be prudent for a public sector HCP to be aware of the scenarios discussed above that could result in them forfeiting their state indemnity, and be especially prudent to ensure their conduct remains professional at all times to avoid forfeiting their state indemnity.

Furthermore, such state indemnity is limited to providing assistance with claims in alleged clinical negligence and does not encompass the myriad other medicolegal sequelae that could arise throughout a career in medicine – and which can be equally devastating to the practitioner’s wellbeing, career and family.

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.

In order to decide upon an indemnity or insurance product that caters for their specific needs, it is imperative that an HCP should thoroughly peruse all relevant documents, interrogate the products available to them and then proceed to make a fully informed decision. It is only in this way that a practitioner can ensure optimal advice, support, defence, and protection throughout their clinical careers, into retirement and beyond.

This article was originally published in Medical Brief and is republished with permission.