MALPRACTICE CLAIMS DURING COVID-19 - WHAT IS THE IMPACT ON HEALTHCARE WORKERS?

We have gone to war. Our professionals and experts are being called to help in what essentially can be called World War 3. The difference, this time, is that we are not fighting against another country, but against a deadly virus. While this sounds like a Spielberg movie trailer synopsis, if you’re at all aware of what the last few months have been about, you will sadly know, this is real.

Healthcare professionals are being asked to assist in any way they can. Like in war, they are being asked to put their lives on the line. They are under pressure to deliver their best during these stressful and uncertain times. And, even in some circumstances and countries, medical students, not yet qualified, are coming forward to do their bit. Further, retired healthcare professionals are also, much like it would be if we did go to actual war, being called back to lend a hand where possible.

What does this mean in terms of possible malpractice claims?

While it is not unheard of for a doctor or healthcare provider to work ridiculously long hours, they are now having to double up on that during this crisis. And, with that increases the risk of error, mostly because of fatigue, stress and the fear of contracting the virus themselves.

Where medical students and retired professionals are part of the help (not in South Africa at present, but it could go that way soon), there is little time to supervise and school them, and in there lies a further risk.  The risk of malpractice claims because of, sadly, negligence due to the overwhelming nature of where healthcare workers find themselves during COVID-19.

As a forward-thinking move, on the part of the HPCSA (the Health Professionals Council of South Africa), telemedicine guidelines have been laid out so that ongoing medical health services can continue.

Telemedicine, in this instance, is now called Telehealth which includes Telepsychology, Telemedicine, Telerehabilitation, Telepsychiatry, and others. Telehealth refers to the remote consultation where patients virtually (either via telephone/mobile or video platforms)have a consultation with a medical professional. It is geared towards the circumstance where there is an existing practitioner-patient relationship already. Where that isn’t the case, consultations must be in the patients best interest. Fees may be charged, but seriously monitored to prevent over-charging and abuse. And, further, where a telehealth consultation will not favour the patient, then they are asked to come in for a face-to-face with precaution.

While we applaud the progressive thinking here and see that it can work, there is still room for malpractice claims. An example may be that the patient declares, after their telehealth consultation, that they were misdiagnosed and now their condition has deteriorated, whereby they may have been better attended to with a face-to-face. Sure, the same claim could be made after a normal face-to-face visit, but the chances of an underlying condition being missed via virtual mode is higher.

Another problem can arise when the Scope of Practice Rule or Ethical Rule 21 is applied. The semantics of this rule is described best as:

“… that a practitioner must perform, except in an emergency, a professional act:

1. for which he or she is adequately educated, trained and sufficiently experienced; and

?2. under appropriate conditions and in appropriate surroundings.”

When it comes to the dire conditions many healthcare providers and assisting non-medical volunteers find themselves in now, the “appropriate surroundings” aspect as well as the “adequately educated, trained and sufficiently experienced” element becomes a little blurred and grey.

Would the calling to assist during COVID-19 be classed as an emergency? Some would agree this is an emergency. Not an emergency where someone may die within minutes if they are not seen to, but certainly there is, in some circumstances, a possibility of them dying in the very near future.

Further, should the epidemic reach dire proportions, the private health sector will be called upon, as it has been in other countries. While this is a good step and may lead to forward-thinking partnerships, the question remains as to how malpractice claims will be handled when a state patient is handled at a private facility. From our understanding, the private indemnity would not cover this, even if the doctor has private indemnity cover. The fact that they are handling a state patient would mean their cover specifically excludes that situation. This is uncharted territory, and we are unsure whether the state will cover this.

Is their relief at all for healthcare workers during COVID-19?

There is.

A few noteworthy pointers from the HPCSA guidelines that do help our knights in masked and gloved armour breathe easier are that they will not hold it against them should they fall short with their CPD (Continuous Professional Development) requirements. This will include any undergraduate training time lost. In addition, to register with HPCSA, they have encouraged electronic applications for now, but that by March 2021, they will review and expect the original documents to be sent. And lastly, the telehealth guidelines are being continuously revised and subject to change, and while they will continue to process complaints, they will have a system of importance order.

We do hope, given the surreal nature of the COVID-19 epidemic, that the public will take into account how these amazing healthcare providers and in some cases, not yet qualified medical students, are putting their lives on the line. However, unfortunately, it takes all kinds to make this world work, and there will be those that do not care.

While we are grateful for the relief that the HPCSA has offered, it does not mean that healthcare providers should go about with rose-tinted spectacles. They should still be considering malpractice insurance or even looking at their existing cover to ensure they are adequately covered.

We urge healthcare workers to know their rights, understand the law and rules backwards, and if uncertain, speak to a professional that does know. At the end of the day, your life is just as important as the next person’s, and if you are not protected, you will not be able to bring our precious world through this scary war.