With medical negligence claims in South Africa rising astronomically in recent years, healthcare practitioners need to ensure they have adequate medical malpractice insurance cover in place. By Katherine Graham & Vanessa Rogers on behalf of Natmed Medical Defence. 

Medical malpractice insurance provides a healthcare practitioner with peace of mind in the event of a claim for damages being instituted against them. It provides cover in respect of the settlement of a claim for damages, or an award being handed down by a court of law against the healthcare practitioner.

Depending on the type of cover, a healthcare practitioner’s legal costs incurred in defending a claim or responding to a complaint lodged against them via the relevant statutory body, tends also to be covered under the policy.

Notably, healthcare practitioners often overlook mentionable value-added services from their chosen insurer or broker. These services offer additional benefits to healthcare practitioners and assist in reducing the stress experienced when a claim is instituted – or a complaint is lodged – against them.

There has been a steep increase, over the past few years, in the number of medical malpractice lawsuits filed in South Africa – generally as a result of patients becoming increasingly aware of their liability rights. Obstetrics, gynaecology, neurosurgery and orthopaedics remain a few of the most risky fields of medical speciality, both in terms of claim quanta and the number of claims being instituted against the average specialist who is practising in these fields.

Successful claims can result in compensation payouts ranging from thousands to millions of rands. “Claims for cases of cerebral palsy births, for example,” advised Dr Johannes van Waart, council member of the South African Society of Obstetricians and Gynaecologists (SASOG) in a 2020 CapeTalk interview, “have risen from around R25 million to R80 million in recent times.”

Why is medmal insurance so vital?

Healthcare practitioners in private practice are required, in terms of the regulations issued under the Health Professions Act, to obtain medical malpractice insurance. This does not apply in quite the same way to those healthcare practitioners in State practice, where liability attaches to the State in the event of an employee of the State being held negligent.

A healthcare practitioner practicing as an independent contractor at a private healthcare institution or facility is required, by law, to ensure they have adequate medical malpractice insurance cover in place.

According to Natasha Naidoo, senior associate at Norton Rose Fulbright SA, “Failure on the part of a healthcare practitioner to ensure that the relevant cover is in place, may result in the healthcare practitioner suffering severe and distressing financial loss. A healthcare practitioner, who is faced with settling one or several large claims, could find himself/his family put out-of-pocket for their essentials. There are also reputational risks involved. A further issue for consideration is that a healthcare practitioner must be adequately covered under their chosen policy.”

Naidoo says that in her professional experience, a civil action instituted out of court or a complaint lodged via the Health Professions Council of South Africa (HPCSA) is almost always extremely stressful, financially burdensome and an administrative inconvenience to the healthcare practitioner concerned.

What you can expect from your provider?

As part of the underwriting process, insurers perform an in-depth analysis of current – and potential – risks faced by a specific healthcare practitioner. The outcome of the risk analysis then determines the likelihood of such a practitioner obtaining insurance cover; and the exact insurance premium that they will be required to pay.

Why value-added services remain invaluable

One of the value-adds that an insurer can provide to their healthcare practitioners – over and above cover under their policy – is access to legal advice provided by a team of highly reputable and experienced attorneys. If an action is instituted or a claim is lodged against them, these attorneys are then appointed by the insurer to represent the healthcare practitioner in the proceedings, advises Naidoo.

This is why it is important to look out for the value-added services in your policy document, which do just that: add value and alleviate a healthcare practitioner’s worry and/or administrative burden. With due consideration of the cost of medical malpractice insurance, an offer of value-added services extends beyond what’s expected of a brokerage and distinguishes such a provider from their competitors in the market.

These 24/7 services can range from a clear claims notification process; any steps that assist in alleviating the administrative burden on medical practitioners and their practice managers; pro-rata premiums; a grace period if, for any reason, a practice falls into default; as well as risk control and management services; knowledge sharing e.g. via lectures, webinars or workshops that assign CPD points; and the careful elaboration of claims-made versus occurrence-based cover, including any additional bells and whistles.

For  details of the value-added services provided by Natmed Medical Defence, go to: https://www.natmed.mobi/ without delay.

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Sources:

https://www.africahealthexhibition.com/en/media/news/Medical-malpractice-litigation-Undermining-South-Africas-health-system.html
https://www.ajol.info/index.php/sajbl/article/view/69974
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3204310/https://www.dsclaw.co.za/medical-malpractice-resources/how-much-is-an-injury-claim-worth/
https://www.businesslive.co.za/fm/fm-fox/2021-12-09-behind-sas-medical-malpractice-billions/https://www.worldinsurance.com/blog/3-benefits-of-medical-malpractice-insurance
https://www.batchelor.co.za/medical-negligence-claims-frequently-asked-questions.php#:~:text=One can expect a minimum,of finalisation of the claim
https://www.capetalk.co.za/articles/373786/obstetricians-leaving-sa-as-insurance-premiums-rise-to-a-r1-million-a-year