Medical Malpractice and Informed Consent

Medical malpractice is a legal concept that refers to the negligence or improper treatment of a patient by a healthcare professional, such as a doctor, nurse or other medical practitioner. When a healthcare provider fails to provide an adequate standard of care to a patient, resulting in harm or injury to the patient, it may be considered medical malpractice.

Examples of medical malpractice may include misdiagnosis, delayed diagnosis, surgical errors, medication errors, failure to obtain informed consent and inadequate follow-up care.

Informed Consent

The big concern for medical malpractice insurers is the interpretation of informed consent in a healthcare context. Informed consent refers to the process in which a patient is fully informed about their medical condition, treatment options, benefits and risks, and they voluntarily agree to undergo a particular medical intervention or procedure.

“Before a medical procedure or treatment is performed, the healthcare provider must inform the patient of all the relevant details about the procedure, such as the potential risks, side effects, benefits and alternative treatments. The patient must have the capacity to understand this information and make an informed decision about whether to proceed with the treatment or procedure,” explains Carol-lee Timm, Principal Broker: Professional Services at Aon South Africa.

But what happens when a patient is incapable of giving their informed consent, prior to a procedure being undertaken by a healthcare practitioner?  

“An example would be of a patient that is unconscious following a vehicle accident, who requires lifesaving surgical intervention; or a gynaecologist that accidentally knicks a patient’s bladder during a hysterectomy, which requires the urgent intervention of a surgeon to rectify the situation. In both these examples the professionals involved do not necessarily have the informed consent of the patient to perform these medical procedures that are needed to save their lives,” Carol-lee illustrates.

Informed consent is a critical component of medical practice, as it respects the patient's autonomy and allows them to make informed decisions about their healthcare. It is also an ethical and legal requirement for healthcare providers to obtain informed consent before performing any medical intervention or procedure.

“From a South African perspective the matter of informed consent is legislated and/or regulated by the Health Professional Council of South Africa (HPCSA) and the National Health Act of 2003. As a result, medical malpractice insurers are taking a hard line on the matter and will not respond to a medical malpractice claim if there is no informed consent from the patient involved in the matter,” says Carol-lee.

“It creates a grey area that many medical professionals are unaware of, and uncertain as to how to address. General surgeons, in particular, are at risk in such an incident, but a potential medical malpractice claim could extend to anyone involved in the matter including nurses, the surgeon, anaesthetist and even the hospital management, to mention a few,” Carol-lee adds.

“It is crucial to discuss your exposures as a medical practitioner with a professional broker that specialises in medical malpractice to confirm exactly what you are covered for and more importantly, what you are not covered for. Having a better understanding will help you to make better decisions about your medical malpractice cover,” Carol-lee urges.

Medical Malpractice

With society becoming excessively litigious, consumers are more educated about their rights in addition to the legal fraternity actively advocating for medical malpractice claims, with the matter of informed consent becoming a key sticking point. As a result, medical malpractice claims are escalating and to some extent, being exaggerated. Any claim that is made needs to be investigated, incurring significant professional and legal costs, in addition to the time and effort spent.  

“There has been a marked increase in medical malpractice claims with many professionals not realising their risk exposure. Claims that used to be for R2m a few years ago, are now being lodged at R70m, which could easily spell the end of a practice while tarnishing the professionals’ reputation as well, whether proven or not,” says Carol-lee.

“We are also finding that more professionals and hospitals are opting to settle a medical malpractice claim, rather than letting the case run its course. And though it may be a viable option in certain scenarios, it often does not address the reputational damage that is done, especially in instances where the medical malpractice claim may have ruled in favour of the professional.”

This ‘Social Inflation’ refers to the phenomenon where the cost of insurance claims and settlements increases due to various societal and cultural factors, rather than objective factors such as the inflation rate or actual medical expenses or losses incurred. 

As a result, the underwriting process of medical malpractice insurance is becoming far more stringent and the renewal process is more time consuming - professionals need to give much longer lead times to get their medmal policy renewals done in time.

“We understand that medical professionals want to get down to performing their duties and often don’t have the time and capacity to thoroughly interrogate their medical malpractice cover. Basing a decision on cost alone, can prove to be detrimental at claims stage. Getting the advice and guidance of an experienced medmal broker that has a thorough understanding of the intricacies of the medical malpractice landscape will be invaluable in helping medical professionals navigate this complex minefield,” Carol-lee concludes.