Liability

Risk Management

July 30, 2020

Medical Malpractice and Culpable homicide - The cost of a mistake

Opinion by: Samantha Varela, Senior Legal Risk Advisor of Professional Risks at Aon South Africa

<h2>First do no harm - Primum non nocere</h2>

There is overwhelming pride and joy in graduating with a medical degree after years of pure dedication, passion and hard work, to achieving the ultimate dream of finally becoming a doctor, to taking the official Hippocratic oath, to serving one’s community and providing a service to those who need it most.

There are also many challenges for an aspiring doctor, and one of these challenges is understanding the legal implications of professional negligence. When does the negligent death of a patient amount to culpable homicide? To what extent will your professional indemnity (PI) policy cover you for claims and allegations of this nature? These are important questions and concerns for both the established and young medical professional.

<h3>Unpacking the Hippocratic oath</h3>

What does 'first do no harm' mean? This widely used term derives from the <a target="_blank" href="https://www.thoughtco.com/latin-words-and-expressions-in-english-119422" rel="noreferrer noopener">Latin phrase</a>, "primum non nocere" or "primum nil nocere".

The Hippocratic oath taken by a practitioner is as old as time, originally an <a target="_blank" href="https://en.wikipedia.org/wiki/Oath" rel="noreferrer noopener">oath</a> of <a target="_blank" href="https://en.wikipedia.org/wiki/Ethics" rel="noreferrer noopener">ethics</a> commonly acknowledged as part of the Greek medical texts. Written in the 5th century BC, the Hippocratic Oath is one of the oldest documents in history. While the creators intended it to be a binding covenant, modern doctors see the oath as a promise to uphold the art of medicine and act in patients' interests.

While the oath upholds timeless ethics and values, it has changed since Hippocrates first wrote it 2 500 years ago. A modern Hippocratic Oath keeps original values in place while meeting the needs of advanced medical practices and societal values.

<h3>Previous texts regarding the oath include</h3>

“…I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong-doing. Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course. Similarly I will not give to a woman a <a target="_blank" href="https://en.wikipedia.org/wiki/Pessary" rel="noreferrer noopener">pessary</a> to cause abortion. But I will keep pure and holy both my life and my art. I will not use the knife, not even, verily, on sufferers from <a target="_blank" href="https://en.wikipedia.org/wiki/Kidney_stone" rel="noreferrer noopener">stone</a>, but I will give place to such as are craftsmen therein.

Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of <a target="_blank" href="https://en.wikipedia.org/wiki/Gender_equality" rel="noreferrer noopener">man or woman</a>, bond or free. Now if I carry out this oath, and break it not, may I gain forever reputation among all men for my life and for my art; but if I break it and forswear myself, may the opposite befall me.”

<h3>More modern texts</h3>

Wits Declaration at Commencement of Health Sciences studies:

“As a student in the Faculty of Health Sciences of the University of the Witwatersrand, Johannesburg, I do solemnly declare: That I will not improperly divulge anything I may learn in my capacity as a student of Health Sciences. That in my relations with patients, colleagues and others, I will conduct myself with dignity as becomes a member of an honourable profession. And I further declare that I will be loyal to my University and will endeavour to promote its welfare and maintain its reputation.”

<h4>Other examples:</h4>

“Now, as a new doctor, I solemnly promise that I will, to the best of my ability, serve humanity—caring for the sick, promoting good health, and alleviating pain and suffering.

I recognise that the practice of medicine is a privilege with which comes considerable responsibility and I will not abuse my position.

I will practise medicine with integrity, humility, honesty, and compassion—working with my fellow doctors and other colleagues to meet the needs of my patients.

I shall never intentionally do or administer anything to the overall harm of my patients.

I will not permit considerations of gender, race, religion, political affiliation, sexual orientation, nationality or social standing to influence my duty of care.”

<h4>As a member of the medical profession:</h4>

“I solemnly pledge to dedicate my life to the service of humanity;

the health and well-being of my patient will be my first consideration;

I will respect the autonomy and dignity of my patient;

I will maintain the utmost respect for human life;

I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing, or any other factor to intervene between my duty and my patient;

I will respect the secrets that are confided in me, even after the patient has died;

I will practise my profession with conscience and dignity and in accordance with good medical practice;

I will foster the honour and noble traditions of the medical profession;

I will give to my teachers, colleagues and students the respect and gratitude that is their due;

I will share my medical knowledge for the benefit of the patient and the advancement of healthcare;

I will attend to my own health, well-being, and abilities in order to provide care of the highest standard;

I will not use my medical knowledge to violate human rights and civil liberties, even under threat;

I make these promises solemnly, freely, and upon my honour”

<h4>But what happens when it all goes wrong?</h4>

While practitioners are made aware of the serious impact and consequence of their work, sometimes atrocities, either based on their professional negligence or beyond their control, do happen. But when does professional negligence that results in death amount to culpable homicide?

In the South African Legal framework and our law, there is a clear distinction drawn between murder and culpable homicide. The unlawful, intentional causing of the death of another human being is both recognised and punishable as the crime of murder, while the unlawful negligent killing of another human being is punishable as culpable homicide. In distinguishing between the two, emphasis is placed on both intention and negligence.

When a patient dies on either the operating table, or as a direct result of the medical professional’s negligent treatment, culpable homicide is one leg of the legal actions that follow. The patient’s family are generally entitled to compensation (in terms of the law of delict).

Prosecutors may investigate criminal charges based on culpable homicide and reports may also be made to the HPCSA (the Health Professions Counsel of South Africa- for unprofessional conduct).

Based on the principles of the law of delict, both medical professionals and hospital facilities have a duty of care to exercise reasonable care to prevent harm from ensuing. Should a patient suffer damage or loss as a result of a doctor or hospital's wrongful failure to take such reasonable care, the doctor or hospital may incur liability for negligence.

Importantly and in addition to this, a doctor or hospital that intentionally violates the patient's rights to their physical integrity may also be held liable for assault. A medical professional or hospital facility that intentionally infringes the patient's right to physical integrity and informed refusal may incur liability for injuria.

<h4>An example in our law</h4>

In more recent judgements, we have seen a gynaecologist found guilty for negligently causing the death of a patient in labour. The Dr was sentenced to five years in prison. While this may have been a first-time offence, the conviction arose as a result of multiple counts of negligence.

When a court pronounces on the reasonableness of an offence, the court takes into account the standard and general levels of skill and diligence that ought to be possessed by similarly qualified professionals.

The court will also have regard for the general level of skill and diligence possessed and exercised by members of that branch of the profession.

In this instance, the High Court found that the gynaecologist’s negligence was so severe that he, in fact, had to be convicted of culpable homicide. The facts reveal that the Doctor did not attend to the patient despite being requested to do so by the hospital at midnight.

After the baby was born, he still did not attend to the patient, despite being made aware of the patient’s state of emergency. He instead chose to give instructions over the phone to the nurses. It was found that he did not do everything in his power as a specialist to save the life of his patient.

<h4>When does a Professional Indemnity (PI) policy come into play?</h4>

Given the fact that there is an “innocent until proven guilty “principle in law, the policy may respond to advance the defence costs should criminal proceedings be brought against an insured. Where the Insured is found guilty, it may be that the Insured would have to refund those costs. All of this does depend on the policy wording and the approach of the respective insurers in respect of this extension.

Practitioners have an enormous responsibility placed on them, in terms of the oath that they honorarily take, in terms of the constitutional rights of those they treat and in terms of the duty of care that they owe to patients. However, practitioners also have constitutional rights to a fair trial, the right for their evidence and version of events to be heard and to be treated innocent until proven guilty.

Over the last decade, the size and frequency of compensation awards in medical negligence cases have increased dramatically, making professional indemnity a crucially important risk management tool for every medical professional who sees patients and dispenses advice.

This cover may indemnify you (depending on the policy wording) against your legal liabilities for damages for any bodily injury, mental injury, mental anguish or shock, illness, disease or death of any patient caused by your alleged negligence, including legal costs and expenses.

As leading insurance brokers in Medical Malpractice cover, Aon has many years’ experience and our comprehensive insurance broking solutions to ensure that you are dealing with a company who has the financial stability and claims philosophy to respond to your needs at the time of a loss.

With an Aon expert broker by your side, you’ll have peace of mind knowing that material risks which could impact your career, livelihood and professional reputation are defended and mitigated, that you’ll have the specialist support structures and financial means to legally defend your reputation and career, and if necessary, settle any awards costs.

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Medical Malpractice and Culpable homicide - The cost of a mistake

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