The forms of risk exposure that a doctor could face include an HPCSA complaint (which could often turn into an inquiry or disciplinary process) or a civil claim due to damages that a patient may allegedly have suffered. Criminal charges are a third category of exposure that a doctor could face. Recent developments (the cases against Prof Peter Beale, Dr Daniel van der Walt and Dr Abdullah Munshi) have the huge implications criminal proceedings could have on medical practitioners, including jail time.

Doctors are practicing defensive medicine to prevent malpractice claims or criminal charges being brought against them. The fear of criminal sanctions for medical practitioners is discouraging a lot of professionals from pursuing a career in medicine, or from continuing their careers [Image: Freepik].

CRIMINAL PROCEEDINGS AGAINST DOCTORS

If a patient dies of unnatural causes, a post-mortem will have to be undertaken. This must take place even if consent hasn’t been given by their family members, since it is a vital step in an investigation of death. Once the post-mortem findings have been released, an investigating officer will be appointed by the police, who will be tasked with investigating the death of the patient. During that investigation doctors are likely to receive a request for their records and to be asked to give a witness statement of their encounter with the patient.

In the event of a patient’s death of unnatural causes, doctors are urged to immediately inform their malpractice insurer immediately so that they can enter the investigations with some form of legal representation. If the Director of Public Prosecutions decides to go ahead with the case, an inquest will usually be called. The purpose of an inquest is essentially to assist a magistrate to understand what caused the patient’s death.

Anything that is said during an inquest or any evidence that is presented will be used at the criminal trial, if one is deemed necessary. The magistrate will be assisted by a medical assessor. A charge of murder or culpable homicide can then be laid. A murder is an intentional act, whereas culpable homicide implies negligence. The way culpable homicide is usually determined is by contrasting a doctor’s behaviour while caring for the patient that died with that proposed by an independent expert who is also normally a medical doctor.

All this has led to a trend of doctors practicing defensive medicine to prevent malpractice claims or criminal charges being brought against them. The fear of criminal sanctions for medical practitioners is discouraging a lot of professionals from pursuing a career in medicine, or from continuing their careers.

BEING RISKPROOF

To defend against malpractice claims and criminal charges, the importance of accurate medical record keeping cannot be overestimated. If files are lost or clinical notes are illegible, it becomes much more difficult to defend a case. A plan of action should therefore be implemented to ensure that adequate record keeping is always practiced. This includes ensuring ensure that all information relating to a patient, including blood test results, x-rays and results from any diagnostic tests are consolidated in a single patient file.

Poor and illegible penmanship by doctors can lead to medical malpractice claims. Poor quality medical records greatly increase the difficulty of defending a clinical negligence claim or an HPCSA disciplinary inquiry. Bad record keeping includes:

  • Not recording negative findings
  • Illegible, unsigned or undated entries in clinical notes
  • Not recording drug allergies or adverse reactions
  • Altered notes scratching stuff out

Accurate record must contain a medical history of the patient including allergies and any chronic medication they are on. Post-examination the patient’s temperature, heart rate, and blood pressure should all be noted a a matter of course.

The proposed clinical management of the patient, which would include diagnosis, treatment options, the medication and dosage prescribed, must be noted. Informed consent must be obtained when prescribing any form of treatment or undertaking any surgical procedure on behalf of a patient and informed consent forms signed by both parties should appear within the patient’s file.

Currently the HPCSA requests doctors to keep patient records for five to six years. When the patient is a child it is recommended that doctors keep their records until their 21st birthday. When the patient is suffering from a disease that could have long-term effects, it is prudent to hold records for a very long time, and possibly indefinitely.

 

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