Changing paradigms in the field of medical malpractice: The “Full disclosure – early pay” approach Alina Marian MBChB LLB LLM

At least once in our lifetime, we will all be some doctor’s patient. We will abandon control over our corporal being and put it in that doctor’s ‘hands’, with the legitimate expectation that this stranger, who may barely know our name, would be the one to put an end to our pain. We will be prepared to trust that stranger with our life or the life of a loved one in exchange for nothing less than professional perfection.

However, the reality is that there are no perfect doctors. If all the doctors, who have ever erred in the exercise of their profession were forbidden from practising medicine, there may very well be no doctors left to practise.

Indeed, there are very few medical practitioners who have not experienced, at some point in their career, the trauma of realising that they have committed a professional error. That unique sinking feeling is indescribable. The emotions a doctor goes through in the initial stages, after an adverse outcome caused by a medical mistake, range from shock, panic, disbelief, desperation to remorse. At a later stage, an intense fear of litigation and possible financial ruin takes over, and almost invariably the first natural human impulse to acknowledge and apologise for a mistake is replaced by a complex behaviour of ‘deny and defend’.

This fear is somehow justified. In most cases medical errors, real or alleged, become public and a doctor’s reputation suffers, regardless of whether he or she is ultimately found to be guilty of any professional negligence. This state of affairs automatically places doctor and patient in an adversarial relationship, from which neither party benefits. The stage for this relationship is set by our legal system, where a doctor’s negligence must be proven before compensation is awarded to a patient or to a patient’s relatives after the occurrence of an adverse outcome caused by a medical error. It also only takes a click of the ‘mouse’ to ‘google’ all law firms, that specialise in the field of medical negligence, to understand that within our pro-litigation system both patient and doctor are encouraged to litigate rather than communicate.

Tension is bound to develop between doctor and patient after an adverse outcome; particularly where there is no effective communication between the parties.

On the one side, most patients lack medical knowledge and they may not accept the explanation for an adverse outcome simply because they do not understand it. This lack of insight fuels justifiable feelings of anger and frustration, especially when the adverse outcome has led to the loss of a family member, or to a severe physical handicap.

On the other side, doctors do not understand that, in most cases, the patient and his or her family are not motivated by hate or greed, but rather by a sense of what they deem to be fair. At the very least, the patient is entitled to know the truth.

There is therefore a need for neutral ground, away from the traditional court system, where patients and doctors are able to meet and discuss an adverse outcome from equal positions, and without fear of prejudice. Such a forum must provide counseling for both parties and aim for mediation and conciliation.  The purpose of dispute resolution should not be  to punish the wrongdoer, but to compensate the injured party and to find solutions for improving professional performance. There is also a need for a medical errors reporting system with the sole purpose of educating the medical fraternity, of improving quality of care and of increasing patient safety.

In South Africa, the HPCSA is entrusted in terms of the Health Professions Act with protecting the public from medical malpractice. However, the HPCSA is paradoxically distrusted by both both patients and providers. Because a sanction by the HPCSA affects a medical practitioner’s career prospects, there are very few, if any, doctors who willingly would volunteer information about a personal mistake. There is also anecdotal evidence from press reports that the HPCSA is perceived by patients as intimidating and ultimately protecting only doctors’ interests. Thus, many genuine errors are not being disclosed at all, and many opportunities for learning from adverse outcomes are lost.

Elsewhere, such cumulation of functions into a single controlling body, equally charged with punishment for transgressions as well as with the quality management of health care, has been avoided. Governmental organisations independent of the national medical health boards, such as the National Center for Patient Safety in the US and the National Patient Safety Agency in the UK, are charged with the investigation of adverse outcomes and with the identification of gaps and inadequacies in the health care systems.

In 2006, then senators H Clinton and B Obama proposed an overhaul of the approach to medical liability in the National Medical Error Disclosure and Compensation (MEDiC) Bill (S.1784). The MEDiC model had four purposes: to reduce the rate of preventable adverse outcomes; to promote open communication between health care providers and patients; to ensure patients’ access to fair compensation for legitimate claims and to reduce medical malpractice insurance premiums.

This initiative was based on studies showing that patients’ decision to sue following an adverse outcome is mainly caused by ineffective communication with the health care providers. In support of MEDiC, Clinton and Obama showed that this new approach to medical errors has already been successfully implemented in 30 states across the US, with or without legislative support. Many health care providers, such as the University of Michigan Health System, Harvard University Hospitals, Veterans Affairs Hospitals, adopted a ‘full disclosure – early compensation’ system. The pioneering work was done at the University of Michigan which launched, in 2002, a program with three components: acknowledge genuine medical errors causing adverse outcomes and compensate patients quickly and fairly; aggressively defend frivolous claims; and study all adverse events to determine how procedures could be improved. After the implementation of this program the number of claims against the University of Michigan Health System and its providers dropped from 260 in July 2001 to 100 in 2007.

Extending these local experiences to the national level, MEDiC proposed an institutional framework for the mediation of disputes under a legal protection system that ensured the confidentiality of the negotiating process and granted  immunity for the doctors who fully disclosed medical errors, apologised and facilitated early compensation of the injured party. This approach places patient safety at the center of medical liability, by shifting the focus from the parties’ divergent personal interests to a collaborative effort towards the improvement of overall patient care.

Beyond these legislative efforts, there are independent movements, some within the medical profession itself, such as the “Open Disclosure Movement’ and the ‘ Sorry Works!’ coalition, which encourage full disclosure of medical errors and proper communication between patients and health care providers as the best means to prevent and resolve a medical malpractice dispute.

The question remains whether in the current South African medical liability climate saying sorry really works. Without an adequate system of protection from publicity and of immunity from punishment for the bona fide practitioners who disclose professional mistakes, it is unlikely that doctors will volunteer information. Furthermore, adequate checks and balances may need to be put in place in order to prevent abuse of a ‘full disclosure’ system by either party and/or their legal representatives.

Until such a time arrives for a systematic medical liability reform in South Africa, the author of this paper proposes mediation as the best milieu for the parties to a medical malpractice dispute to vent their respective issues behind a veil of legal privilege and to negotiate a settlement fair to all.

Mediation is a non-adversarial alternative dispute resolution process, where an independent and neutral mediator facilitates communication without prejudice between the parties with a view to reaching a fair and mutually  acceptable settlement. Besides this ‘problem solving’ role, mediation has also a ‘transformative role’ by helping improve relationships among the parties in the dispute.

Often a mediator may provide ideas and suggest solutions to a conflict. However, it is the parties who have the final say in the procedure to follow and in the settlement agreement. The mediator is merely a guide, who ensures fair, constructive negotiations by creating  a more productive and structured dialogue between the parties and by assisting in fact finding. To be effective, a mediator may have to use persuasion techniques to soften people’s hardline positions and bring them towards the common ground. Although mediators can come from all walks of life, in disputes related to professional liability it is an advantage when the mediator has a good grasp of knowledge in the field of that profession.

Once the willingness of the parties to achieve a mediated settlement is there, the main ingredient for a successful mediation is the parties’ trust in the mediator’s impartiality. As opposed to the formal justice system, built on the presumption of impartiality, in mediation parties’ trust must be earned  and is built on the basis on basis of reputation. Mediation and arbitration fora sanctioned by the state, such as the CCMA created by the Labour Relations Act, are focused primarily on problem-solving mediation, and deal very little with facilitating communication between the parties with a view to conciliation. Such emphasis on monetary gain is unlikely to gain the trust of the party who is to incur liability. For this reason, the main purpose of mediation in medical negligence ought to be primarily altruistic. This purpose be not to find fault,  but to identify medical errors for the purpose of improving health care delivery. Working together for this common purpose may bring the parties in a collaborative rather than antagonistic position, and facilitate fact-finding and negotiations in respect of compensation.

Then, perhaps, at the right time and in the right place, sorry works indeed…

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