What new issues have medical malpractice insurance providers needed to consider since the outbreak of COVID-19? One of these is the fact that doctors may now be providing care outside of their area of specialty, while another may relate to unscrupulous individuals attempting to make money out of an overstretched medical system operating in crisis mode. We look at where judges are likely to place their favour when these matters arrive in court.

An unpleasant reality over the past decade in South Africa has been the steady increase in medical malpractice litigation, with claims of more than R1-million increasing by 550 percent compared to the previous decade; and claims of over R5-million increasing by as much as 900 percent over a five-year period. Additionally, health departments have tallied up exorbitant medical malpractice claimssuch as the Gauteng Department of Health and Social Development’s R573-million claim total in 2009/2010.

Unfortunate consequences have seen gynaecologists stepping away from obstetric care, in the case that a baby is disabled at birth and lifetime care costs enter the indemnity claim; and the public healthcare system being forced to spend vast portions of the country’s health budget on spiralling claims rather than improved patient care and hospital infrastructure.

While our nation – in fact communities worldwide – have shown immense gratitude and appreciation for the amazing work of healthcarers since COVID-19 appeared on the scene, giving them priority in supermarket queues, for example, at some point each medical professional out there is going to be faced with an extremely tough situation and/or decision, which could come under fire from patients and society when the dust settles. These situations and/or decisions may include any of the following:

• As COVID-19 cases increase, a range of surgical specialists may to forced to work in areas such as the ER or ICU;
• Retired healthcarers may be called on to provide support services to frontline workers, such as manning testing stations;
• Medical professionals with pending registration issues are being allowed to continue practising;
• Immunity granted to medical liabilities during the pandemic could affect the ethics applied to patient care, such as who gets a ventilator.

While our Health Professions Council, with its mandate to serve medical professionals and protect patients, says it will consider “the extraordinary circumstances in which practitioners are working and the heavy demands on them during this period”, Parliament has not issued any form of COVID-19-related indemnity for South African healthcare professionals. What is expected is that standards of “reasonableness” in patient care are expected to differ significantly to what was considered reasonable before the pandemic broke out.

In Malpractice Risks During COVID-19, the author advises that jurors and judges are likely to be sympathetic towards individual ER practitioners, while courts are unlikely to go after doctors who were typically seeing 100 ER patients per day and trying to manage another 300. However, the advice of US attorney Frederick Cummings could well be applied globally:

• Notify your insurance carrier if you are being asked to provide care outside of your specialty or area of dedicated expertise; and
• Get in touch with your insurance carrier about any other aspect of professional practice that concerns you while the COVID-19 pandemic is playing out.