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LEGAL LIABILITY WHERE PRIVATE PRACTITIONERS TREAT STATE PATIENTS

The ongoing National State of Disaster and the continuing spread of COVID-19 infections have resulted in South African health professionals having to practice in conditions which have never previously been experienced. As the number of active infections across the country increases there have been increasing suggestions that the State may call on private health professionals to treat some of its patients. This State patient treatment may also not be confined to private practice facilities only. This gives rise to many questions relating to legal liability for private practitioners.

This article provides relevant information to better understand the risk implications where you treat State patients and guidance on how to better protect your personal interest.

The issue of the legal liability of a private practitioner treating a State patient is a complex one. At the outset it should be emphasized that the State is and remains the principal healthcare provider, should it decide to outsource its clinical treatment of a patient to a private practitioner. The precise terms on which the private practitioner attends the patient and on which the transfer of the patient takes place, in each particular instance, will determine the legal liability assumed by the private practitioner.
It should be pointed out that when a health professional agrees and undertakes to treat a particular patient, he or she enters into a doctor/patient relationship regardless of the funding arrangements which may exist in respect of the anticipated treatment. Arising from this relationship the practitioner is under a legal duty to treat the patient in accordance with the standard of care which can reasonably be expected from him or her in the particular circumstances of the case.

Where the treatment of a State patient is undertaken by a private practitioner under a contract of employment with the State, the private practitioner treats the patient as an employee of the State. In this scenario, unless the private practitioner is shown to have acted, inter alia, outside the scope of his or her State employment, the State is compelled to indemnify the practitioner concerned for the payment of damages where the legal action is instituted by the patient against the State.

It is also appropriate to summarise the merit test applied by the South Africa courts to assess legal liability in medical negligence cases. A medical practitioner is said to be negligent in the treatment of a patient when he or she fails to exercise that degree of skill and care as could reasonably be expected of a practitioner in the same circumstances. This also largely deals with practice outside the regular scope of practice, and the practitioner will be required to defend their decision to provide any such treatment.
Irrespective of the current COVID-19 situation, these remain the legal principles used to determine the legal liability of the health professional relating to the clinical treatment of a patient. They apply equally to the treatment of any patient either in a private or State facility.

Guidance for health professionals contracted to treat State patients
• The roles and responsibilities of the various parties to the outsourcing of clinical treatment must be clearly articulated and preferably reduced to writing. This includes the question of legal liability. It appears that a contract of employment, either on a full time or part time basis, offers the greatest protection to the private practitioner treating State patients.
• The same guidance applies to health professionals contracting with independent third parties e.g. locum agencies, for the treatment of State patients or any other patient for that matter.
• Patient records, including clinical notes, provide evidence of the appropriateness of clinical treatment. It is suggested that health professionals treating patients in a State facility take additional steps to ensure proper retention and safe custody of all relevant records.
• Proper handover procedures including discussion and agreement of patient management plans are critical and even more so where some aspects of the treatment of a State patient is outsourced to a private practitioner whether at a State or private facility.

The importance of appropriate Professional Indemnity cover
In the same way that it is important to understand the principles that will determine the legal liability of a health professional, it is equally important to appreciate the extent of the cover provided by your indemnity provider.

For health professionals, professional indemnity protects the insured against legal liability stemming from his or her clinical treatment of a patient. In South Africa there are two primary types of cover. The first is contractual benefits provided under a contract of insurance issued by a registered insurance company and the second is member benefits provided at the sole discretion of a member organisation.

Something that is not often well understood is that a registered insurance company retains the discretion to provide benefits in excess of its contractual obligation but never less than the contractual benefit. Should an insurer fail to live up to its contractual obligation, the insured has access to industry and regulatory and legal mechanisms to demand due performance from the insurer. An insurance contract provides contractual certainty to a health professional over the indemnity protection he or she enjoys.
In contrast, discretionary member benefits are exactly that. The circumstances under which assistance is provided and the nature and extent of the assistance are at the sole discretion of the member organisation. Where a member is denied assistance or is dissatisfied with the level of assistance provided, they have no recourse to demand performance against the discretionary promise made.

Conclusion
A treating health professional owes any bona fide patient a duty of care irrespective of the funding arrangement or facility utilised and this gives rise to a potential legal liability. The merit test as used in South Africa remains the benchmark against which legal liability is assessed. It is important to know and understand the professional indemnity cover you have and how this will respond in the event of action against you from the treatment of State patients.

As is said: “It is all fine until it’s not…”