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Earn 6 mEdical law pointsmedical law ethics

OctOber 2016

Prof Gert SaaymanMBChB(Pret), BMChB, MMed(MedForens) (Pret), FCForPath (SA)Head of the Department of Forensic Medicine School of Medicine Faculty of Health SciencesUniversity of Pretoria

specialist care and medical law ethicsthis review from the 2016 m & m cardiology meeting: merging medical and mechanical management provides expert guidance on medico-legal and ethical aspects affecting specialist cardiology practice in south africa today.

medical professionalism, and the elephant in the roomHigh profile cases internationally and at home, where doctors have behaved unprofessionally and where patients have been compromised financially or died as a result, have been detrimental to public perception of healthcare and have contrib-uted to mistrust between the public and the medical community. In tandem with this, recent changes in South African law now stipulate that all deaths in a medical care environment - where such care might have caused or contributed to mortality or complications resulting in death - must be referred for medico-legal investigation (as prescribed by the Health Professions Act and the Inquest Act). These factors, in combination with the tightening of reg-ulations around payments from the Road Accident Fund, have also resulted in many legal practitioners in South Africa turning their attention to litigation in the field of medical service delivery.

Medico-legal claims are increasing dra-matically. Between April 2014 and March

2015, claims against the Gauteng Health Department reportedly rose from R9 bil-lion to R13 billion – an increase which does not reflect claims in the private sector, the value of which is uncertain. Nevertheless, because it often takes 3-5 years for these claims to formally manifest in legal pro-ceedings, it probably represents only the tip of the iceberg in pending litigation. Medico-legal enquiries are prolonged and drawn-out, often requiring hospital enquiry, formal inquest proceedings, crim-inal prosecution, civil litigation enquiry as well as disciplinary inquiry by the HPCSA – all arising out of one adverse outcome incident. The multiplicity of such enquir-ies may well be argued as being in breach of the constitutional principle of “double jeopardy”, whereby someone should not be subject to prosecution or inquiry more than once for the same offence – and also places extreme physical, emotional and financial strain on health care practition-ers involved.

This article was made possible by an unrestricted educational grant from medtronic, boehringer ingelheim and Ge healthcare, which had no control over content.

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In turn, the threat of litigation has had considerable impact on the practice of medicine, causing doctors to become defensive and to over-service clients (e.g., unnecessary investigations, imaging, referral to specialist care) to pre-empt and/or avoid accusations of medical neg-ligence. Of course, this has a significant impact healthcare costs and expenditure.

Consequently, it is essential that medi-cal professionals understand the grav-ity of the potential for litigation, how to avoid it and how to respond appropriately should it happen to them.

These processes include ensuring that one always acts professionally and in the best interests of the patient and good clin-ical practice, adherence to adverse event protocols and constant review. Most importantly, however, meticulous docu-mentation must always be maintained, including communication with patients and their families, informed consent and detailed notes should a complication occur or if a patient dies while under med-ical care. Where there is doubt, a forensic pathologist should always be consulted and details of this must be documented.

There is an urgent need for implemen-tation of peer review procedures to assess the appropriateness of the care provided, especially in fatal outcome cases where

civil or criminal proceedings may follow. Currently, forensic pathologists are rou-tinely called upon to advise state agen-cies on such outcomes and perspectives, but it is argued that a more accountable process of speciality-specific peer review is required to determine whether negli-gence may be inferred in a particular case. However, when approached for assistance, doctors and their specialist societies have been very reluctant to engage on an indi-vidual case basis, citing time constraints and lack of willing participants, as well as an aversion to become involved in what may be confrontational and protracted legal proceedings. In addition, very few colleagues are prepared to be seen to be sitting in judgement of others – often resulting in senior colleagues in state / academic practice being called upon to become involved.

Nevertheless, these peer review struc-tures must be established if the medical profession is to regain its respect in the eyes of the public and to retain profes-sional autonomy and self-regulatory status. Without this it may become the subject of control by other parties and processes, often based upon uninformed opinions and led by bureaucrats, legal practitioners and politicians.

ethics, emotions, eventualities: the agony of the elderly in the cath labCardiovascular disease is a major cause of morbidity and mortality in the very elderly and the number of elderly individ-uals presenting for coronary procedures, such as percutaneous coronary interven-tion (PCI), is growing rapidly.

There is an argument that provid-ing care which prolongs the lives of the elderly who are “no longer serving soci-ety” is a burden to the youth of that soci-ety. Medical technological progress means that life may be prolonged at all costs and, since there are no boundaries to the needs of the elderly, prolonging life drains a pool of resources that should be made available to all age groups. Therefore, health care should be rationed on the basis of age.

Proponents argue that life-extending medical care should not be provided

by the government for individuals aged older than 70 or 80 years, and healthcare spend should be aimed solely at reliev-ing their pain. This course of action serves the greater good of the greatest number of people, because society ben-efits from increased economic produc-tivity, and medical resources can then be diverted from elderly, retired people to younger productive members of society. Withholding treatment from the elderly is not unjust, because the youth of today will eventually become elderly and subject to the same restrictions. Therefore, over-all, everybody will be treated equally.

Antagonists of this paradigm argue that any rationing policy depriving the aged of life-saving medical care would result in high costs and few benefits. That peo-ple would become anxious as they grow

Dr Guy Letcher FCP (SA), Cert Cardiology (SA)Specialist Physician/CardiologistBusamed Paardevlei Private HospitalSomerset West

MEDICAL LAw EthICs

disclaimerThe views and opinions expressed in the article are those of the presenters and do not necessarily reflect those of the publisher or its sponsor. In all clinical instances, medical practitioners are referred to the product insert documentation as approved by relevant control authorities.

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older, ending in despair in old age, and antagonism between the young and the elderly. There is no guarantee that finan-cial savings would be redirected back to the youth or that they would result in any real health benefits in the overall popula-tion. Rather, money to finance healthcare should be found by diverting funds from military spending and by reducing costs of inefficiencies and waste within the health system. In moral terms, the argument of justice and rights stipulates that all people should be treated equally and with respect, regardless of age. Healthcare should be provided based on need, likelihood of recovery and likelihood of improving quality of life. Elderly people are individu-als and one cannot generalise about what they will contribute or achieve in their later years. Many elderly people contrib-ute greatly to society, whereas some youth do not contribute at all. Regardless, older people may also have dreams and goals and are equally deserving of good quality of life. Moreover, treating the youth merely as a means toward economic productivity denies their dignity as individuals.

A further problem in this debate is the defining age that would qualify a person as being “old”. Age distribution in socie-ties around the world are very different and change over time. For example, in the USA there is a similar proportion of individu-als at the various age groups from birth to 69 years, only declining significantly in number thereafter. In Japan, the majority of the population fall between the ages of 25 and 70 years. By comparison, 75% of the South African population are younger than 40, with only 3% older than 69 years.

Outcomes of cardiac procedures are not necessarily predicted by age. With advances in medical technology in recent years, even patients older than 80 years do well, achieving excellent early and imme-diate outcomes and good quality of life. Furthermore, medical procedures in this group may be associated with significantly better outcomes than medical therapy, and older patients paradoxically have greater absolute and relative risk reduc-tions associated with cardiac procedures than do younger patients.

Further reading1. Howarth G, Hallinan E. Challenging

the cost of clinical negligence. SAMJ 2016; 106(2):141-142.

2. McQuoid-Mason DJ. ‘Over-servicing’, ‘underservicing’ and ‘abandonment’: what is the law? SAMJ 2015; 105(3): 181-182.

3. Guidet B, Hodgson E, Feldman C, et al. The Durban World Congress Ethics Round Table Conference Report: II. Withholding or withdraw-ing of treatment in elderly patients admitted to the intensive care unit. J Crit Care 2014; 29(6): 896-901.

4. Rubin EB, Buehler AE, Halpern SD. States worse than death among hospitalized patients with serious illnesses. JAMA Intern Med 2016 1 August. doi: 10.1001/jamainternmed.2016.4362.(Epub ahead of print).

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This module was written for www.denovomedica.com by Dr David Webb.