For healthcare practitioners, the Covid-19 pandemic has created a totally different practice scenario with many doctors struggling to fulfil their primary professional obligations in a highly stressful, uncertain and constantly changing environment. On top of that, the financial impact of the pandemic on some specialties and practices, seeing their colleagues succumb to the virus, and possible medico-legal issues arising from the uncertainties around treatment, lack of resources, having to work outside their scope of practice and delaying treatment for patients with non-Covid-related conditions are adding to an already untenable situation.
MedBrief Africa co-editor, Marietjie van den Berg spoke to EthiQal’s head of clinical risk management, Dr Bettina Taylor and medico-legal risk advisor, Dr Hlombe Makuluma about some of the key issues, doctors are struggling with both in terms of their practices and the decisions they have to make in an environment that is becoming increasingly hard to navigate.
What has Covid added to an already overwhelmed healthcare situation?
In general, doctors who have been at the coalface of treating COVID patients in both the private and public sector have been subjected to stressors – physical fatigue of constantly being in PPE, working long hours, fear of being infected and taking the virus home, and seeing their colleagues die have taken a huge toll on their physical and mental wellbeing.
In the private sector, the financial impact of the pandemic has created significant challenges to the sustainability of many practices particularly on those doing elective work. Apart from having to delay elective procedures constantly, the Covid protocols that must be followed have slowed everything down, impacting on the efficiency of practices. In addition, patients’ fears of getting infected have resulted in delayed consultations and treatment.
When we renew our indemnity policies, we get a sense that not all practices have been affected equally, with significant differences seen even within the same specialty group – some, particularly those that do emergency work, have stayed the same or may even have grown in terms of predicted patient load and annual income; others, like those focusing predominantly on the performance of non-urgent elective procedures are taking tremendous strain. An obstetrician and gynaecologist whose practice is focused mainly on gynaecological conditions has been affected differently to someone who caters mainly to mothers-to-be.
There are concerns that some practices will have to close shop in the long term, but we have not witnessed those trends yet as many doctors are trying to ride out the storm in the hope that things will return to normal eventually. It is expected that those who have been struggling, will continue to struggle this year, and will start looking at other options such as emigrating or taking early retirement or moving practice. Amongst surgical specialists insured by us and who represent our target market, less than a handful of practices have closed their doors during surges of the pandemic for fear of being infected themselves. Their resilience as they charter uncertain territories has been remarkable.
What are the most pertinent medico-legal issues that have come to the fore during this time?
Indemnity to treat state patients
Initially, when there were fears that public hospitals will be overwhelmed with COVID patients and private hospitals were negotiating with government to make beds available for state patients, there was a lot of uncertainty about whether private doctors will be indemnified if something happens to one of these patients in their care. However, overflow of state patients into the private sector did not happen on the scale that was anticipated while efforts by private doctors to contract with the state to treat public patients didn’t yield much success. For peace of mind, EthiQal gave doctors the assurance that they will be protected should something happen with a state patient in a private facility if they could provide us with the contract that they have entered into with the state so that we know what the arrangements are. In our experience we only had one practitioner who requested indemnity for treating state patients.
Working out of scope of practice
To support the continuation of emergency care and essential services that cannot be delayed, and ensure that practitioners are protected, we have extended our indemnity cover relating to these services during the COVID-19 pandemic. Where doctors with an EthiQal policy provide emergency care and essential services in private facilities, they are eligible for cover, even where such work falls outside of their usual scope of practice and/or insurance category, and irrespective of whether they bill for the work performed, as long as the need to step outside of their usual scope of practice is mandated by the circumstances of the COVID-19 pandemic and the urgency of the clinical situation. We are doing this in good faith and relying on our doctors not to step too far outside their comfort zones. The most important issue that they need to consider is whether they could do more harm than good by intervening when practicing out of scope. What we have found is that in cases where doctors were required to work out of scope, they were roped in as part of a team led by qualified specialists such as intensivists to ensure that they don’t have to work alone or make decisions on their own. However, even if they work with a qualified specialist, they need to notify EthiQal in the event of something going wrong, culminating in a claim.
We understand the huge stressors doctors are facing in a constantly changing, uncertain and confusing environment and that it is unbelievably difficult to find a path in that quagmire. We understand that quality of care will be compromised because of issues like limited resources and constantly changing protocols and treatments, but it must not become an excuse. The onus is on every individual doctor to continue acting in the best way he/she can. What needs to be emphasised is that as much as this is a disaster scenario, which will be taken into consideration when a claim is adjudicated, quality standards must be maintained wherever possible.
We did receive a few notifications from doctors who were requested to work out of scope like a paediatrician who informed us that he had been requested to work in medical wards with adult patients. In such cases, the responsibility goes back to the doctors to ensure that they have the competence to do the work that is expected from them.
What about some of the COVID treatments that are currently being used but haven’t been approved for this specific purpose or for which the available clinical evidence is not conclusive such as ivermectin?
Informed consent remains key and this is becoming more and more important as we move into experimental healthcare. If doctors decide to use such a treatment, they should have a discussion with the patient, explaining their reasons for deciding on that route, what the possible problems or side-effects could be and what the alternatives are. They have to explain to the patient that the therapy is not registered, that it is unclear what the possible side-effects could be or whether it will work to ensure that the patient knows exactly what the situation is to be able to give informed consent.
From a legal point of view, it is not about whether the decision was right or wrong, but it is about doctors being able to state their reasons for embarking on that route and whether they could foresee that something might go wrong. To protect the doctor, this must be done in writing to ensure that there is a record of what transpired. It will also be helpful to ask colleagues to give their input if there is uncertainty so that it is a joint decision.
Have you received any claims that are specifically related to the treatment of Covid patients?
Up until now, we have received only a few notifications from doctors about circumstances that could potentially result in a complaint. These related to the delay of surgery because the results of a patient’s Covid test were not available, the transfer of a baby who needed to be resuscitated to another hospital because the normal labour ward was converted into a Covid ward, and a complaint by a mother who tested positive in the medical ICU and was not allowed to see her baby. One practitioner was reported to the HPCSA for operating on a patient before Covid results were available – nothing however came of the complaint, with the HPCSA accepting the doctor’s explanation.
What about delays in the treatment of other conditions that could potentially result in adverse outcomes?
Although the context in such cases will be taken into consideration when such claims are adjudicated, it is again about foreseeability. Doctors are obliged to weigh up the possible consequences of delayed intervention. If it was impossible to intervene because of factors such as a lack of available beds of limitations on surgery because theatres have been converted into COVID wards, these will be taken into consideration to determine if the doctor or the health facility was negligent.
Should legislation be changed to better protect doctors in this situation?
There is not much that can be done from a legislative point of view to provide doctors with extra protection as you can’t give blanket immunity even within the context of limited resources and the physically and mentally draining conditions doctors are subjected to because it won’t pass constitutional muster. Patients must be protected against gross misconduct or negligence even in unprecedented circumstances like these.
To improve the lot of doctors, capacity building and strong leadership are required. We need a strong system with good protocols that will never leave individuals to take life and death decisions on their own but that it is done by a team in a structured, systematic way.
What makes it so difficult at the moment, is that we are learning on the run and in many instances, the clinical evidence is not available yet while clinical experience hasn’t prepared healthcare professionals for what they are dealing with currently. It is therefore of paramount importance that when deciding on a specific route of care that it can be substantiated with the reasons why those decisions were taken at that specific time.