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Medicolegal advice 0800 014 780

Public or private: Know your service

The range of assistance on offer from MPS varies according to your role as either a state or private doctor. Gareth Gillespie clarifies the differences

Differences in MPS subscription rates paid by state-employed doctors and private practitioners in South Africa have led to occasional queries – and numerous misconceptions – about exactly what members are getting for their money.

Although a number of factors influence the setting of subscription rates – the level of risk carried by a member’s specialty being one obvious example – they are also affected by the range of services that the member can request of MPS.

The only difference between what MPS can do for doctors working in the public sector and for those working privately is in handling claims for clinical negligence. 

MPS members who practise privately are entitled to request assistance on all aspects of a claim, meaning MPS can manage it from first notification to conclusion, and can take care of all the legal costs and compensation payments. For members working in the public sector, this is handled by the state. 

The only difference between what MPS can do for doctors working in the public sector and for those working privately is in handling claims for clinical negligence

Dr Graham Howarth, Head of Medical Services (Africa) at MPS, said: “A common misconception I encounter when speaking to members in South Africa is that private doctors are somehow ‘subsidising’ our state-employed members.

“They point out the difference in subscription rates and mention how they see massive payouts on behalf of state doctors – but MPS isn’t paying it: the state is.”

Clinical negligence claims against state doctors may be handled by the province, but there are still many forms of MPS assistance on offer to public sector doctors.

The following case, taken from MPS files, outlines how a single situation can lead a doctor through numerous lines of enquiry – and MPS can help at each stage.

Case study

Dr S, a community service doctor, informed MPS of an adverse incident and sought advice on how to manage the fall-out of a case she had been involved in. Unfortunately a patient had died and Dr S was concerned that her involvement in the care of the patient was open to criticism.

It was clear to the medicolegal adviser who spoke to Dr S that the member was extremely concerned and, under the circumstances, Dr S was referred to the MPS counselling service for support. Based on the details of the case and the likelihood of the matter progressing, MPS opened a file and panel solicitors were instructed to investigate the matter.

The medicolegal adviser asked Dr S to write detailed notes of her recollection of events and forward them to the local solicitors, when they contacted her. Dr S also made a copy of the salient clinical notes. As predicted, an inquest followed and the family subsequently complained to the HPCSA. MPS’s solicitors were able to assist Dr S with both. It was fortunate that she made additional contemporaneous notes and had a copy of the relevant hospital records, as the hospital had misplaced the file.

Despite Dr S’s initial reservations about the care she had given, she was not criticised at either the inquest or by the HPCSA. The family remained dissatisfied, however, and initiated a claim against the hospital – with Dr S as a named defendant, along with the local MEC for Health. Although the benefits of MPS membership do not extend to covering claims in state hospitals, MPS’s lawyers were able to assist Dr S in drafting her report.

The state attorney was also a little slow in initiating a defence for the member, and the MPS attorneys wrote to the state attorney to remind the state of its obligations of vicarious liability, as set out under Paragraph 12 of the Treasury Regulations (April 2001) – issued in terms of the Public Finance Management Act, 1999.

The unique benefits of MPS assisting public sector doctors in these different areas are:

  • HPCSA referrals – sometimes it is the staff at a state hospital who refer one of their doctors to the HPCSA. Clearly the state would not pay for the defence of one of their doctors at the HPCSA – particularly if they referred the doctor in the first place.
  • Complaints – doctors can be asked by hospital managers to respond to complaints about clinical care and, essentially, this response is on behalf of the state. MPS is here to defend the interests of members, and one aspect of assisting with complaints responses is to ensure the blame isn’t shifted on to the doctor.
  • Inquests – conflicts of interest may arise between the state and a doctor during an inquest and, because of this, it may not be in a member’s best interests to rely solely on the representation of a state attorney. Conversely it may not be in the member’s best interests to be separated out from the rest of the staff involved; MPS can advise on the best approach in any given situation.
  • Claims – as already discussed, MPS does not handle clinical negligence claims on behalf of state doctors – but we can assist in some areas, such as writing reports. 

As seen in the case above, we can intervene to speed up certain aspects of the proceedings, such as ensuring the state swiftly arranges representation for a member. Of course, private doctors who are members of MPS are also entitled to request access to the full range of services described above, in addition to the handling of clinical negligence claims. It is the cost of handling and, at times, settling of claims that accounts for the higher subscription rates that private doctors pay.

There is also the preventative value of MPS’s education and publications: the educational programmes provided by MPS are based on more than 120 years’ experience and expertise in this field, and include topics such as clinical risk management, and professionalism and ethics.

MPS’s serial publications, such as Casebook, are designed to support these educational initiatives. MPS is committed to safeguarding the interests of members and, for both public and private doctors, the discretionary nature of MPS protection means that assistance can be requested for a wide range of difficult scenarios.

Private doctors who are members of MPS are also entitled to request access to the full range of services described above, in addition to the handling of clinical negligence claims

Box 1: Treasury Regulations 2001

12.2 Claims against the state through acts or omissions [Section 76(1)(h) of the PFMA]

12.2.1 An institution must accept liability for any loss or damage suffered by another person, as for a claim against the state, which arose from an act or omission of an official, provided –

(a) the act or omission was the cause of the loss, damage or reason for the claim;

(b) the act or omission did not involve the use of alcohol or drugs;

(c) the official acted in the course of his or her employment and was not reckless, wilful or malicious;

(d) the official did not fail to comply with or ignore standing instructions, of which he or she was aware of or could reasonably have been aware of, which led to the loss, damage or reason for the claim, excluding damage arising from the use of a state vehicle; and

(e) in the case of a loss, damage or claim arising from the use of a state vehicle, the official –

(i) used the vehicle with authorisation for official purposes;

(ii) possesses a valid driver’s licence or other appropriate licence;

(iii) used the vehicle in the interest of the state;

(iv) did not allow unauthorised persons to handle the vehicle;

(v) did not deviate materially from the official journey or route without prior authorisation; and

(vi) did not, without prior consultation with the State Attorney, make an admission that was detrimental to the state.

12.2.2 If in doubt, the accounting officer of the institution must consult the State Attorney on questions of law on the implementation of paragraph 12.2.1.

12.2.3 Except when an institution has accepted liability in terms of paragraph 12.2.1, an amount paid by the institution for losses, damages or claims arising from an act or omission of an official must be recovered from the official concerned if the official is liable in law to compensate the institution.

12.2.4 The State Attorney may only obligate the funds of an institution with the prior written approval of the accounting officer. 

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