Medical law – “Negligent misstatement” of a patient’s HIV status: what risk befalls the health care provider?

 1. In the matter of Geldenhuys v National Health Laboratory Services 2014 JDR 1656 (GP) the appellant (Ms Geldenhuys) instituted action against the respondents (the National Health Laboratory Services and the MEC for Health and Welfare, Limpopo) for damages suffered as a result of an alleged negligent misstatement in respect of her HIV status. The Court a quo dismissed the claim and the appellant brought the matter on appeal.

Background Facts

2. After presenting with certain untoward symptoms during February 2002, the appellant decided to undergo two blood tests at the Provincial Hospital in Pietersburg in order to establish her HIV status. She underwent the first test on 8 February 2002, the results of which revealed that she was “reactive”, which meant that she was HIV positive.

3. The attending doctor at the time instructed the matron of the hospital to inform the appellant of the results of the first test. The doctor thereafter destroyed the test results.

4. The matron testified that she commenced the interview with the appellant in her office on 11 February 2002 but did not continue as the results of the second blood test became available for collection. The matron left the consulting room to collect the said blood test result in order to inform the appellant of its contents.

5. The second blood test, which had been taken on 10 February 2002, revealed an indeterminate result, i.e. the antibodies of the appellant were insufficient to confirm the HIV serology. In laymen’s terms, the appellant’s blood would not allow for a conclusive test and thus the test did not confirm the appellant’s HIV status.

6. The appellant testified that she was informed by the matron that she was, in fact, HIV positive. The matron, on the other hand, testified that she informed the appellant of the result of the second blood test as being indeterminate but that the appellant should in any case treat herself as HIV positive until she could confirm her HIV status by undergoing further conclusive HIV tests. The matron then destroyed the second blood test, which she later testified was standard procedure and done in order to protect the appellant’s privacy.

7. On the respondent’s version of events, since the second blood test was indeterminate and it could not be established whether the appellant was HIV positive or not, she was advised by the matron to repeat the test in six weeks.

8. The appellant underwent a further blood test on 12 February 2002, which revealed that she was “incontrovertibly” HIV negative.

Court a quo

9. On an agreement between the parties the Court a quo was called on to decide:

9.1. Whether the appellant had been told she was HIV positive;

9.2. Whether the appellant thereafter tested negative for the syndrome;

9.3. The aspect of negligence; and

9.4. The aspect of damages.

10. It would appear that the Court a quo had some difficulty evaluating either party’s version as both sets of the blood test results (8 and 10 February 2002) were destroyed. The Court a quo could therefore not consider the content of such blood tests and neither party attempted to recreate copies of the said blood tests in order to assist the Court a quo in its evaluation of the evidence.

11. The Court a quo ruled in favour of the respondents on the basis that it favoured the version of events put forward by the matron, which was the more likely of the two versions on the basis that the matron was an experienced HIV counsellor. The Court a quo held further that the appellant had suffered no damages. As such, the matter was brought on appeal by the appellant on both these findings.

12. In order for the appeal to have succeeded, the appellant was required to establish that the Court a quo’s evaluation of the evidence was flawed.

Appeal Court

13. On the basis that the appellant’s cause of action was based on a negligent misstatement, the appeal Court considered two possible scenarios with regard to the available evidence:

13.1. If the appellant’s version is to be accepted, the first scenario whereby the matron informed the appellant that she is HIV positive (based on the content of the first blood test) as was conveyed to the matron by the attending doctor, does not qualify as a misstatement, but a mere conveyance of the facts as they were at that stage.

13.2. Secondly, on the premise that the attending doctor misinterpreted the first blood test and it did not, in actual fact, reveal the appellant to be “reactive”, then a misstatement would have indeed occurred (the matron informing the appellant that she is HIV positive based on the doctor’s misinterpretation of the first blood test). The appellant has, however, not pleaded her cause of action as one based on the matron’s negligence in “not checking” the doctor’s advice. Had the appellant not relied on a negligent misstatement as her cause of action, the outcome may have been different.

14. Consequently, the appeal Court held that the appellant had failed to prove that the Court a quo had erred in its evaluation of the evidence and the appeal could not succeed.

15. The appeal Court went on to consider a further reason why the appellant could not succeed.

16. The appellant underwent a further blood test which revealed that she was HIV negative three days after she was informed of her status by the Matron. On the appellant’s version she considered herself HIV positive for the three day period but on the matron’s version the appellant thought that she may have been HIV positive for the three day period. The appeal Court had to consider the damages suffered by the appellant during this three day period on both versions put before it.

17. The appeal Court agreed with the Court a quo that the appellant had failed to prove that she had suffered damages during the said three day period between thinking that she was or may have been HIV positive and having her negative HIV status confirmed.

Conclusion

18. In terms of section 13 of the National Health Act 61 of 2003 (“the Act”), the person in charge of a health establishment must ensure that a health record containing such information as may be prescribed is created and maintained at that health establishment for every user of health services. The Act also creates an obligation that all information concerning a patient, including information relating to his or her health status, treatment or stay in a health establishment is confidential.

19. The Ethical Guidelines for Good Practice with regard to HIV of the Health Professions Council of South Africa further creates a duty on health care practitioners to treat HIV test results of patients with the highest possible level of confidentiality. Health care establishments and health care practitioners (hereinafter collectively referred to as “health care providers”) need further bear in mind that all persons with HIV or AIDS have the legal right to privacy in terms of the Constitution of South Africa.

20. In casu, the matron testified that the act of destroying the HIV blood test results was in accordance with standard procedure and with a view to protect the appellant’s privacy. It must be noted, however, that there is no provision made in legislation whereby health care providers are required to destroy HIV blood test results.

21. In order to adhere to the provisions of the Act and to avoid situations of “he-said-she-said” with regard to disclosures of a patient’s HIV status as is seen in this case, health care providers must maintain patient records. Furthermore, it is shrewd for health care providers to be aware that, in general, insurance policies include provisions relating to the keeping of records and a failure to maintain proper records may prejudice a health care provider’s cover in terms of its insurance policy.

22. The crucial element with regard to maintaining patient records is that such records remain confidential. It would appear that there is a duty on health care providers to take reasonable steps to safeguard such records in order to prevent a breach of that confidentiality and a patient’s right to privacy. It must be borne in mind that, with regard to records relating to a patient’s HIV status, a stricter criterion is applicable, being the highest possible level of confidentiality.

Medical Law – HPCSA Professional Board Nominations – CHOOSE YOUR PEERS WISELY!

The Health Professions Council of South Africa (“HPCSA”) are inviting medical practitioners to submit nominations for members of their respective Professional Boards, which members will be appointed by the Minister of Health to serve on the respective boards for a new term of office effective 1 July 2015 to 30 June 2020 (5 years).

THE PROFESSIONAL BOARDS:

The Professional Boards are co-ordinating bodies for healthcare practitioners registered with the HPCSA. Each Professional Board deals with matters relating to its specific profession, including maintaining and applying fair standards of professional conduct and practice in order to effectively protect the interests of the public, as well as investigating complaints made against practitioners.

The members of the Professional Boards, inter alia, have the authority to institute disciplinary proceedings with regard to a complaint, charge or allegation of unprofessional conduct made against a practitioner, in which event the practitioner will be subjected to a disciplinary process in terms of the HPCSA regulations. The committee responsible for adjudicating the matter will consist of, inter alia, members of such practitioner’s particular Professional Board.

A board member is required, inter alia, to be a South African Citizen registered with the HPCSA, not previously sequestrated and/or disqualified from practicing his or her profession under the Health Professions Act, and not previously found guilty of improper or disgraceful conduct at a disciplinary inquiry. Furthermore, a person shall not be considered for appointment should he or she have served two consecutive terms of office on a Professional Board.

 NOMINATIONS:

Nominations have to be made on a nomination form signed by the nominator and must reach the HPCSA by no later than 16:30 on 30 October 2014.

Each nomination form must propose only one person as a nominee. The nominee must accept the nomination by way of signature on the nomination form or by letter or facsimile received by the HPCSA not later than the closing date for nominations.

The nomination forms and further information regarding the nomination process can be found on the HPCSA’s website, the links of which are provided below for ease of reference:

http://www.hpcsa.co.za/About/ProfBoardsNominations

http://www.hpcsa.co.za/Content/Docs/regulation_gnr979_99.pdf

http://www.hpcsa.co.za/Content/Docs/regulation_gnr1257_2008.pdf

IN CONCLUSION:

It is important that the members of the respective Professional Boards are competent, fair, experienced and well respected medical practitioners as they will determine the standards of the profession. The nomination process provides practitioners with an opportunity to be involved in the selection of these members, thereby allowing them input in the future development of the ethical standards of their respective profession.

Medical Law – A surgical complication does not per se amount to negligence

In the recent case of Buthelezi v Ndaba 2013 ZASCA 72 the Supreme Court of Appeal confirmed the principles involved when drawing inferences as to negligence on the part of a surgeon where a known complication arises.

Dr Buthelezi, the appellant, performed a total abdominal hysterectomy on Ms Ndaba. She developed a vesico-vaginal fistula, which she alleged was due to the doctor’s negligence during performance of the surgery. The Court a quo agreed with Ms Ndaba and found that Dr Buthelezi was negligent.

On appeal, the Court referred to the locus classicus on medical malpractice, Van Wyk v Lewis 1924 AD 438, wherein it was held that the maxim res ipsa loquitur (the facts speaks for themselves) cannot find application in cases based on alleged medical negligence “because the human body and its reaction to surgical intervention is far too complex for it to be said that because there was a complication, the surgeon must have been negligent in some respect.”

In essence, the Supreme Court of Appeal held that where a known complication of a surgical procedure presents itself, the Court cannot solely on the presence of such complication assume negligence on the part of the surgeon. The mere fact that a surgical complication occurred does not in itself justify an inference that the surgeon was negligent in some way.

The Supreme Court of Appeal referred to Hucks v Cole 1986 LJ 118 and Castell v De Greef 1993 (3) SA 501 (C) and affirmed the test for negligence in the case of a medical practitioner, being whether the practitioner exercised reasonable skill and care and whether his conduct fell short of the standard expected of a reasonably competent practitioner in his field of expertise. The aforementioned cases held that a practitioner is not to be held negligent “simply because something went wrong”.

The Supreme Court of Appeal further held that a court has to consider the opinions of expert witnesses regarding a surgeon’s negligence, but ultimately the decision as to the negligence of the surgeon’s conduct falls within the Court’s discretion. Where the experts’ opinions are in conflict, the determination of negligence must depend on an “analysis of the cogency of the underlying reasoning which led the experts to their conflicting opinions”. In effect, the Court will favour the expert’s opinion that is founded on sound principles and is well supported.

The expert witness for Dr Buthelezi testified that a fistula is a widely recognised complication of hysterectomy procedures and cannot always be avoided. Based on the principles set out above, the Court was unable to draw an inference of negligence on the part of Dr Buthelezi. The Supreme Court of Appeal consequently upheld the appeal and Ms Ndaba’s claim was dismissed.

Medical Law – Naming your Practice

The Health Professions Council of South Africa’s (“HPCSA”) Ethical Rules of Conduct contain strict rules with regard to the naming of a medical practice. Failure to comply with these rules may result in disciplinary action by the HPCSA and a guilty finding of unprofessional conduct could attract a fine.

Rule 5 of the Rules of Conduct provides that medical practitioners are obliged to make use of their own names when naming their medical practices. In the event that a medical practitioner practices in a partnership or as part of a juristic person, he or she is entitled to make use of the name of the registered practitioner with whom he or she is in partnership or practices as a juristic person.

Should one of the partners of the partnership or a member of the juristic person die, relocate or leave for another reason, the remaining practitioner(s) may retain the existing practice name on condition that the express consent of the erstwhile partner or member is obtained. Where such erstwhile partner or member is deceased, the consent of the executor of the estate or next of kin will suffice.

A practitioner may not use the words “hospital”, “clinic” or “institute” or any other expression which may give the impression that such private practice forms part of, or is in association with, said entities.

Medical practitioners do not have free rein when naming their practices. Non-compliance with the requirements in this regard as contained in the Health Professions Act (56 of 1974), and the rules and regulations made in terms thereof, could result in severe ramifications for the practitioner concerned.