Director at Malcolm Lyons & Brivik Attorneys South Africa, Tzvi  Brivik, talks about the current state of medical litigation and what healthcare providers need to do to secure patient data.

Tell us about your background and how you came to specialise in medical litigation.

I specialised early in my career in labour work, which I still do. Labour work involves a wide field of expertise and is much more than just the drafting of contracts and assisting with termination of employment. Incrementally legislation has been promulgated to express the wishes of constitution which includes the protection of information, data storage, information management, and the rights that an employer has to information. I subsequently also developed an interest in and started practicing personal injury litigation, which includes medical malpractice litigation.

Although medical malpractice litigation has a large civil damages scope, it has two other main areas of interest; the first is the protection of data, which involves the proper management of records and documents. Why this is an issue is that there are GPs who treat patients’ information the same way as they did 15 or 20 years ago, or even the same way as their predecessors did. The second area is the collection of data, which is often underestimated and not considered by patients. What I’m particularly interested in is how this data should be treated and collected; where and how it should be stored; and who has a right to access a patient’s data and on what terms.

The Sunday Times recently broke a story about the R80bn large-scale scam involving medical practice lawsuits. What’s your opinion? And what role does data play in these sorts of cases?

Of course there are going to be a few rotten apples in every profession. When something like this happens it is news worthy, especially because the figure itself is astounding. But one must realise that this doesn’t happen in isolation. An amount of this size as well as the number of clients which are involved is indicative of collusion between plaintiffs, their attorneys and the state attorneys over a period of time. The state has appreciated that fact and has outsourced the medical defence litigation to a private firm to manage, which will hopefully mean there will be a proper investigation of all these matters. Apparently since the news broke many claims were withdrawn and others are not going to be pursued.

Your second question ties in with data protection. The trouble is that patients’ data is easily accessible at various levels and stages of admission to hospital and treatment. For example when a patient is involved in a road traffic accident there are police and ambulance personnel on the scene, then there are admission personnel at the hospital followed by orderlies, nurses and other first-line treatment personnel, all before the doctor is consulted. At each of those stages the patient’s details, such as the cause of injury and why they were admitted, are known and available to any one of those persons to take and illegally sell  or pass on to an attorney to manage. A large part of this story relates to the manner in which patients or clients are illegally sourced and sold on to lawyers and is linked to data which is mistreated. By law, in order for a patient to make his or her data accessible to a third party they need to make a written request and there are stipulations as to how that request is to be made. If an attorney received instructions to request the patients documentation, then an application has to be made for it in writing and attached to that application must be proof that the attorney has a mandate to act on behalf of the patient and also that the patient waves any confidentiality in favour of that attorney. Without that documentation, any data which is obtained and subsequently relied on or used is done so in contravention of legislation.

Is there such a thing as opportunistic claims targeting healthcare professionals?

There may be a public perception that litigation against healthcare providers – be they state hospitals, private hospitals or doctors – is either justified or opportunistic. But bear in mind that it’s the court’s purpose to consider whether or not there was negligence and to award compensation for damages. Anyone who pursues a claim opportunistically or in the hope of an early settlement is foolhardy because medical litigation is the most expensive type of civil litigation in the high court. The litigation’s success also revolves around the strength of the medical expert as attorneys are not doctors and need medical evidence to support the case. The attorneys obtain the documentation and form a preliminary opinion once they have received their client’s instructions and considered the story, but at the end of the day whether there was negligence, i.e. whether the defending doctor acted unreasonably under those specific circumstances, really lies in the medical field. You can only pursue medical malpractice litigation if there is negligence, and hopefully cases only go to court if there is medical evidence to support the case.

As litigation against the state is seen as spiralling out of control, there has been a proposed amendment to change the way in which the state would make payment of damages. Should this amendment be promulgated it will significantly alter litigation. What has been proposed is that claims over a million rand would be paid out in instalments and that the victims would be compelled to receive their treatment – as in future medical care for injuries  arising out of the negligent conduct of the state – at state facilities. If the law is passed, patients will be forced to receive treatment at the very institutions that caused the injury! And if the state cannot provide that treatment adequately, then the victim is free to seek treatment from a private institution, but will only be reimbursed or compensated to the extent of what it would have cost for the same treatment at a state hospital. So already there are moves a foot to try and cap pay-outs and prevent medical litigation, but that does not address the root cause of the problem, which is the quality of care provided at state hospitals.

Obviously data plays a big role in medical evidence, tell us more about that.

First of all record keeping is a requirement of medical professionals by legislation and those records must be kept and maintained. But the sad reality is that this is not the case, particularly at state hospitals. Often what happens is that by the time the patient realises that they have, for example, a claim for traumatic birth matters it could be five or even 10 years down the line and the records are lost.

The way that the law works is that the plaintiff bears the onus of proving his or her case. Therefore missing records are more harmful than beneficial to a plaintiff because how does a plaintiff allege that the care they received wasn’t optimal if they cannot establish what their condition was at the time of admission, for example if they were hypertensive or in severe pain. Of course there may be instances where a failure by the doctor to keep records is of assistance to a plaintiff. The plaintiff however will still have to demonstrate what harm arose out of the negligent care, even though that harm cannot be demonstrated on the records.

Some institutions that keep electronic records have a department that transcribes or captures the medical notes and then store them electronically. The difficulty is, as we have learnt in the course of our litigation, is that it can take up to six months to have the notes typed and stored digitally, by which time any observations or findings or courses of treatment which the doctors recommend would have already passed. In healthcare there’s a need to act quickly to restore a patient’s health; you cannot wait six months for records to become available before continuing with treatment.

While the above is primarily the case here in South Africa, we have handled matters in the US, the UK and Europe where the hospitals and doctors are fastidious in the way in which electronic records are kept, which makes it far easier for all parties to consider the medical  care which was provided. If there was negligence, matters can be settled early and avoid unnecessary legal expense. If there was no negligence, then the plaintiffs would have investigated same and hopefully received an opinion to that effect and not pursue the litigation further.

What legal process should healthcare providers follow to protect patient data?

It would be ideal if the records could be digitised and stored electronically because then it would be easier to obtain the information on request. It would also mean that an administrative process could be established for the consideration of requests for records, which would involve checking the details of the patient as well as ensuring that the request is accompanied by the correct documents as discussed above.

In large institutions such as hospitals access to bed side records should also be limited as far as possible, without interfering with the care regiment, to only necessary care providers to avoid unlawful dissemination of that information or for that information to be sold and commoditised without the patients consent.

There are various acts which assist and which provide guidelines as to how the information should be treated. These should be reviewed by practitioners; alternatively they should approach an expert in the field. It’s also important to remember that legislation imposes hefty fines if certain legal aspects are not complied with.

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