There is no greater loss than that of a loved one, perhaps particularly a child. The grief is immeasurable and all-encompassing. Loss and despair are an inescapable part of the human experience, but fortunately not faced frequently by most people. Doctors, however, can be exposed to death and suffering on a daily basis. It is part of the job. We may compartmentalise or rationalise it, but we never become accustomed to it.
Sometimes, despite our best intentions and efforts, misadventure, flawed decision-making or simple human error occurs. Sometimes it is the complexity of an operation, sometimes the nature of medicine or just the fragility of life. We are doctors, but we are also human, and we struggle to reconcile ourselves with the one thing we wanted to avoid at all costs.
Each of us has a small chapel of souls in our hearts and subconscious, where from time to time we go to pray and say again how sorry we are
Our mandate has always been: “First, do no harm”. Regrettably, this fate will at some time befall all medical professionals. Each of us has a small chapel of souls in our hearts and subconscious, where from time to time we go to pray and say again how sorry we are.
As doctors, we know the statistics. We know that in resource-deficient, developing countries like South Africa it is estimated that as many as 2% of hospitalised patients sustain an adverse event that contributes to their death. We know these odds, but we don’t fully appreciate them until one of us, as a doctor and a fallible human, makes that mistake, sometimes a small one but with severe consequences. We have to break the news to the family or loved ones who have placed their trust in us, but there are no words.
What happens when caring professionals make an unintentional error? The complaints procedures are fraught with the polarisation of doctors against their colleagues, nurses, hospitals and ancillary services, as each scrambles to avoid blame. The immediate advice from the legal/medical insurance industry is to remain silent and “await the process”.
There is most often no fully transparent, open-minded, all-encompassing professional inquiry to determine what errors took place to result in this adverse outcome. In the aftermath of such an awful event there are multiple questions that need answering. Often there is anger, blame and occasionally calls for retribution.
Accountability should be paramount but there are many ways this can be achieved. There are three pathways typically available:
• A professional inquiry typically managed by the Health Professionals Council of South Africa (HPCSA);
• A civil legal process aimed at awarding “damages”; and
•A criminal pathway — very rarely invoked — where criminal charges are laid.
These pathways can run concurrently, but usually the civil and criminal pathways await the determination of wrongdoing by the professional inquiry.
In the absence of an explanation, a reason, or even a mere apology, the injured patient or the family of the deceased sometimes turn to the criminal justice system. We have recently seen an increase in doctors being criminally accused and prosecuted. This is very rarely productive and arises from a dysfunctionality in the complaints system.
South Africa has no effective patient lobby group. Is criminal prosecution an appropriate response? In some cases, it definitely is. If the doctor was wilful or reckless, they should face the full extent of the law. Fortunately, instances of intentional harm or gross negligence are exceedingly rare, and one would hope that the training forums, peers, and the professional regulatory system would remove such individuals from practice long before they are able to harm patients.
Seeing doctors arrested and paraded in handcuffs creates an atmosphere of fear and apprehension
Instead of healing, these often-retributive proceedings may cause more harm, not only for those directly involved but for society as a whole. Seeing doctors arrested and paraded in handcuffs creates an atmosphere of fear and apprehension, where doctors feel vulnerable and may become increasingly defensive.
Some doctors will avoid risky areas of practice or resource-deficient environments. Some may even cease to practice clinical medicine, thereby limiting access to much-needed care.
One of the most significant casualties in this scenario is patient safety. Apportioning individual blame often fails to address systemic issues. Heavy-handed legal proceedings don’t adequately appreciate the realities of clinical practice.
Ideally, one would want to foster a “just culture”, one that seeks to promote an environment in which errors can be reported and rectified. This would allow professionals and organisations to learn from their mistakes and prevent their recurrence. A just culture lies at the heart of a much safer environment, which is fundamental to patient care.
Criminalising medical error will have the opposite effect. Addressing the flawed application of culpable homicide or (far worse) murder is of paramount importance. As Nancy Levenson, a specialist in system safety, puts it: “Blame is the enemy of safety.”
Individual and system accountability need to be properly balanced to achieve learning and the prevention of future harm. To achieve this, some have argued for law reform, including: the adoption of apology laws or legislation protecting safety disclosures; changing the threshold for conviction from mere negligence to recklessness or gross negligence as other jurisdictions have done; or constituting and adequately capacitating an independent medical safety investigation authority.
Several recommendations have been made to help bring about the necessary changes in our deeply flawed system:
First, after any adverse event, a consultative mediation-type process should immediately be triggered. This would allow protected disclosure of errors, often providing the answers the patients so desperately need.
Second, health-care facilities should establish policies and guidelines that provide for a multidisciplinary inquiry after an unexpected complication or death. This will allow for honest, open discussions, aimed at ensuring accountability and facilitating change. Open communication is of paramount importance.
Third, the HPCSA should promote a supportive environment and contribute to a fair and just culture. Patients and doctors alike should be able to turn to the professional regulator with their complaints and concerns before they resort to the police. This requires the regulator to be trusted, effective and transparent. This is not currently the case.
Fourth, those involved in investigations after a patient’s death should understand the complexity surrounding medical complications. Very often these are multiple system failures. Apportioning blame to an individual will not rectify this.
The South African Medical Association (SAMA) has called for specialised courts with trained experts to help tease out the complexity of multiple errors. This would encompass investigators, prosecutors and properly trained courts. The use of single expert witnesses has been proposed. We need to move away from a retributive conception of accountability to one more aligned to patient safety.
A healthy health-care system is one where all parties engage openly and honestly with the shared goal of patient wellbeing and advocacy. This can only be achieved if disclosure of mishaps can occur in a nonpunitive environment and be followed by a process of learning and correction. The current trend of defaulting to the criminal justice system will have precisely the opposite effect.
* Human is chair of the human rights and legal ethics committee at SAMA
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