Donald Dinnie

Part 2

(Continued from Part 1: Med Brief Africa 8 October 2019)

A Province would be vicariously liable for harm caused by the negligent conduct of a doctor, performed in the course and scope of employment. The Province has no vicarious liability, however, for any negligent conduct of its doctors where that conduct was not the cause of the damage, or the doctor did not act in the course and scope of their employment. In those circumstances no question of recovery, in turn, would arise. 

Recovery is possible where the doctor intentionally exceeded their powers. That is a factual enquiry in each case. Even where the doctor exceeded their powers, their employer may still be vicariously liable for that conduct where the conduct was in the course and scope of employment and the doctor sought to perform in good faith a function of their employment.

Recovery is also possible where the doctor made use of alcohol or drugs, or acted recklessly or intentionally. Recklessness involves embarking upon a course of conduct from which harmful consequences may arise, but nevertheless persisting in that conduct or to that risk.

The exclusion of the Province’s liability for such conduct is similar to the exclusions found in professional indemnity policies. 

Recovery is further possible where the doctor, without prior consultation with the State Attorney, made an admission which is detrimental to the state. This is similar to the “no admissions” exclusion in a professional indemnity policy. It will be a factual test in each case whether the doctor’s conduct or statement constitutes “an admission” as contemplated and, if so, whether that was detrimental to the state.

There is also an exclusion regarding a doctor “who failed to comply with or ignored standing instructions, of which he or she was aware or could reasonably have been aware, which led to the loss, damage or reason for the claim …”

Regarding the exclusions referred to above, they do not apply merely because – as suggested by the Minute – the doctor “…. deviated from the norms, policies or standard rules of operation or deviated from normal duties.”

The conduct referred to in the exclusions must also be the cause of the liability. So, for example, even if the doctor made use of alcohol or drugs, there would be no entitlement to recovery where the use of alcohol or drugs did not result in the loss or damage suffered by the third party, the patient. Or where failure to comply with standing instructions did not cause that loss or damage. 

The exclusion of cover (and entitlement to recovery) regarding failure to comply or ignore standing instructions requires either:

·         ignoring those instructions, which would involve intentional disregard of those instructions; or

·         failure to comply, which may involve a refusal, but also in broader terms could simply mean neglect or omission and would involve negligent conduct. 

A Court, in the context of the Regulations, may favour a narrow interpretation that requires intent in some form. The doctor must also have been aware of the standing instructions or should reasonably have been aware of them. That is a factual enquiry in each case.

The exclusion relates to “standing instructions”. The regulations and legislation do not define that phrase and there are no judgments on the point. On the face of it, however, “standing instructions” are not equivalent to norms, policies or even standard rules of operation. In its narrow meaning, an instruction is a direction or an order which could, of course, be more broadly “detailed information on how something should be done or operated.” “Standing” is something which remains in force and in use, and which is permanent. That should be contrasted with an ad hoc instruction. 

In each case, a factual enquiry would be necessary to determine whether the failure relates to “standing instructions” that are contemplated by the regulations and where the loss or damage was caused by that failure.

Any enquiry needs to consider whether strict compliance with the standing instruction was required.  One would expect, in most circumstances, either an express or implied discretion being given to the attending doctor, where the standing instruction related to medical treatment and clinical decisions in the context of the condition (physical and mental) of the patient and the resources (personnel and equipment) available at the particular time. 

The situation would perhaps be different where it related to the making of notes and record keeping.  In most cases, absent or inadequate records would not be the primary cause of liability to a third party, but could rather lead to an inference made by the court of negligent treatment. 

In terms of all the relevant provisos referred to above, the doctor would have to be liable at common law to begin with. That would involve, amongst other things, an enquiry into the issues raised in the Jones judgment, and whether the conduct of the employer or one of its senior employees caused or contributed to that loss or damage.

So, for there to be any question of recovery by the Province against a doctor, there must :

·         first be a common law liability of the doctor to the Province;

·         and then, in addition, a liability as contemplated on one or more of the bases set out in Regulation 12.2.1.

Even where both those hurdles are cleared, having regard to Treasury guidelines, the accounting officer is not required to pursue any recovery where they are convinced that the recovery of the debt would be uneconomical, or the recovery would cause undue hardship to the debtor or their dependents. In most circumstances, a recovery against a state doctor as a state employee would be uneconomical in that the doctor would probably be without any financial resources to make good an adverse judgment (if the award were more than a few hundred thousand Rand); or, if they were, for example, through the sale of their house, this would cause undue hardship to the doctor or the doctor’s dependents. In such circumstances, the doctor would be entitled to make appropriate representations to the accounting officer, and could be entitled to expect the proper application of the principles of administrative justice in that decision-making progress. Overall, the circumstances in which the state could lawfully pursue any recovery against a doctor, in the context of regulation 12.2.1, appears to be limited. 

Recovery of any loss or damage is completely separate from, of course, the entitlement of the state to take appropriate disciplinary steps against a doctor who is negligent, and one who has caused the state loss or damage. 

Author: Donald Dinnie, Medical Defence Consultant