Donald Dinnie

Part 1*

As a general rule an employer, such as a private hospital or, the
Province, in the case of a state health facility, is liable for the wrongful
and negligent or intentional conduct of its employees committed in the course
and scope of their employment.
  This is
known as “vicarious liability”. Nevertheless, an employee does not cease to be
liable in their own right to the patient or their dependents because of their
employer’s vicarious liability.

In most medical negligence cases related to public hospitals, the
patient cites the MEC for Health of the relevant Province as the main defendant
and claims an award of damages against the MEC. The specific doctor or other
healthcare professionals involved are sometimes also cited as defendants, but
it is expected that any award granted by the court will be paid by the
province’s department of health. This has led to huge liabilities in relation
to medical malpractice claims for the relevant departments of health. In an
effort to curb the expense and probably also to deter the negligent conduct of
its doctors, Gauteng Personnel Circular Minute 43 of 2019 explores the ways in
which the government can recover damages awards from the healthcare
professionals at fault.

The employer, who is liable as a result of harmful conduct committed by
the employee, is bound together with the employee to compensate the person who
suffers damages as a result of the employee’s wrongful and negligent (or
intentional) conduct. However, in most medical malpractice cases, the state
pays the award and the medical practitioner is shielded from liability.

It does not avail the employer to protest that it had specifically
forbidden the employee to do the particular conduct complained of or directed
the employee “not to be negligent.”
 

A distinction must be made between instructions which generally define the
course and scope of employment, and instructions relating to the specific
conduct of the employee acting in the course and scope of the employment. An
employee appointed to perform one function is not acting within the course and
scope of their authority when they perform an entirely different function. A
negligent or intentional breach by the employee of the employer’s instructions
would found the basis of recovery action by the employer against the employee,
where such disobedience results in the liability of the employer to a third
party. 

At common law, the employer can sue the employee for damage caused by
the negligent conduct of that employee. An employer has that remedy in respect
of its employees for their negligent or intentional conduct, but that is not
absolute and does not amount to an unqualified duty by the employee to
indemnify the employer. There is at least an implied term in the employment
contract between the employer and the employee that the employee will use
reasonable care.

In Jones v Manchester Corporation [1952] 2 All ER 125 CA, the English
Court of Appeal dealt with a matter in which the second defendant was a
physician, qualified for five months, employed by the third defendant, a
hospital, for duties including the administration of anaesthetics at the
hospital. In the course of surgery and anaesthetic, the patient died. There was
a claim put forward by the widow of the patient, for damages as a result of the
alleged negligence of both the doctor and the hospital. 

The court held that the employer is not entitled to an indemnity from an
employee if:

·        
the
employer has contributed to the damage done by the employee; or

·        
bears
some responsibility for it; or

·        
the
negligence of some other and senior employee has contributed to that damage.

On the facts, the court held that the hospital, via the hospital board,
had been negligent in leaving the administration of a dangerous anaesthetic to
an inexperienced doctor without adequate supervision; and that a hospital
employee, a senior surgeon, had also been negligent. The anaesthetist was not
entitled to a complete indemnity, since she had also been guilty of a
substantial degree of negligence.
  The
court apportioned contributions between the hospital and anaesthetist at
one-fifth, and four-fifths, respectively. The court said that the hospital was
entitled to accept that the anaesthetist had the knowledge and skill of a newly
qualified doctor, and would exercise that skill.
 

In the circumstances there was also an implied undertaking by the
hospital that they would provide some reasonably competent person to work with
her or to guide her in case of difficulty. One of the judges, in a rather
patronising and sexist comment, said :

“I think to put a weapon like a barbiturate within the reach of a girl
who has only been qualified for five months and expect her to handle it
accurately, with sufficient knowledge and experience – to watch the way a
patient has to be watched – is simply asking for trouble. I cannot help it if
it is common practice.”

In another English judgment of Gregory v Ford 1951 ALL ER 121, an
employer sought an indemnity from its employee who had negligently driven a
vehicle, causing injury to the plaintiff, for which the employer was
vicariously liable. Both the employer and employee had been sued by the
plaintiff.

The court held that there was an implied term in the contract of service
that the employee shall not be required to do an unlawful act. In the case,
driving a vehicle that was not properly insured for third-party liability under
the relevant legislation was an unlawful act, and the employee was entitled to
recover its damages being the amount which the employee was liable to pay the
plaintiff. The court said that whilst the accident was also caused by the
negligence of the employee, the fact that the damages fell on the employer was
not due to the employer’s negligence but a breach of the duty under the
relevant road traffic legislation. Therefore, the claim by the employer to be
indemnified by the employee failed.

The recently issued circular of the Gauteng Department of Health,
Personnel Circular Minute 43 of 2019, reiterates the Province’s vicarious
liability for the negligent conduct of its doctors acting in the course and
scope of their employment – but also highlights the duty of those doctors as
employees to the Province and the circumstances in which the Province may be
able to recover damages that the Province is liable for to third parties, from
its doctors. 

Regulation 12.2.1 of the Public Finance Management Act 1999, as read
with Section 76(1)(h) of the Act (the current version is as published under
Government Notice GN R874 on 15 November 2013), reads:

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, which arose from
an act or omission of an official as a claim against the state and does not
recover compensation from an official, provided the official shall forfeit this
cover if he or she, with regard to the act or omission, is liable in law and –

(a) intentionally exceeded his or her powers;

(b) made use of alcohol or drugs;

(c) did not act in the course and scope of his or her employment;

(d) acted recklessly or intentionally;

(e) without prior consultation with the State Attorney, made an
admission that was detrimental to the state; or

(f) 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, excluding damage arising from the use of a
state vehicle; and

(g) …

12.2.3  Where an official has
forfeited his or her cover in terms of paragraph 12.2.1, the amount paid by the
institution for the loss, damage or claim arising from an act or omission must
be recovered from the official concerned …

12.7     Losses or damages through
acts committed or omitted by officials [Sections 76(1)(b) and 76(4)(a) of the
PFMA]

12.7.1  Losses or damages suffered
by an institution because of an act committed or omitted by an official, must
be recovered from such an official if that official is liable in law.

12.7.2  The accounting officer must
determine the amount of the loss or damage and, in writing, request that
official to pay the amount within 30 days or in reasonable instalments. If the
official fails to comply with the request, the matter must be handed to the
State Attorney for the recovery of the loss or damage.

 12.7.3  A claim against an official
must be waived if the conditions in paragraph 12.2.1(a) to (g) are not
applicable.

 12.7.4 If in doubt, the accounting officer of the institution must consult
the State Attorney on questions of law in the implementation of paragraphs
12.7.1 and 12.7.3.

In this light, recovery against the employee doctor is only permitted in
the circumstances set out in regulation 12.2.1(a) to (f).

(To be continued)

*Part 2: In the interest of length, Part 2 to be posted on Med Brief Africa, Friday 11 October 2019

 

Author: Donald Dinnie, Medical Defence Consultant