Communication from the SASOG Medico-Legal Committee

The Medico Legal Committee of SASOG has been, during the term of the current SASOG Council, engaging on at least an annual basis with the three indemnity cover providers to discuss medico-legal matters that are important to SASOG and its members. For the first time in many years, more than one indemnity cover provider in South Africa are rendering services to obstetricians & gynaecologists. The three indemnity cover providers are the Medical Protection Society (MPS)(since 1957), EthiQal (since 2017), and PPS (since 2019). Summaries of the available options of all three providers are available on the SASOG website.

The SASOG Medico Legal Committee would like to share some of the important matters discussed at these meetings with its members.

1. Reporting of incidents

• Members with “claims made” and “occurrence based” (depending on the contract with the provider) products must familiarise themselves with the details of the contract between themselves and their indemnity cover providers, especially with regards to the reporting of incidents where the the possibility or potential of future litigation exists, or where members might need the assistance of their indemnity cover provider.
• It is the responsibility of members to strictly adhere to the reporting conditions of the contract in this regard, as failure to do so might result in a situation where members find themselves without cover when litigation happens. SASOG is aware of cases where members are finding themselves in situations of not being covered against a claim due to non-reporting of events that should have been reported.
• SASOG has been assured by MPS and PPS that reporting of incidents will not result in punitive measures such as escalation of indemnity cover premiums, while EthiQal highlighted that content, medicolegal case type (for example notification of circumstance, regulatory complaint) and frequency of incidents reported are all reviewed on a regular basis to identify potential vulnerabilities in practitioners’ risk profiles for purposes of guiding educational and risk management interventions, where appropriate.
• SASOG members are reminded of the HPCSA Booklet 9 (https://www.instopp.co.za/hpcsa-booklets) dealing with patient confidentiality. At the time of reporting adverse events to indemnity cover providers, patient confidentially should be respected and protected and patient information cannot be shared with indemnity cover providers without the consent of the patient. Reporting of incidents must be anonymised.

2. Alternative Dispute Resolutions

• All three indemnity cover providers support mediation and alternative dispute resolutions (ADR), and are of the opinion that these measures can result in quicker resolution of disputes at a lower cost compared to litigation.
• SASOG Medico-legal Committee strongly supports mediation and ADR and encourages its members to support and wherever possible consider or make use of mediation and ADR where it is deemed to be in members’ best interest.
• Members are encouraged to report adverse events early and pro-actively. Alternative dispute resolution mechanisms such as mediation are generally more effective at an early stage because once the litigation process has begun and legal costs have been incurred referral to mediation becomes less likely.
• Members are requested to familiarise themselves with Rule 41A that came into effect on 1 March 2020 and to discuss this rule as well as the option of ADR with their indemnity cover providers and their legal teams where indicated.

3. SASOG initiatives to reduce medico-legal risks

• SASOG initiated efforts such as the BetterObs and BetterGyn programmes in an effort to reduce SASOG members’ medico-legal risks.
• Members are encouraged to actively support these important endeavours, including morbidity and mortality meetings, as these programmes can potentially only succeed with wide active participation and adherence.
• Consistent and active participation and adherence to these programmes over a long period of time is necessary before there can be expectations of lower indemnity cover premiums.
• Although there is no data yet to confirm the effectiveness of these initiatives, as far as subscription rates are concerned, there have been a mixed bag of lower premiums and smaller than anticipated increases in rates:
• MPS reported a 10% drop in subscription rates for their claims made product, for those renewing in their first to fourth years, and a 15% drop for those renewing five or more years.  The drop was between the 2019 rates and the 2020 rates.  The 2021 rates were the same as the 2020 rates. In occurrence based the 2021 rate remains the same as the 2020 rate.
• EthiQal has reported that their clients on occurrence-based cover have had no increase in their insurance base rates during their first three years of cover, translating to rate reductions in real terms.
• Similarly, PPS confirmed that they have reduced their annual increases below what was initially anticipated.
• It is the ultimate responsibility of the obstetrics & gynaecology profession to address the medico-legal challenges, and the BetterObs and BetterGyne programmes aim to ultimately protect the profession from exorbitant indemnity cover fees, and at the same time guide and assist the profession in rendering optimal clinical care to the women of South Africa.

SASOG Medico-Legal Committee congratulates Dr Haynes van der Merwe as the SASOG President elect and wish him well in taking SASOG forward during the 2021 – 2024 term.

SASOG members are welcome to contact any of the Medico-Legal Committee members should they require medico-legal assistance.

The SASOG Medic-Legal Committee

20 January 2021

Prof L C Snyman (Chair)

Prof Bash Goolab

Dr Haynes van der Merwe

Dr Ismail Bhorat

Dr Conrad Mashiloane

Dr Howard Manyonga