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Consumer protection and the hospital patient relationship

No express provisions for exclusion of liability of a supplier of services

The Consumer Protection Act, not yet in operation, significantly affects the hospital/patient relationship. The Act’s broad definition of consumer services means that a patient will be considered by the Act to be a consumer for the purposes of legislation.

 Services includes but is not limited to work or any undertaking performed by a person for the direct or indirect benefit of another and irrespective of whether the person promoting or offering to provide the services participates in, supervisors or engages directly or indirectly in the particular service.

The purpose of the Act is to promote and advance the social and economic welfare of consumers in South Africa.

The member of the Cabinet responsible for consumer protection matters may prescribe a category of consumer agreements that are required to be in writing. Whether hospital/patient agreements will fall within that category remains to be seen.

Where there is an agreement in writing as prescribed or on a voluntary basis, that agreement:

1. Applies whether or not it is signed by the patient. The patient must be provided with a free copy of the agreement.
2. Must set out an itemised break-down of the patient’s financial obligations under the agreement;
3. Must be in plain language, if no form has been prescribed for the agreement. The Act says that an agreement is in plain language if:
   1. It is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or for whom the agreement is intended, with average literacy skills and minimal experience as a consumer of the relevant services, could be expected to understand the content, significance and import of the notice are of the agreement without undue effort, having regard to:
      1. Context, comprehensiveness and consistency;
      2. Organisation, fall, form and style thereof;
      3. Vocabulary, usage and sentence structure;
      4. The use of illustrations, for example, headings or other aids to reading and understanding. 
   2. Guidelines may be published in respect of the above. 
   3. Where an agreement is not in writing, a hospital will have to keep a record of the transaction entered over the telephone or on a recordable form, as prescribed. 
   4. We will wait and see whether a hospital/patient contract is required to be in writing. If not, doctors who, nevertheless, voluntarily contract in writing need to ensure that the contract complies with the provisions of the Act and the regulations, referred to above.
4. Any agreement with the patient whether in writing or not, may not purport to:
   1. Limit or exempt the hospital from liability for any loss directly or indirectly attributable to gross negligence of the hospital or any person acting on their behalf;
   2. Constitute an assumption of risk or liability in that regard;
   3. Waive or deprive a patient of a right in terms of the Act;
   4. Avoid the hospital’s obligations or duties in terms of the Act.When a hospital undertakes to provide any services, the patient has the right to the:
5. Timely performance and completion of the services;
6. Timely notice of any unavoidable delay in the performance of the services;
7. Performance of the services in a manner and quality that patients are generally entitled to expect;
8. The use, delivery or installation of goods that are free of defects and are of a quality that patients are generally entitled to expect of the goods are required for performance of the services. 
9. The latter is of significance in the case of medical implants and the right to the use of safe medical equipment in any treatment. 
10. If the hospital does not perform a service to the standards contemplated above, then the patient may require the hospital to remedy any defect in the quality of service performed or refund to the patient a reasonable portion of the price paid for the services performed (and any goods supplied), having regard to the extent of the failure.

It is debatable whether many provisions of the Act are appropriate to the doctor/patient relationship.

The Act does allow for a regulatory authority such as the Health Professions Council of South Africa to apply to the relevant Minister for an industry-wide exemption from one or more provisions of the Act on the grounds that those provisions overlap or duplicate a regulatory scheme administered by that particular authority in terms of other national legislation.

Doctors should consider, perhaps via the representative bodies, whether any regulatory schemes overlap or duplicate the provisions of the Act to found a basis for successful applications for exemption.

Of particular significance in the context of medicines, prosthetics, implantations and the use of medical equipment are the provisions of the Act which now impose a no-fault regime of product liability.

The Act does provide that in the case of goods supplied within the republic to any person in terms of transaction, even if the transaction is exempt from application of the Act that the goods of the importer, producer, distributor and retailers of the goods would still be subject to the no-fault regime provisions.

It is likely for example that an exemption from provisions of the Act is obtainable insofar as disciplinary procedures under the Health Professions Act and its regulations in respect of doctors who already provide an appropriate forum for professional complaints.

In terms of those provisions, the producer, importer, distributor or retailer of any goods is liable for any harm caused wholly or partly as a consequence of supply and any unsafe goods, product failure or defect or hazard in the goods or inadequate instructions or warnings provided to the patient pertaining to any hazard arising from or associated with the use of any goods.

That is irrespective of whether the harm resulted from any negligence on the part of those persons.

A supplier of services (such as a doctor) who in conjunction with the performance of the services applies, supplies, installs or provides access to any goods is regarded as a supplier of those goods to the patient for the purpose of the section.

The significance of this recordal is not clear. Presumably, the intention is to indicate liability on the part of that supplier, equivalent to the no-fault liability imposed on a producer, importer, distributor or retailer.

The Act, however, defines a supplier as a person who markets any goods and services producers, importers, distributors and retailers are separately defined, which definition includes for some of the persons the promotion and supply of goods as understood by the term market.

If a Court interprets the concept of supply of services in the context of the no-fault provisions to attract a liability equivalent to that of producers, importers, distributors or retailers, then for example, in the case of a medical device implanted in a patient which is defective and causes harm to the patient, the patient has the right to recover not only on a no-fault basis from the producer, importer, distributor and/or retailer of that particular medical product but also the surgeon who implanted the product.

All the patient need do is prove the harm as defined to have been caused by the defective implantation. It would not be necessary to prove negligence on the part of the surgeon or any of the other role-players.

There are only limited grounds of exclusion of liability.

There are no express provisions for exclusion of liability of a supplier of services, unless one considers the supplier’s position to be analogous to that of a distributor or retailer. In that situation, in the case of a surgeon, liability may be avoided if it is unreasonable to expect the surgeon to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to the patient.

Depending on a doctor’s/hospital’s role in supplying a particular product, the doctor may of course be classified as a distributor or retailer as defined by the Act.

Hospitals/doctors also need to be aware of the over-booking prohibitions under the legislation.

A hospital/doctor may not expect payment or any consideration for services if the doctor has no reasonable basis to assert an intention to supply those services or intends to provide services that are materially different from the services in respect of which payment for consideration is accepted.

If a hospital/doctor makes a commitment or accepts a reservation to provide the services on a specified date or time (the situation most commonly arises in the case of the surgeons’ list) and on the date and time contemplated fails to because of insufficient capacity to supply the services or similar services or same or better quality, class or nature, then the doctor must:

Refund the patient the amount of money paid in respect of the commitment or reservation together with interest at the prescribed rate for the date at which the amount was paid to date of re-imbursement;

In addition, compensate the patient for costs directly incidental to the hospital’s/doctor’s breach of the contract, except in circumstances where shortage of capacity is due to circumstances beyond the hospital’s/doctor’s control and the hospital/doctor took reasonable steps to inform the patient of the capacity problem as soon as practical in the circumstances.

While the particular section records as a defence to any alleged failure to supply services an offer to procure another person to provide the patient with comparable services, and the offer is accepted, or unreasonably refused, in the circumstances of a patient/doctor relationship the identity of the particular doctor would most likely be significant to the patient.

Accordingly, while there may be another surgeon available to provide the surgery a parties’ refusal to undergo surgery by another may not be unreasonable.

In those circumstances, there will still be exposure of the doctor to the claim for, not only the refund of any fees paid, but for compensation for costs directly incidental to the breach.

Those incidental costs would include, for example, loss of income, where a patient has taken off work to undergo surgery which is then cancelled.

The good news for doctors is that section 17 of the Act provides that while a patient has a right to cancel any advanced booking or reservation for services, the patient who does so and makes the commitment may be required to pay a reasonable deposit in advance.

The hospital/doctor may also be entitled to impose a reasonable charge for cancellation of the order or reservation. That cancellation fee cannot be imposed if the patient cannot honour the booking because of death or hospitalisation.

The cancellation fee would be unreasonable if it exceeds a fair amount in the circumstances, having regard to the nature of the services reserved, the length of the notice of cancellation and the reasonable potential for the hospital/doctor acting diligently to find an alternative patient between the time of receiving the cancellation notice and the time of the cancelled reservation and the general practice in the relevant industry.

The no-fault provisions of the Act will certainly facilitate litigation in the medico-legal field.

Previously, patients had the hurdle of proving negligence of the product supplier and that is now removed. In those circumstances, successful claims and litigation against manufacturers and suppliers of pharmaceutical products, for example, are likely to increase.

Those role-players in the medical industry which have a significantly increased exposure to liability in consequence of the no-fault provisions of the Act will need to ensure that by have in place appropriate product liability insurance to cover both the risk events and the quantum of damages of claims which may arise.

The question of claim, for example, for serious neurological injury caused by defective medication to a young middle-class patient who is rendered unable to care for themselves, or to earn an income, would be in the region of R10 million to R20 million excluding legal costs.

It is important to ensure that having regard to the limits of indemnity of any insurance, that the insurance provides adequately for legal costs both in respect of any claimant and defence costs.

On a similar basis, doctors need to review their medical malpractice insurance and ensure that it includes appropriate cover for the product liability exposure which is now created under the Act.

Donald Dinnie is a Director, Deneys Reitz Inc

Thieme’s Teaching Assistant: Anatomy

1) ABOUT

The publisher Thieme has launched a new product, Thieme’s Teaching Assistant: Anatomy.

 2) CONTENT

The Thieme Teaching Assistant is a state-of-the-art presentation tool featuring all 2,000+ stunning illustrations and clinical images from Atlas of Anatomy by Anne M. Gilroy, Brian R. MacPherson, and Lawrence M. Ross. Please will you look at http://www.thiemeteachingassistant.com/page.aspx?pid=0 to see this wonderful product!

 This cutting-edge platform enables the lecturer to enhance students’ learning experiences by incorporating dynamic visuals into lectures and course materials to present complex concepts with unprecedented clarity.

 The Thieme Teaching Assistant: Anatomy allows you to:

– Export images as individual files or embedded into PowerPoint slides or PDFs

– Locate specific images using the search function

– Turn individual labels and leader lines “on” or “off” to prepare student study guides, handouts, tests and other materials for an individual image or a series of images

– Use the Teaching Assistant live in the classroom to magnify images and demonstrate concepts with an unprecedented level of clarity

– A detailed brochure is available in PDF and can be downloaded from http://www.thieme.de/connect/en/services/brochure.html

 3) PRICING

Up to 1,000 FTEs = R38,460

Up to 2,500 FTEs = R46,260

Up to 5,000 FTEs = R54,060

It is available as a site wide license allowing all lectures and students at your institution to lift their teaching and learning experience to a new, unprecedented level.

4) TRIALS

Non-committal 2-week trials are available to institutions. Please email Fiona at fiona.bester@wwis.co.za to arrange trial access.

Shaik doctors acted professionally – HPCSA

By Angela Quintal

There was nothing untoward, unethical or unprofessional in the conduct of any of the doctors involved in the care in jail of Schabir Shaik, or in the reports which led to his medical parole.

This was the finding on Monday of the Health Professions Council of South Africa, announcing there was no evidence to suggest that any of his doctors misstated, misrepresented or falsified his condition.

Nor were they “unduly influenced” in any way, or influenced by Shaik’s relationship with ANC President Jacob Zuma, HPCSA registrar Advocate Boyce Mkhize said on Monday.

This was after a HPCSA investigation by its committee of a preliminary inquiry into whether any of the doctors involved acted unethically or improperly and should face charges of misconduct.

The HPCSA said the clinical reports, as well as the medical reports it had access to, revealed a “gravely serious medical condition of Mr Shaik”.

The council’s Committee of Preliminary Inquiry – consisting of independent medical experts – was satisfied that the medical reports by various doctors were not exaggerated, misrepresented or falsified.

The council said that while the initial complaint by the DA focused on three doctors, the council found that several medical practitioners had in fact treated Shaik during his incarceration.

The Daily News established last month after a two-week investigation that at least 14 medical practitioners had treated or diagnosed Shaik since he was jailed for corruption and fraud in November 2006.

Durban psychiatrist, Professor A E Gangat, cardiologist Dr Sajidah Khan and correctional services practitioner Dr Ngenisile Mbanjwa, were the last to interact with the patient.

The parole board met Mbanjwa and Gangat – who had previously stated that Shaik was suicidal – on February 26, and Khan on March 1.

In its statement, in which it did not name the practitioners involved, the HPCSA said:

There was no evidence to suggest that any of the practitioners involved in Shaik’s treatment or compilation of medical reports were unduly influenced in any manner;

There was also no evidence that any of the practitioners misstated or misrepresented or falsified or exaggerated Shaik’s medical condition in order to influence or procure an inappropriate release on medical grounds;

None of the reports by the practitioners involved was as a result of a political consideration or relationship or status of Mr Shaik to the president of the ANC, Mr Jacob Zuma; and,

To the contrary, the reports were a true reflection of pure clinical observations and records which were not susceptible to manipulation or misstatement.

The HPCSA said that in consulting the Department of Correctional Services, it was clear that the parole board could not and did not act on the basis of a single medical report.

“We were advised that Mr Shaik’s medical parole came before the attention of the Parole Board around November 2008 and the Parole Board deferred its decision and recommended that the matter be reconsidered around March 2009.

“We were further advised that the Parole Board took this decision in order to adopt a much more cautious approach in order to satisfy itself that the condition of Mr Shaik indeed warranted the granting of medical parole.

“Clearly, this is a decision that could not have been based on one medical report.”

The HPCSA said it had access not only to the medical reports compiled by a number of doctors on Shaik’s condition, but also his voluminous clinical records obtained from Inkosi Albert Luthuli hospital.

“We have established that all the medical reports compiled by all practitioners involved in the Shaik matter were consistent with one another in that the diagnosis and prognosis of Mr Shaik was similar.

“We have further established that Mr Shaik’s condition and its gravity was confirmed by an independent specialist outside of KwaZulu-Natal, based in the University of Cape Town, which rules out the possibility that there may have been some collusion between the doctors.”

The HPCSA had also established that the medical reports compiled were consistent with the clinical records which were computer generated based on the medical condition of the patient. The HPCSA said it was important to emphasise that the doctors involved in report writing did not have any decision making powers to grant medical parole.

•  
  • This article was originally published on page 3 of Daily News on April 20, 2009

8 Drugs Doctors Will Not Take

By Morgan Lord, Men’s Health

Of course, plenty of M.D.’s do know which prescription and over-the-counter drugs are duds, dangers, or both. So we asked them, “Which medications would you skip?” Their list is your second opinion. If you’re on any of these
meds, talk to your doctor. Maybe he or she will finally open that big red book with all the dust on it.

 

Advair
It’s asthma medicine … In 2006, similarly disturbing findings from an earlier salmeterol study prompted the FDA to tag Advair with a “black box” warning — the agency’s highest caution level.

 

Avandia
Diabetes is destructive enough on its own, but if you try to control it with rosiglitazone — better known by the brand name Avandia — you could be headed for a heart attack.

 

 

Celebrex
Once nicknamed “super aspirin,” Celebrex is now better known for its side effects than for its pain-relieving prowess.

And yet Celebrex, a COX-2 inhibitor, is still available, even though two other drugs of that class, Bextra and Vioxx, were pulled off the market due to a similar risk of heart damage.

Ketek
This antibiotic, which has traditionally been prescribed for respiratory-tract infections, carries a higher risk of severe liver side effects than similar antibiotics do.

 

Prilosec and Nexium
To really cure the problem, lose weight,” says Michael Roizen, M.D., chief wellness officer at the Cleveland Clinic and co-author of “YOU: The Owner’s Manual.” That’s because when you’re overweight, excess belly fat puts pressure on and changes the angle of your esophagus, pulling open the valve that’s supposed to prevent stomach-acid leaks. This in turn makes it easier for that burning sensation to travel up into your chest.

Visine Original
“Visine gets the red out, but it does so by shrinking blood vessels, just like Afrin shrinks the vessels in your nose,” says Thomas Steinemann, M.D., a spokesman for the American Academy of Ophthalmology.

 

Pseudoephedrine
Forget that this decongestant can be turned into methamphetamine. People with heart disease or hypertension should watch out for any legitimate drug that contains pseudoephedrine.

Full Article: MSNBC

Sports Drinks: No Swallowing Necessary

Author: Sharon Begley

There’s all sorts of mumbo-jumbo about how sports drinks boost athletes’ performance, especially in endurance events such as yesterday’s Boston Marathon. But according to an intriguing new study, it isn’t the sports drinks’ calories (athletes benefit even if they spit out the drink rather than swallow it) or their sweet taste (drinks with artificial sweeteners do not boost performance). Instead, suggest Ed Chambers of the University of Birmingham and colleagues in a paper in The Journal of Physiology, carbohydrates in the drinks fit into receptors in the mouth that in turn activate the brain’s pleasure and reward centers, spurring athletes to push themselves harder without realizing how hard they’re working.

For their study, the scientists prepared drinks containing either glucose (a sugar), maltodextrin (a tasteless carbohydrate) or plain water, mixed with artificial sweeteners so they tasted identical. Eight endurance cyclists rinsed their mouths for 10 seconds with one of the three drinks, and then got on a stationary bike. Results: athletes who swished with the glucose or maltodextrin drinks outperformed those on sweetened water by 2 to 3 percent, raising their pulse and sustaining a higher average power output—even though they said they didn’t feel they were working harder.

Chambers explains it this way: “Much of the benefit from carbohydrate in sports drinks is provided by signalling directly from mouth to brain rather than providing energy for the working muscles.

Healing Arts Colleges in America

Monday, April 20, 2009

Author: CarolAnn Bailey-Lloyd

Find Healing Arts Colleges in the United States and Canada. Today, healing arts colleges are broadly scattered across America. With healing arts colleges offering career training programs in a variety of natural and alternative health fields, students have a plethora of certificate, diploma and degree programs from which to choose.

Core natural health curriculums at healing arts colleges often include academics and practical training in basic anatomy and physiology, various massage modalities, essential oils and flower remedies, nutrition, CPR and first aid, herbal remedies and therapies, energy medicine and other holistic healing arts.

While many healing arts colleges offer weekend courses, a great number of these learning institutions provide certificate programs in natural healing and the like. A good example of one of the numerous certification programs extended through healing arts colleges is massage therapy. Students opting to enroll in massage therapy certification programs will gain comprehensive training in typical bodywork therapies including hands-on instruction in Swedish massage, deep tissue therapy, mind/body medicine, as well as general education in anatomy, physiology and other relative subject matter. Depending on which one of several healing arts colleges in which you choose to participate, some massage therapy curriculums may be more expansive and include coursework in Oriental massage, acupressure/Shiatsu, lymph massage, prenatal and infant massage, as well as other specialized training.

Healing arts colleges may also provide extensive training in Oriental medicine. Some of these healing arts colleges offer degree programs, as well as diploma courses. Persons interested in Eastern medicine will find that healing arts colleges provide an expansive curriculum involving Chinese herbal medicine, TCM (Traditional Chinese Medicine), Tuina (Chinese medical massage), Chinese medical terminology, and acupuncture and needling techniques; in addition to standard education in human anatomy, Chinese medicine theories and philosophies, physiology, pathology, pharmacology, biology, among other topics.

Chiropractic healing arts colleges are in-depth and require over 4,000 hours in classroom, laboratory and clinical training. Healing arts colleges such as these often require prerequisite education from an accredited school or university; with minimum education being equivalent to that of a bachelor’s degree. The same prerequisites are true for many naturopathic healing arts colleges, and a number of acupuncture schools, as well.

There is a multitude of healing arts colleges from which to choose, so students should always first decide which career path they would like to take. Because there are varying degrees and levels of academic training and education provided through healing arts colleges, some are more focused on specialty fields like naturopathy and chiropractic, while some are broader and include various courses in energy healing, bodywork, body/mind/spirit medicine and general herbal medicine.

With the demand for natural and non-invasive healthcare on the rise, students opting to pursue an education through one of countless healing arts colleges will find that career prospects are steadily increasing, and should have little or no difficulty in attaining lucrative employment both as entrepreneurs and as part of the ever-growing natural healthcare industry.

In general, healing arts careers provide a promising outlook to students, who have acquired necessary academics and practical training in one or more of the abovementioned professions. Candidates seeking healing arts careers should always review course prerequisites, curriculum, school accreditation, and tuition costs prior to enrolling in any one of numerous healing arts schools.

If you (or someone you know) are interested in finding healing arts colleges, let career training within fast-growing industries like massage therapy, cosmetology, acupuncture, oriental medicine, Reiki, and others get you started! Explore career school programs near you.

Healing Arts Colleges in America

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Resource Box: CarolAnn Bailey-Lloyd – Freelance Writer and Web Consultant for HolisticJunction.com, in association with CollegeSurfing.com – Educational Resources for Healing Arts Colleges, Alternative Medicine Schools, and other Natural Health Schools.

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