More than 6 months since the first reported case of the coronavirus, the world is still battling with this pandemic – which has claimed almost 500 000 lives around the world, to date. There is a continuous growth of cases in some countries whilst there is a continuous decline in some other countries. In the South African context, there is an apparent growth in cases and, the projections are that we are yet to see the worst before things can get better.
This obviously puts enormous pressure on our frail health system and, as a result, increases chances of many things “going wrong” from testing to diagnosis. This is already evident, considering the backlog that we have with COVID-19 test results.
Also, we have already had some of our celebrities in South Africa being incorrectly diagnosed with the virus. Misdiagnosis and/or delay in receiving the tests’ results may have grave implications for the concerned individuals and/or juristic persons.
For example, if there is a delay in the release of tests’ results, a person may lose out on an work interview; or, you do not take your medication timely and, as a result, you develop greater health complications; or even death, etc.
If misdiagnosed, for example, you may take medication which is not good for your health because of your pre-existing conditions; or, you may not take any medication where there is a need to take medication; you may be wrongly quarantined – and possibly lose out on certain opportunities; your workspace, if employed, may need to be closed down for days/weeks whilst being decontaminated (which also has costs implications); your colleagues will need to be isolated; business will suffer financially, greatly so; and the anxiety and stress stemming from such misdiagnosis.
From the aforesaid, the implications of misdiagnosis and/or delayed tests’ results are evident. It then becomes necessary to explore legal avenues that may be available in such instances.
The legal position insofar as access to adequate health care services is concerned is regulated by various legal instruments. In addition to international and regional instruments, the Constitution of the Republic of South Africa, 1996, Section 27 states that everyone has the right to have access to health care services.
This is echoed by the legislation and plethora of case law. However, it is important to note from the onset that not every misdiagnosis and/or delay in receiving tests’ results will have legal implications. Thus, medical negligence/malpractice will not attract legal liability merely because there has been a delay, or the patient has been misdiagnosed.
The facts of each individual case will dictate whether there is a potential legal case or not. This implies that there has to be a thorough investigation of the facts and the surrounding circumstances of each individual case.
A delay may attract legal liability if – firstly, the delay was unnecessary. The determination of whether it was necessary or not will be influenced by various factors – including where the test was conducted (public or private institution); whether there was any urgency in testing or not; etc.
Secondly, the patient must suffer harm – which may relate to health or finances, etc. For example, the patient must demonstrate that the delay cost him/her a certain opportunity; the delay led him/her to not taking the medication in time and, as a result, s/he has developed health complications which, but for the delay, would not have developed; etc. In the case of misdiagnosis, there also has to be some form of harm that the patient suffers due to the misdiagnosis. This may include taking (or failure to take) medication at all or timely.
Taking of medication may exacerbate certain existing health conditions. In these cases, the standard to be applied is an objective standard i.e. it is not enough to say the patient was misdiagnosed and suffered harm. The patient must demonstrate that the doctor of same specialty, under similar circumstances, would not have misdiagnosed him/her. Thus, to prove liability on the part of the doctor or health institution is not an easy task – proper documentation and information has to be available for the determination to be made.
In the case of delayed release of results and/or misdiagnosis, the timeline of events is crucial. For example, when was the test done; in the case of COVID-19, it may be relevant to know which areas did the patient visit between doing the tests and receipt of results; when were the results received; etc. With COVID-19, things can be made even more tricky by the fact that the virus can be contracted easily. Further, the time it takes to reveal itself varies from person to person; the fact that, for some people, it does not reveal itself at all; etc. In this regard, a legal battle will turn purely on the information presented by the medical experts. Thus, the determination of liability is an intricate exercise.
The amount of compensation in such cases will also vary from one case to another. The amount will be influenced by factors such as – the extent of harm caused by the delay/misdiagnosis; the past and future effects of such harm; age; scholastic history; if employed, nature of employment; future career prospects; etc. If self-employed, what harm has the business suffered due to the delay/misdiagnosis, etc. Therefore, the amount of money may be extremely high in one case and be very little on the other case.
Delay in laboratory results and misdiagnosis do occur everywhere in the world, for various differing reasons. It becomes a serious concern in situations like these – where the world faces a pandemic. The relevant medical personnel have to handle testing procedures with utmost care and, the unnecessary delays have to be avoided. This is obviously not easy considering that there has to be as many tests as possible. Although the world is facing the pandemic and the number of cases are putting pressure on the health system, where circumstances permit, the medical personnel/hospitals will be held legally liable where there has been a delay/misdiagnosis and harm has been suffered.