Regulations published on 30 August 2010 under the Health
Professions Act require health practitioners, which include
doctors, specialists, dentists and psychologists practising for
their own account, whether in partnership, association or by way of
a company allowed for in the Act, to obtain professional indemnity
insurance. The insurance must be obtained from an insurer
registered under the Short-term Insurance Act.
The requirement does not extend to those practitioners employed,
for example, by the State at provincial hospitals. That is
presumably on the basis that the State is liable for the negligent
conduct of those professionals and has the financial means to meet
Medical practitioners have not previously been required to be
appropriately insured for medical malpractice claims. In some
circumstances, patients with meritorious medical malpractice claims
against practitioners have found the practitioner to be uninsured
and without any funds to meet a judgment.
So much for the good news!
There are problems with the regulations.
The extent of the insurance cover required is not stipulated.
Even cover of R10 000.00 per an event is wholly inadequate. On the
face of the regulation, a medical practitioner who obtains
professional indemnity cover for R1.00 will comply with the
The regulation is also silent on what would be considered
adequate cover in the aggregate. For example, where an obstetrician
obtains cover for an exposure of say R10m for any claim, that is
well and good but will be of a limited benefit where there are two
or three such claims. The aggregate should therefore not be limited
to the amount of a single claim. A greater annual aggregate of all
possible claims is needed.
The question also arises whether the cover must be taken out for
claims made during the insured period. Nor is provision made for
any run-off cover. For example, a doctor will comply with a
regulation where at all times while practising, the doctor had
maintained a professional indemnity insurance policy in place but
immediately the practitioner retires, the policy ceases. Cover is
therefore needed for all claims that arose during the
practitioner's working life during which the professional
indemnity cover was maintained.
Because of the general three year prescription period and a
longer period (up to 19 years) when the patient is a minor, a claim
may only be made against the practitioner well after retirement or
when the practitioner has ceased to practise medicine and embarked
on another career.
These issues should have been dealt with.
Where a practitioner has indemnity cover from an entity other
than a short-term insurer, for example, through membership of a
recognised society or organisation such as a medical protection
society, then that society or organisation has to register as an
insurer under the Short-term Insurance Act within four months of 30
That four month registration period is clearly too short and
extensions may have to be granted.
The regulations are promulgated under a section of the Health
Professions Act which allows the Minister of Health to determine
conditions under which a practitioner may practise, after
consultation with the Health Professions Council. It is presumed
that the appropriate consultations were held and that the effect of
requiring indemnity cover to be obtained only via a registered
insurer was duly considered. But was this attempt to force medical
protection societies to register as insurers subject to proper
Practitioners with an independent practice who currently have
indemnity cover via membership of a recognised society or
organisation will have a four month period of grace within which to
obtain insurance through a registered insurer. That may involve the
relevant society or organisation obtaining the appropriate
registration, alternatively, the mounting of any successful
challenge by the relevant society or organisation to the
regulations or insuring for limited losses only.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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