Legal practitioner, Mthokozisi Maphumulo, states that South Africa’s frail health system, due to COVID-19, could result in many things ‘going wrong’ from testing to diagnosis, which may have legal implications.

By Kgomotso Ramotsho

Legal practitioner, Mthokozisi Maphumulo, who deals with matters of Association and Litigation at Adams and Adams said that the enormous pressure on South Africa’s (SA’s) frail health care system due to COVID-19 could result, in many things ‘going wrong’ from testing to diagnosis and this may have legal implications. He added that it is already evident, considering the backlog that SA has with COVID-19 test results and the many people who have stated that they have been incorrectly diagnosed. He pointed out that misdiagnosis and/or delay in receiving test results may have grave implications for individuals.

Mr Maphumulo gave an example: In the delay of test results, a person may lose out on a work interview, a person may take medication unnecessarily, which might endanger their health because of pre-existing conditions or not take medication where there is a need for medication. He added that a misdiagnoses could also result in one being wrongfully quarantined or in a case of the workplace, a company might have to close down for days to decontaminate their offices and that could mean losing out on opportunities. Mr Maphumulo added that the legal position, insofar as accesses to adequate health care services is concerned, is regulated by various legal instruments. He added that s 27 of the Constitution also states that everyone has the right to access health care services.

Mr Maphumulo pointed out that it is important to note from the onset that not every misdiagnosis and delay of test results will have legal implications. He added that the facts of each individual case will dictate whether there is a potential legal case or not. He said this implies that there has to be a thorough investigation of facts and the surrounding circumstances of each individual. He noted that a delay may attract legal liability if, firstly a delay was unnecessary. The determination of whether it was necessary or not will be influenced by various factors, such as –

• where the test was first conducted (a public or a private institution); and
• whether or not there was any urgency in testing?

Mr Maphumulo added that another factor would be whether the patient had suffered harm, which does not only relate to health alone, but also finances. He said that in a case of delayed test results or a misdiagnosis, the timeline of events is crucial. He stated that various factors will be taken into consideration, for example:

• When was the test done?
• Which areas did the patient visit between doing the test and receipt of results?

Mr Maphumulo pointed out that with COVID-19 things can be made even trickier by the fact that the virus can be contracted easily. Furthermore, the time it takes to reveal itself varies from person to person, if at all. He pointed out that in this regard, the legal battle will turn purely on the information presented by medical experts, and thus, the determination of liability is an intricate exercise.

Mr Maphumulo said that the courts will have to look at the reason for delay. He pointed out that in some instances a weeklong delay may be justifiable, however, two weeks may be unjustifiable, or if the relevant institution or government acted with necessary urgency in dealing with the delay. He added that a delay in laboratory results and misdiagnosis occur everywhere in the world, for various differing reasons. However, he said that it becomes a serious concern in situations, where the world faces a pandemic, such as COVID-19.

Mr Maphumulo added that relevant medical personnel have to handle testing procedures with the utmost care and unnecessary delays have to be avoided. He noted that this is not easy considering that there has to be as many tests performed as possible. Mr Maphumulo pointed out that although the world is facing the pandemic and the increasing number of cases is putting pressure on the health system, where circumstances permit, the medical personnel or hospitals will be legally liable where there has been a delay, misdiagnosis or harm has been suffered.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.