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There seems to be a myth going around in the dental profession in South Africa which I am eager to dispel. I know that a cynic reading this will think that I do so because I work for Dental Protection and that I have an incentive to drive up membership subscriptions. I don’t, and I am not.
Don’t tell my business development colleagues, but I truly don’t care where you go (although, hand on heart, I genuinely recommend Dental Protection to friends, family, and colleagues in the profession). My motive is simple – I have seen too many friends and colleagues fall victim to this myth, and every time I must decline assistance to a colleague for lack of the appropriate cover, it truly hurts.
The myth is this: if you work in the state or are employed as a registrar undergoing specialisation, you don’t need “Dental Protection”. I have deliberately put the words Dental Protection in inverted commas because, over the years and probably because of its 65-plus years of protecting professionals in South Africa, it has become a bit of a a generic term for professional indemnity for oral health professionals – what “Google” is to web searching, Dental Protection is to professional indemnity in South Africa. I am proud to work for this organisation. But I put my profession before my work affiliation, and this is why I often say to people that indemnity is so important that I don’t care where you go, you simply must have indemnity. I know not one dentist who drives their car uninsured, but sadly, possibly due to this myth, I know far too many dentists who go about their sole livelihood without any form of protection.
The myth that one does not need professional indemnity when working for the state or outside of private practice probably comes from a slight misunderstanding or confusion. It is partially correct. Let me explain.
When you are an employee of the state, if a patient wants to sue you for damages arising from clinical negligence, the law provides that your employer (the state) must indemnify you. In such instances, the department of health, specifically the MEC for Health of the relevant province, is cited as the defendant, not the individual treating practitioner.
The Department of Health assumes financial responsibility for legal claims
The doctor is not personally liable, and the state covers legal costs, settlements, and court-ordered damages
However, the law does provide some exceptions where a state dentist might be personally sued, for example if:
The procedure was unauthorised by the hospital
The practitioner was practising under the influence of alcohol or drugs
So, in the context of a patient suing a state dentist for damages arising from clinical work done in a state facility, it is correct that one does not need one’s own private professional indemnity. But here’s the kicker – in South Africa, it is not common for oral health professionals to be sued by their patients. While there is state cover for that unlikely situation, oral health professionals are much more prone to other medicolegal issues which are not necessarily covered by the state.
The perfect example – and one which I have seen on more than one occasion – is about a complaint made to the HPCSA about a state-employed a dentist, lodged by their supervisor or head of department in a state hospital. Picture this:
You are a dentist working at a state hospital and you and your clinical manager have had many run-ins over the years. Your manager, who is obliged by HPCSA rules to report unprofessional or unethical conduct of another practitioner, reports you to the HPCSA. You are now subjected to an HPCSA disciplinary process.
Would you feel comfortable relying on attorneys appointed by your employer to defend you against allegations made by your senior colleague?
Would they even appoint someone with experience to assist you?
It doesn’t matter who lodges the complaint against you at the HPCSA while you are a state employee. It can be a patient, colleague, professional organisation, or whoever. If you are the subject of the complaint, you must personally respond to it, and your employer is not legally obliged to assist you.
Another myth I recently heard and swiftly corrected is that the HPCSA defends you if you are in community service. No. The HPCSA prosecutes the complaint against you – it does not act for you.
Many of the cases at Dental Protection are non-claims cases – in other words, cases that don’t involve civil litigation (lawsuits). They are in the form of complaints, informal or at HPCSA level. Civil claims are few and far between in dentistry. When colleagues working for the state informally ask me for advice regarding a complaint, it pains me to ask them if they are a member of Dental Protection, because far too often the answer is no, which means that I cannot assist them but instead must signpost them elsewhere, for example, to their private attorneys at their own cost.
This is no trivial problem either, because HPCSA matters and other complaints can take years to resolve/finalise and cost hundreds of thousands of Rand in legal fees. You want assistance from lawyers and professionals who deal with these sorts of issues daily – the kind of experience a state official working at your hospital or Department of Health is unlikely to have.
Just a few weeks ago, an old friend called me to ask for assistance with a dentolegal issue. Of course, my first suggestion was to formally notify and seek assistance from Dental Protection to protect their position properly. When they told me they were no longer a member, I asked why. Their response: they had left private practice and taken up a registrar post, and were advised that Dental Protection was unnecessary while in the post. I wept inside, promptly corrected them, advised them on the importance of indemnity even as a registrar, and told them to reapply immediately.
Remember, it is not necessarily only in adversarial situations where you may need dentolegal assistance. I have seen cases where, years after a practitioner had clinical contact with a patient, the SAPS approached them for a statement or testimony in court regarding an inquest relating to that patient’s death years later. Had they been a member of Dental Protection, they could seek legal representation.
My friend was surprised by this information. The only reason they terminated their indemnity was incorrect advice. Luckily, it happened in a relatively benign matter, and they can rectify things.
This is why I have made it my goal to bust the myth. Please spread the word. I don’t care if it’s not with Dental Protection – but I recommend them.
Remember, indemnity is just one benefit of a defence organisation like Dental Protection – equally important is expert advice to mitigate and prevent escalation. If you work in the state, I cannot emphasise enough: it is absolutely important and, in my view, it is reckless to practise without professional indemnity. Your career and livelihood could literally be on the line. Because the state indemnifies you for civil claims, the cost of membership for those working in the state is probably a lot lower than you might expect.