Nigeria: ‘Diagnosis, Prognosis': Employers' Risk Exposure In Providing Employee's Healthcare Benefits

Introduction:

Employers' quest to provide adequate healthcare benefits for their employees has increasingly become an important part of their business considerations, given the paramountcy of human capital to sustainable and profitable operations. It is trite that employer healthcare benefits could be a factor in employee attraction, retention and motivation, apart from (sectoral) instances where there are statutory (occupational health) requirements mandating such healthcare provision.¹

Often times, and for varied operational reasons, employers seek to provide employees' medical care (medicare) through the employers' own healthcare facilities. The concomitant question is whether this does not widen the employer's risk exposure especially when compared to other 'traditional', more common outsourced means of employee healthcare provision?² For example, the employer is presumptively vicariously liable for the defaults of its personnel in the course of direct healthcare provision to employees. Are the reasons for direct medical services provision worth the resultant additional risk exposure? If an employer has no option but to provide direct healthcare, are there ways to mitigate such risks?

This article seeks to identify the options available and discuss the legal issues arising from the direct provision of medical service.

Employer-Owned Hospital: An Alternative Arrangement?

Some employers especially multinationals run their own health facilities. The effect of such is that the healthcare professionals providing services and their patients are both employees of such companies. The rationale for such model of employee medicare may be necessity, for example where the company's operation is located in a remote area, far from regular healthcare facilities. This could be the case where the company runs an integrated campus/ estate with factory/offices, staff residential apartments and ancillary services for staff. Another is if there are no sufficiently standardised/specialist third party or public facilities that meets the employer/employees' optimal/bespoke medical service provision requirements, and the employer wants to have control over such.

The Exxon Mobil Wellness Centre in Houston, Texas, with a size of 130,000 square foot is illustrative of such arrangements - as a medical and occupational health clinic, where employees have access to health services and work related injury/illness management.³ Also there is an on-site health clinic at Facebook`s corporate headquarters in Menlo Park, California.⁴ In Nigeria, notable examples include clinics/hospitals of the Nigeria National Petroleum Corporation (NNPC), and many Nigerian blue chip multinationals etc.⁵ The scale of such arrangements range from comprehensive, full blown to basic (primary) care model, depending on the company's preferences.

A potential challenge with this direct provision option is that the employer could be exposed to vicarious liability claims for the negligence of doctors and other health personnel at the company's health facility in the course of treating employee-patients. Thus, a pertinent question is how do such companies mitigate risk?

Mitigating Medical Liabilities Risk: Any Leeway for Employers?

The realities of some employer circumstances may make the direct service provision option inescapable, even though same brings with it, heightened risk exposure. Thus an employer may have to make the best of a difficult situation, and the concern would then be how can the employer significantly de-risk the direct service provision? Some of the de-risking initiatives could include those mentioned below:

1. Employing Qualified Healthcare Personnel:

It is expected that merit driven recruitment system, which in any event should be the hallmark of any company will, more than anything else, underpin recruitment of health personnel. Employment contracts needs to be well drafted to minimise employer exposure; prospective medical personnel would pass sufficiently rigorous background checks; and provide satisfactory references before they are employed or confirmed as the case may be; etc.

A subset of this is to have a category of healthcare personnel (for example, those whose services are more likely to be associated with greater potential exposure), contracted as independent contractors or have them as outsourced 'staff' to the 'client' company by an independent contractor outsourcing company on the basis of adequate indemnities. These categories of personnel are likely to attract significantly lower risk to the company since vicarious liability risk exposure is not likely to apply in their own case, and if so, the indemnities could kick in to make the client company good.

2. Ensuring Health Personnel Undergo Professional Development Programmes

This is a very important point, because not ensuring that personnel receive periodic (refresher) training like their practising colleagues, could actually be a breach of applicable standards on the part of the employer company. Imagine if an employee is able to prove that the quality of healthcare exposed him to risk because health employees do not benefit from generally available professional development programmes.⁶

In this regard, Section 28 Code of Medical Ethics in Nigeria, 2008 (the Code) addresses the issue of medical negligence and also makes provision for the regular participation in programmes of continuing medical education: It is a necessary condition for the practitioner to remain current with practice trends, and to achieve renewal of his practising licence based on the guidelines that are released by the Medical and Dental Council from time to time. Hence, the employer is obliged to have these medical personnel attend professional training programs regularly so that they can be at par with their counterparts.⁷

The doctors should also be made to understand that any document issued by the doctor to patients should be genuine. Section 33 the Code provides that registered practitioners may from time to time be called upon, and are in certain cases required by law, to give professional certificates, reports and other documents and must ensure that such documents are verified before being issued to the patients.

Milam v. Medical & Dental Practitioners Investigation Panel & Anor⁸ was an appeal at the Court of Appeal (CA) against the judgement of the Medical and Dental Practitioners Disciplinary Tribunal (MDPDT) wherein the Appellant was suspended from medical practice for six months. The judgement was given after the Investigating Panel in respect of the complaint received alleged negligent conduct in handling of the case of the deceased. The patient, Mrs. Florence Abatan who was admitted into Maitama General Hospital, Abuja, was delivered of a baby girl through a caesarean section (c- section) and therefore needed a blood transfusion. The Respondent requested her husband to arrange for blood for purposes of the surgery to be performed on the wife. However, the husband did not provide the blood needed before the doctors proceeded with the surgery, because he claimed they were Jehovah Witness. Following the death of the patient, the Respondent was suspended by the Council after a complaint was made against him for negligence.

On appeal, the CA, per Abubakar, JCA held that:

"Rule 28 of the Code of Medical Ethics, clearly states that manifestation of incompetence in the assessment of a patient; making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them; failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient, all constitute professional evidence....the fact that the complainant and the deceased consented to the procedure does not free the Appellant from responsibility, as it is obvious that same was suggested by the Appellant, without any indication on record warranting the procedure."⁹

This judgement in simple terms notes that the c- section authorised by the Appellant was not the right call in that circumstance; it was therefore wrong to have ordered that the c- section be carried out. Thus, a doctor has to be sure that the prescription or procedure being recommended for the patient is the best possible solution in the circumstances. Not only will this be achievable vide regular/continuous training, same will minimize risk of undesired outcomes.

3. Ensuring Process-Driven Medical Service Provision

Having processes in place covering the whole gamut of medical operations, and ensuring compliance with such processes can be part of how companies de-risk. Some of these processes include:

1. Enhancing the Protection of Patients' Confidential Information:

Section 44 Code provides for the medical profession to take very seriously the ethic of professional secrecy whereby any information about the patient that comes to the knowledge of the practitioner in the course of the patient-doctor relationship constitutes secret and privileged information which must generally not be divulged by him to a third party. Disclosure can only be pursuant to informed consent of the patient, preferably in writing, and in other statutorily recognised exceptions.¹⁰

The confidentiality ethic would cover such information as criminal abortion, attempted suicide, concealed birth and drug dependence, but would exclude situations in which a discretionary breach of confidentiality is necessary to protect the patient or the community from danger. Where statutory notification of disease is involved for various policy considerations, the consent of the patient is not required such as HIV and Ebola.¹¹

In W v Edgell,¹² it was held that: "A consultant psychiatrist who becomes aware, even in the course of a confidential relationship, of information which leads him, in the exercise of what the court considers a sound professional judgment, to fear that such decisions may be made on the basis of inadequate information and with a real risk of consequent danger to the public is entitled to take such steps as are reasonable in all the circumstances to communicate the grounds of his concern to the responsible authorities."

2. Personal Hygiene and Other Terms of Operation:

The healthcare services process map should be engendered towards ensuring incident free situations - that arises from default setting tending towards the highest standards of process compliance. For example the probability of a doctor, using an infected or unsterilized object, or improperly disposed items (after use), not using the right equipment including protective wears/equipment, etc. could be significantly reduced. That will obviate risks of employee-patient mismanagement that could ground exposure for the mutual employer- company, of the patient and the medical personnel. Such exposure could also arise when an employee medical personnel is at risk (for example to communicable disease), because his colleague did not follow laid down precautionary measures.¹³ Essentially the object of the process map or operating manual is to anticipate such risks and that proper measures of pre-empting/handling them should be internalised in the hospital setting.

3. Referral to Tertiary Institution:

There might be instances where lack of adequate facilities or manpower can hamper the requisite treatment of a patient. Are there laid down procedures for such patients to be transferred to better equipped hospitals? To serve as an illustration, an offshore worker might fracture his leg whilst on duty and the company hospital might not have the facilities to treat him. In such situation, referral arrangements with other well-resourced hospitals for complicated cases, will come in handy.

This is a very tricky process because, if the employee-patient is negligently attended to or dies as a result of medical malpractice of personnel of the other hospital, would the employer still be liable? The role of employer's a lawyer in drafting such agreement should be with the aim of minimizing the risk to the employer- company.

d. Patients Consent to Medical Procedure:

Notably, consent is needed in every surgical operation and lack of consent can be a ground to sue many an employer of the defaulting personnel. Section 19 Code states that "Practitioners involved in procedures requiring the consent of the patient, his relation or appropriate public authority must ensure that the appropriate consent is obtained before such procedures, either for surgery or diagnostic purposes, are done, be they invasive or non-invasive. Consent forms should be in printed or in written form either as a part of case notes or in separate sheets with the institution's name boldly indicated."

In Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo,¹⁴ a doctor was suspended because, based solely on the patient (a Jehovah Witness)' instruction, he did not conduct a blood transfusion procedure, and the patient died. Her relatives proceeded to sue the doctor for negligence and he was subsequently suspended by the Medical Tribunal. On appeal at both the CA and subsequently the Supreme Court (SC), the decision of the Tribunal was overturned. The SC decision was attributed to the fact that the patient had declined to give her consent on the treatment.

The more recent case of Otti v. Excel-C Medical Centre & Anor.,¹⁵ shows that it is very important to understand the nature and purport of the consent vis a vis what is being consented to, otherwise avoidable litigation and liability could result.¹⁶

After due consideration, Ogakwu JCA held that:

"The Appellant has neither contended that he did not read the contents of Exhibit J nor that he was misled into signing the same. Indeed the insertion of No Surgery Please is consistent with the Appellant having read Exhibit J. In addition to the consent for Anal Stretch and SLIS to be performed, the Appellant agreed that the procedure had been fully explained to him and further consented for anaesthesia to be administered on him and for the surgeon to take additional steps he deems necessary to ensure a successful operation/procedure."¹⁷

The CA dismissed the appeal because it found that the Appellant only requested the doctor not to perform only haemorrhoids related surgery on him; but had consented to an operation anal stretch and slis, which the doctor performed.

If the surgery had been done in an employer health facility and the decision had gone against the doctor, that would have resulted in some exposure for the employer.

e. Maintenance/Providing Quality Equipment:

Maintaining/providing the best medical facilities is also critical. This is because faulty equipment can act as a contributory factor which causes harm to employee-patients, potentially exposing the employer to vicarious liability. The acquisition of 'state of the art' equipment (where practicable) will help in minimising the harms that could ordinarily have occurred if the facilities are bad.

f. Customer Service/Patient Care:

Patients need personal attention and complete feedback about their health status. Health concerns often cause a great deal of anxiety for patients and their family members. In some cases, health issues are life-altering. Understanding as much as possible about what is happening to the patient's body, why particular procedures are being performed, and what to expect during and after any procedure can allay some of that anxiety, so it is important that the company's medical personnel take the time to answer patients' questions and educate them about their healthcare options.

4. Having Hybrid Arrangements – Concessioned Company Health Facility with Health Personnel:

This option involves an organisation outsourcing the management of its health care facilities, pursuant to a lease or concession arrangement. By operating this arrangement, the risk in the business is shared between the outsourcing company and the organisation. It could be a way of the employer-company eating its cake and having it.

One of the biggest advantages of the full blown outsourcing model is the availability pool of skilled healthcare professionals who are ready to take on a job of any complexity and size at a short notice. It saves the client company administrative resources on medical personnel employee acquisition and retention, as all of these will be handled by the outsourcing partner. Some of the risks associated with outsourcing includes the potential breach of information confidentiality, loss of flexibility due to excessive reliance on outside organisation etc.

Patient Disclosure/Consent Issue in Conflict of Interest Situation:

What happens in a situation where a staff of the company has an infectious disease and the spouse who is also an employee is not aware? Should the company doctor/health personnel inform the spouse or should they stick to the confidentiality code?

Answering this question depends on relevant considerations and type of infectious disease involved, since there seem to be separate provision for different diseases based most importantly on the risk such may pose to the public. For instance, there are infectious diseases which are deemed or classified as high risk to the public - such as the Ebola epidemic incident in 2014.¹⁸ Also there are other cases of HIV, hepatitis, gonorrhoea which if not handled properly can either cause the health personnel to breach the confidentiality code or risk putting the public in danger. What then is the thin line that determines when a doctor should or should not adhere the code of confidentiality?

In a case where the individual has HIV, the spouse has a right to receive information pertaining to the HIV status of his/her partner and this can be gleaned from section 8(2) HIV and AIDS Anti-Discrimination Act¹⁹ (HAAD Act) which provides that "any partner in a marriage or co-habiting relationship has the right to be informed of his or her partner's HIV status."

However, to ascertain the person with corresponding duty, recourse would have to be made to section 11(1) HAAD Act which provides that "No person shall, except with the written consent of the individual to whom the information relates, disclose any information relating to the HIV status of that individual unless disclosure is required by law." The provision states "no person". This presupposes that any person who may be in a position to disclose is included. Thus, the medical doctor who diagnosed the patient in the medical facility is reposed with the duty to disclose as provided by the HAAD Act.

In practice, adherence to the ethic of confidentiality embraces: protection of patient's medical records; release of information only following the granting of informed consent by the patient, except where disease notification is required by statute; cryptic utilization of anonymised clinical material for teaching or publication in professional journals; maintenance of confidentiality in the process of further consultation.

Data protection will continue to be a very sensitive issue globally. So for every company running a health facility for its employees, adequate safety procedure has to be put as regards data of patients.²⁰ For example, what necessary protocols are in place to prevent janitors from accessing and reading patient's files? This is one way a company can become liable and care should be taken.

Conclusion

Mitigating risk when it comes to providing health services is not an easy task, hence the need for the employers to be diligent and risk averse when providing such services. An employer may also under section 26 Employees Compensation Act (ECA)²¹ provide for health care and disability support of his employees. The core importance of having a lawyer who will ensure that the company is in compliance with any latest health law cannot be overemphasised and a regular orientation to the health workers on the need for duty of care towards patients is very important.

Footnotes