Why Obstetricians and Gynaecologists Need Medical Malpractice Insurance

Few areas of medicine combine joy, urgency and risk quite like obstetrics and gynaecology. An obstetrician may care for a patient throughout an apparently uncomplicated pregnancy, only to face an emergency during labour that requires several important decisions within minutes. A gynaecologist may perform a procedure that is clinically appropriate and competently carried out, but still result in a recognised complication.

When the outcome is not what the patient or family expected, questions often follow. Sometimes those questions develop into a complaint, an HPCSA investigation or a claim for damages. This does not mean that the practitioner was negligent. Medicine involves uncertainty, and an adverse outcome is not automatically evidence that the standard of care was breached.

Obstetricians and gynaecologists work in areas where allegations can be complex, emotionally charged and expensive to defend. Medical malpractice insurance provides financial protection and access to specialist medico-legal support when a covered allegation arises. 

For practitioners working in these fields, understanding the nature of that protection is an important part of managing professional risk.

Why are obstetrics and gynaecology considered high-risk specialties?

Obstetrics and gynaecology covers a wide range of care, from routine screening and contraception to fertility treatment, major surgery, pregnancy management and emergency delivery. Many patients receive excellent care and recover without difficulty. However, when something goes wrong, the possible consequences can be significant.

A birth-related injury may affect a child for life. A delayed cancer diagnosis may change a patient’s treatment options. Damage to an organ during surgery may require further procedures. A failure of contraception or sterilisation may also lead to a claim involving an unplanned pregnancy.

These cases can require evidence from several medical experts and may involve disputes about causation, timing, consent, clinical judgement and the interpretation of records made years earlier.

The risk is not only the possibility of a large damages award. A practitioner may incur substantial legal and expert costs while successfully defending an allegation. Medical malpractice insurance can therefore be important even where the practitioner ultimately establishes that the care provided was appropriate.

Obstetric claims can involve lifelong consequences

One reason obstetric claims can be particularly serious is that compensation may need to account for a child’s needs over an extended period. Where it is alleged that negligent care caused cerebral palsy, neurological injury or another permanent disability, a claim may involve anticipated costs such as:

• Medical treatment and specialist care
• Therapy and rehabilitation
• Medication and medical equipment
• Special education
• Professional caregivers
• Adapted accommodation and transport
• Loss of future earning capacity
• Pain, suffering and loss of amenities of life

The existence of a disability does not prove that negligent care caused it. Cerebral palsy and other neonatal conditions can have antenatal, genetic, infectious, metabolic and other causes unrelated to intrapartum management. Establishing causation may require obstetric, paediatric, neurological, radiological and other expert evidence.

The legal and medical questions can remain disputed for years. Appropriate professional indemnity cover helps ensure that the practitioner can obtain a properly resourced defence rather than having to fund that process personally.

Claims involving children can have a particularly long tail

Obstetric claims are often described as long-tail claims because there can be a substantial delay between the clinical event and the eventual notification or resolution of a claim. A child’s developmental difficulties may only become clear over time, and the family may seek several medical opinions before alleging that an injury occurred during pregnancy, labour or delivery.

There is another important consideration when the patient is a minor. Claims involving children or infants can be subject to an extended prescription period of up to 21 years. This makes the long-term structure of medical malpractice insurance particularly important for practitioners whose work involves minors.

This consideration is not limited to obstetricians. Paediatricians and anaesthetists may also face long-tail exposure when treating children, as can other doctors and surgeons who provide care to minors, particularly infants.

General surgeons can also find themselves drawn into litigation arising from complications connected to childbirth. For example, a general surgeon may be called upon to correct or manage a problem that arose during delivery and subsequently become involved in a medico-legal claim relating to the original treatment.

The potential for claims to arise many years after treatment means that practitioners need to consider not only their current policy, but also what happens when they change their practice, stop practising, retire or otherwise cease their insured activities.

Gynaecological practice carries different risks

A practitioner who no longer delivers babies may have a different risk profile from an active obstetrician, but gynaecological practice is not risk-free. Claims may arise from diagnostic decisions, medication, office-based procedures, major surgery and follow-up care.

Common allegations include:

• Delayed diagnosis of cervical, ovarian, uterine or vulval cancer
• Failure to investigate abnormal bleeding or test results
• Bowel, bladder, ureteric or vascular injury during surgery
• Complications arising from hysterectomy or laparoscopic procedures
• Inadequate management of infection or post-operative bleeding
• Failure of sterilisation or contraception
• Complications following insertion or removal of an intrauterine device
• Delayed diagnosis of ectopic pregnancy
• Fertility treatment or reproductive advice
• Inadequate disclosure of alternatives and material risks
• Failure to follow up abnormal pathology or imaging results

Some of these are recognised complications that can occur despite appropriate care. The medico-legal issue may therefore centre on whether the patient was properly assessed, whether the procedure was competently performed, whether the complication was identified and treated promptly, and whether informed consent was obtained.

Professional indemnity cover needs to match the practitioner’s actual work. A gynaecologist performing major pelvic surgery has a different exposure from one whose practice is limited to consultations and routine screening. Any changes to the scope of practice should be disclosed so that the insurance arrangements can be properly considered.

An adverse outcome does not automatically mean negligence

This is an important distinction for both practitioners and patients. A poor outcome may occur without anyone being at fault. A patient can experience a recognised complication even when the practitioner followed an appropriate clinical approach. A baby can be born with a disability that was not caused by labour or delivery.

On the other hand, a practitioner’s belief that the treatment was appropriate does not prevent a patient from making a claim. Once allegations are raised, they need to be assessed against the records, clinical evidence and circumstances that existed at the time. This may require input from independent specialists and experienced medical malpractice attorneys.

Medical malpractice insurance is valuable because it can provide the resources needed to investigate and defend a claim, subject to the policy terms. That protection matters even where the practitioner is ultimately found not to have been negligent.

Informed consent is an ongoing conversation

A signed consent form is important, but it is not the whole consent process. Patients should receive information they can understand about the proposed treatment, material risks, expected benefits, reasonable alternatives and the consequences of declining treatment. The conversation should give the patient a genuine opportunity to ask questions and make an informed choice.

In obstetrics, birth plans and patient preferences should be discussed respectfully. However, the practitioner should also explain that circumstances may change and that an emergency could require a different clinical approach.

In gynaecological surgery, it may be necessary to discuss risks such as organ injury, bleeding, infection, conversion to an open procedure, loss of fertility or the possibility that additional treatment may be required. What needs to be discussed will depend on the particular procedure and patient.

The clinical record should reflect the substance of the discussion. A generic form signed shortly before a procedure may offer little assistance if the practitioner cannot show that the important issues were properly explained.

Good records can be central to the defence

A medical malpractice claim may be made several years after the treatment or delivery. By then, no practitioner can be expected to remember every conversation, observation and decision without reliable records. Good records allow the legal and clinical teams to reconstruct what happened and why.

In an obstetric matter, the relevant evidence may include antenatal notes, test results, ultrasound reports, referral correspondence, consent discussions, partograms, CTG tracings, medication records, theatre notes and neonatal records.

Important entries should be made at the time or as soon as reasonably possible. They should record the clinical findings, decisions, instructions and escalation steps without becoming argumentative or defensive.

If a claim or complaint is anticipated, records must not be retrospectively altered. A legitimate later entry should be clearly identified and accurately dated. Any uncertainty about supplementing a record should be discussed with Shackleton Risk or the appointed legal team first.

Obstetric care is often delivered by a team

Pregnancy and delivery may involve an obstetrician, midwives, nurses, anaesthetists, paediatricians, radiologists, laboratory staff and the healthcare facility itself.

When an adverse outcome occurs, the conduct of several people may be examined. Questions may arise about who was responsible for monitoring the patient, interpreting results, escalating concerns and making the final clinical decision.

The fact that another practitioner or facility was involved does not necessarily remove your exposure. A claimant may cite several defendants and allow the evidence to determine their respective responsibility.

Your insurance arrangements should reflect how you practise, including whether you:

• Employ nurses, midwives or other healthcare workers
• Work with locums or assistants
• Perform procedures at more than one facility
• Share rooms, staff or patient records with other practitioners
• Participate in on-call arrangements
• Supervise junior practitioners
• Provide telephonic or remote advice
• Work in both private and public settings

These arrangements should be disclosed accurately when cover is arranged. If your practice model changes, tell Shackleton Risk so that the policy can be reviewed.

What can medical malpractice insurance provide?

Medical malpractice insurance is intended to respond when a covered claim arises from the practitioner’s declared professional services.

Subject to the policy wording, limits and exclusions, cover may provide access to:

• Medico-legal advice when an incident or complaint is reported
• Investigation and claims-management support
• Experienced medical malpractice attorneys
• Independent expert medical opinions
• Legal defence of covered civil claims
• Assistance with certain HPCSA or disciplinary matters
• Payment of covered damages or compensation
• Related defence expenses

Not every complaint, legal expense or regulatory matter is automatically insured. The response will depend on the nature of the allegation and the benefits included in the policy. You should notify your Shackleton Risk broker before responding to a complaint, admitting liability, offering compensation, appointing an attorney or incurring defence costs.

Why claims-made cover matters to obstetricians and gynaecologists

Genoa provides medical malpractice insurance on a claims-made basis. This means that the timing of a claim and its notification is critical. A claims-made policy will generally need to be active when a claim is first made and reported, subject to the policy terms and the applicable retroactive date.

The retroactive date is also important because it determines how far back the policy can respond to professional services, subject to the wording and continuity of cover.

Consider an obstetrician who delivered a baby several years ago and subsequently receives a claim. If the current policy is active, the matter is reported correctly and the retroactive date includes the earlier treatment, the policy may respond. If there has been a lapse in cover or the retroactive date has changed, earlier treatment may fall outside the policy.

This is why practitioners should be particularly cautious when changing insurers, allowing cover to lapse, changing their scope of practice, closing a private practice, emigrating or retiring.

Notify potential matters early

One of the most important protections available under a claims-made policy is the ability to notify a matter when the practitioner believes that it may give rise to a future claim.

A patient may appear satisfied following an incident, and there may be no formal complaint at the time. However, if the practitioner has reason to believe that there could be a future approach or claim, notifying the insurer can be important. Once a matter has been properly notified in accordance with the policy, the notified matter may continue to be dealt with under the applicable policy terms even if the practitioner later cancels the policy or an extended reporting period comes to an end.

This can be particularly important in obstetrics and other areas involving minors, where the potential prescription period can extend many years beyond the original treatment.

Practitioners may sometimes be concerned that notifying a potential matter could lead to a premium increase or cancellation. Avoiding notification for this reason can leave the practitioner exposed to a future claim that may otherwise have been capable of being protected through timely notification.

If you believe an incident, complaint or communication could develop into a claim, speak to Shackleton Risk as soon as possible. Early notification is an important risk-management tool and should not be delayed simply because a patient appears happy or has not yet made a formal allegation.

Run-off and extended reporting protection

Stopping a particular area of practice does not necessarily bring an end to the liability arising from previous treatment. A practitioner who stops delivering babies, closes a practice or retires may still face a claim arising from care provided years earlier.

Run-off cover or an extended reporting period can therefore be an important consideration when ending or changing medical malpractice insurance.

For obstetricians in particular, this needs to be considered alongside the long prescription period that can apply to claims involving children. The period of protection required after retirement or cessation of practice may therefore be considerably longer than the practitioner initially expects.

The precise protection available will depend on the policy and underwriting arrangements. Practitioners should speak to Shackleton Risk before cancelling or changing their existing cover rather than waiting until after the policy has ended.

How much cover does an obstetrician or gynaecologist need?

There is no single indemnity limit that suits every specialist. The appropriate level of cover will depend on the nature and scale of the practitioner’s work, the procedures performed, the patient population, claims history, facilities used and potential severity of an injury.

An obstetrician managing pregnancies and deliveries may have a different exposure from a gynaecologist who no longer practises obstetrics. A practitioner who treats infants or other minors should also consider the implications of the potentially extended prescription period when reviewing their long-term protection.

The practitioner should understand:

• The maximum amount available for one claim
• The total aggregate available during the policy year
• Whether defence costs reduce the indemnity limit
• Whether reinstatement is included in the policy
• The excess payable by the practitioner
• Whether the policy contains a specific obstetric sub-limit
• Whether all professional activities and locations are declared

It is also important to understand that reinstatement is not necessarily an option that can simply be added when a practitioner needs it. Genoa will only provide reinstatement to practitioners who already have this protection in place.

An apparently substantial limit may also be shared across several claims. If one serious matter uses most of the annual aggregate, there may be limited cover available for another claim in the same period. This is why the premium should not be considered in isolation. The policy needs to provide meaningful protection for the scale of the practitioner’s exposure.

What might not be covered?

Medical malpractice insurance is subject to conditions and exclusions. Depending on the wording, cover may be restricted or unavailable where a claim arises from:

• Work outside the practitioner’s registered scope
• Undeclared obstetric or surgical activities
• Fraud, dishonesty or deliberate misconduct
• Criminal acts
• A known incident that was not disclosed
• Treatment before the policy’s retroactive date
• A claim reported after the permitted period
• Work outside the territorial limits or jurisdiction stated by the underwriter
• Services performed without the required registration or credentials
• Certain cyber, privacy or data breaches
• Contractual promises that create liability beyond the ordinary law

For Genoa’s medical malpractice cover, practitioners should pay particular attention to the territorial limits stated by the underwriter. Cover is intended for work performed within the stated territorial limits or jurisdiction. In practice, Genoa’s underwriting is focused on work performed in South Africa, and any request for work outside those limits would need to be specifically referred and agreed in advance.

Practitioners should not assume that occasional teaching, consulting, work on ships or other activities outside South Africa will automatically be covered. Any such activity should be disclosed and agreed before the work is undertaken.

Fines, penalties and professional sanctions may also be excluded or legally uninsurable, even if the policy provides some assistance with representation. Always read the policy schedule and wording together. The schedule shows the cover selected for your practice, while the wording explains how that cover operates.

Does the hospital’s insurance cover me?

This depends on the circumstances and the employment arrangement, but doctors should not assume that a hospital’s insurance provides them with their own medical malpractice protection.

State or Government hospitals may provide cover for doctors employed by the State in accordance with the applicable arrangements. Private hospitals, however, do not provide medical malpractice cover for doctors simply because those doctors practise at the facility.

Doctors working in private practice or limited private practice therefore need to establish what protection they have in their own name. This is particularly important where a practitioner works as a locum, provides private services at a hospital or has professional activities outside their primary employment.

Ask for written confirmation of who is insured, which activities are covered, what limits apply and whether private or locum work is included. If there is any uncertainty, discuss the position with your broker before relying on another party’s insurance.

Risk management remains essential

Insurance is a financial safeguard, not a substitute for good clinical practice. Risk management in obstetrics and gynaecology should include clear informed-consent procedures, reliable follow-up systems, appropriate escalation protocols and secure record-keeping.

Practitioners should also maintain current competence in the procedures they perform and ensure that staff understand their responsibilities.

Useful steps include:

• Documenting important clinical discussions and decisions
• Following up abnormal tests and missed appointments
• Recording referrals and escalation attempts
• Ensuring emergency protocols are understood
• Preserving original CTG tracings and electronic records
• Communicating clearly during clinical handovers
• Reviewing complaints and near misses for learning
• Reporting potential claims promptly
• Updating the insurer when the scope of practice changes

Good communication is particularly important. Patients and families are more likely to become distressed when they feel ignored, confused or excluded from decisions. A compassionate explanation cannot prevent every complaint, but it can reduce misunderstanding and maintain trust during a difficult outcome.

Protect the career and practice you have built

Obstetricians and gynaecologists support patients through some of the most important and vulnerable moments of their lives. That responsibility brings significant professional risk, even for careful and experienced specialists.

Medical malpractice insurance is one part of managing that risk. The right protection can provide access to legal, clinical and claims-management expertise when an allegation arises, while the structure of the cover can help address the long tail associated with earlier treatment.

For practitioners already working in private obstetric or gynaecological practice, reviewing existing cover is particularly important when changing scope, changing insurers, approaching retirement or considering any period without active cover.

Speak to Shackleton Risk before making changes to your medical malpractice arrangements. We can help you understand the cover available through Genoa and how it applies to the work you actually perform.

This article provides general information and does not constitute legal, medical or insurance advice. Cover is subject to underwriting and the terms, conditions, limits and exclusions of the applicable policy. Practitioners should obtain advice based on their individual practice arrangements.

FAQs

Do I need specialist cover if I only practise gynaecology?

Yes. Gynaecological consultations, diagnostic decisions and surgical procedures can all give rise to professional liability claims. Your policy should reflect the work you actually perform, including whether you no longer practise obstetrics and which procedures you continue to perform.

Does a caesarean section reduce malpractice risk?

No method of delivery removes medico-legal risk. A caesarean section has its own indications, risks and possible complications. Clinical decisions should be based on the patient’s circumstances rather than fear of litigation.

How long can an obstetric claim take to arise?

There can be a substantial delay between the treatment or delivery and a later claim. This is particularly important where children or infants are involved because an extended prescription period may apply. Practitioners should therefore consider their long-term insurance arrangements rather than only the period during which they are actively practising.

Should I notify my insurer if there has not been a claim?

If you believe that an incident or circumstance could give rise to a future claim, you should speak to your broker promptly. Early notification can be an important protection under a claims-made policy, even where the patient has not made a formal complaint or currently appears satisfied.

Does the hospital’s insurance cover me?

Doctors should not assume that it does. State or Government hospitals may provide cover for doctors employed by the State under the applicable arrangements, while private hospitals do not provide medical malpractice cover for doctors simply because they practise at the facility. Doctors working in private or limited private practice should establish what cover they have in their own name.

What happens if I stop practising obstetrics?

Tell Shackleton Risk before changing your scope of practice or cancelling your cover. Claims arising from earlier obstetric care may only be made years later, particularly where minors are involved. Run-off cover, an extended reporting period or the protection provided by a properly notified matter may need to be considered.

Can I work outside South Africa under my policy?

Do not assume that you can. Cover applies within the territorial limits or jurisdiction stated by the underwriter. Any proposed work outside those limits should be disclosed and agreed in advance rather than relying on the assumption that it will automatically be covered.