Think Twice Before Giving Professional Advice

An educator’s well-intended advice to a parent on how to medicate their child’s flu could very well result in a lawsuit on the basis of vicarious liability**.  Educational institutions ranging from nursery schools through to universities and even educators, in their personal capacity, can be held legally liable for any medical advice dispensed on any social media platform. 

Many a parent or caregiver actively participate in social media groups created by educational institutions on Facebook, WhatsApp and the like, to keep in touch and abreast of events or news from the school.  But many educators are however blissfully unaware that they can be held liable for any information dispensed within such a social media group, especially when it comes to medical advice.  In a recent outbreak of Scarlet fever in Gauteng schools, a teacher posted on a WhatsApp group created by the school for parents that, should their child present with any symptoms, they rather “sit it out since the illness does not respond to antibiotics.”

What can happen if a school dispenses medical advice in a social channel

If a teacher is dispatching medically-related advice for and on behalf of the school in their duties and recipients of such advice act on it with negative outcomes, the school can be held vicariously liable.  The teacher or staff member can also be held liable in their personal capacity.  This is according to Gary Ferguson, Head of Claims at Aon South Africa.

“In a worst case scenario, assuming the parent takes the advice given and the child passes on or becomes seriously ill as a result of following such advice, the attorney representing the family will normally issue summons against the teacher in their personal capacity and the school as a second defendant.  This is the norm where a legal contract of employment exists between a teacher and the school in a typical employee-employer relationship,” adds Ferguson.

In the given example the court could very well rule that vicarious liability attaches itself.  It will normally not absolve the teacher from being found negligent as normally the court award, in the form of monetary compensation, will be done jointly and severally.

“In such a situation and in the absence of appropriate insurance covers being in place, should the second defendant (the school) fail to make payment for whatever reason in the stipulated time frame given by the court, the onus to make payment will fall back on to the first defendant (the teacher),” he adds.

Public liability covers for educational institutions

Assets and liabilities of educational institutions represent significant, multi-million-Rand insurance risk and protecting schools and learners has become a highly specialised field.

The complexity of schools insurance has increased not least because of greater litigiousness in South African society, but also because of the wide range of risk to which virtually every facet of schooling and education is exposed – social media is one such risk that obliges schools to consider the adequacy of their limits in their liability insurance programme.

“Many insurance policies carry specific exclusions so it is essential to study the terms and conditions of such cover.  For example, it is crucial to remember that the business of an educational institution is that of teaching and education - not medical practitioner.  Cover will therefore only be afforded to that of ‘first aid’, where the above example of medical advice being dispensed clearly falls outside the business activities of the school and will be excluded from cover,” warns Ferguson.

It is essential for any educational institution to examine the wording of its public liability policy schedule very carefully, and to do so with the advice of a professional and qualified broker with experience in educational liabilities. “The importance of a thorough needs analysis and correct disclosure cannot be stressed enough, as it will allow for a full understanding of the nature of the institution, the risks that it could be exposed to in addition to any exclusions that may exist,” explains Ferguson. 

Circumstances will dictate the terms for cover, for example in the case of some private schools and boarding schools where a full time, qualified nurse is on duty.  In this instance it would be advisable to consider the inclusion of a more formalised medical malpractice policy,” suggests Ferguson.

Mitigating Risk

The age of social media has fundamentally changed the way in which we communicate, effectively giving the employee a louder voice than the employer.  As a result, businesses face legal ramifications that are largely unknown in the online space and will need to adopt an approach that aims to protect itself from such exposures.

A good place to start is to revisit employee policies in relation to social media usage in order to set a clear and specific standard. “In the absence of such a policy, a business could be exposed to risks such as wrongful dismissal as such an act would need a demonstrable standard to be measured against. From an insurance perspective, an underwriter would also want to see that a business has a policy in place for social media usage in an attempt to mitigate potential losses,” explains Ferguson.

“It is never advisable to use a social media platform such as WhatsApp, Facebook or twitter to dispense professional advice of any kind or nature.  One also needs to be sure that the advice or information that is passed on is not under copyright or trademarked and to give credit to the professional or business where it is due,” he explains.

“A more amenable approach would be to refer parents to an article written by a medical practitioner or pharmaceutical company on the use of antibiotics, and simply state: ‘Refer to your GP for consideration in treatment.’  The Issue of liability could have a very different outcome as no advice was dispensed by the teacher,” suggests Ferguson. 

“Prior to social media, the defendant had some form of protection in that the argument usually boiled down to a ‘he said, she said’ scenario with best evidence prevailing.  However, under social media the advice is written and distributed, and can therefore not be argued against, leaving the educational institution and its employees at risk of serious exposure especially if not correctly insured,” Ferguson concludes.

**Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently, such as an employer or an educator, in this instance.