Controversy dogs medical negligence ‘pandemic’
The Gauteng department of health has paid out more than R1-billion in medical negligence claims since 2015, but that figure may yet come to seem small.
Between them, the nine provinces have R40.9-billion in medical malpractice contingent liabilities on their books.
In the last financial year for which there is published data and which ended in 2016, Gauteng reported R3.8-billion in new potential civil claims relating to medical treatment, and KwaZulu-Natal R3.5-billion. For both provinces, that represents more than 10% of their total health budgets.
Early indications are that in the current financial year, during which health budgets will struggle to keep up with inflation, such claims will double.
“When a snake, in the form of medical harm, enters your house, you do not bomb the whole house with your children inside; you try to find a better way to rescue your children,” Health Minister Aaron Motsoaledi railed in June, describing the medicolegal litigation as a “pandemic” that threatens “the very existence of our mothers and children”.
That children are at the heart of the problem is undisputed — the majority of medical negligence claims against the state in recent years have involved birth complications.
On every other aspect of the problem, there is no agreement whatsoever.
If anything, the quality of healthcare has improved while the claims have exploded, argue Motsoaledi and provincial officials. But there has been no serious effort to reduce negligence by state medical staff, opposition parties charge.
Victims of negligence increasingly ask for and receive exorbitant settlements, the provinces say. But the settlements are often reached by agreement, representatives of the victims say, because the provinces know they cannot argue for lesser amounts.
Perhaps the most controversial claim of all is the state’s claim that lawyers, working on contingency arrangements that can net them up to 25% of any settlement, are milking the system.
“We aren’t the ones running a factory for making brain-damaged babies,” one specialist medical negligence lawyer says. “We just help people get justice.”
What should be done legally is no less controversial. South Africa has no legislation to deal specifically with medical negligence claims, so they are dealt with in terms of the same common law as all other damages claims. The Gauteng province has tried in nine separate cases to convince the high courts and the Supreme Court of Appeal that the common law must be amended, but this has been rebuffed every time. Meanwhile, Gauteng’s efforts have drawn the ire of two of its fellow provinces, the Western Cape and Eastern Cape, which fear Gauteng’s subpar legal approach will imperil their efforts to reform the system.
Also, in early 2015, one of Gauteng’s attempts caught the attention of Justice Michael Masutha, who feared the province was pushing to change law settled for three centuries without proper investigation. He asked the South African Law Reform Commission to undertake an investigation, and in July this year the commission published an issue paper calling for comments on current and future legislation.
The commission says serious consideration has to be given to a range of legislative changes to deal with medical negligence, but in the shorter term each province should set up a budget specifically to deal with litigation and compensation. Paying medical negligence settlements out of health budgets will, in the end, “lead to more litigation due to the resulting deterioration in the standard of service delivery”, it warned.