Doctors’ battle with insurers
High insurance costs are crippling practices in specialist fields so doctors are battling to keep their doors open
FOR as long as he can remember he wanted to be part of the miracle of new life being brought into the world. “There’s nothing more fulfilling than helping someone become a mother for the first time – especially someone who’s struggled with pregnancy,” he says.
So three years ago Dr Lesego Sefanyetso quit working as a general practitioner to open his own practice as a gynaecologist and obstetrician, celebrating in the magic of birth with each patient as her newborn took their first breath.
But now the 41-year-old doctor’s lifelong dream may be dashed, thanks to rising insurance costs in his field of speciality that are all but crippling his practice.
When Dr Sefanyetso opened his Johannesburg surgery in 2014, his comprehensive insurance cost was about R33 000 a month. This year his premiums shot up to R80 000 a month.
In comparison, a psychiatrist also based in Johannesburg tells us his insurance costs R20 000 a year “because psychiatrists hardly get sued and when we do, the settlements are not as huge”.
Lawsuits are mostly filed against specialists in more high-risk fields such as neonatology, neurosurgery, orthopaedics, gynaecology and obstetrics, which in turn affect their insurance premiums – and experts say costs are being compounded by vulturelike lawyers who are cashing in on inflated claims.
What does this all mean for South Africans? Fewer specialists to do much-needed work, or a massive increase in fees.
In a bid to meet his sky-high premiums, Dr Sefanyetso, a father of one, has had to increase his consultation fee for firsttime patients to R1 600 and he sees between 10 and 15 patients daily in a bid to keep his practice afloat.
Dr Sefanyetso is just one of the doctors being affected: parliament recently heard that gynaecologists and obstetricians are being forced to take out huge insurance policies to protect themselves from ever-increasing malpractice claims.
These claims are driven by lawyers who haunt hospitals in the hope of finding patients they can persuade to lodge claims.
According to health minister Aaron Motsoaledi, 100 of the country’s 800 obstetricians and gynaecologists in the private sector recently left the profes-
sion as a result of insurance costs, which will eventually result in referrals to already overburdened public hospitals and clinics.
These lawyers are targeting specialists not only in private practice, but those in state-owned hospitals and clinics too. The situation is so worrying the health department has set aside a whopping R41 billion for malpractice suits for the year ending 31 March 2017.
AGAUTENG obstetrician/ gynaecologist who splits his time between the public sector and his private practice tells us he’s seen touts hanging out near obstetric and orthopaedic wards at the public hospital where he works. He claims they’re soliciting business for lawyers, just like they used to search for victims of road accidents in the past.
“We’re basically working for insurers,” says the doctor, who spoke on condition of anonymity.
KwaZulu-Natal MEC for finance Belinda Francis Scott has slammed this behaviour as criminal.
“If there’s a problem birth, there are lawyers waiting there before the baby is even born. They tell the family they’re submitting a claim for R100 000 then they submit a claim for R2 million and pocket the rest,” she recently told parliament at a special sitting to discuss the high rate of legal claims against health departments countrywide.
The KZN health department has the second-highest claims total after Gauteng – during 2016 and 2017 the province spent a staggering R243 million on claims, which wasn’t budgeted for.
KZN’s MEC for health, Dr Sibongiseni Dhlomo, says some law firms are advertising their services to encourage people to hire them if they feel they’ve received poor medical treatment from the state, The Times newspaper reports. He says lawyers are colluding with doctors in some instances to get patient files in order to lodge claims.
This phenomenon is mirroring worldwide trends, says Deon Francis, a partner at the law firm Hogan Lovells (SA) Inc in Joburg.
“Our society in general has become increasingly more litigious,” he adds. “We’re becoming a lot like the US and the UK. Look at class-action lawsuits, which have been prevalent in those jurisdictions for many years – it’s only in recent years that we’ve seen class actions being instituted in South Africa. And we’re following their trend, especially with regards to granting larger damages awards.”
There are a number of other factors that have contributed to the situation worsening. Many have attributed the increase in medical malpractice litigation to the amendments to the Road Accident Fund Act in 2008. These amendments resulted in general damages awards being limited to serious injuries only and a cap being placed on loss of income awards.
The situation has also been worsened in part due to further changes in the Road Accident Fund rules (YOU, 9 March). It’s now harder to claim from the fund and it pays out less for loss of income than in the past, leaving lawyers to find alternative routes for damages claims.
Technology is also contributing to high damages claims, say attorneys Justin Malherbe and Natasha Naidoo of the law firm Norton Rose Fulbright SA Inc.
“It’s not unusual for patients who are injured in a motor vehicle accident or who have lost a limb to request a robotic prosthetic arm or leg, which can cost millions of rands,” Malherbe says.
“That wasn’t previously available to claimants, but it is now and it’s starting to filter its way into the lawsuits we see.”
BUT not all malpractice lawsuits are inflated or unwarranted. For example, the Health Professions Council of SA (HPCSA) slapped Emalahleni gynaecologist Dr Danie van der Walt with a R10 000 fine after 23-year-old mother Pamela Daweti bled to death after delivering her baby under his watch in 2005.
The magistrates’ court in Emalahleni convicted Van der Walt of culpable homicide last year and he’s due to be sentenced in July, paving the way for Pamela’s family to sue him and the hospital where she died.
It’s clear the government must crack down on illegitimate and inflated legal claims but it also has to strike a balance between those and lawsuits that are warranted, experts say.
Motsoaledi is trying to get to grips with the problem and has set up a team to probe the growing number of court cases. Members of the ANC’s NEC subcommittee on education and health are said to be mulling over the idea of putting a cap on payouts while the SA Law Reform Commission, the statutory body that makes recommendations about the changes to our laws, started work on a discussion paper on medical malpractice. Researcher Ronel van Zyl says it will be several months before a draft is released for public discussion.
His organisation is concerned about the increase in the cost of clinical negligence over the past six years, says Dr Graham Howarth, head of medical services: Africa at the Medical Protection Society (MPS) which covers the insurance needs of 300 000 health practitioners worldwide. This, he adds, has forced MPS to hike members’ subscriptions so it could defend their interests into the future.
He explains it can take up to 20 years for birth-related claims to be made, compared with five years for nonobstetric complaints. Birth-related claims are often the largest, he adds. “MPS is well aware of the challenges posed by such increases, and that these are challenging times for our members. We’re keen to join forces with other role players to be part of the solution.”
Until then, doctors will have to manage their insurance costs as best they can to ensure they keep their doors open.
‘If there’s a problem birth, there are lawyers waiting there before the baby is even born’