Managing the medical malpractice litigation rush

Litigious patients and costs of insurance are driving some doctors out of high-risk specialities, thus negatively affecting medical service delivery

YOU WILL have read of the enormous pressure placed on the public and private healthcare sectors by an everincreasing number of medical malpractice claims and quantum of awards – or settlements of those claims.

The contingent liability of the provincial health departments for medical malpractice claims is astounding, running into billions of rands.

In the private sector, doctors and hospitals are seeing increasing court awards and settlement amounts drive up the costs of obtaining medical malpractice insurance.

That all goes, directly and indirectly, to affect medical service delivery negatively. In dealing with and resolving medical malpractice claims and all the costs involved, that means less money from under-pressure provincial health budgets for medical care and treatment of patients, with negative consequences for service delivery.

The large number of malpractice claims in the state sector will also significantly undermine the viability of the proposed National Health Insurance.

In the private sector an increasingly litigious patient base and the costs of medical malpractice insurance are driving some doctors out of what is seen as high-risk specialities or discouraging newly qualified doctors from entering those specialities, once again negatively affecting medical service delivery.

An immediate reaction to the dilemma is, well, don’t be negligent and there will be no claims.

No medical practitioner or facility sets out to deliver negligent treatment. There is much to be said for improved risk and clinical controls, including record keeping and retention, and continuing professional education.

The primary focus of any healthcare provider, state or private, should be to provide quality care. A lot of time and effort, and money, is spent on risk control and standards of care. In both sectors.

It is also useful to temper any indignation by remembering that thousands of successful medical procedures and interventions occur every day and negligent negative outcomes arise in a very small percentage of cases (unacceptable as that may be).

In this article, let’s consider the collateral source rule in our law.

This rule prevents any court in making an award from taking into account when calculating the quantum of damages to be awarded any benefits for the claimant from independent sources such as statutory insurance payments or workman’s compensation.

The Assessment of Damages Act provides that, in any claim for loss of support as a result of a person’s death, no insurance money, pension, or benefit payable by a friendly society or trade union may be taken into account when determining damages payable.

Payment of medical expenses by a plaintiff ’s medical scheme is usually viewed as a form of voluntary private indemnity insurance and not deducted from the damages.

The general approach has been that the defendant should not benefit from the plaintiff ’s foresight and industry (and cost) of insuring privately.

Hasn’t the time come to review this approach and amend the law? Legislative intervention would be required to take into account collateral benefits received in awarding damages in these circumstances. Can society bear the costs (because that is where the costs ultimately fall) of not doing so and a claimant in a sense being over-compensated.

Take, for example, medical scheme payments.

A damages award will deal with past and future medical and hospital expenses. A claimant who is a medical scheme member will most likely have received an indemnity if not for all, but for some of those past medical expenses and will get the benefit of indemnities for the costs of future treatment if they remain a member.

Yet the damages awarded also allow for the costs of that treatment.

It would be fairer to allow the court to enquire regarding those payments and make an appropriate deduction. Fairness may require the defendant to pay or contribute to the ongoing costs of the medical scheme membership, particularly if a premium is charged because of the condition now suffered by the claimant and negligently caused by the practitioner.

Any gap in cover under the medical scheme would form part of the damages awarded.

An alternative may be to not reduce the damages awarded to the claimant but at least allow a recoupment of that component of the damages by the defendant from the third-party source of that collateral benefit.

That would require the defendant in a claim to obtain in the discovery process all necessary information relevant to any collateral benefits the claimant may have, or will receive, so as to enable it to exercise such rights of recovery.

Many medical scheme rules require a member to disclose details of damages awarded to a member for any injuries suffered and a consequent reduction in the benefits paid in that regard or for recovery of benefits already paid in that regard. Those disclosures are not always made, with the consequence that the relevant risk pool bears the costs of that double compensation.

Sober reflection of what is fair, and what costs, direct and indirect, society can continue to bear when dealing with these claims does, I think, necessitate a serious and hard look at appropriate legislative intervention.

A regular guest column by industry experts on how to manage your money. Hasn’t the time come to review this approach and amend the law? Legislative intervention would be required to take into account collateral benefits received in awarding damages

Donald Dinnie is Group CEO at Natmed Group