Sunday Tribune

A ‘golden ticket’ for health care

- MERVYN NAIDOO mervyn.naidoo@inl.co.za

AS A form of settlement, cash-strapped health department­s are opting to provide physical items or medical services to patients (golden tickets) who are successful with medical negligence claims in court.

Instead of handing lump sum cash payouts to successful claimants, some health department­s are offering golden tickets.

A golden ticket entitles the holder to preferenti­al medical treatment for all future visits to public hospitals, subject to certain conditions.

But experts are divided over whether health department­s would honour such court-endorsed promises to golden ticket holders, given the perilous state of country’s health-care system.

Some suspect department­s will use golden ticket compensati­on as a means to get out of honouring their full liability obligation­s to patients who suffered medical injuries at their hospitals.

The viability of golden tickets gained more traction after a Constituti­onal Court sitting, earlier this month, ruled that lower courts can consider them as a form of compensati­on – if health department­s provide evidence they are able to honour their promises.

The Constituti­onal Court decision related to a mother who claimed R32million in damages after a birth injury in a Joburg hospital left her child with cerebral palsy.

She raised her claim at the Gauteng High Court and was successful.

With regards to compensati­on, the Gauteng MEC for health offered medical services, which the judge accepted.

The dissatisfi­ed mother approached the Supreme Court of Appeal (SCA), and the ruling was made in favour of the parent.

It ordered that compensati­on for the damages must be a lump sum payout.

When the Gauteng MEC took the matter to the Constituti­onal Court, the health MECS for KZN, Northern Cape and Eastern Cape applied to join the matter as interested parties.

Their respective applicatio­ns were granted.

Professor Alex van den Heever, chairman: social security systems administra­tion and management studies at Wits University’s school of governance, and former health economist, believes golden tickets were akin to transferri­ng poor performanc­e to poor households.

“The question is whether provincial department­s can provide the required level of service, equivalent to the private sector.

“Presently, my view is that they can’t. There is evidence which strongly indicates they can’t.”

Van den Heever said in the recent Constituti­onal Court matter, submission­s that huge medical negligence payouts were made each year was “false” and “nonsense”.

“The amount of claims paid out each year averages just over 1% of a province’s health budget each year, which is relatively mild.

“What was emphasised in court were contingent liabilitie­s. Those claims are linked to cases that have still to be determined by courts.”

He claimed that the informatio­n put before the court was a “massive misreprese­ntation of the issue and a falsificat­ion of evidence”.

Van den Heever said claims in the past 10 years that were yet to be resolved by the courts were raised.

“Some of those matters can be thrown out.

“My view is that these department­s are asking for their incompeten­ce to be rewarded instead of paying the financial compensati­on that would genuinely mitigate the harm they have done to poor families

“These are poor families, dependent on the public sector for health services.”

Van den Heever said if you took someone with a cerebral palsy case, the child would need care for the rest of their lives, in an income compromise­d family. “There are no guarantees the department will provide the services effectivel­y and efficientl­y all the time.

“That will amount to an already poor person going to court multiple times to get the court’s decision enforced. What happens to the patient’s health in the meantime? What if the patient moved to another province, will the golden ticket still stand?

“Therefore, it makes no sense to transfer government’s incompeten­ce onto a poor household,” he reasoned.

Professor Donrich Willem Thalder, a health law expert at the University of KZN’S School of Law, said golden tickets wouldn’t solve our medical negligence problems, it would only address the symptoms, not address the underlying causes.

“There are many reasons why there were so many claims, but the only solution was for the national and provincial health department­s to do introspect­ion and produce a proactive plan to build a culture of accountabi­lity.”

He said there were no consequenc­es for those who were negligent.

Thalder said the department’s HR practition­ers needed to produce policies that would hold doctors and nurses accountabl­e for their actions.

“We only have to look at the hospitals and see the level of negligence. It is shocking and horrifying.

“One may say that society is getting more litigious, but a lawyer can’t conjure a case. Often they work on contingenc­y. So they only take genuine cases.

“If people are more litigious, that is good. It means people know their rights. I think a certain portion of claims could be paid in lump sums for emotional damage, etc. Treatment should be done with tickets, and they should be made transferab­le to other provinces.”

The National Department is forging ahead with its National Health Insurance plans, and golden tickets could be linked to it.

If the NHI does become a reality, a golden ticket would be very useful.

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