An analysis of medical negligence cases in the public health sector has revealed a number of interesting facts, one being that the Northern Cape could spend four times more per case than Gauteng – even though its health budget is far smaller.
And of course, that provincial Health Departments are being crippled by lawsuits for negligence, but dozens of them are not legitimate.
Zano Kunene writes that Bhekisisa recently analysed the numbers that were released by Health Minister Aaron Motsoaledi and the Special Investigating Unit (SIU) on 24 August at a press briefing to understand where and what kinds of problems occur – from dodgy lawyers and unethical health workers to just plain fishy cases.
In 2017, the SIU had been called in to look investigate the issue, and by July 2024, had flagged 2 830 cases out of 10 679 in total as being suspicious and needing further inquiry.
Of these, the cases in the Northern Cape each cost, on average, four times more than in Gauteng, even though the province’s health budget is far smaller than Gauteng’s.
Nearly one in three cases being looked at is from Mpumalanga, with KwaZulu-Natal on its heels.
The third spot is a tussle, because although the claims being investigated in Gauteng are double those of Limpopo, the value of those in the northern-most province is about R1bn more.
But first, some background.
Where things stand now
By the end of March, provincial Health Departments faced about R78bn in medical negligence cases, almost 80% of the combined budget for such departments and money meant to be used for treating people.
About 90% of the total budget that Treasury allocates to Health each year goes toward provincial departments, as they are the ones who roll out the policies developed by the national department.
Every financial year, these departments start “on the back foot”, said Thabelo Musisinyani, head of the unit that takes care of the health portfolio at the Auditor-General’s Office.
This, she added, was worsened because they have to then borrow from future budgets to pay for medical negligence claims from previous years.
In a decade, from 2012 to 2022, the amount the government spent on compensation for medical negligence grew 10-fold, from R265m to R2.6bn.
In 2018, claims against the departments amounted to R70bn, which the government wanted to reduce to below R18bn by 2024.
But, instead, it is now four times higher.
These claims aren’t all legit, though. Because dodgy lawyers have found loopholes in the legal system and, with state hospitals’ record-keeping not in order, large amounts of money are unnecessarily paid out.
The result is a crippling ripple effect, with more and more of the coming years’ money being used to cover expenses from previous years, leaving less and less to fund services that people need.
So, what do the numbers show?
1. Mpumalanga, KZN, Limpopo and Gauteng
Mpumalanga has 902 cases under the magnifying glass, nearly a third of the total number being looked at, at a combined value of just more than R10bn.
KwaZulu-Natal is second, with 713 cases worth R8.7bn.
Third is Gauteng, but only when measured by the number of cases under investigation – about double that of Limpopo.
But when it comes to the monetary value of potential payouts of those claims, the cases in the northern-most province are worth about R1bn more than in Gauteng.
Payouts in medical negligence cases are generally big because they include the cost of future medical care, often in private hospitals, Motsoaledi said, and compensation for possible income the patient would have received if negligent treatment had not disrupted their life.
The SIU found that some of the fishy claims were from lawyers suing the state for future medical costs, even though the patients had already died.
2. Free State
In the Free State, stolen medical records played a huge role in the shady claims, an issue previously flagged by the Auditor-General as problematic when it found state hospitals didn’t have proper systems to keep track of patient files.
This opens opportunities for records to be stolen and sold to unscrupulous lawyers, who know that, without the files, the state won’t be able to argue these cases. Musisinyani says this is one of the reasons why the departments end up losing in court and having to pay.
3. Northern Cape, Eastern Cape and North West
Although the Northern Cape has only 20 fishy cases being looked at, each costs, on average, R28m; compare that with the roughly R7m per case in Gauteng and North West.
Moreover, more than half the total value of claims in the Northern Cape at the moment comes from only seven cases.
Four of these had a combined value of R169m and were submitted by a single lawyer, who, patients say, they never instructed to lodge a malpractice claim.
Three other claims in this province, for a total of R129m, involved touting – when an unscrupulous professional, like a lawyer or nurse, tries to recruit patients to sue the state by offering them big payouts.
In the Eastern Cape, claims flagged for investigation are worth about R19.3m each.
The SIU’s findings showed that close to a third of the claims in the province came from a single law firm, with a total value of R600m. But their methods were dodgy, because the firm pocketed all of the money paid out by the state and the patients never received a cent.
4. Western Cape
The SIU confirmed it received claims data from the Western Cape in August, but is still analysing it before it will be able to release findings.
More spend with lower budget
Of those being investigated, a case in the Northern Cape costs about four times what it does in Gauteng, yet the province gets only about a tenth of what Gauteng does to spend on health.
That’s because a province’s budget from Treasury is based on its provincial equitable share, which is calculated using the size of its population.
With the small population in the Northern Cape of about 1.3m people, the province has to make do with a fairly small health budget.
Over the next three years, this is around R20bn. But about 3% of that would have to cover medical negligence claims up until July 2022, making all cases filed by unscrupulous lawyers even more worrying.
If claims keep on rising and the current trend of dipping into future years’ kitties to pay for these continues, it will hamstring the state’s ability to deliver proper health services, said the Auditor-General’s unit.
Musisinyani said this means the Health Department will need to decide where to spend its money.
“Our message to Members of Parliament is that there needs to be a way of breaking the cycle, because, if we don’t, it is just going continue.
See more from MedicalBrief archives:
The plan to stop SA’s fake medical negligence claims
Is mediation a better option in medico-legal disputes?
SIU to probe suspicious medical negligence claims
State hospitals owe R21bn in medical negligence claims