Escalating medical malpractice claims against the state – nearly R2bn in 2020/21 – risk collapsing the struggling public healthcare system, and alternatives to traditional payouts are crucial, writes Robyn Conradie in The Witness.
Conradie suggests two options to calculate and pay compensation: an undertaking-to-pay for future medical expenses and a cap for pain and suffering.
“The current legal system, which regulates the calculation and payment of future medical expenses and compensation payable for pain and suffering to victims, is unsatisfactory,” she said.
An increase in claims against the state means that the public purse is used to litigate and pay compensation to successful claimants, leaving less money available for accessible, quality public healthcare.
“Because public healthcare facilities pay this compensation from a shrinking health budget, and although the state may have ‘deep pockets’, it could find itself unable to continue paying compensation claims for medical malpractice and simultaneously provide healthcare,” she writes.
Conradie said data from the South African Law Reform Commission showed that in the 2020/21 financial year, nearly R2bn was paid out in damages, with contingent liabilities exceeding R120bn in the same year.
She argues that her alternatives to calculate and pay compensation to successful claimants would balance fairness for victims with the long-term sustainability of the public healthcare system.
“Instead of paying victims a once-off lump sum for future medical expenses, the Department of Health could undertake to pay for any future medical expenses as and when they arise by virtue of an undertaking-to-pay certificate.
“This will overcome the department’s cash flow problems as well as reduce litigation costs when calculating future medical expenses, because the value of these won’t have to be calculated at the end of litigation, thus reducing the potential for over- or under-compensation of claimants.”
Conradie suggests the higher costs, particularly those linked to strengthening the department’s administrative capacity to implement an undertaking-to-pay system, could be offset by savings from moving away from once-off lump sum payouts.
“Where no lump sum is paid, the money can be invested and ring-fenced for healthcare services,” she suggests. It would also be reasonable to limit the compensation for pain and suffering and to calculate non-patrimonial damages based on the overall extent of a person’s impairment.
The proposed alternatives could be implemented without significant financial implications for the state, she notes. SA’s healthcare system has not yet reached a point of no return, making targeted interventions to restore it increasingly critical.
Conradie recently obtained her doctorate in private law from Stellenbosch University.
The Witness article – New interventions needed to curb costly state malpractice claims (Open access)
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SA Law Reform Commission outlines sweeping medical negligence changes
Landmark ConCourt application on soaring claims
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