Healthcare crisis is not fault of lawyers but wasteful litigation – expert

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MB-161 Alan Nelson

Alan Nelson

South Africa‘s healthcare crisis is not the fault of lawyers, as has been asserted, but stems from the fallacious belief that litigation offers more just outcomes than mediation, writes Alan Nelson, an advocate with more than 40 years of litigatory experience, who is also an experienced mediator.

Nelson also recently acted as a judge of the Cape High Court and trains mediators forMediation in Motion (MiM)/University of Cape Town. This is his response to the opposing views of The Minister of Health, Dr Aaron Motsoaledi and Neil Kirby of Attorneys Werksmans as to whether lawyers are responsible for the current crisis in healthcare. Nelson writes:

Let us start with what is common cause. Everybody agrees that healthcare in our country is in crisis. Services offered in state hospitals are deteriorating by the day. Health insurance has become so expensive that many gynaecologists are no longer practicing obstetrics. This is a calamity which Health Minister Dr Aaron Motsoaledi correctly says, we ignore at our own peril.

For the wealthy, this is not a problem. But for most South Africans the situation is dire. Consider this – what if your own child or grandchild were to be born in unsafe conditions either because there is no obstetrician or because hospital facilities are not up to standard?

In these circumstances, it does not help for people to play the blame game. Instead we should be looking for solutions. Introspection and not blame is required. Not only by the members of my proud profession, but also by all the stakeholders in the health sector.

Most Lawyers can afford to seek out the best medical treatment for their loved ones. So, few, if any, are affected by the healthcare crisis. The same applies to judges. Yet perhaps without realising it, lawyers, including judges, are indeed responsible in large measure for the healthcare crisis!

This is not because my profession knowingly pursues cases that have no merit, only fools would do that and very few of the lawyers that I know fall into that category. This applies particularly to cases taken on contingency, where the lawyer only gets paid if the client succeeds and so would be hugely out of pocket if the case is lost.

So how then are lawyers contributing to the healthcare crisis? This they do by allowing and often encouraging their clients to litigate instead of mediating medical claims. In so doing they are responsible for their clients adopting an incredibly expensive procedure to seek relief that they could obtain in a far better way and at a fraction of the cost. In medical terms this is akin to a medical practitioner allowing a patient to undergo an extremely painful and expensive operation in circumstances where a pill or another simple and inexpensive form of medication would bring far better relief!

Let me take a recent case to explain this. Earlier this year judgement was handed down in the matter of AD&IB v THE MEC FOR HEALTH, WESTERN CAPE PROVINCIAL GOVERNMENT Case no 27428/2010. It was a claim arising from a baby with jaundice that was not treated timeously and which resulted in the child having cerebral palsy. The merits were conceded and the only issue which the judge was called upon to decide was how the child and his parents were to be compensated. Lawyers for the parties nevertheless engaged the services of no less than 37 experts to furnish opinions. It took seven years after the child was born before the case was ripe for hearing. The trial then ran for 44 days and argument took a further five days. Many thousands of pages of evidence and documents had to be read, re-read and carefully considered by lawyers, experts as well as the judge. The legal fees that were incurred on both sides would probably have come close to the amount of the award, which ran into many millions of rands. One needs to ask is this justice?

I have studied this judgment carefully and have no doubt at all that this matter, like most others that are heard daily in our courts, could have been successfully mediated. If this had happened a far better solution may well have been found by the parties. This would have happened many years earlier providing relief to the family far sooner. In this regard, it bears emphasis that mediation frequently produces excellent outcomes that are acceptable to the parties and that judges simply cannot order.

Mediation costs a fraction of what litigation does. I estimate, that the mediation of the above matter would have cost as little as 0.5% of what the litigation did. Instead of much needed funds being channelled to improve health services, state coffers have been emptied by footing the bill for wasteful litigation like this. Apart from the horrendous legal fees and the cost of the experts, it must not be forgotten that judges and the costly litigation infra-structure provided by the state must also be paid by the fiscus from our taxes.

So why was the above matter not mediated? Probably because, as happens in almost all cases that come before our courts, one or more of the lawyers representing the parties did not advise the parties to mediate. Some say that lawyers refrain from telling their clients about mediation in the selfish pursuit of their own interests. This is an attractive argument that may apply to a few greedy lawyers but I prefer to give most of my profession the benefit of the doubt and to attribute this failure to a lack of knowledge on their part as to how exactly mediation works and what its benefits are.

But whatever the cause, there can be no doubt whatsoever that lawyers are responsible for vast amounts of money that ought to be channelled into better medical services being wasted on legal costs, including expert fees and court expenses. This makes it impossible to maintain quality healthcare services, which in turn gives rise to more litigation and the further deterioration of healthcare services and to more and more claims…and so my profession has caused the situation to spiral completely out of control!

In my view, the time has come for every lawyer in South Africa to find out about mediation. In some countries, lawyers can be debarred for not advising their clients about mediation. This rule should also be adopted by the professional bodies that regulate the conduct of advocates and attorneys in South Africa. Judges also need to gain a better understanding about mediation and should refuse to hear matters if the parties have not at least given due consideration to this option.

The medical profession is not waiting for lawyers to get their house in order. The solution that they have found does not require legislation or ethical rules to be adopted by the legal profession. It is simple and is being implemented with immediate effect. So what is the solution that they have come up with?

Medical practitioners have recently started concluding agreements with their patients in terms of which both parties agree to attend what is termed ‘a pre-mediation meeting’ with a qualified mediator before they litigate. Mediation in Motion (MiM) currently offers this pre-mediation service at no cost to the parties. The purpose of these meetings is to ensure that the parties can weigh up the pros and cons of mediation before they embark upon costly litigation. It is like getting informed consent before undergoing an expensive and costly operation – like a good medical practitioner, the pre-mediator advises the parties precisely how mediation works and takes them through what will happen if they litigate. At this meeting, the parties are also assisted to find a suitably qualified mediator that will help them to find the best possible solution and one that both parties are happy with.

Mediation provides a safe space for parties to talk to one another. Instead of the current ‘defend and deny’ policy that defendants (including the state) are adopting they are encouraged to talk openly and honestly with patients. The parties get an opportunity to hear what really happened. If necessary, they can jointly appoint independent experts to help them reach agreement on technical issues. Where appropriate genuine and sincere explanations and apologies can be given. Empathy and compassion can be shown. In this way, problem areas in healthcare, instead of being denied and swept under the carpet, are identified. Remedial measures can be implemented and services improved immediately. Very often this is all that a patient wants to see. Where this does not suffice other forms of healing or compensation can be provided straight away. Is this not justice?

As far as the state is concerned the solution is for all hospital managers to understand mediation and to insert pre-mediation clauses into hospital admission forms. This is being done by large private hospital groups. It has also been suggested to the state where the wheels of change appear to be turning slower.

UCT Law@work and MiM is calling for a meeting with Minister Motsoaledi and the legal profession. to discuss this solution. We have also offered to train state attorneys and advocates in the mediation of medical matters but have been told that there are no funds for this! And this, in circumstances where the costs incurred by the state in just one cerebral palsy case (and there are hundreds of these) would suffice to train all lawyers in South Africa in mediation.

Ultimately my message to the authors of the articles to which I am responding is a simple one. Our country cannot afford wasteful litigation. We should work together to implement mediation also in the health sector. It provides justice for patients and healthcare professionals alike and will save billions that can be used to improve healthcare services. We owe this to all South Africans and especially to the poor.

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