Lawyer interdicted after R480m in medical negligence claims

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The Western Cape High Court has stopped a controversial lawyer from instituting cases against Western Cape Health, pending the outcome of an investigation into his conduct by the Legal Practice Council, reports Business Day. Zuko Nonxuba has been accused of trying to extract more than R480m in fraudulent medical negligence claims from the department. The Western Cape Health Department has also instituted criminal proceedings against Nonxuba.

The report says the department’s move has broad implications, as Nonxuba is a key figure in the barrage of medical negligence claims facing the Eastern Cape Health Department.

The Eastern Cape is one of the provinces hardest hit by medical negligence claims. In 2017-18 it paid out R876.7m to claimants, representing 32% of all the claims paid nationwide. Investigators from the Special Investigations Unit (SIU) have been seconded to the Eastern Cape Health Department to investigate medico-legal claims and are looking into at least 77 claims brought by Nonxuba against the department with an estimated value of R497.7m. He is currently out on bail in the Eastern Cape in two separate medico-legal fraud cases involving claims totalling R135m.

The report says in an order handed down on 18 June, Judge Owen Rogers gave the Legal Practice Council six months to report back on its investigation into Nonxuba, which was triggered by a complaint laid by Western Cape Health to the Cape Law Society in July 2018. In the interim, he interdicted Nonxuba from lodging any further medical negligence claims against the provincial health department.

The Legal Practice Council took over the regulation of the legal profession last November at national level.

The report says while the Western Cape Health Department is in a better position than other provincial health departments, it nevertheless faced 300 active medical negligence claims totalling R2.19bn at the end of the 2018-19 financial year. Not all of these claims are likely to be paid, but it is estimated that at the end of March it faced contingent liabilities of R334.5m.

Court papers show that Nonxuba had 57 medical negligence claims for birth injuries pending against the Western Cape Health Department in July 2018, representing about one third of all the obstetric-related claims it faced at that stage – 33 of Nonxuba’s claims, totalling R484.1m, were alleged by the department to be “vexatious and fraudulent”. Five of those claims were subsequently withdrawn.

The department’s medico-legal advisor Anke Nitzsche said in an affidavit submitted to the court that Nonxuba allegedly touted for business at clinics and hospitals in the Western Cape, and lodged almost identical claims for multiple medical negligence cases, many of them for conditions that were unrelated to the child’s birth. These included claims for children with inherited genetic disorders such as Marie-Charcot disease, or suffering the after-effects of childhood diseases such as meningitis.

The report says in his responding papers, Nonxuba denied the Western Cape Health Department’s allegations. He said he had extensive knowledge of the symptoms of birth injuries, and sought to weed out claims that were without merit. Moreover, the department assumed its records were accurate, but hospital records were often falsified, he said. He said the Law Societies (now the Legal Practice Council) could take as long as they wanted to investigate the department’s complaints, which would leave his firm “hamstrung in perpetuity”.

Business Day report

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