SA Health Minister Dr Aaron Motsoaledi has hit out at practitioners in the legal and health fraternities for being "pocket-liners" and for exacerbating the recent sharp increase in medico-legal claims against the country’s health system. Saying he would like to see some chief executives of the country's public hospitals arrested for being part of syndicates threatening to bring health down, the minister said: "They neglect their duties and do not do the work they are paid to do."
The Mercury reports that the minister was speaking to a large gathering of health and legal experts, medical specialists, hospital groups, managers and interested parties at a medico-legal summit in the wake of a report about sharp increases in medical claims and payouts against the public and private health-care sectors. The summit was attended by representatives of the World Health Organisation (WHO), the British Litigation Authority, the Medical Protection Society and the Road Accident Fund.
The outcomes of the summit, as well as the white paper on National Health Insurance and the results of an enquiry into private health care were the three main determining factors for the future of the country's health care, said Motsoaledi, adding that they were the key in forming a solid strategy to meet the National Development Plan's demands on the health sector.
Motsoaledi said the scary reality was a health sector without the four targets of litigation – obstetricians, neurosurgeons, spinal and brain surgeons, and neonatologists and orthopaedic surgeons. "The explosion in medico-legal litigation is not in keeping with generally known trends of negligence."
Business Day reports that, according to the Department of Justice and Constitutional Development, the government is faced with contingency liabilities amounting to R25bn for medical malpractice lawsuits, while doctors in the private sector are battling to keep up with steeply rising premiums for professional indemnity cover. Insurance premiums for obstetricians and gynaecologists this year stand at R450,000, according to the Medical Protection Society, a not-for-profit organisation providing professional indemnity to doctors.
Motsoaledi said the lawsuit crisis that SA found itself in was what led to the collapse of the Australian health system 15 years ago. The US had a similar crisis in the 1970s and 1980s.
The rise in medical malpractice lawsuits has also been linked to limits placed on what lawyers can claim from the Road Accident Fund (RAF). The fund, previously considered a cash cow for personal injury lawyers, no longer pays for general damages. However, lawyers refuse to take the blame. They blame dropping standards in the training and diligence of doctors.
Professor Ames Dhai, director of the Steve Biko Centre for Bioethics at Wits University, said urgent reform was needed to address the problem. She said the problem partly lay in poor communication – issues that could be resolved through open communication sometimes ended up in court.
According to a Daily News report, Motsoaledi proposed sweeping reforms, which would require changes to the law after calling a workshop last month where MECs, heads of department and private sector representatives discussed the rising medical negligence claims against the department. It was also recommended at the meeting that the collateral source rule be amended. The collateral source rule prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant.
Motsoaledi said the reforms would stop people from cashing in lump sums and using the money and later becoming a burden to the state when funds run out. The minister wants to ensure individuals with injury insurance policies do not benefit from both a state payout and a private policy. If a claimant had suffered because of medical negligence, then on awarding the claim, the court should consider the private insurance policy payout as part of the department payout.
But Ronald Bobroff, of personal injury law firm Ronald Bobroff & Seni, hit out at Motsoaledi's proposal and said he should rather look within if he wanted to decrease medico-legal claims against his department. Bobroff said the minister should focus on restoring good practice in his department, instead of "targeting" victims of medical negligence. "The perspective one must have is what caused the problem in the first place. It is known that even government officials and their families do not go to public health care facilities. The answer to the problem doesn’t lie in penalising the victim, but in getting the public health facilities in order," Bobroff said.
He said instead of paying claimants in instalments, the courts, on awarding a claim, can suggest setting up a trust whereby the dependants of the claimant, in the event that he or she dies, can still have a livelihood as opposed to stopping payment completely.
Barry McCulloch, of Berkowitz Cohen Wartski, and president of the KZN Association of Personal Injury Lawyers, said the health care profession should focus on raising its standards rather than limiting its liability to the detriment of the patient. McCulloch said the public and private health sector would do well to involve claimants through patient representative bodies and the legal profession. He said: "It is clear that the health sector is looking at taking a similar approach to that followed in RAF claims. The suggestion appears to be something of a hybrid between the manner in which RAF claims are dealt with currently. It would seem as if a claimant would be forced to seek treatment at a state health-care institution." He said a claimant should be entitled to seek treatment at private health-care institutions, where the standard of care is generally regarded as higher.
But Dr Chris Achers, CEO of SA Private Practitioners' Forum, supported Motsoaledi's ideas, saying negligence claims were now unsustainable. He said this year his insurance cover against lawsuits was R450 000.
Health Department spokesperson Joe Maile said the department's first step was to establish a task team to look into this matter in depth and make recommendations aimed at preventing not only the number of medico-legal claims, but also the extent of these claims in the health sector.
[link url="http://themercury.newspaperdirect.com/epaper/showarticle.aspx?article=f0fa92d7-faaa-4245-8940-113006565126&key=1q%2bm1sMMJU0xV9R6oA3rIw%3d%3d&issue=64032015031000000000001001"]Full report in The Mercury[/link]
[link url="http://www.bdlive.co.za/national/health/2015/03/10/lawsuits-blamed-for-medical-crisis?PageSpeed=noscript"]Full Business Day report[/link]
[link url="http://www.iol.co.za/news/politics/bid-to-cap-medical-malpractice-payouts-1.1813364#.VP6cWHyUfE0"]Full Daily News report[/link]