As Health Minister Dr Aaron Motsoaledi described soaring medical malpractice litigation claims in South Africa as an “explosion”, it was revealed that Gauteng Health paid R521m in negligence claims between January 2017 and March 2018 and faces 1‚597 cases totaling more than R22bn that are currently before the courts.
Motsoaledi warned that the compassion-based practice of medicine is being replaced by defensive medicine and mistrust, reports Health 24.Provincial health departments are struggling with their obligation to provide healthcare services, while still having to pay out the billions in claims against them.
In the private sector, medical specialists are being faced with exorbitant medical protection insurance premiums, causing healthcare costs to rise and impacting on practices.
Last year it was reported that Gauteng Health Department alone had paid out at least R1bn in lawsuits since January 2015, while the Eastern Cape is facing pay-outs of R14bn.
The report says the Medical Protection Society SA (MPS) in 2015 settled a claim of almost R24m on behalf of a member and has reported a 35% increase in the number of claims made against healthcare professionals between 2011 and 2016. The MPS further reports that claims over R1m have increased nearly 550% compared to those of 10 years ago, and claims above R5m increased by 900% from 2008 to 2013.
Justin Malherbe, senior associate at international law firm Norton Rose Fulbright, says that there are several reasons for the rise in medical claims, including an increase in public awareness of patient rights coupled with incessant and deliberate marketing by personal injury lawyers eager to capitalise on this awareness.
“Amendments to South African legislation, such as the Road Accident Fund (RAF) legislation are also to blame. Damages claims for personal injury during a motor vehicle accident is now less profitable for lawyers, causing some to turn to other forms of personal injury litigation like medical malpractice,” Malherbe is quoted in the report as saying.
Professor Sylvester Chima, associate professor and head at the programme of bio and research ethics and medical law at the University of KwaZulu-Natal, believes that the high levels of lawsuits in South Africa are due in part to the legal framework which both governs and protects patients and healthcare providers.
“A good example of this is the law around Termination of Pregnancy (TOP) which provides for termination up to 40 weeks of pregnancy for severe congenital abnormalities. This means that if a doctor fails to diagnose a severe abnormality, the parents may sue the doctor for maintenance costs for the child,” said Chima, who will present his findings at the Africa Health Congress in May this year.
The report says South Africans are becoming increasingly litigious, with not only the number of claims rising but also the size of the claims. Malherbe explained that the costs of "catastrophic claims", such as those for birth defects and brain injuries, have risen drastically as the cost of caring for patients has increased due to technological advancements which improve life expectancy and quality of life.
Both experts agree, however, that progressive interventions need to be found to stem the litigation tide.
According to the report, Chima suggests that the current system relies on "righting a wrong" through the courts, which by its nature is expensive and adversarial. He believes the system should rather make provision for compensation without necessarily involving the courts.
Meanwhile, The Times reports that Gauteng Health paid out R521m in medical negligence claims between January 2017 and March 2018. This was in respect of 138 cases. The department is still facing a further 1‚597 cases totalling more than R22bn that are currently before the courts.
The report says this was revealed by Gauteng Health MEC Gwen Ramokgopa in response to questions by Democratic Alliance health shadow MEC Jack Bloom‚ who has expressed concern over the claims, which will cost close to half of the department’s R46.4bn budget. The claims relate to neonatal deaths‚ hypoxic ischemic encephalopathy‚ obstetrics and gynaecology‚ post caesarean section sepsis‚ orthopaedic and surgical‚ anaesthetics and patient falls.
Bloom said there should be consequences for negligent hospital staff who should be “properly disciplined”. “It shows that hospital conditions have not improved significantly to prevent medical mistakes that harm patients‚” Bloom said.
The report says according to Ramakgopa‚ “almost all hospitals are affected by medico-legal claims”.
The department’s freeze on new medical appointments is hindering the ability of hospitals to provide quality health care‚ Bloom said. “Unfortunately the department’s freezing of medical posts will increase the risk of more negligence claims which further deplete the budget‚” Bloom added.
[link url="https://www.health24.com/News/Public-Health/medical-malpractice-litigation-undermining-south-africas-health-system-20180417"]Health24 report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2018-04-16-gauteng-health-facing-claims-totalling-r22bn-for-medical-negligence/"]The Times report[/link]