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Revisit Bill in light of ruling on ‘pay-as-you-go ‘ negligence settlements — editorial

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The State Liability Amendment Bill, which has been “panned by critics and left gathering dust”, needs to be updated in line with a recent precedent-setting High Court judgment, writes Business Day in an editorial.

Commenting on last week’s figures, compiled by SA Health Review from published and unpublished Treasury, the editorial says that there is no question that harm caused by the public health system requires redress, but “every rand the government spends on compensation for medical negligence is a rand that could have been spent on services, and the current trajectory is unsustainable”.

Claims for medical negligence against the state have almost quadrupled over the past four years, rising to R104.5bn in 2018/19 from R28.6bn in 2014/15, reported MedicalBrief. Actual settlement payments made by provincial health departments increased apace, from R499m to R1.953bn.

The Bill, which seeks to limit the liabilities facing the government by replacing lump-sum settlements with a “pay as you go” system of scheduled payments

The editorial says the state’s provision of health care is lacking in many respects, and “we daily hear stories of patients who do not get the care they require. But it is clear that the exponential rise in claims facing the state is at odds with many of the overall trends in health care in South Africa“.

“For example, the institutional maternal mortality rate, one of the best indicators of the strength of a health system, has improved steadily over the past few years. Yet in comparison medical negligence claims more than tripled between 2014-2015 and 2018-2019, driven by a toxic combination of fraud, litigious lawyers and patients seeking larger claims, limited capacity within provincial health departments to defend themselves, and the stark failures within the public health system itself.

The editorial notes that the issue is far from new. The government has been complaining about the problem for years, but has yet to devise a coherent and effective solution.

“In the meantime, the courts are taking the lead, developing the common law to tackle issues that the legislature has yet to grapple with in any meaningful way. Earlier this month, the High Court in Johannesburg handed down a precedent-setting judgment that paves the way for provincial health departments to curtail the costs of medical negligence settlements by providing medical services in the public sector instead of handing over a lump-sum settlement for future medical expenses calculated at private sector rates.

“While it is far from ideal for the courts to be left to deal with the matter on a case-by-case basis, the ruling does at least seek to strike a fair and reasonable balance between redress for the victim of the state’s negligence and the resources it has to hand. It is time now for parliament to bring some of that pragmatism to bear, and consider whether the State Liability Amendment Bill can tread the same path.”

Meanwhile, skyrocketing liability claims are among the factors behind an exodus of obstetrician-gynaecologists (ob-gyns) from South Africa – and once again a finger is being pointed at greedy personal injury lawyers. The rise in legal claims means ob-gyns can now expect to pay more than R1m a year for malpractice insurance, about four times more than they did six years ago, according to the Sunday Times. It quotes Johannes van Waart, a council member of the SA Society of Obstreticians and Gynaecologists (Sasog), who says: “The indemnity insurance premiums are high not because of the number of claims but because the actual claims in obstetrics are high and can come many years later. While in 2015 the highest quantum for a claim would have been in the region of R20m, it is not uncommon nowadays to see an obstetrics claim of R50m-R80m.”

He says one of the reasons that patients are claiming dramatically bigger amounts could be that personal injury lawyers are seeking a new income stream because of legislative changes affecting the Road Accident Fund (RAF). “We also believe that the focus for litigation is on obstetricians, as the quantum of the claims is high.”

Adriaan Taljaard, acting chief marketing officer for the RAF, says the fund has no data that would either support or counter Van Waart’s assertion about personal injury lawyers. “The RAF has, however, noted in the recent past similar sentiments expressed in the media, especially in relation to public health establishments. Whether a correlation exists, and to what extent, if any, is not for the RAF to say.”

Asked to comment on the allegation that personal injury lawyers target ob-gyns, the Sunday Times says the Law Society of SA did not respond.

Full Business Day editorial

See also

State medical negligence claims and payouts almost quadruple over four years

Full report The Times

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