SA’s medical negligence Bill ‘unfair’ and ‘endangers patients’

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The SA government’s proposed ‘pay as you go’ legislation for dealing with medical negligence claims against the state may prejudice patients by limiting their choices and forcing them to seek care from the very facilities that harmed them in the first place, reports Business Day.

The Public Liability Amendment Bill proposes scrapping lump-sum settlements for medical-negligence claims of more than R1m and replacing them with a structured schedule of payments. Successful claimants will be limited to receiving future healthcare services in the public sector at facilities that meet the standards set by the Office of Health Standards Compliance (OHSC). If state services are not available, claimants will be able to use private-healthcare services but will be liable for the portion of their bills that exceed public-sector rates.

Former finance minister Malusi Gigaba said in October the measures were an attempt to rein in the state’s soaring pay-outs for medical negligence claims, which grew an average of 45% a year from 2012-13 to 2016-17. The report says the state paid out R1.2bn in 2016-17 and the contingent liability arising from claims against the state ran to R56bn — more than a quarter of the consolidated health budget. “It is wreaking havoc,” said Health Minister Aaron Motsoaledi. “Part of it is negligence, but part of it is lawyers … (and) collusion at provincial level,” he is quoted in the report as saying.

He said the Bill, tabled in Parliament last week, aimed to rectify two key problems facing the state: the fact that the unused portion of a lump sum paid to a claimant for future medical expenses was not retrievable if they died; and the “rampant” fraud in some provinces. Cases had been withdrawn in Limpopo, Mpumalanga and the Eastern Cape when questions were asked by either officials or the Special Investigatiing Unit.

Two recent examples of fraud in Limpopo included a R70m claim for an allegedly botched circumcision and a claim for a 19-year-old with supposed cerebral palsy. Both cases were withdrawn after the health department sought expert opinion that cast doubt on their veracity.

Motsoaledi said the Bill directed claimants to public healthcare facilities, as it was drafted with National Health Insurance in mind.

The report says the Bill was criticised by Alex van den Heever, chair of social security systems administration and management studies at the University of the Witwatersrand, who said it did not provide adequate protection to patients. “Where services are to be provided by a state service, compliance with the weak OHSC norms are not a valid protection. In many instances the public services responsible for gross medical negligence are compliant with the OHSC norms. I support periodic payments, but not short-changing people who’ve been treated badly by the state,” he said. The provisions limiting payments to the cost of public health services were likely to be challenged.

Werksmans attorney Neil Kirby said the Bill would disadvantage patients as it would limit their choice of healthcare providers and create the undesirable possibility of having to return to the very institution where the negligence occurred. The Bill might bring the State Liability Act into conflict with the right to access a healthcare service of one’s choosing in terms of the Bill of Rights, Kirby said.

The report says one of the provinces hardest hit by medical negligence claims is Gauteng, which paid out R521m for 138 claims from January 2017 to March 2018. It faces a further 1,597 claims, totalling more than R22bn. Gauteng Health MEC Gwen Ramokgopa said health department budgets were insufficient to meet demand for services, and there was no budget allocation specifically for medical litigation.

Business Day report

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