Because of the substantial number of cerebral palsy cases that feature in medical negligence claims, part of a quick fix to immediately reducing payouts would be to accurately determine causality, possibly using specialised courts, experts proposed in a Business Day TV interview.
Contingent liabilities by the state for medical negligence claims rose to a record R120.3bn in the 2020/2021 fiscal year, up from R111bn the year before. The provincial health departments paid out R1.74bn in the year to end-March 2021.
While legislation to deal with the SA government’s ballooning medical negligence liability is likely to take time to get on to the statute books, it was argued that a lot could be done in the meantime to reduce payouts, starting with cerebral palsy. Actuarial Society of SA member Gregory Whittaker and obstetrician gynaecologist Dr Ismail Bhorat argued that the number of claims could be reduced substantially by accurately determining the cause of the cerebral palsy.
Bhorat noted that contrary to popular belief, cerebral palsy was not only due to a preventable cause during childbirth but — in the majority of cases — was caused in the antenatal or postnatal periods. The common misconception informed the legal profession, whereas only 10%-14% of all cerebral palsy cases were caused during childbirth.
Bhorat pointed out that the judges who presided over civil trials did not have the necessary medical knowledge to accurately determine the cause of the cerebral palsy. He proposed the creation of specialised medical negligence courts, an idea supported by Whittaker.
The report notes the 2018 State Liability Amendment Bill was intended to deal with the state’s huge medical negligence liability. It was sent back by Parliament to the departments of health and justice in January 2021 for further work, but lapsed before Parliament could finish processing it. The Bill was reintroduced by the departments but the committee said more work was required including consulting stakeholders and sent it back to them.
Asked to investigate the matter, the SA Law Reform Commission released its preliminary proposals in a discussion paper in November 2021, with end-February 2022 as the extended deadline for public comment. Senior state law adviser on the commission, Ronel van Zyl, rejected the proposal to have specialised medical negligence courts as this would be expensive and there are not enough cases to justify them. But there should be the compulsory appointment of medically qualified assessors to assist judges, she said.
See more from MedicalBrief archives:
Provincial health services at risk over R80.4bn in medical negligence claims
Medicolegal claims double to R74bn and fuel an exodus of specialists
SA Law Reform Commission outlines sweeping medical negligence changes