While the recent Constitutional Court ruling that the courts may order alternative compensation to those injured as a result of medical negligence is sound in principle, legitimate concerns exist about the practical implementation. This is an opportunity, writes Donald Dinnie of Norton Rose Fulbright, to "tidy up" the draft Bill to amend the State Liability Act, thus "avoiding the protracted … development of the common law in that regard".
The reality is that the excessive medical malpractice litigation against the State does undermine the health departments’ ability to provide healthcare and will continue to do so because an already overwhelmed and underfinanced public healthcare sector is exposed to an ever-increasing amount for medical malpractice claims. 
Our law as it stands requires a court in a medical malpractice claim to determine the patient’s damages once and for all and to compensate the patient by way of a lump sum payment. 
Currently our law does not for example permit a court to order payments in instalments of any damages if not agreed by the claimant.
That often results in significant, time-consuming and costly disputes about a claimant’s longevity which in turn affects the quantum of future damages, for example future medical treatment and loss of income.
A significant portion of the lump sum damages awarded may lie in funding the award in circumstances where longevity may be other than that initially determined by the court. There may be future treatments never used but paid for in the lump sum so that in effect there is an overpayment. Or it can work to the detriment of the claimant who lives longer than the longevity determined by the court used to calculate the lump sum and finds themselves short-changed.
Our law has not until recently (and those matters are on appeal)  allowed for the claimant’s damages to be made good by way of the provision of medical services.
In 2018, the Constitutional Court in the matter of MEC for Health and Social Development, Gauteng v DZ obo WZ considered the need for the development of the “once and for all” rule and the rule that damages for medical negligence must be paid in money and said that where “factual evidence to substantiate a carefully pleaded argument for the development of common law” is properly adduced and sufficiently cogent “it may well carry the day”.
In opining as it did in the DZ matter, the Constitutional Court said that the common law rule that damages must be paid in one lump sum may be reflective of a pre-constitutional era where individual loss-bearing was prioritised and the right of access to healthcare services did not exist .
The Constitutional Court held that compensation in a form other than money is not incompatible with the basis of awarding delictual damages and that periodic payments or services which are subject to a top-up or claw-back will fit in with the general principles of compensation for loss.  Nothing for instance prevents a defendant from proving that the necessary medical services of an acceptable standard could be obtained at a lower cost in the public sphere .
The 1 April judgment of the Constitutional Court in Member of the Executive Council for Health, Gauteng Provincial Government v PN, with the MECs for Health, KwaZulu-Natal, Northern Cape and Eastern Cape Provincial Departments also involved, is the most recent judgment to acknowledge the possibility of developing this common law. The court interpreted the lower court’s order in a way that promotes the right to have a dispute regarding the development of the common law fairly resolved by the courts, taking into account the right of “everyone” to have access to healthcare services and of “every child” to “basic” healthcare services.
The court confirmed that a department of health is entitled to lead evidence on the desirability and practical implications of the development of the affected common law rules. At the same time the court acknowledged this does not mean that the individual interests of the claimant and similarly placed individuals must be relegated to insignificance: “Each must be afforded an appropriate remedy and compensated fairly for loss suffered.” 
The power of the court in determining quantum to develop the common law in accordance with section 173 of the constitution should not be limited.
One should not forget that civil damages awarded are compensatory and not punitive.
Bearing that in mind it is useful and important to distinguish between any debate in principle regarding the development of the common law in this respect, and the question of justice and fairness to all parties in the context of constitutional values which can be awarded through periodic payments or the rendering of treatment and services at a public sector hospital, and the practical execution and implementation of such orders.
Criticisms may often lie not in respect of the principle but arise from concerns about implementation. Those concerns are properly raised. 
If our courts develop the common law to allow for compensation by way of periodic payments or the provision of healthcare services, a court would in each case still need to decide on the facts whether such an award is appropriate. That would include consideration of the type of services required by the claimant, whether there are appropriate state facilities in the vicinity of the claimant capable of timeously and expeditiously providing an appropriate level and quality of services and, whether, considering the psychological and psychiatric status of the claimant, it is appropriate to require the claimant to return to the same place, and be treated by the same healthcare professionals, where the harm was initially suffered.
In addition, the details of the order specifying the mechanism by which the services must be accessed and provided or periodic payments made must be carefully crafted. But the relevant department of health would have every incentive to ensure that such an order is successfully implemented. Failure to comply with the order would mean that the courts would not readily grant a similar order in any subsequent cases.
It is a pity that the Department of Health has left the development of the law in this regard to the courts when proposals to amend the State Liability Act  to provide for periodic payments and in some cases the provision of services for damages awarded against provincial and national health authorities as a result of wrongful medical treatment, has lain dormant since 2018.
That draft Bill has already been the subject of extensive commentary.
While the Bill would benefit from tidying up, the drafting of the Bill could with multi-party support provide appropriate and detailed rules for the awarding of periodic payments and medical services as compensation for damages by the end of 2021, avoiding the protracted route that the development of the common law in that regard would need to follow through our courts.
Footnotes See Wessels “The Expansion of The State’s Liability for Harm Arising from Medical Malpractice: Underlying Reasons, Deleterious Consequences and Potential Reform.” (2019)(1) TSRA 1 at 15  The “once and for all” rule is to the effect that in general a plaintiff must claim in one action all damages, both already sustained and prospective flowing from one cause of action. See for example Evins v Shield Insurance Co Limited 1980 (2) SA 814 (A) at 835 (C)  See the judgments of the Gauteng Local Division in Mashinini N.N. v The Minister of the Executive Committee for Health, Gauteng of 25 January 2021 and of the same court in MSM obo KBM v The Member of the Executive Council for Health, Gauteng Provincial Government of 18 December 2019. In the latter in a claim for medical negligence in a public hospital causing cerebral palsy the court developed the common law to permit compensation in kind in respect of certain damages for future medical expenses finding that on the evidence the wider interests of justice required development of the common law to permit compensation in kind and in appropriate similar cases. The court found there was insufficient evidence to develop the common law to permit periodic payments. The MEC was ordered to render certain medical services to the claimant at the Charlotte Maxeke Johannesburg Academic Hospital.
In the former judgment the court applying the reasoning of the MSM judgment and on the facts in dealing with the claimant who had suffered an internal injury during a serious operation causing her to suffer damage ordered the MEC to render certain medical services to the claimant also at Charlotte Maxeke Johannesburg Academic Hospital. 2018 (1) SA 335 (CC)  See DZ at n2 at paragraph 45  Evidence required for providing compensation by way of future services instead of money would have to show that the services offered to the claimant are as good as the services they could buy for themselves from the private healthcare sector.  See Ngubane v South African Transport Services  ZASCA 148. This serves to reduce the quantum. Do not forget that it is for the claimant to prove on a balance of probabilities the quantum of their damages.  MEC for Gauteng v PN page 14 paragraph 29.  For example see Tzvi Brivik in “Turning a Blind Eye: Court-ordered ‘golden tickets’ for victims of state healthcare negligence are a cop-out” Daily Maverick of 6 April 2021  There is no reason why legislation should not allow for periodic payments in appropriate circumstances in all personal injury claims but this is another debate. Yet another debate is the possible amendment to the Assessment of Damages Act to allow for the taking into account in awarding medico-legal damages the benefits a claimant would receive as a member of a medical aid. As the law currently stands medical aid benefits are considered a collateral source and are not taken into account in quantifying damages permitting a claimant for example to quantify and be awarded a lump sum for future medical treatment, use that award for other purposes, and then use their medical aid membership to fund any medical treatment needed.
While medical aid rules usually provide that in such circumstances any recovery is to be paid to the medical aid that is rarely done and in practice medical aids do not sue its members to recover such payments.
See also from the MedicalBrief archives: