After the recent release by the Special Investigating Unit (SIU) of its preliminary results into the “explosion” of medical malpractice lawsuits against the Health Department since 2015, Health Minister Aaron Motsoaledi wants to put the brakes on how medical disputes are settled.
The route of taking legal action has to change, he said, and paying millions of rands for cases – where doctors and hospitals are sued for negligence and “botched” treatment – is “archaic”. Mediation, he believes, is a better option.
It’s also a less costly way to settle these types of cases outside the courtroom – and a pilot project is bolstering the argument for this solution, writes Bhekisisa’s Zano Kunene.
Motsoaledi’s call for an end to expensive litigation and huge payouts follows a joint press briefing by the Health Department and the SIU last week on the findings from the unit’s ongoing probe into 10 679 legal claims between 2015 and 2020, amounting to a total of R107bn.
This is almost half of the department’s budget in that five-year period – about R215bn – which should be used for hiring staff, buying medicine and running hospitals.
The SIU’s work has, so far, saved the department R3bn. But if dealing with a dispute between doctors and their patients after treatment didn’t always have to end up in court, it might not have been so easy for dodgy lawyers to exploit the system in the first place.
The ballooning medico-legal claims since 2015 led President Cyril Ramaphosa, two years ago, to order the SIU to look into possible fraudulent claims.
Investigators have since found numerous cases of unscrupulous lawyers getting patient records illegally, claims having been made on behalf of patients without their knowledge, or patients being “tricked” into suing the state.
Turning to the court to decide on a medical negligence claim is not necessarily in patients’ best interest, said Motsoaledi.
“Because in court, it depends (on) who has fired more bullets or who has fired the first shot that hit. So we want to change that method.”
Silicosis class action
A potentially better outcome is mediation – and “we have seen it work”, he said, referring to an out-of-court settlement reached between mineworkers and mining companies in a class action on behalf of workers who had developed silicosis.
After three years, a settlement was reached allowing the affected miners to get compensation payouts to cover their and their families’ costs from a trust fund set up as part of the settlement.
Negotiating the deal meant the case didn’t need to go through the court process, which may not necessarily have ruled in the miners’ favour, and could have meant their losing out on compensation.
But mediation is not common in medical disputes, despite a 2020 rule (R41A) that is meant to guide legal proceedings in civil matters. The rule says that negotiation must be considered as a way to resolve a dispute first, before the case is taken to court.
If a case does end up going to trial, the lawyers must show that their clients had considered mediation but that there were valid reasons why it couldn’t work and that the case therefore should be argued before a judge.
Settling disputes faster
With R41A, the idea is that fewer cases will end up clogging up the courts – slashing the high costs that accompany lawsuits, and speeding up dispute resolution.
An analysis of 19 medical lawsuits by the South African Law Reform Commission (SALRC) found that it took anything from one year and six months to as long as 16 years and one month to get to a judgment. In fact, three-quarters of the cases took longer than five years to finalise.
Lengthy lawsuits add to costs – the longer the case drags on, the more expensive it becomes.
And, of course, depending on the outcome of the case, a court can make one party cover the legal costs of the other.
However, the Contingency Fee Act gives lawyers’ clients the option of not having to pay anything upfront or for many billable hours” instead, if the ruling is in their favour, the lawyer is entitled to up to 25% of the payout.
Because medical malpractice cases often involve large awards as compensation for a patient’s suffering or loss in quality of life, this is an attractive option for unscrupulous lawyers.
And, said Motsoaledi, while the cap of 25% exists in theory, “in practise we know that many take more”.
The SIU’s investigation found instances of law firms keeping most of the money that the state paid out. In one case in the Eastern Cape, the Department paid R373m to a single firm for 22 different claims – but “the firm pocketed all the money”.
‘Creative potential for solutions’
Mediation can save time and costs, said Shamal Ramesar, who heads non-profit agency Mediation in Motion Mediators (MiMM).
Advisers can charge only up to R6 000 per day as opposed to the up to R6 000 per hour of a highly experienced attorney.
But the outcome of mediation doesn’t always have to be a financial reward, said Jacques Joubert, advocate of the High Court and who also works as a mediator. The idea is to settle the dispute in a way that’s best for both parties, meaning “there’s a creative potential to find solutions, such as, for example, the hospital or doctor offering further treatment”.
To encourage people to choose negotiating a deal outside court as a way to settle disputes, MiMM has partnered with the South African Medical Association (SAMA) to offer doctors and their patients a free meeting should a conflict arise after treatment.
MiMM drew up a clause for a pre-mediation meeting that doctors can add to their patient consent forms. If the option for such a meeting is taken up, an appointed mediator will listen to both sides and then advise on whether it can be solved with mediation rather than going to court.
Although a part of rule 41A says that if one of the parties in a dispute refuses mediation and rather opts to take the case to court, they may have to foot the bill for the court application, the stipulation is rarely enforced and there are even talks about removing it in special cases.
That’s where a pre-mediation meeting clause, through the mediation pilot project, could come into play.
In fact, a discussion paper by the SALRC recommends including this type of clause in patient admission forms to help people consider mediation instead of going straight to court, especially in the public sector, where negligence claims are high.
Said Ramesar: “You’ve got nothing to lose in this meeting. And as it’s free and voluntary, and able to be stopped at any stage, why not give it a try?”
See more from MedicalBrief archives:
Minister targets dodgy lawyers as SIU probes R30bn medico-legal claims
R37m medical negligence award overturned despite state admission of liability
Provinces ignore system to slash medical negligence claims