South Africa cannot sustainably reduce its medico-legal burden without reducing the underlying failures that generate preventable harm. Instead, it should be treating its hefty negligence liability as a warning signal to address one of the most serious issues facing its healthcare system: how many people die or suffer serious harm because something went wrong in their medical care?
Two leading healthcare experts argue strongly for more transparency and accountability for medical negligence, saying South Africa cannot sustainably litigate its way out of a patient-safety crisis. Nor can it solve the problem simply by restructuring compensation.
There is no reliable national picture, according to former Health Ombud Professor Malegapuru William Makgoba, leaving policymakers, healthcare managers and medical educators without the evidence needed to systematically tackle potentially preventable deaths, writes Chris Bateman for MedicalBrief.
“We still have no idea what the contribution of the medical profession is to mortality,” Makgoba said.
The former Ombud, whose seven-year term as South Africa’s first Health Ombud ended in May 2023, argues that medical error remains invisible in national mortality statistics and is still treated as a taboo within the medical profession.
“If you know what percentage of deaths is from medical errors, then you can plan and educate your doctors properly,” he said. “At the moment it is a taboo. Doctors continue because they know they are protected from public scrutiny.”
Makgoba will deliver a keynote address on “Technology, Ethics & Accountability in the Future of Healthcare” at the South African Medico Legal Association’s annual conference in Gauteng from 8-10 October. His concerns extend beyond individual clinicians making mistakes.
Medical harm, he suggests, could arise from failures of communication, leadership, management, ethics, and accountability across the healthcare system. That argument intersects directly with South Africa’s escalating medico-legal crisis, which Professor Alex van den Heever said should be understood primarily as a patient-safety and healthcare-delivery problem rather than simply a legal one.
Van den Heever, chair of Social Security Systems Administration and Management Studies and an adjunct professor at the Wits School of Governance, has described the country’s estimated R120bn medical-negligence liability as evidence of deeper failures in healthcare delivery. The figure has been cited as equivalent to about 20% of the public health budget. For Van den Heever, the question is not simply how the state can contain compensation payouts, but why preventable harm is occurring in the first place.
“The legal process is the consequence of the failure to prevent negligence,” he argued.
Medical error remains invisible
International mortality statistics are principally structured around recording the underlying disease or injury causing death. The World Health Organisation’s ICD system provides the international framework for classifying causes of death, while accurate death certification and coding are essential to producing reliable mortality statistics. Medical error and system failures, however, are not routinely presented as a standalone cause of death in conventional mortality rankings.
A 2016 analysis by Johns Hopkins researchers in the United States showed that medical error was being omitted from death certificates and national cause-of-death rankings and estimated that more than 250 000 US deaths annually could be associated with medical error. The estimate subsequently attracted methodological criticism from other patient-safety researchers.
For Makgoba, however, the precise number is less important than South Africa’s failure to develop a robust system for measuring the problem. He said healthcare traditionally deals with errors internally through morbidity-and-mortality meetings, pathology reviews and management processes, rather than exposing them to wider scrutiny.
That culture, he argued, was increasingly inadequate as healthcare becomes more technologically sophisticated and patients gain greater access to information. Diagnostic technologies, personalised medicine, vaccines, remote monitoring and artificial intelligence are rapidly changing how care is delivered. Some healthcare functions are already moving beyond hospitals and doctors’ rooms into patients’ homes and smartphones.
But technology does not eliminate the human factor. “It’s all about accountability and human errors that occur in medicine,” Makgoba said.
Maternity care under scrutiny
The relationship between patient safety and medico-legal liability is particularly stark in maternity services. Van den Heever points to cerebral palsy claims as a major component of public-sector medico-legal liability. Cerebral palsy itself is generally not preventable, but some birth-related brain injuries can be associated with failures to recognise and respond appropriately to foetal distress or other complications during labour.
Maternal mortality provides another measure of the performance of the same healthcare system around childbirth. National Department of Health figures put South Africa’s 2023 institutional maternal mortality ratio at 105.2 deaths per 100 000 live births. The Western Cape recorded the lowest provincial figure, at 71.8, while other provinces ranged from about 101.5 to 166.6.
Van den Heever said that the concentration of both maternal deaths and some major medico-legal claims around childbirth raises fundamental questions about the quality and reliability of maternity services. He contends that South Africa cannot sustainably reduce its medico-legal burden without reducing the underlying failures that generate preventable harm.
Litigation, in this view, treats the consequence rather than the cause. Alternative approaches to compensation, including providing future care in kind or structuring large settlements over time, could reduce immediate pressure on provincial health budgets but would not eliminate the liability or prevent another patient from being harmed. Nor does years of litigation necessarily generate learning from adverse events.
The crucial question, Van den Heever argued, was whether the medico-legal system creates an accountability loop that identifies what went wrong and forces institutions to improve.
Accountability cannot stop with doctors
Both Makgoba and Van den Heever place responsibility beyond individual clinicians. Makgoba points to the Life Esidimeni tragedy as a stark example of how leadership, healthcare decisions and accountability can combine to produce catastrophic consequences. His investigation as Health Ombud into the deaths of mental healthcare users helped expose systemic failures surrounding the transfer of patients from Life Esidimeni facilities and contributed to the subsequent process of arbitration and compensation for affected families. He said that healthcare was fundamentally a system of relationships – between patients and clinicians, clinicians and managers, and institutions and the communities they serve.
“Care is central – you can’t have a system of caring that’s devoid of good interpersonal or inter-institutional relationships,” Makgoba added.
Van den Heever similarly argued that accountability must extend into healthcare management and governance. He identified fragmented workforce planning, weak management structures and concerns about professional regulation as contributing factors. At facility level, he said, responsibility for performance must be clear.
“You have to have a captain of the ship.”
He has also raised concerns about political interference, leadership instability and institutional weaknesses undermining the ability of competent managers to enforce standards consistently. The result, he said, can be an environment in which management accountability is weakened and long-term reform becomes difficult to sustain.
Technology will not fix dysfunctional systems
Makgoba's forthcoming SAMLA address places these questions in the context of rapidly advancing healthcare technology. Artificial intelligence may improve diagnostic accuracy and reduce some forms of human error. Digital health systems can allow patients to monitor themselves remotely, while increasingly sophisticated technologies can improve clinical decision-making. But technological capability does not automatically produce ethical healthcare.
The greater the technological capacity of the healthcare system, Makgoba observed, the greater the need for clear ethical frameworks, professional responsibility, and effective accountability. The challenge is therefore not simply whether South Africa can adopt AI and other emerging technologies, but whether its institutions are sufficiently robust to govern their use.
The same applies to the private healthcare sector.
Van den Heever argues that although private-sector care may perform better than public healthcare in some areas, insufficient transparency makes it difficult to determine how consistently hospitals perform or how frequently adverse events occur. Medical schemes hold substantial healthcare data, but much of it is used for commercial negotiations rather than systematically publishing comparable quality and patient-safety outcomes.
That creates a fundamental information problem: if preventable harm is not reliably measured, made visible and analysed, healthcare institutions have less opportunity to learn from it.
From compensation to prevention
For both experts, the central issue is accountability. South Africa cannot sustainably litigate its way out of a patient-safety crisis. Nor can it solve the problem simply by restructuring compensation. Better training, mediation, stronger regulation and improved information systems all have roles, but none can substitute for competent leadership and functioning institutions.
For Makgoba, the starting point is establishing what is actually happening. Without reliable data on medical errors and deaths associated with failures in care, policymakers cannot accurately measure the scale of the problem, educators cannot properly target training, and healthcare managers cannot determine whether interventions are working.
For Van den Heever, the medico-legal bill should similarly be regarded as a warning signal rather than merely a financial liability. The question confronting South Africa is therefore larger than how much medical negligence will cost the state. It is why preventable harm continues to occur, and whether the healthcare system has the leadership, information, ethics, and accountability mechanisms necessary to stop it.
A third presenter at the conference, medico-legal risk specialist Dr Hlombe Makuluma, said human judgment must remain at the centre of healthcare accountability even as artificial intelligence and other technologies transform clinical practice. “The final decision is human – you can’t blame the scribe or the technology,” Makuluma said.
See more from MedicalBrief archives:
What provinces are coughing up for medico-legal claims