Medicolegal claims against the State have doubled from R37bn in 2016 to R74bn in 2020/21, reports Financial Mail. In obstetrics, gynaecology and neurosurgery, annual insurance premiums exceed R1m and specialists are seeking less litigious climes, retiring early or consulting to related medical fields.
KwaZulu-Natal has the most medicolegal cases, with claims for R27,41bn, followed by Gauteng, where claims amount to R17,32bn, and Mpumalanga, at R7,87bn.
Treasury figures show the provincial health departments in the Eastern Cape, Gauteng and KwaZulu-Natal accounted for 82% of the total claims paid out in 2020/2021. The Eastern Cape paid out R920m, Gauteng R392m and KZN R116m.
The total spent by provinces on settling litigation since 2016 is R7,86bn — up from the R500m paid until then. The biggest payout by all provinces combined was for nearly R2bn, in 2018/2019. In the past financial year, provincial contingent liabilities rose to a record high of R120.3bn from R111bn.
These figures are “startling indicators of patient risk in SAʼs under-resourced public hospitals”, writes Financial Mail. “They reflect grief and trauma in families and shattered confidence of under-supervised and overworked junior doctors.”
Nicholas Crisp, deputy director-general in the Health Department, said that with a single legal database, a team of lawyers has been working full-time on bringing the quantum down. It is done through, among other measures, the early adoption of suggestions in the latest SA Law Reform Commission (SALRC) draft report on medical litigation. Crispʼs department is urgently workshopping the 500-page report, which has a deadline of 31 January for final submissions.
As reported in MedicalBrief, SALRC writes that “with no legislation currently existing in South Africa to specifically address legal claims in the medical field, this means that claims based on medical negligence are dealt with under the common law. The escalation in medical negligence litigation against the State, and in particular the increase in the size of the damages sought and awarded, has become a major cause for concern.”
“A uniquely South African system” is envisaged, starting at the hospital “when a serious adverse event occurs”. As “a hybrid of specific international examples” and “an expansion of the development of … common law … already … initiated by the Constitutional Court”, the system would prescribe “compulsory procedures to attempt early resolution”.
The compensation then offered would provide “fair restitution to the aggrieved healthcare user without bankrupting and eventually crippling the public health system”. The prerequisites of this system would include “improving the quality of public healthcare” and attending to a plethora of shortcomings standing in the way of “proper record-keeping”. A review of the training provided to prospective nurses is proposed in that context.
The document also analyses and discusses the pros and cons of lump sum liability payouts versus staggered, periodic payments, and comprehensively details comparative studies of medical compensation systems around the globe.
Financial Mail writes that the prerequisites for such a system would include “improving the quality of public healthcare” and attending to shortcomings in “proper record-keeping”. A review of the training of nurses is also proposed.
There has also been an audit of the national hospital leadership, and the retrenching or redeployment of dozens of CEOs. A new set of criteria for appointments is being drawn up by a team led by Prof Marian Jacobs, former dean of the faculty of health sciences at the University of Cape Town.
The Medical Protection Society (MPS), an association for health professionals, told the Financial Mail it was handling 2,840 cases against its SA members in the public and private sectors. MPS data showed a rise in the number and amount of clinical negligence claims in 2020 compared with 2011. The average cost of a medical claim had increased by 37%, while the number of open medical claims grew by 13%.
There was also a 110% rise in medical and dental claims in 2020 compared with 2011. These exceed more than R1m, while the number of medical and dental claims exceeding R5m rose 73% over the same period.
The state covers claims against public sector healthcare professionals, but they remain legally vulnerable, and many take out MPS membership as backup.
Financial Mail reports that writing in the SA Medical Journal in 2014, obstetrician Graham Howarth, MPS head of medical services for Africa, singled out obstetrics as the most affected. He says this trajectory has remained: “In the absence of definitive intervention, it is not alarmist to ask who will perform private deliveries in the future. Women will continue to fall pregnant and require delivery, but where will those 100,000-plus a year [SA] deliveries occur?
“If private obstetricians are unwilling to deliver them, or precluded from doing so, patients will have to deliver in state facilities. Private patients are unlikely to be enamoured of state hospitals, and the already busy state facilities will be confronted with an increased workload of demanding patients.
“There is an additional cost burden for the state, as not only will they have to provide the facilities for the extra deliveries but there will also be a shift of the liability burden for these patients; if and when these patients sue, they will now sue the state … Every rand lost to litigation is a rand lost from state healthcare — money set aside for the care of indigent patients.”
“His views are almost certainly something an incipient National Health Insurance, which will all but eliminate private healthcare funding, will have to consider,” opines Financial Mail.
BusinessLive article – Behind SA’s medical malpractice billions (Restricted access)
See more from MedicalBrief archives:
SA Law Reform Commission outlines sweeping medical negligence changes
Medical malpractice courts proposed to tackle soaring claims
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Progressive interventions needed to stem medical litigation 'explosion'