Unscrupulous lawyers, often in collusion with healthcare practitioners, who have lodged multi-billion rand fraudulent medico-legal claims against the Health Department, are now being offered a chance to retract their claims or face scrutiny by the Special Investigations Unit (SIU), which is already investigating R30bn in suspect claims.
MedicalBrief writes that an SIU forensics report into medico-legal claims against the department, released last week, has laid bare the sheer scale of claims, a significant portion of which is suspected to be fraudulent.
The legal practitioners who have, for years, been submitting fraudulent negligence claims for millions of rands out of “sheer greed”, have now been given just a fortnight to withdraw the claims before the SIU and the National Prosecuting Authority (NPA) pounce on them.
TimesLIVE reports that in some cases, the so-called victims of the claims by these law firms don’t even exist, the Department of Health and the SIU had discovered in probes.
At a briefing last weekend, Health Minister Dr Aaron Motsoaledi and SIU head Andy Mothibi released the preliminary findings of an SIU investigation into medico-legal claims, where it was revealed that more than R100bn in claims had been made against provincial Health Departments, led by KwaZulu-Natal (R29bn), Gauteng (R24bn) and Eastern Cape (R22.3bn). More than R30bn in claims was under SIU investigation.
Motsoaledi said a number of the claims were fraudulent, and that in some cases, the “prejudiced patient” did not suffer any of the claimed negligence, while other patients were not even aware that claims had been put forward in their names.
“In one case, a claim was submitted in which the claimant demanded R70m for a supposedly botched circumcision by a Limpopo hospital doctor. But it was found that no such circumcision was ever performed… that the patient was actually treated for a very serious genital infection. The hospital had, in fact, saved his life,” Motsoaledi said.
Most negligence claims targeted cerebral palsy, which lawyers abused for “sheer greed”, with many claims being made on behalf of patients without their knowledge or without their having such a condition.
The SIU found that between 2012 and 2017, a single law firm based in Johannesburg, Nonxuba Attorneys, submitted 44 suspected fraudulent claims to the tune of R497m against the Eastern Cape Health Department.
The firm is led by Zuko Nonxuba, a lawyer from the Eastern Cape who allegedly stole millions of rands from children with cerebral palsy under the pretence of helping their mothers claim negligence damages from the department, reports Daily Maverick.
He used their cases – and sometimes even invented fictitious ones – to claim the money, and left the families with nothing. The Western Cape Health Department has initiated criminal proceedings regarding claims he made in that province, and the Legal Practice Council has said it is investigating, although its records suggest he has not practised since 2022.
“There is evidence of collusion between attorneys, touts, nurses and doctors in both the public and private healthcare. In some instances, nurses stole the medical records and illegally handed them over to attorneys,” Motsoaledi said.
“Unfortunately there was also collusion involving some officials in the Office of the State Attorney.”
KwaZulu-Natal had the highest number of finalised investigations, with 107 matters valued at R2.416bn completed and found to be fraudulent.
Out of the 107, in 76 of the cases the claimants were actually dead. The value of the claims was R1.7bn.
One attorney had submitted a claim for R16m after the death of a child – and in court, was claiming for future medical care based on private hospital rates and loss of amenities of life.
This was referred for criminal prosecution.
The SIU has made four referrals to the NPA and three to the Legal Practice Council against the attorney and private individuals found in possession of stolen medical records.
Gauteng has 2 450 medico-legal claims with 611 under investigation, valued at R4.175bn. Fifty-eight cases have been finalised and have so far saved the province’s Health Department R66m.
Numerous cases of deceased patients were uncovered in the province: of 40 matters involving claims to the value of R496m, 19 were on behalf of children who had died. Two of the 40 are people who are employed, yet the lawyer claimed for loss of income.
In the Eastern Cape, SIU investigations found that out of 23 letters of demand, where R298m was demanded, 15 of them (R271.8m), were fraudulent, with the claimants telling the SIU they had never visited any of the health facilities accused of medical negligence. All of these letters were submitted by one law firm.
There are 35 additional matters valued at about R600m, currently under investigation, initiated by Nonxuba Attorneys, in which no trusts were registered as per the court orders.
In total, the SIU completed investigations to the sum of R3.1bn from various Health Departments, an amount expected to increase as the investigation continue.
Motsoaledi said legal practitioners who have submitted medico-legal claims have the chance to withdraw them before they face the SIU, and escape with no consequences.
“However, failure to withdraw means that the offer will lapse and the SIU will strike. The SIU will make sure they are charged and go to the NPA. The game is over,” he said.
The affected legal practitioners were referred to the Legal Practice Council (LPC) for misconduct and the Legal Practitioners Fidelity Fund (LPFF) to consider reimbursing claimants whose funds were embezzled by their legal representatives.
‘Unco-operative’ mom loses claim
In an optimistic upturn, however, Eastern Cape Health has recently won a negligence case that might have cost the taxpayer millions of rands – after the Eastern Cape High Court (East London) found Frere Hospital was not to blame when a baby was born with severe brain injury from a lack of oxygen while the mother was in labour.
The mother had sued the hospital, claiming it had provided substandard care and been negligent for, among other reasons, not properly monitoring the baby during labour.
But Judge Sally Collett found in favour of the version of the nursing staff and of two doctors involved in her care, who said she had been an unco-operative patient, actively resisting their attempts to monitor her and her unborn baby’s well-being.
Daily Dispatch reports that their version was supported by notes in her hospital file, showing doctors and nurses had offered her extensive counselling about the importance of them monitoring the baby.
Collett said the only conclusion was that staff had been severely compromised in performing their duties, but that it would be unfair to saddle the mother with the department’s legal costs of her failed litigation as she already carried the financial burden of a disabled child.
She ordered each party to pay their own legal fees.
Health Department spokesperson Mkhululi Ndamase said the department had improved its record in defending medical negligence cases, and had, in the 2023/2024 financial year, successfully defended four out of the 19 cases finalised.
He said the rolling out of the department’s in-house HMS2 system had allowed them to move away from manual filing to an electronic alternative.
“The system has an electronic patient record system, plus modules that allow us to track claims against the state, among other modules.”
By year-end, he added, they would have expanded this to all eight regional, tertiary and central hospitals.
Mother wins claim
In a separate case, however, the department was ordered by the Eastern Cape High Court (Bhisho) to cough up damages to the mother of another child born with cerebral palsy, with Judge Rob Griffiths ordering the department to pay still-to-be-agreed or proven damages to her in her personal capacity and on behalf of her child.
The mother had been referred from Canzibe District Hospital to Nelson Mandela Academic Hospital for a Caesarean birth, and on arrival, at 1.40pm on 24 August, was assessed as being 36 weeks’ pregnant. Foetal movement was detected.
But at 4.34pm, the cardiotocography (measurement of the baby’s heart rate) was recorded as being “non-reassuring” and the foetus judged to be in distress.
The mother was told that, because there were no doctors available, she would be transferred by ambulance to Nelson Mandela Hospital. She arrived there at 9pm and was taken for surgery at 11pm.
Griffiths said when the baby was born at 11.29pm, no one said anything about resuscitation, although the mother testified that the infant did not cry at birth and had seizures. When she saw him the next morning, he had tubes inserted and she had to express milk to tube-feed him.
The baby stayed in hospital for about two weeks, after which he was transferred to Canzibe, from where he was discharged.
Professor Savvas Andronikou, a radiologist who testified on the mother’s behalf, said an MRI scan of the baby’s brain showed “hypoxic-ischaemic brain injury”, or a shortage of oxygen, “in keeping with a prolonged insult occurring in the perinatal period”.
The radiologist said there were no chromosomal abnormalities, and that the cause of the condition was hypoxia, not infection.
It was clear there had been substandard care, amounting to negligence, because there had been poor monitoring of the foetal heart rate.
Griffiths said the mother’s and doctors’ evidence had made a strong case that the injury to the baby’s brain occurred because of the extended labour due to the delay in getting her on to the operating table.
“The (department) called none of the staff, who were involved in the treatment of the mother during her confinement at both hospitals… and she has established that … hypoxia and consequent cerebral palsy were caused by the negligent conduct of the department and its employees.”
Prioritise claims
Mmusi Maimane, BOSA leader, has slammed the country’s escalating negligence cases and claims, saying the National Assembly’s Standing Committee on Appropriations will prioritise costs arising from litigation processes tied to medical negligence.
The claims had led to substantial compensation payouts for forensic investigations, legal fees and court settlements, he said on behalf of the committee.
“This financial burden is not only a significant drain on public funds – it also highlights systemic issues that need urgent attention.”
The committee had scheduled a meeting with the Department of Health, National Treasury, and Office of the Auditor-General of South Africa (AGSA) to find a sustainable solution.
News24 reports that in September last year, the AGSA told the National Council of Provinces’ Select Committee on Appropriations that poor performance and shoddy record-keeping meant money was being diverted from improving and delivering quality healthcare.
Contributory factors were as basic as improper storage of medical files, with some provincial Health Departments sometimes forced to settle claims because records, which could have been used to challenge the claims in court, were unavailable.
In November, AGSA also briefed the Standing Committee on Public Accounts (Scopa) on the matter, warning the expenditure on medico-legal claims was “an emerging risk”, and that the total claims against the health sector constituted roughly 75% of its budget.
Scopa chairperson at the time, the IFP’s Mkhuleko Hlengwa, described medico-legal claims as a ticking timebomb.
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See more from MedicalBrief archives:
Legal vacancies hobble Gauteng Health and negligence claims
The plan to stop SA’s fake medical negligence claims
Eastern Cape's plan to turn tidal wave of negligence claims
Provinces ignore system to slash medical negligence claims