Exorbitant lump-sum payments to medical negligence victims should be scrapped, and new laws should be introduced for a revised system with structured pay-as-you go settlements, the South African Law Reform Commission (SALRC) has recommended as measures to help resolve the scale of these claims against the state and their increasing burden on health budgets.
MedicalBrief notes that such measures have been proposed by provincial Health Departments, especially in the Eastern Cape, but the issue is now before the Constitutional Court to decide. In the latest medico-legal case in the province, the High Court has ordered the department to pay R15m in damages to a patient left disabled during birth, with the judge firmly dismissing the department's proposals to offer a caregiver programme to the child.
Business Day reports the proposed and radically different compensation system by the SALRC was suggested in a report released last week, in which the commission has proposed two new pieces of legislation allowing public sector patients and their families to seek redress either through the courts or through a new administrative system overseen by the national Health Department.
It does not consider medical negligence claims against private healthcare practitioners, which are the focus of a separate inquiry into culpable homicide charges against healthcare professionals and the soaring cost of indemnity insurance.
Provincial Health Departments reported contingent liabilities (the cost if all claims were successful) of R62.4bn in the 2023/24 fiscal year.
While only a small fraction of medical negligence claims are paid out, the sums are not budgeted for and divert funds allocated for frontline health services. Total payouts to successful claimants ran to R1.5bn in 2023/24, half of which was paid out in Gauteng.
“The extent of medico-legal litigation against the state has reached a level where it is adversely and prejudicially impacting in a serious manner on service delivery in the public health sector and endangering the constitutional right of access to healthcare services,” said the SALRC.
However, as reported in MedicalBrief last week, Wits chair of Social Security Systems Alex van den Heever said changing how compensation is paid would not remove the actual cost of caring for injured people or the systems failures that generate new claims.
“Public provision and periodic payments could be considered, but only where reliable care, funding and payment can be demonstrated, with timely alternatives when these arrangements fail. Otherwise, some cash-flow relief, which only defers rather than eliminates costs, simply transfers risk and administrative burdens to the injured parties and their vulnerable families,” he said
“The priority should be to prevent instances of negligence and secure valid compensation and not merely reduce the amount paid out today.”
Unscrupulous lawyers
Officials have frequently expressed concern at the ease with which unscrupulous lawyers and relatives can siphon money from lump sum settlements, leaving victims dependent on public services and effectively making the state pay twice.
A nationwide probe by the Special Investigating Unit into medico-legal claims that began in 2022 saved the state more than R3.1bn.
The legislation proposed by the SALRC is also important because it gives Parliament the task of amending the law to accommodate structured settlements, which several provincial Health Departments have tried to do but failed.
In the most recent case, the Supreme Court of Appeal jettisoned the Eastern Cape Health Department’s plan to use public sector services to provide support to a child born with severe cerebral palsy instead of paying out a one-off, multimillion-rand sum for care in the private sector.
In a ruling handed down in February, the court said the matter was so controversial it should be dealt with by Parliament. The Eastern Cape, which had conceded negligence, is appealing the ruling in the Constitutional Court.
The Redress for Medical Negligence Claims against State Bill, overseen by the Health Minister, suggests a public health redress commission be set up to review applications for compensation without going to court.
Successful claimants will receive structured settlements with three components: health services provided or procured by the state; a lump sum for general damages, past expenses and the cost of devices and technology that cannot be provided or procured by the state; and periodic payments based on compensation guidelines for future damages – like loss of earnings and caregiving services.
The Medico-Legal Litigation Against the State Bill, which will fall under the Minister of Justice & Constitutional Development, proposes a series of pre-trial measures that seek to reduce the number of cases landing up in court, and provisions to set up dedicated medico-legal units in provincial health departments, to establish provincial and national databases of claims in efforts to eliminate duplication. It too provides for redress via structured settlements.
The SALRC said its proposed legislative reforms should go in tandem with measures to raise the quality of public health services, including improved oversight, accountability and financial management, and it urged provincial health departments to implement better record keeping and not to defend indefensible claims.
Eastern Cape Health buckling under strain
Meanwhile, the challenge facing government was illustrated last week with a High Court order for the Eastern Cape Health Department to fork out R15m in damages to a patient left disabled during birth. Eastern Cape Health has said it wants to negotiate a payment arrangement, protesting that the hefty amount could affect its ability to deliver services to other patients and that there had been “no intentional negligence by staff”, reports Daily Dispatch.
Adding to its woes, its plans to offer a caregiver programme to the child were shot down by the judge, who said it had failed to show that this would provide the child with the standard and security of care she would need for the rest of her life.
Describing the injuries suffered by the infant as ”very unfortunate”, department spokesperson Siyanda Manana said the department was concerned about the impact of the judgment on its finances and that it would try to reach an agreement on how the amount would be paid.
“Because the amount is so huge … what we normally do is we try to negotiate so that … we don’t then impact on the delivery of [services] to other patients,” he said.
Handed down in August, the judgment found the department liable for damages arising from the child’s birth at Mthatha General Hospital in June 2019. It was ordered to pay more than R15m, including amounts for general damages, loss of earnings, accommodation, transportation, a case manager and lifelong caregiving needs.
Manana said: “There’s no indication on our side that we are going to appeal, rather, that we can then agree on a payment method.”
The court had to consider whether the department’s newly introduced caregiving mechanism for children with disabilities could be relied on instead of the child receiving the amount claimed for lifelong care. But it found the department had failed to show that the caregiving programme would provide the child with the standard and security of care she would need for the rest of her life.
Judge Avinash Govindjee ordered the department to pay R2.1m in general damages, R2.3m for loss of earnings, R1.4m for accommodation needs, R3.8m for transportation needs, nearly R500 000 for a case manager and R4.9m for caregiving.
The order excludes the costs of expert witnesses, travel, accommodation, expenses and subsistence incurred by the child, her representatives and experts for consultations, preparation and attendance at the hearing.
It also excludes legal representation costs.
Govindjee said the evidence established that the department had taken steps to procure caregiving services for children with disabilities, including those with cerebral palsy, through district-based service providers.
A letter of award had been concluded between the department and the Mount Frere Paralegal Advice Centre for the provision of caregiving services to children with disabilities, including cerebral palsy, in the OR Tambo and Alfred Nzo districts for 36 months.
The letter was signed at the end of October 2025.
“I accept that the award letter contemplates caregiving services for 36 months, and that the department does not intend to charge the plaintiff, or the child, for those services,” said Govindjee.
“I also accept that Ms Xuma [the deputy director responsible for therapeutic and medical support services in the department of health] gave her evidence in good faith and that the department presently intends to continue making such services available.
“But while those facts are relevant, they do not answer the applicable inquiry.”
He said the first difficulty was the absence of documents that would allow the court to assess the content and enforceability of the proposed arrangement.
The award letter itself recorded that it was subject to the conclusion of a service-level agreement, Govender said. It did not detail n the service provider’s obligations, the standard its caregivers would have to meet, or the mechanisms for ensuring performance.
It also did not show what recourse the plaintiff or child would have if the care proved inadequate or the arrangement failed.
The judge said there were also concerns about the standard of the proposed service and its future availability.
He said the award was for 36 months, while the child’s need for care was lifelong, taking into account her reduced life expectancy and the practicalities of implementing the arrangement.
“Ms Caga [the occupational therapist called on behalf of the plaintiff], who works as a case manager and sources caregivers in the area, testified that she had never come across state-appointed service providers providing such caregiver services in that part of the country.
“Finally, it must be noted that the department does not itself employ or provide the caregivers in question, and the entire arrangement depends on an independent service provider,” Govindjee said.
He said that though Xuma had expressed confidence that the department would intervene if the plaintiff or a case manager were unhappy with the quality of services, the court did not have enough information about how such intervention would work.
“In particular, the court does not know what rights the plaintiff would have, what obligations the service provider owes, whether the department can require the replacement of a caregiver or what happens if the provider refuses to comply or terminates the agreement.”
Govindjee said the possibility that the department might intervene if difficulties arose did not establish that the child would have effective recourse if the service proved inadequate or the arrangement broke down.
“Viewed cumulatively, these difficulties prevent me from treating the proposed outsourced arrangement as a reliable substitute for the plaintiff’s quantified claim.
“The difficulty for the department is that the evidence in this case does not establish with the required cogency that caregiving services of the same, or an acceptably high standard, will be available to this child, at no cost or for less than that claimed, for the period for which care is required.
“That conclusion rests on the evidence led at this trial and in respect of this head of damages alone.
“It follows that the defendant has not displaced the plaintiff’s proof of the reasonable cost of the caregiving required by the child. The claim must therefore be calculated on the basis of Ms Caga’s evidence and the plaintiff’s actuarial calculation,” Govindjee said.
He ordered that the payment be made in three equal instalments, with the first due within 30 days, the second within 60 days and the balance within 90 days of the order.
“Any instalment not paid on its due date shall bear interest at the prescribed legal rate from the due date to date of payment.”
Children’s rights activist Petros Majola said despite its size, the award would not undo the damage done to the child and her family.
“It will not give back the normal life of [the] child. It [negligence] has left some scars even [on] the mother, who carried a child for nine months, and a child was left to suffer within minutes or seconds.”
See more from MedicalBrief archives:
SA forges ahead with Bill to end lump-sum payments for medical negligence
SA medico-legal reform: modernising the system or knee-jerk reaction?
SA Law Reform Commission outlines sweeping medical negligence changes
The plan to stop SA’s fake medical negligence claims
Another negligence claim – R6.4m – pummels Eastern Cape Health
Judge rejects Eastern Cape’s bid to pay damages in instalments