Friday, 29 March, 2024
HomeMedico-Legal AnalysisNo-fault and no-claim provisions in amended vaccine-injury Compensation Scheme

No-fault and no-claim provisions in amended vaccine-injury Compensation Scheme

Writing about the government’s no-fault Compensation Scheme for vaccine injuries in MedicalBrief last year (12 May), Donald Dinnie, a director of Norton Rose Fulbright SA, observed that where a claimant perceived that in certain circumstances they might not be properly compensated by the scheme for their harm, litigation might become a more attractive option and undermine any attractiveness of the scheme.

However, until now, more than two years since the first lockdown and despite overworked frontline practitioners often practising outside their specialisation, overstretched healthcare providers, and insufficient resources, there have been no reported medical malpractice litigation related to COVID-19 in South Africa, wrote Carol Holness, Anika de Kock and Dinnie last week in MedicalBrief.

This week he unpacks the recently published amendments to the scheme. The injuries, he writes, must have been caused by the jab but fault does not have to be proved, and additionally, if the scheme honours the claim, the person is prohibited from instituting any damages claims in a court.

Dinnie writes:

The no-fault compensation scheme previously discussed in MedicalBrief by Norton, Rose Fulbright now has amended regulations and directions, which were published on 4 April 2022. (ref. Government Gazette no 46197)

The Scheme’s purpose is to provide expeditious and easy access to compensation for people suffering from a COVID-19 vaccine injury caused by the administration of an improved COVID-19 vaccine. Injuries covered are referred to in Regulation 93.1(1) and (3) and must have been caused by the vaccine, but fault does not have to be proved.

The indemnifiable injuries are those set out in paragraph 8 of the directions (ref. Government Gazette no 46196) and are serious injuries resulting in permanent physical or mental impairment, temporary physical or mental impairment, or death.

The regulations provide that a person who submits a claim to the Scheme and is awarded compensation abandons their right to institute a damages claim in a court against any party arising from harm, loss or damage, allegedly caused by a COVID-19 vaccine injury.

A person who has submitted a claim for compensation under the Compensation for Occupational Injuries and Diseases Act for any untoward medical occurrence that may present after vaccination, whether or not there is a causal relationship to the administration of the vaccine concerned, is also not eligible for compensation under the Scheme.

The quantum and structure of compensation is set out in the directions and determined by the Adjudication Panel in accordance with the Compensation Table forming part of the directions. The compensation is a capped amount in respect of the type of injury listed and provision is made for lump sum compensation payments.

In respect of both the death and permanent disability benefit, any payment is capped at R150,000. The temporary disability benefit is a fixed temporary compensation of R5,000 per month up to a maximum of six months, although a person may claim for both temporary and permanent disability where applicable.

The directions allow for an appeal by a dissatisfied claimant both in terms of whether any indemnity is payable and the quantum and structure of the compensation.

GG No. 46196
GG No. 46197

See more from MedicalBrief archives:

 

Pandemic’s predicted deluge of medical malpractice claims hasn’t happened

 

Success of No-Fault Compensation Scheme depends on efficiency of claims process

 

No-fault compensation fund rules released for 'rushed' comment

 

How the no-fault Compensation Fund for vaccine injury will work

 

 

MedicalBrief — our free weekly e-newsletter

We'd appreciate as much information as possible, however only an email address is required.