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SA Law Reform Commission examines spiralling medico-legal claims

FocusLawReformCommissionComment is sought by the SA Law Reform Commission on an issue paper exploring reasons for spiralling number of medico-legal claims, particularly against the state, reports Pam Saxby for Legalbrief Policy Watch. Appropriate legislation may be needed to protect against what Health Minister Dr Aaron Motsoaledi has described as a 'lawsuit crisis'.

Given that these claims are dealt with under common law – and noting concerns about an increase in the size of the damages sought and awarded in both the public and private healthcare sectors – appropriate legislation may be needed to protect National Health Insurance and National Development Plan "ideals" from being undermined.

Saxby writes that following a meeting between the SALRC and the Office of the State Attorney, it was agreed that the investigation would include: how compensation for medical claims is “determined and paid”; the influence of a “once and for all” common law rule on medico-legal claims; and lump sum payments.

The SALRC publishes issue papers to: announce an investigation; “elucidate” its aim and extent; point to possible solutions; and "initiate and stimulate debate" by way of public input. Saxby writes that with these objectives in mind, among other things the issue paper on medico-legal claims discusses: medical negligence litigation literature; healthcare spending; expenditure on health litigation; the legal principles underpinning medico-legal claims; lump sum payments; structured settlements; and periodic payments.

Possible legislative interventions include: "special health courts"; alternative dispute resolution; "a no-fault system to resolve birth outcome disputes"; defined benefits; capping claims for non-economic and general damages; prescribed guidelines for calculating compensation; amendments to the 1957 State Liability Act; and compulsory professional indemnity insurance for medical practitioners. With the aim of providing a framework for written submissions, the paper also poses questions around shortcomings in the existing system and short-term solutions.

Comment closes 30 September 2017.


[link url=""]Legalbrief Policy Watch report[/link]
[link url=""]Issue paper[/link]

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