The South African Law Reform Commission (SALRC), which was tasked with reviewing the medico-legal system given the mounting suits against the health department and practitioners, has proposed several reforms, taking care to balance claimants’ rights and the state’s burden of compensation.
Hlombe Makuluma, clinical risk management at EthiQal, and JP Ellis, senior legal and claims manager at EthiQal Medical Risk Protection, a division of Constantia Insurance, unpack the SALRC's recommendations. They question whether these recommendations will be effective, or even implemented, in the context of an over-burdened and vulnerable sector.
South Africa’s medico-legal problems are well documented. Our healthcare system is vulnerable, with staff working under stressful conditions amid the uncertainty of the implementation of National Health Insurance and adverse consequences of the pandemic.
The overburdened public health system is confronted with litigation daily, and is accumulating contingent liabilities (i.e. the projected cost of payments for medical litigation claims) in the billions.
In the private sector, however, the burden of professional indemnity insurance cover for certain high-risk specialities has resulted in many private practitioners limiting their scope of practice. And since many private hospitals are self-insured for medico-legal claims up to a certain layer, the price for their litigation defence is ultimately brought back to the consumer.
Worse, the SA civil justice system is renowned for delays, inefficiencies and unnecessarily high litigation costs.
These all create the perfect recipe for a lucrative industry feeding many role-players with no hesitation in abusing a vulnerable medico-legal system.
The South African Law Reform Commission (SALRC) was asked by the Ministers of Health and Justice to review the system and offer proposals. The SALRC published its discussion paper 154 in November 2021 based on preliminary research, five years after the publication of the initial working paper on Project 141: Medico-legal Claims.
While progress has been made, the question is whether there is real appetite to improve our system or is this a knee-jerk reaction?
There is desperate need for meaningful reform. Patients suffering harm from negligence require reasonable compensation quickly: healthcare providers should also be protected from abuse and unmeritorious claims.
But clinical negligence litigation often takes years, and litigation costs are exorbitant. Overall, the SALRC has taken care in considering claimants’ rights and the State’s burden of compensation: reform is generally classified into three areas – reforms limiting access to courts; reforms influencing court processes; and reforms limiting the amount of compensation.
It has offered recommendations it believes will make the most difference:
Reforms limiting access to our courts
• Mediation is encouraged as a first step to deal with disputes before litigation. Most stakeholders have no objections, especially because Uniform Rule 41A was introduced several years ago requiring plaintiffs/applicants who initiate litigation proceedings to file a certificate indicating whether they agree to mediation and, if not, why not.
• A certificate of merit affidavit should be filed on behalf of an accredited medical practitioner to avoid frivolous, fraudulent or abandoned claims. This allows a successful defendant to claim the costs against those parties, and possibly their attorneys, who engage in irresponsible litigation.
• Plaintiffs are barred from proceeding with claims after a period of inaction after issuing summons, with the possibility of the court extending the period on good cause. Either our Court rules or Practice manuals should be amended to ensure once legal action is taken, the matter must be finalised within a specified period, depending on its nature and extent.
• Adopting an administrative compensation system for smaller negligence claims;
• Introducing a pre-action protocol system for larger negligence claims;
Reforms influencing court processes
• There is consensus that the rules relating to how experts are used be reconsidered. The SALRC recommendation is that opposing parties to litigation should use joint expert witnesses, and when necessary, a panel of three joint expert witnesses, from the discipline concerned, for technical medical evidence. Using joint experts should be encouraged but there will be situations where it is inappropriate. And a panel of three experts will only increase the costs. Rather, the two areas of concern are the accreditation and accountability of expert witnesses for the purposes of court proceedings and the desirability of sanctions for inappropriate or unethical conduct by expert witnesses.
• The Superior Courts Act and the Uniform Rules of Court should be amended to provide for appointing specialist assessors to assist judges in complex medical negligence matters, rather than the establishment of specialist medical courts. Specialist assessors will help but won’t necessarily address the issue that a generalist court might misapply the law, confuse rather than clarify issues, and inadvertently encourage additional litigation, rather than a specialist court.
• Civil procedures be amended to improve pre-trial procedures, and case management to expedite finalisation of litigation;
Reforms limiting compensation
• Compensation to be awarded via a structured settlement, part of the compensation paid in a lump sum, part paid as periodic payments, and part provided as “payments in kind” by means of the delivery of services – allowing a combination of these methods and determining the ratio of one aspect in comparison to another aspect by considering circumstances of each case. This “payment in kind” element is arguably the most controversial, given the parlous state of our public healthcare system.
• Periodic payments in the nature of an annuity be awarded for future maintenance, loss of earnings and the portion of future medical care, treatment, rehabilitation and therapy that the state cannot provide;
• The underlying principle for the calculation of future loss of income be changed to a structured method based on the average national income or the average income of the area where the claimant lives;
• It may be necessary to cap damages other than special damages, such as constitutional damages and general damages (non-pecuniary damages);
• It should be possible to adjust periodic payments in exceptional circumstances.
Except for some controversial recommendations, most will probably carry widespread support from stakeholders. But how these recommendations translate into independent pieces of legislation, amendments to existing legislation, adjustments to court rules and practices, is uncertain.
Indications suggest the SALRC is under political pressure to finalise this investigation and is more concerned with adopting recommendations to relieve the biggest burden on the public sector rather than adopting a holistic approach to strengthening the entire medico-legal system, which is obviously preferable.
There has also been criticism against the SALRC for its focus on reform to the public sector. In its own words, “(T)he proposals focus mainly on measures to alleviate the financial burden of medico-legal claims against the state on the fiscus, and to provide for alternative procedures for the speedy resolution of medical negligence claims against the state”. What is clear from the proposals in chapter 9 of Discussion Paper 154 is that efforts to reform the system can only realistically be done through collaboration between the private-public healthcare system.
According to them, this was deliberate since the request for the current investigation was initiated by the Ministries of Health and Justice.
It would be preferable if law reform was not a knee-jerk reaction to the State’s financial burden of the malpractice claims.
The same risks exist for private healthcare, which is also exposed to medical malpractice claims and payouts.
What remains to be seen is how the final report recommendations will be implemented. The state has a poor track record of following corrective measures contained in the Public Protector reports; the SA Human Rights Commission Reports, the Auditor-General audit reports, the Office of Health Standards Compliance reports, the Presidential Health Summit 2018 Compact and other existing government-initiated reports, plans and studies.
So where to from here? The SALRC’s investigative work is ongoing and it will take some time before we receive a final report.
The final report should adopt a balanced approach, prioritising the interests of the state versus those of the vulnerable.
The SALRC work is difficult but crucial to our healthcare system’s sustainability. Factors contributing to poor healthcare service delivery include maladministration, mismanagement, fraud, insufficient qualified healthcare workers and access to drugs, technologies and emergency transport.
Unfortunately, legislation and other reforms cannot fix the system or improve standards of healthcare. But, overall, care must be taken to ensure the final recommendations are well balanced and pass constitutional muster.
See more from MedicalBrief archives:
SA Law Reform Commission examines spiralling medico-legal claims
Limpopo Health MEC calls for law reform to stem medico-legal liability
The need for medico-legal reform: A welcome chance to speak up
SA Law Reform Commission outlines sweeping medical negligence changes
SAMA calls for specialised courts to handle medico-legal cases