A recent SA Appeal Court judgment has held that the state cannot offer free future medical treatment in lieu of paying monetary damages upfront, write Jay Page, senior associate, and Toni Dammert, candidate attorney, medical malpractice and insurance at Bowmans in a report on the Polity site.
They write that the state attempted to argue that, by not accepting the offer of free healthcare services in the future, the claimant was failing to act reasonably to reduce her damages. Ordinarily, claimants are obliged to mitigate their damages or risk having their claim reduced.
The court rejected the notion that declining the state’s offer constituted a failure to mitigate, and identified two main issues with the state’s stance. The first is that, in future, there may be a disagreement about whether the medical malpractice necessitated the treatment that the claimant requires later. This violates the rule that all claims must be resolved once and for all.
Page and Dammert write that the second issue is that, fundamentally, South African law requires damages awards to be paid in money. To order otherwise would require the law to be developed, but this kind of development, the court held, was better left to parliament.
The authors write that the latest attempt by the state to alleviate its growing medical malpractice burden in court comes after a similar recent judgment. In the earlier matter, the state sought an order that they could pay future medical costs as and when they arose, rather than pay a lump sum award upfront. Again, the court pointed out that such a change would be better left to parliament.
The court referred to Road Accident Fund legislation as an example of how parliament could make changes in the area of medical malpractice. For example, the Road Accident Fund is allowed to offer to pay future expenses if and when they arise in future. The Department of Health presently cannot do so.
Page and Dammert write that these two judgments, fairly close together, suggest that if the state wants to introduce measures to provide some relief against its burgeoning medical malpractice crisis, new legislation must be introduced. Watch this space.Report on Polity site