Health departments should “shift towards improving patient services at healthcare facilities rather than funding for possible litigation”, while significant, immediate improvements in archiving and record keeping have been called for, and the establishment of an electronic card management system, writes MedicalBrief.
In a briefing to the NCOP’s Select Committee on Appropriation from the auditor-general’s office (AGSA) and the Department of Health on medico-legal claims and their impact on provincial budgets, shoddy record-keeping by hospitals was red-flagged as having compromised efforts to contest claims in court.
This, plus numerous fraudulent claims and inefficient, poorly trained staff, all played leading roles in government’s failure to reduce its medico-legal claims against provincial health departments – a mindboggling R77bn by the end of March (the total health budget for 2023/24 is R60bn).
The National Development Plan (NDP) for the 2019-24 medium-term strategic framework had targeted a reduction in the government’s contingent liability of medico-legal cases by 80% (less than R18bn) in 2024, from the 2018 baseline of R70bn.
Business Day reports that many medico-legal claims are birth-related and include brain damage, cerebral palsy, Caesarean sections and “non-standardised” procedures – most cerebral palsy cases are categorised as “non-standardised” due to the poor quality of hospital information.
“Unfortunately, over the years, the balance (of medico-legal claims) has increased significantly above the baseline, rather than the planned/intended reduction. The sector is currently at 110% of the target, with one year remaining in the medium-term strategic framework,” auditor-general acting business unit leader for Health Thabelo Musisinyani told MPs.
By the end of March 2022, the cumulative total value of all 15 148 claims against the Health Department stood at R125.3bn, with 96% being for medico-legal claims. Altogether, R1.8bn was paid out for medico-legal claims in 2021 and R855.7m in 2022.
This was despite some successful negotiations for lesser settlements on the claims, with the AGSA pointing out that although the amount paid out had decreased compared with the number of claims lodged, additional funds still had to be requested from Treasury in certain instances and the “reduction of payment is not an indication of a sustainable reduction as it was mainly due to a timing difference between when the claim was received, and when it was actually paid”.
Of the 15 148 claims, 4 443 were from the Eastern Cape, 3 783 from Gauteng, 2 915 from KZN and 1617 from Limpopo.
Auditor-general co-ordinator of health sector performance auditing Maryke Schneigansz noted that “due to poor performance and poor record-keeping, money is being diverted from … improving and delivering quality and timely healthcare services”. She added that some provincial health departments were, additionally, diverting funds from health services to pay for claims.
Problems included the lack of dedicated staff or co-ordinating structures to oversee the management of patient safety incidents and patient complaints, while delays in finalising patient safety incident cases and patient complaints could increase the likelihood of litigation, she pointed out.
Compounding the issue, medical records were not always filed in a systematic and orderly manner. “Poor practices were identified in the storage, archiving and disposal of records (and there was) limited use of recommended electronic archiving processes.”
She also slammed the lack of human resources and medical expertise to manage the medico-legal caseload in the provincial legal departments.
Even after some successful negotiations for lesser settlements on the medico-legal claims, in 2022, the department still had to cough up more than R855m towards more than 14 500 medico-legal claims.
The AG’s office highlighted that claims were exacerbated by lack of staff with relevant expertise – of the four service providers appointed by NDoH to address the issue, only two had performed work regarding medico-legal claims at a cost of R93.8m as of 31 March 2022 – and that the electronic case management system (CMS) meant to be implemented in eight provinces by March 2020 has been implemented in only four and was being used in only one.
According to the Department of Health, the contract for the CMS has come to an end and it is “engaging with previous service providers to ensure its internal information communication technology (ICT) systems are able to run the CMS”.
However, this eventuality should have been anticipated and sorted long before the contract ended, said the DA, with shadow minister of health Michele Clark saying the briefing had painted “a dark picture of the Department’s finances, between the R8bn needed to cover the 7.5% salary increases, infrastructure grants needed to address loadshedding and water shortages, the many staff shortages, and the billions needed – which the country does not have, as recently confirmed again by Finance Minister Enoch Godongwana – to implement the National Health Insurance (NHI) Bill”.
“It is clear Health Minister Joe Phaahla failed to address the serious issues concerning the public health sector during his time in office. Instead of systematically addressing infrastructure failures, staff shortages, medicine stockouts, and corruption, he has put all of his efforts into an NHI pipe dream that will bankrupt the country and cripple public healthcare in South Africa,” she said.
Sliver of hope for departments
The State Liability Amendment Bill was still under consideration, and was expected to provide some temporary relief, but possible constitutional challenges are anticipated.
If passed, the legislation will introduce structured settlements of medico-legal claims to reduce government’s liability. Instead of upfront lump sum payments, compensation exceeding R1m would be split into three parts: a large sum paid immediately, smaller, periodic payments, and free treatment at a public health facility instead of cash for medical expenses.
DA article – How will Minister Phaahla heal public health’s money problems? (Open access)
Business Day PressReader article – Target for cut in medico-legal claims missed (Open access)
Parliament media release (Open access)
See more from MedicalBrief archives:
Auditor-General flags ballooning medico-legal claims
State pays R4bn in medico-legal claims in three years
Reducing medico-legal claims to be included in Gauteng hospital CEOs contracts
Urgent need for diverse strategy to address rising medico-legal claims