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HomeMedico-Legal AnalysisThe 'deplorable pathology' of medico-legal litigation

The 'deplorable pathology' of medico-legal litigation

Attorney Zuko Nonxuba is facing multiple criminal charges and ethical complaints over nearly R1bn in medical negligence claims he has lodged against the Western and Eastern Cape health departments — many of which are alleged to be completely fraudulent, writes Karen Maughn in the Financial Mail.

But, more than two years after the departments laid formal complaints that Nonxuba and his firm, Nonxuba Inc, had swamped them with fake cases, the oversight bodies intended to regulate legal professionals have yet to finalise investigations into the accusations. As a result, Nonxuba is still practising as a lawyer.

This is despite the fact that he is facing three criminal fraud cases in connection with claims totalling R45m lodged against Eastern Cape Health. Nonxuba also stands accused of exorbitantly overcharging the poor and indigent clients for whom he secured damages awards, and then failing to pay them what was due to them.

The failure of the Legal Practice Council (LPC), and the provincial law societies that preceded it, to take any real action against Nonxuba resulted in Western Cape Health's precedent-setting application filed in 2018, interdicting Nonxuba and his firm from instituting any further claims against it, pending the finalisation of the multiple complaints lodged against him.

The department’s medico-legal adviser, Dr Anke Nitzsche, has slammed Nonxuba and his firm for running a fraudulent and "cynical" scheme aimed at fleecing the state and abusing his primary client base: the disadvantaged mothers of disabled children.

After initially opposing the case, and denying any wrongdoing, Nonxuba agreed not to institute medical negligence claims against the department for six months, pending the outcome of the complaints lodged against him.

Most of Nonxuba’s clients were too poor to afford to pay lawyers’ fees, so his firm signed contingency fee agreements. Under such an arrangement, a law firm could ordinarily claim a "success fee" of double its normal fee, and up to 25% of the total damages awarded. Nonxuba’s fees reportedly exceeded even these very high limits.

"From the information obtained thus far, the contingency fee agreements appear to be invalid and in contravention of the Contingency Fees Act," the LPC’s report states.

The LPC says it struggled to investigate the Western Cape Health’s accusations because Nonxuba claimed the documentation was "legally privileged" — an argument the LPC accepted. In response to queries from the FM, the LPC’s Western Cape office says its investigation into Nonxuba is "ongoing".

Nitzsche told MedicalBrief that the R484m claimed by Nonxuba from Western Cape Health was “very much the tip of the iceberg”. “This province is fortunate in having a medico-legal unit that can critically examine and challenge these claims when they land. Many other provinces are being flooded by such claims, from a number of attorneys, and because they don’t have the resources to deal appropriately with the deluge, entire health budgets are being subsumed.”

In court papers, Nitzsche reveals that five of these claims — amounting to R75.4m — were withdrawn after "it was established that the plaintiffs’ children did not have cerebral palsy as a consequence of birth injuries".

According to Nitzsche, 28 of the remaining claims — totalling R408m — were without merit. This, she says, was shown by an in-depth evaluation conducted by an independent medical expert, obstetrician and gynaecologist, Dr Michael Wright.

Nitzsche slams this pathology of litigation as "deplorable".

[link url="https://www.businesslive.co.za/fm/features/2020-08-13-meet-sas-r1bn-lawyer-for-the-poor/"]Full Financial Mail report (subscription needed)[/link]

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