Friday, 31 May, 2024
HomeMPS ColumnThe need for medico-legal reform: A welcome chance to speak up

The need for medico-legal reform: A welcome chance to speak up

Medical Protection Society (MPS) recently submitted comments in response to the South African Law Reform Commission (SALRC) ‘Discussion Paper 154 – Project 141: Medico-Legal Claims’. Dr Graham Howarth, Head of Medical Services – Africa at MPS, writes that state reform is needed to stem the rising cost of clinical negligence claims.

Dr Howarth writes:

The SALRC should be applauded for recognising the need for legal reform to the clinical negligence system in South Africa. In our submission, MPS welcomed the Commission’s decision to publish their discussion paper on medico-legal reforms for the state sector.

Every reader of this article will have his or her own experience of South Africa’s medico-legal landscape. As a protection organisation for more than 30,000 healthcare professionals in South Africa, MPS’s position is informed by our direct experience in assisting doctors and dentists with clinical negligence claims.

As readers will be well aware, reform is necessary for multiple reasons. We submitted to the SALRC that reforms are needed both to reduce mounting costs on the public purse and to create a system that ensures reasonable compensation while allowing for a fair defence where necessary.

The spiralling costs of clinical negligence claims negatively impact both healthcare professionals and patients. The problem has a long history in South Africa and we believe the time for action is long overdue.

It is important that there is reasonable compensation for patients who are harmed due to clinical negligence, however, this must be balanced against a society’s ability to pay.

Clinical negligence costs have increased from R37bn to R47bn over the past five years. This is clearly not a sustainable trajectory. MPS has long highlighted that if the cost of claims rises too high then the balance could tip too far, and the cost will become significantly greater for the state sector, for healthcare professionals and for society.

For some specialities, the cost of claims risks threatening the sustainability of private practice. If this causes a shift in workload to the public sector, it could increase pressure on public services and affect important health sector reforms.

Aside from the financial cost, there is also a very real human cost to litigation. The current clinical negligence system does not facilitate the efficient and fair resolution of disputes. Patients face delays in receiving compensation, and both patients and healthcare professionals go through a long, costly and stressful process.

MPS believes the key areas in need of reform, are:

Learning from events to improve patient safety
MPS’s philosophy is to support safe practice in medicine and dentistry, helping to avert problems in the first place. We fully support moves towards creating a culture of openness and learning in the healthcare sector where clinicians feel empowered and confident to admit errors, and learn from mistakes, without fear of recrimination.

In our experience, more often than not, apologising, admitting a mistake and communicating effectively will help to mitigate litigation. However, this is only plausible if there is a change in the current mentality, which allows for healthcare professionals to be open about mistakes without fear of being blamed and facing regulatory, civil or criminal proceedings.

The SALRC proposes the introduction of legislation that prevents information given by healthcare professionals from being discovered for the purposes of court or disciplinary proceedings, a proposal MPS supports.

MPS further suggests reforms to encourage incident reporting and learning from events, promoting a culture of speaking up, and one that prioritises safety, quality learning and improvement.

Crucially, there must be a shift away from a ‘blame and shame’ culture to one that promotes openness, transparency, candour, and fairness.

Comprehensive and consistent complaints process
MPS agrees with the discussion paper’s statement that matters should avoid being taken to court as far as possible. We believe that an improved complaint process is a vital way to achieve this.

While there are claims where the patient understandably pursues financial compensation, many patients are simply seeking answers, an apology, and reassurance that necessary changes will be made. The priority must therefore be to develop a robust, efficient and, above all, patient-centred complaints system to address patient concerns as an alternative to litigation.
MPS would like to see the development of a complaints system that allows for local resolution in the first instance as the ‘tier one’ for complaints. This way a strengthened ‘tier two’ complaints system backed up by existing standards and regulatory bodies would provide patients and families with an effective alternative to litigation.

Alternative dispute resolution and mediation
MPS believes that early resolution should be a priority when an adverse incident occurs, and therefore agrees with the SALRC that alternative dispute resolution systems should be established, with mediation encouraged before instituting court proceedings.

We would welcome any mechanism that facilitates the early resolution of meritorious claims. Access to mediation can reduce litigation intent, particularly in cases where treatment is non-negligent.

We understand that not every case is suitable for conciliation or mediation, however, with judicial case management, parties at every stage should be encouraged to consider alternative dispute resolution as an alternative to formal proceedings.

Further reforms proposed

MPS supports and proposes a range of other reforms, each aimed at removing inefficiencies in the current process, reducing litigation, encouraging an open learning culture, and ultimately improving patient safety.

These include:
• Introducing a certificate of merit affidavit from a suitably qualified medical practitioner when medical negligence actions are instituted, helping to avoid frivolous or fraudulent claims
• Introducing pre-action protocols allowing parties to investigate claims efficiently and, where appropriate, resolve them before litigation
• Improving pre-trial procedures, including early exchange of expert information and factual witness statements, and mandatory experts’ meetings, to help facilitate early settlement negotiations
• Basing compensation for future loss of income on average national or local incomes, not individual incomes, to balance fair compensation with society’s ability to meet costs of compensation
• Placing a cap on damages awards
• Supporting a scheme for birth injury claims, to provide fair and equal levels of compensation for parents and children suffering from childbirth injuries regardless of fault being proven.

The SALRC medico-legal claims consultation process is ongoing, and MPS has submitted detailed comments as well as attending workshops hosted by the SALRC, reinforcing our message that the need for reform is becoming more pressing each day.

Full submission from MPS below:


See more MPS columns from MedicalBrief archives:


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