As the number of medico-legal claims rise, with both the size and value of claims also mushrooming, there is an urgent need to review the factors contributing to such increases and devise multi-pronged strategies to deal with them, reports MedicalBrief.
Reasons for the increased claims, which swallow huge chunks of money from the public health budget that should have been spent on the healthcare priorities identified in the National Department of Health (NDoH) Strategic Plan, are varied, writes Dr Larisse Prinsen, senior lecturer from the Department of Public Law at the University of the Free State, in the SA Medical Journal.
Causes include clinical errors, maladministration and mismanagement, as well as the legal profession’s contribution to the problem. She suggests possible solutions, such as those related to the NDoH National Core Standards and Ideal Clinic initiative to improve quality of care standards; improving the healthcare system; better distinguishing between valid and invalid or fraudulent claims; the possible role of fit-for-purpose legislation; and a reconsideration of compensation methods.
The claims, normally based on medical negligence or malpractice, have been ballooning since about 2007, evidenced by recent figures indicating a growth rate of 30% for contingent liabilities, a loss that may occur in future, and 23% for medico-legal claims in the public sector since 2014. These percentages translated to R99.2bn and R2b, respectively, in the 2018/2019 National Treasury Budget Review reporting period.
In 2020/2021, R6.5bn was awarded in medico-legal claims.
However, the increase in claims is not only an SA issue, but a global one. Regionally, it has been reported that Botswana saw more than 300 claims instituted from 2015, and in Ghana and Malawi, litigation for medico-legal issues has become so prevalent that this trend has been described as a “boom industry”.
Also of note is that not only is the number of claims rising, but their size and value have also mushroomed.
This escalation may be attributed to medical and technological advances that increase life expectancy. Although these advances are beneficial, increased life expectancy may inflate the size of claims, because future maintenance, loss of income, and future healthcare are factored into the calculation of damages. The more future a harmed individual has, the higher are the damages payable.
Causes of increased claims
Medico-legal scholars and the South African Law Reform Commission (SALRC) have concluded that no one cause can be singled out, and that the rise in claims is due to various factors.
Clinical errors, maladministration and mismanagement
The obvious first cause relates to clinical errors and the quality of healthcare services. Although cerebral palsy-type claims comprise around half of medico-legal claims in SA, from case law it seems that the remainder of the causes of action are varied, ranging from negligence in applying proper care to failure to take reasonable steps to prevent stillbirths, to misdiagnosis and delayed treatment.
This indicates a wide spectrum of negligence. However, issues in the healthcare system reach further than mere individual negligence, and may also include systemic factors and errors.
It is an unfortunate truth that in certain instances negligence is due to clinical errors or a low quality of care, yet healthcare practitioners are still expected to perform their duties according to the degree of care and skill reasonably expected of them.
However, this may not always be possible where institutional environmental factors, such as old and ill-maintained equipment, shortages of medications or understaffing, exist that hinder the provision of an optimal quality of care.
Administration and management, or rather maladministration and mismanagement, influence the quality of care profoundly, as does the related availability of resources in already strained national and provincial health budgets.
The legal profession
The legal profession has also been identified as contributing to the rise in claims and litigation. Arguments have been made that legal practitioners working in the field of medical negligence and malpractice are actively marketing to, encouraging and targeting the public to pursue legal recourse in the event of adverse consequences resulting from healthcare.
Further arguments have been made that the amendments to the Road Accident Fund Act, which limited the financial aspects of RAF claims, may have pushed legal practitioners towards new avenues of personal injury law via negligence and malpractice litigation.
The Contingency Fee Act may also contribute, as it provides for a “no win, no fee” arrangement, allowing people who would not normally be able to afford litigation to pursue this path.
It might also lead to inflated claims, as the bigger the win, the bigger the fee. It must, however, be kept in mind that negligence and malpractice lead to negligence and malpractice litigation, and legal practitioners are ethically bound to their clients, so it is in the interests of the client to obtain the best possible award or settlement.
Legal developments and patient awareness
Other developments in legislation and case law may also contribute to the escalation in claims, because of the shift towards the patient.
Patient-centredness is evident in the provisions of the Constitution, the National Health Act (NHA), the Consumer Protection Act (CPA), and the Children’s Act.
Examples of aspects provided for and protected include autonomy and informed consent, privacy and confidentiality, and the best interests of the child. In addition, increased patient knowledge and awareness of their rights related to consumer protection, accountability and transparency also contribute to the claims’ increase.
In contrast, arguments have been made that lack of patient-centredness and a vigorous complaints system add to the rise in claims, as disgruntled patients are left with only litigation as an avenue for redress. This is despite the NDoH having published three sets of guidelines for complaints, and that the Health Professions Council of SA provides for a complaints procedure.
However, these seem to be inadequately applied and enforced, and do not currently offer a satisfactory solution.
Additional causes
Further causes of the rise in medico-legal claims include:
• Patient expectations: When patients are better informed, they become more involved in their own healthcare and may have unrealistic expectations that can lead to litigation when not understood or fulfilled.
• The doctor-patient relationship. Problems in this area include poor communication regarding possible risks and adverse outcomes inherent to procedures or treatments, perceptions that the doctor is indifferent, or dissatisfaction with the poor management of adverse outcomes.
• Failure to distinguish valid from invalid or even fraudulent claims.
Possible solutions to the rise in claims
Just as there is no single cause for the rise in claims, there is no single solution. The SALRC recognises this is a complex matter, and has proposed a three-tiered strategy to reduce litigation.
Primary prevention would entail the progressive achievement of the NDoH National Core Standards and Ideal Clinic initiative to improve quality of care standards.
These encompass a range of improvements ranging from clinical standards to the working environment, infrastructure, human resources and technology, to ensure better and safer patient experiences and clinical outcomes.
This process will require healthcare facilities to develop quality improvement plans to address the areas where they do not meet these standards, for example, staff development.
Secondary prevention relates to management of complaints and the importance of early engagement with harmed individuals, establishing an Independent Health Complaints Committee, strengthening systems to monitor adverse outcomes, moving from a culture of blame to one of learning, and receiving feedback from medico-legal claims.
Last, tertiary prevention would entail:
• Professional, holistic management of all medico-legal litigation;
• Fast-tracking the resolution of low-value claims with minimal expenditure;
• Just compensation of bereaved families or injured patients;
• Assisting plaintiffs “in kind”, for example by securing school placement of disabled minors, and ensuring continuous access to state medical care when private care is unavailable;
• Securing settlement awards in trusts to ensure proper accounting and payment of funds for future medical care;
• Return of unexpended funds to the NDoH in the event of premature death;
• Challenging false or opportunistic practices that artificially drive up the value of claims; and
• Ensuring all public money spent on settlement of valid claims is just and appropriate.
Some further possible solutions may include that the state publish annual medico-legal claims reports reflecting and analysing relevant data, to examine trends and determine the efficacy of any attempts at lowering claims. This would speak to risk management as well.
Additionally, the state could implement its own 2030 Human Resources for Health Strategy to the strategy discussed above for improving the healthcare system and quality of care, to ease the understaffing of many facilities.
As mentioned, claims do arise from individual negligence, and where this happens, the repercussions felt by the healthcare practitioner may have to be reconsidered. This might mean medical licences should be suspended, or where gross negligence results in death, that charges of culpable homicide may even be considered.
Better distinguishing between valid and invalid or fraudulent claims may aid in curbing the rise of claims.
In this regard, legal capacity should be strengthened. Additional training for the judges who adjudicate these claims could also be considered, or these judges should perhaps be assisted by expert assessors and panels of experts. Specialist courts may also be considered, or patients could be encouraged to go in the opposite direction, and pursue alternative dispute resolution methods, like mediation.
Furthermore, although legislation alone will not address the causes of the rise in claims, because it cannot solve problems with governance, management, budgeting and procurement, low quality of care, lack of skills, and issues surrounding human resources, training, and maintenance of facilities and equipment, some legal reform and the development of fit-for-purpose legislation that tackles procedure, creates bodies or authorities to manage some of the causes, creates novel interventions, and changes or alters the method and timing of compensation, may be helpful.
The amended State Liability Bill is intended to serve before Parliament again this year. It could offer some alleviation to the rise in claims, and act as a benchmarking exercise in determining whether legislative intervention would be viable and to what extent.
Last, compensation methods could also be reassessed, as provided for in the new State Liability Bill, moving away from lump-sum payments to structured settlements like payment for harm suffered, periodic payments for future medical or other costs, or even payment in kind, such as healthcare services provided by the state.
Action needed
Attention must be given to the rise in medico-legal claims, and understanding the causes of these increases is only the starting point of addressing this complex issue. Once these causes have been identified, action must be taken, and in a multi-faceted and holistic manner.
In recognising that various factors contribute to rising claims, diverse solutions may be created and the tide perhaps pushed back, allowing for the health budget to be better spent on SA’s healthcare priorities.
In a Q&A with The Conversation, Prinsen explained that civil or criminal processes may be based on malpractice or negligence. "For a civil claim of negligence, it must be shown that the healthcare practitioner owed a duty of care to the patient, that this duty of care was breached, and that the breach was responsible for the harm suffered. If this is shown on the balance of probabilities, the patient is entitled to compensation. The test applied here asks if a reasonable medical practitioner in the same position would have foreseen the possibility of harm and have taken steps to guard against it. If so, negligence is shown."
For criminal cases of negligently causing the death of another person – culpable homicide – the same requirements are used. But it must be proven beyond reasonable doubt, she said, adding that this is a higher burden of proof.
"Criminal charges should be carefully considered. Medical practitioners should not be held liable for mere errors in judgment. In South African law, you are either negligent or you are not. There are no degrees of negligence. The distinction between acceptable errors in judgment or punishable negligence will have to be decided case by case, taking all the facts into consideration."
"Criminalisation of medical judgment may interfere with appropriate medical decision making. It may discourage doctors from specialising in higher risk, yet much needed, fields already suffering from skills shortages – such as obstetrics or neurosurgery. It may also lead to the practice of defensive medicine – recommending diagnostic testing or treatment paths which are not necessarily the best available option but primarily serve to protect doctors against potential litigation or criminal charges."
The matter is receiving attention at government level, with a Cape Times report saying, according to Health Minister Joe Phaahla, civil litigation has been instituted to the value of R82 994 347 against legal practitioners involved in maladministration.
“The rand value of potential loss prevented amount to R412 549 298,” Phaahla said about medical negligence court cases. A total of R1.6m was to be recovered and R25m potential loss prevented in maladministration linked to the office of the State Attorney in relation to SAPS claims based on wrongful arrest or detention, assault or malicious prosecution."
Phaahla said 18 legal practitioners who assisted the Office of the State Attorney in rendering legal services for medical negligence claims in the Gauteng and Eastern Cape Departments of Health were being investigated by the Special Investigating Unit.
“Seventeen claims of legal practitioners still need to be verified by legal tax bill consultants.”
Meanwhile, on other progress made regarding corruption in healthcare generally, Phaala said nearly 30 fraud allegations have been referred to the Health Sector Anti-Corruption Forum (HSACF) since 2018, with a number of “significant investigation outcomes”.
He said 11 allegations were referred to the forum in 2018/19 and 2019/20; 12 in 2020/21, five in 2021/22 and one in 2022-23.
Outcomes included, among others, the freezing order of a former North West head of department’s pension to the tune of R2.1m in connection with the Aero Medical and Patient Transport contract.
He said the HoD had been dismissed in January 2020 and disciplinary referral made for the CFO, who facilitated irregular payments, reports IOL.
“Civil proceedings for R30m have been instituted,” he added, while another R204m in civil proceedings was being instituted against Buthelezi EMS.
In the corruption allegations linked to the National Health Laboratory Services, there were eight referrals for disciplinary proceedings; 11 criminal referrals and a review application against eight companies, with a R172m preservation order being obtained.
There were also 13 disciplinary referrals relating to two individuals in the Council for Medical Schemes; one criminal referral relating to 18 individuals and 53 lifestyle audits conducted.
Five criminal referral letters have been sent to the National Prosecuting Authority to institute criminal prosecutions for fraud in respect of five officials who issued irregular licences at the SA Health Products Regulatory Authority.
Cape Times- health-anti-corruption-forum-records-successes
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The plan to stop SA’s fake medical negligence claims
What needs to be done to reduce rising medico-legal claims
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Attorney barred after making millions from dubious medical negligence claims