Medico-legal claims – claims based on medical negligence or malpractice – have skyrocketed in South Africa. Recent figures indicate a growth rate of 23% for medico-legal claims in the public sector since 2014. In the past financial year, more than R6.5 billion (over US$390 million) was awarded in medico-legal claims.
This is not just a South African issue but a global and regional one. In Ghana and Malawi litigation for medico-legal issues has also become more prevalent.
The number of claims as well as their value have increased. One possible reason could be that medical and technological advances are increasing life expectancy. These advances are good in general. But they may inflate the size of claims as factors such as future maintenance, loss of income and future healthcare are considered when calculating damages.
The cause of the sharp increase in claims – and how to address it – has been investigated and debated by various scholars and authorities in South Africa. This is important because money spent on these claims from the health budget is money not being spent on essential healthcare priorities.
What’s driving the rise in claims
Scholars and the South African Law Reform Commission have identified a variety of factors driving the rise in medico-legal claims.
The first and most obvious cause relates to the quality of healthcare services and clinical errors. Cerebral palsy-type claims make up around half of medico-legal claims in South Africa. Cerebral palsy refers to a group of disabilities caused by damage to the brain. It’s widely assumed that where there is poor healthcare provision, there are high numbers of cerebral palsy cases. While poor quality of care during labour is indeed one risk, there are multiple other potential causes of cerebral palsy.
Other medico-legal claims include negligence in applying proper care, failure to take reasonable steps to prevent stillbirth, misdiagnosis and delayed treatment.
But issues in the healthcare system go beyond individual negligence. Healthcare practitioners are expected to perform their duties according to the degree of care and skill reasonably expected of them. This may not always be possible due to environmental factors. For example, equipment may be old and deficient, or facilities may be understaffed.
The quality of care is affected by a number of factors. Maladministration and mismanagement have the biggest impact. The availability of resources in already strained national and provincial health budgets also affects care.
The legal profession, too, has been identified as contributing to the rise in claims. Arguments have been made that malpractice legal practitioners are actively encouraging and targeting the public to seek legal recourse in the event of something going wrong.
It has also been argued that the 2008 amendments to the Road Accident Fund Act are a contributing factor as they reduced the payout levels. This could have pushed legal practitioners towards new avenues of personal injury law in the form of malpractice litigation.
The Contingency Fee Act of 1999 may be another contributing factor. The Act provides for a “no win, no fee” system. This allows people who would not normally be able to afford litigation to do so. It may also lead to inflated claims.
Other developments – such as a much more patient-centred approach to healthcare – have made patients more aware of their rights. Patients also have higher expectations. They are demanding more of their doctors and are less likely to tolerate indifference or poor management of any complications.
Possible solutions
Because there is no single cause, there is no single solution. This is a complex matter.
The South African Law Reform Commission has proposed a three-tiered strategy to reduce medico-legal litigation.
The first is at the primary level. In a bid to improve the quality of care the government has regulated a set of care standards. These span a wide spectrum from clinical standards to the working environment, infrastructure, human resources and technology to ensure better and safer patient experiences and clinical outcomes. Healthcare facilities will have to develop quality improvement plans.
Secondary prevention relates to the management of complaints and the importance of early engagement. It includes 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.
Tertiary prevention, lastly, would entail:
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Professional and comprehensive management of all medico-legal litigation
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Fast-tracking the resolution of low-value claims with minimal expenditure
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Just compensation of injured patients or bereaved families
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Assisting plaintiffs “in kind”, for example by securing school placement of disabled minors
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Securing settlement awards in trusts to ensure appropriate accounting and payment of funds for future medical care
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Return of unspent funds to the national health department in the event of premature death
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Challenging false or opportunistic practices which artificially drive up the value of claims
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Ensuring that all public money spent on settlement of valid claims is just and appropriate.
More could be done. For example, the government should publish annual medico-legal claims reports with relevant data. This would make it possible to identify trends that can guide future policy.
An obvious solution is improving the healthcare system and quality of care. The government could implement its own Human Resources for Health Strategy 2030, which might alleviate the understaffing of many healthcare facilities.
Reducing claims also requires the government to ensure that healthcare facilities are properly funded and staffed. And it should suspend medical licences in instances of gross negligence resulting in death. Charges of culpable homicide might even be considered.
Legislation alone cannot address the causes of the rise in claims. But some legal reform and the development of fit-for-purpose legislation might be helpful. This would address procedure, create bodies or authorities to deal with some of the causes, create novel interventions and change the method and timing of compensation.
Lastly, the method of compensation might also be reconsidered. It could move away from lump-sum payments to structured settlements consisting of payment for harm already suffered, periodic payments for future medical or other costs, or even payment in kind, such as healthcare services provided by the state.
