Eastern Cape hospitals: A health department in denial

The global Covid-19 pandemic has shone a spotlight on the cracks and fractures in SA’s overburdened state health-care system — and nowhere has its glare been more devastating than the broken hospitals of the Eastern Cape.

For years the courts, law enforcement bodies, the auditor-general and human rights and legal organisations have raised alarms about the toxic mix of shocking governance, wholly inadequate record-keeping, health worker negligence and criminality that has resulted in the province racking up a staggering R29bn in medico-legal damages claims against it — R5bn more than its annual budget.

Last year, auditor-general Kimi Makwetu expressed alarm that the Eastern Cape government even took out an overdraft to fund most of the R797m in claims it paid out.

It was, he said, a funding model that was "not sustainable and placed further pressure on the provincial fiscus".

The exponential increase in civil claims against state hospitals over the past five years has been the subject of ongoing investigation by the health department, the special investigating unit (SIU) and the SA law reform commission.

But amid the ocean of civil claims for sometimes fatal and often devastating acts of medical negligence, the Eastern Cape is its own terrible tsunami — one that threatens to wreak profound damage as overstretched provincial hospitals battle growing Covid-19 case numbers.

Virus infection and death rates are rising exponentially in the province — SA’s third-largest by population — amid alarming media reports that depict state hospitals there as "filthy", dangerously underresourced and overwhelmed.

Late last week, health minister Zweli Mkhize announced that a "project management unit" had been appointed to manage the Eastern Cape’s Covid-19 response — an indication that the government is keenly aware of how quickly a collapse of the province’s health system will result in a human rights disaster.

The threatened collapse of the Eastern Cape health system — and the exploitation of its crumbling governance structures by unscrupulous lawyers and government officials — cannot be separated from the province’s inability to manage its own finances and record-keeping.

Levels of irregular and wasteful expenditure in the Eastern Cape are among the highest in the country, and the auditor-general has repeatedly flagged the province’s failure to keep adequate financial records as a cause for concern. These administrative failures have permeated the health-care system, leaving it ripe for fraudulent and often very expensive litigation.

The National Prosecuting Authority’s multiple multimillion-rand fraud cases against Eastern Cape lawyer Zuko Nonxuba may prove to be evidence of this.

Nonxuba stands accused in the Mthatha high court of making fraudulent medical negligence claims for two children, totalling R30m. He is also facing charges in the Zwelitsha magistrate’s court over claims totalling R45m.

The SIU has been crucial in gathering the evidence leading to such arrests. In some cases, claims were simply copy and pasted and presented in different courts, under different names.

Poor record-keeping in many hospitals would seem to have been key to why the lawyers embroiled in this fraud had felt sufficiently emboldened to carry it out.

It is also apparent that such fraud could not have been perpetuated without significant collusion from government officials.

In a highly unusual step, the Eastern Cape health department in 2017 outsourced the investigation of R17bn in civil claims lodged against it to private Joburg law firm Norton Rose Fulbright.

The processing of such claims is normally handled by the state attorney’s office.

Pumza Dyantyi, the Eastern Cape health MEC at the time, had reportedly outsourced the department’s legal representation as she was unhappy with the way her department had been represented by the state attorney’s office — currently the subject of an SIU investigation.

Dyantyi said the department had won only four out of 155 medico-legal claims brought against it since 2014. The rest were settled, often at great expense.

SIU spokesperson Kaizer Kganyago tells the FM the unit has brought applications to intervene in seven different medical negligence cases, with a total value of R132m. The SIU believes the Eastern Cape health department could have successfully defended those cases if it had been given "proper advice from the Mthatha office of the state attorney, which maladministered the claims".

"The SIU has also found evidence which points towards overreaching/overcharging and fraud by various legal practitioners who represent the department through the office of the state attorney: Mthatha. The SIU intends to make recoveries on these matters as well."

Since the appointment of Norton Rose Fulbright in October 2017, the Eastern Cape health department claims 10 cases totalling R186.6m were withdrawn and 20 cost orders were awarded against plaintiffs claiming damages.

Of course, there are also clear resource, skills and staffing problems in a number of Eastern Cape hospitals which have resulted in completely legitimate civil claims being lodged against the province.

The biggest of these have been lodged on behalf of parents whose babies suffered brain damage after being deprived of oxygen during the birth process.

Due to the high number of these cases coming out of the Eastern Cape, the Supreme Court of Appeal last year urged Mkhize and health MEC Sindiswa Gomba to address the repeated failure of the province’s medical staff to properly monitor the labour of pregnant women — a key factor in preventing babies from being starved of oxygen.

"Far too often this court is confronted with serious and serial negligence in hospitals falling under the [MEC]," judge Trevor Gorven said, adding it was "clear that studied neglect of standards has become pervasive in many such hospitals".

Gorven said patients are recieving substandard care.

When the MEC was questioned about it, her lawyer said the "need for urgent remedial intervention had pertinently been brought to the attention of the relevant authorities".

"Despite this, such conduct does not appear to have abated significantly, if at all."

The Eastern Cape government’s response to the medico-legal crisis it faces has largely been to focus on the growing evidence that many of the claims lodged against it — and paid out — had been fake and obtained through collusive means.

Last year, in her budget policy speech, Gomba blamed escalating medico-legal claims for undermining her department’s efforts to provide quality health services.

"We have been relentless in our bid to ensure that we root out elements of corruption with regard to the medico-legal claims lodged against the department. Hence, we welcome the recent developments [in identifying fraud]," she said.

Provincial health spokesperson Sizwe Kupelo last year told City Press that funds intended for service delivery had been lost through fraudulent negligence claims.

"This is money that is supposed to contribute to patients’ wellbeing. It is money for patients’ food. So, this thing is hampering the department’s ability to carry out service delivery and focus on its core function, which is to provide quality health care," he said.

It is clear from these responses that the provincial health department has sought to directly link its ongoing and very evident service delivery failures to the fact that it has been duped into paying huge amounts of money in fraudulent claims.

But that stance is obviously a cop-out.

The department’s failure to adequately manage its own IT systems has significantly contributed to the fraud it faces. It’s a matter that’s been flagged repeatedly by Makwetu.

"The information technology controls in the province also remained a concern, as the risks in the information technology environment that had been reported for a number of years had still not been adequately addressed," he stated in a report last year.

While the department has obviously been hit with a number of medico-legal claims that are fraudulent, many are legitimate — and a direct result of the shockingly bad treatment the poor receive in state hospitals.

Earlier this month, Mthatha high court judge Richard Brooks laid into Gomba over what he described as her department’s "slothful" approach to medico-legal claims.

The judge was presiding over a claim lodged in 2015 by a mother whose baby daughter had been starved of oxygen during her birth at the Mthatha General Hospital, and who suffered cerebral palsy as a result.

By October 2019, legal teams for both the mother and the state had agreed that the negligence of medical staff was directly responsible for the child’s brain damage.

But after reportedly agreeing to pay R23m in damages, the department tried to back out of making that settlement an order of court — partly on the basis that the state attorney did not have any mandate to conclude such a settlement agreement.

Brooks, clearly not convinced by those claims, accused Gomba of demonstrating "sloth and disinterest" at every stage of the litigation lodged against her department.

Arguably, though, the case demonstrated the true victims of the Eastern Cape health department’s terrible mix of negligence and poor governance: the people not only left devastated by state medical maltreatment, but also forced to fight for years to obtain a fair legal settlement.

This tragic reality is confirmed by a painful fact in the case lodged by the Eastern Cape mother: the baby left brain-damaged by the Mthatha General Hospital is now 13 years old.