Medicolegal claims against the state have doubled, from R37bn to R74bn, over the past five years, further eroding Covid-affected health care and threatening specialities.
Insurance premiums against adverse events in obstetrics and gynaecology and neurosurgery now surpass R1m a year. Specialists in these disciplines, especially obstetricians, are seeking less litigious climes, retiring early or consulting to related medical fields.
Contributing to medical inflation are unnecessary diagnostic and screening tests that are done as defences against litigation.
The amount of R74bn came to light after the national health department was asked by the FM to update SA Medical Journal reports of 2016 that the accumulated public sector medical litigation bill stood at R37bn.
KwaZulu-Natal has the most medicolegal cases, with claims for R27.41bn. It is followed by Gauteng, where claims amount to R17.32bn, and Mpumalanga, at R7.87bn.
These amounts are not necessarily those the provinces must pay, because most are still to be proved in court; some may be fraudulent or frivolous.
The Eastern Cape has paid the most in claims over the past three financial years; it paid R920.98m in the 2020/2021 financial year. The biggest payout by all provinces combined was for nearly R2bn, in 2018/2019.
The total spent by provinces on settling litigation since 2016 is R7.86bn — up from the R500m paid until then. A daunting backlog of unaudited cases remains.
These figures are startling indicators of patient risk in SA’s underresourced public hospitals. They reflect grief and trauma in families and shattered confidence of undersupervised and overworked junior doctors.
Nicholas Crisp, deputy director-general in the department of health, tells the FM that with a single legal database, a team of lawyers has been working full-time on bringing the quantum down. It is done through, among other measures, the early adoption of suggestions in the latest SA Law Reform Commission (SALRC) draft report on medical litigation. Crisp’s department is urgently workshopping the 500-page report, which has a deadline of January 31 for final submissions.
The draft report urges early engagement with complainants for out-of-court settlements, including payment in kind, such as continuing treatment, and staggered payments. It also suggests new laws and legal amendments that will mitigate the damage to the country’s pressured, dysfunctional health-care system.
The report emphasises that major reforms to the health-care system will have to be part of the solution.
An audit of the national hospital leadership resulted in the retrenchment or redeployment of dozens of CEOs
It proposes "a [legal] hybrid of specific international examples" and "an expansion of the development of … common law … already … initiated by the Constitutional Court". It says such a system should prescribe "compulsory procedures to attempt early resolution" to take pressure off the courts and resolve matters more quickly. This involves what will look like a "certificate of merit" affidavit being required before a matter is accepted by the courts.
The compensation then offered would provide "fair restitution to the aggrieved health-care user without bankrupting and eventually crippling the public health system".
The prerequisites for such a system would include "improving the quality of public health care" and attending to shortcomings in "proper record-keeping". A review of the training of nurses is also proposed.
The report draws on summits, commissions and probes of the SA health-care system. There has also been an audit of the national hospital leadership, resulting in the retrenching or redeployment of dozens of CEOs. A new set of criteria for appointments is being drawn up by a team led by Prof Marian Jacobs, former dean of the faculty of health sciences at the University of Cape Town.
The Medical Protection Society (MPS), an association for health professionals based in the UK, tells the FM it is handling 2,840 cases against its SA members in the public and private sectors. MPS data shows a rise in the number and amount of clinical negligence claims in 2020 compared with 2011. The average cost of a medical claim has increased by 37%, while the number of open medical claims grew by 13%. There was also a 110% rise in medical and dental claims in 2020 compared with 2011. These amount to more than R1m, while the number of medical and dental claims exceeding R5m rose 73% over the same period.
The state covers claims against public sector health-care professionals, but they remain legally vulnerable, and many take out MPS membership as backup.
Writing in the SA Medical Journal in 2014, obstetrician Graham Howarth, MPS head of medical services for Africa, singled out obstetrics as the most affected. He says this trajectory has remained: "In the absence of definitive intervention, it is not alarmist to ask who will perform private deliveries in the future.
"Women will continue to fall pregnant and require delivery, but where will those 100,000-plus a year [SA] deliveries occur?
"If private obstetricians are unwilling to deliver them, or precluded from doing so, patients will have to deliver in state facilities. Private patients are unlikely to be enamoured of state hospitals, and the already busy state facilities will be confronted with an increased workload of demanding patients.
"There is an additional cost burden for the state, as not only will they have to provide the facilities for the extra deliveries but there will also be a shift of the liability burden for these patients; if and when these patients sue, they will now sue the state … Every rand lost to litigation is a rand lost from state health care — money set aside for the care of indigent patients."
His views are almost certainly something an incipient National Health Insurance, which will all but eliminate private health-care funding, will have to consider.
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