Barely a week into his new job, the Gauteng health MEC and veteran ANC politician Hope Papo needs every minute of his 14 years of experience in provincial legislature to fight the tsunami of challenges handed over to him by his predecessor, Ntombi Mekgwe. These include tackling the R772 million medico-legal contingency, a spike in the increase of claim payouts, and a legal department that’s lost all of its recent cases. By MANDY DE WAAL.
New Gauteng MEC for health, Hope Papo, has only been in the hot seat of the beleaguered department for a few days, and has so far kept a low profile. Papo started his term at a ceremonial function at the province’s forensic pathology services, while his spin department bought time by announcing the MEC would only meet with the media after getting the official handover, studying reports and spending some face time with the department’s staff.
A long-standing ANC politician and former chair of the Gauteng legislature’s portfolio committee on finance, Papo was also a member of the portfolio committee on health. He takes over the Gauteng health portfolio from Ntombi Mekgwe, after Gauteng premier Nomvula Mokonyane was forced to shuffle her cabinet to out Humphrey Mmemezi, the housing man with the credit card problem.
Perhaps one document that Papo is studying is the Gauteng Health Department’s statement of contingent liabilities. The most recent data on these liabilities are contained in the health department’s results for the year ending March 2011, and they’re pretty disturbing.
The annual report shows that Gauteng Health is potentially facing three-quarters of a billion Rands’ worth of legal claims against it. This figure excludes legal fees, and has increased significantly from the previous year. For the 2010 financial year, the contingent liability for medico-legal claims was set at just over R573 million. This past financial year it shot up by about R200 million to over R772 million.
This contingent liability is unlikely ever to be brought to bear in full, but it points to a worrying pattern of risk. The DA’s Gauteng Caucus spokesperson on Health and Corruption, Jack Bloom, says two disturbing trends lie behind these figures. The first is the apparent inability of the Gauteng Health Department’s legal capacity, while the second is the growing number and value of claims won.
“We are now seeing awards of seven, eight or nine million Rand, which we never used to get before. A lot of the claims begin at R20 million, and a lot of them won’t go to court, but the problem is that you still have to add in legal costs. Often costs are awarded against the health department on top of everything else – this is not just their own costs, but the other side’s costs as well,” he says.
“The number and value of cases is definitely on the increase. It is very worrying because I suspect that if every litigable case went to court, the Gauteng Health Department would be in real trouble,” Bloom adds.
One of the most recent claims paid by the Gauteng Health Department was for R11.6m, and was awarded in the case of an eight-year old boy who suffered cerebral palsy after being born at the Far East Rand Hospital. His mother Fuki Skhosana describes her son’s current experience of life.
“He can’t speak properly. I have to bathe and dress him. I have to buy him trousers with an elastic waist so he can undo them himself when he goes to the toilet. When he eats, it’s as if he can’t close his mouth, so food comes out all the time; it’s always a mess where he eats. He is slow at school and if a pencil is on a table, he will struggle before he can pick it up and grip it properly,” Skhosana told The Star.
“It’s tough to live with a child like Ntokozo. But it is better now; it was much harder when he was younger,” Skhosana says, adding that her son’s condition was caused by a doctor who refused to perform a Caesarean section on her, despite being advised to the contrary by nursing staff. Skhosana told The Star that the doctor slapped her, had forced the mother to push the child out, going as far as sitting on top of her stomach in an effort to expel the infant out of the womb. Nurses watching the birth apparently fled from the room.
Other recent claims include the first-part payment of R9.25 million for Prince Khanyi, who was brain-damaged at birth at Pholosong Hospital in December 1999. This February 2012 partial pay-out was made almost a year to the day after a high court order was issued demanding the department make good on this case.
In January this year, R6.25 million was paid in the case of Shabbier Nagel, who had a leg amputated after he went for heart surgery at the Steve Biko Academic Hospital. Nagel’s payment was made only after a sheriff of the court pitched up at Nomvula Mokonyane’s offices to attach her assets.
Another recent claim was awarded for R12 million to Tanya Khumbula, who was brain-damaged during birth at the Edenvale Hospital.
Medical negligence lawyer Gary Austin believes that there will be a lot more claims on the way. “I don’t think this is even the tip of the iceberg. These claims could increase exponentially if the conditions in state hospitals do not improve,” said Austin, who added that cases handled by his firm mostly concerned inadequate equipment or substandard nursing.
But the DA’s Bloom states that the department’s legal team is just as inept in fighting these cases. “They arrive at court, they are not prepared, and they don’t have the right expert witnesses. Lawyers in the field say that the health department is in trouble. Their default response is to deny and to fight, and then they go to court and they are poorly prepared. They lost all of the last ten cases they tackled.”
Gauteng lawyers who have been bruised in payment backlogs at the Road Accident Fund (RAF) and a slowdown of payments brought on by investigations into numerous fraud allegations involving lawyers and advocates are now broadening their gambit to include medical negligence claims.
“People are increasingly beginning to know their rights, they hear of a successful case, and lawyers are advertising and the word spreads through word of mouth,” says Bloom. “You have lawyers who act on contingency and they look for news cases – and believe me, they are getting new cases.” This is unsurprising, given the increase in claim values, and the rising incidences of negligence.
Before shuffling off to deal with Gauteng’s housing portfolio, the former MEC Mekgwe said she had put measures in place to tackle the rising tide of medico-legal claims. “To address adverse events and instances of medical negligence, we will seek to reduce work-related constraints such as breakdowns of equipment, shortage of commodities and human resources issues such as high patient/ health professional ratios,” she said at a media briefing days before her departure.
“Where medical negligence is confirmed, we will endeavour to avoid protracted court battles by entering into appropriate settlement negotiations with affected parties. Disciplinary measures against professionals implicated in proven cases of medical negligence will be instituted immediately and they will be reported to the Health Professionals Council of South Africa,” she said, adding: “All institutions will be required to develop and implement costed infrastructure maintenance and rehabilitation plans. These plans will be reviewed quarterly to ensure that the environment in which we care for patients does not deteriorate.”
It is a turnaround strategy, but penning the strategy is one thing. Implementing it is another issue altogether, as Papo is likely to find out. The dire statistics speak for themselves. In the past three years, Gauteng Health has received hundreds of medical negligence claims against it. It only fought ten cases last year, and lost each on of that ten. Awards of some R38 million were made against the department in those cases.
Answering a parliamentary question put to it by the DA earlier this year, Mekgwe admitted that the legal administration officers and the two internal medical advisors who deal with all the health department’s cases are "overwhelmed".
Gauteng needs every cent it can get to improve the province’s public health system, however. One can only hope Papo is less overwhelmed and more successful in attempting to turn the ailing service around. DM
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Photo: Patients wait for surgery at Gauteng's Baragwanath Hospital in Soweto. (REUTERS)