Whichever way you look at it, when it comes to medical negligence claims against the state, the numbers are shocking.

One way to look at it is by adding up what is called contingent liabilities. This refers to what the state would have to pay if all claims have to be paid. It can be a somewhat misleading metric since the state often contests claims and ends up having to pay less than what was claimed or nothing at all.

The contingent liability figures in the below table were recently provided by Minister of Health Dr Joe Phaahla in response to a parliamentary question.

A more useful metric than contingent liabilities is to look only at what claims are, in fact, paid. As explained, these numbers are typically much lower than contingent liabilities. They can still, however, be very large.

According to a recent South African Law Reform Commission (SALRC) discussion paper, the Eastern Cape Department of Health paid out just over R920-million in claims in the 2020/21 fiscal year. The total paid out in 2018/2019 in all provinces combined was close to R2-billion. Numbers provided by the Auditor-General in her 2020/21 audit report on national and provincial departments found that provincial health departments paid out R1.76-billion for medical negligence claims.

One thing leaders in government might consider if they are serious about transparency and accountability in this area is to publish annual medico-legal claims reports that pull together all the relevant data, broken down by province, and that provide detailed analysis of trends over time. Such a focussed report might also help elucidate the impact of any related policy or legislative interventions implemented in the coming years.

Making sense of medico-legal claims

Medico-legal claims are by no means a new problem. Back in 2015, the Minister of Health asked the SALRC to investigate the matter and at the end of last year, the SALRC published an excellent, in-depth discussion paper.

Among various other bits of useful information, the SALRC cites data indicating that around half of all medico-legal claims in South Africa are cerebral palsy-type claims (birth asphyxia, neonatal encephalopathy, and cerebral palsy).

They also point out that no legislation currently exists in South Africa specifically to address legal claims in the medical field, which means that claims based on medical negligence are dealt with under the common law. Some think this is fine, others feel there is a need for specific legislation to address the problem.

In trying to understand the issues, we’ve sorted the proposed interventions into four categories.

• Improving quality of care

The most obvious solution to the problem of medico-legal claims is to improve the quality of care so that there are fewer legitimate claims against the state. Medico-legal claims are, after all, a second-order problem on top of the first-order problem of people receiving sub-standard healthcare services. How exactly to go about improving the quality of care is, however, not straightforward.

One part of the solution is to employ and retain more appropriately qualified healthcare workers. While this may cost more money in salaries, it may well save the state money in the longer term by reducing readmissions, time in hospital, and medico-legal claims. At the very least, government should fund and implement its own Human Resources for Health (HRH) Strategy 2030. Yet, in November last year, Dr Maggie Ravhengani, Director for Human Resources for Health in the national health department said the latest number of vacancies is at just over 22,000 and that new appointments are affected by budget constraints.

Improving quality of care will also require better management at various levels of the healthcare system — something that is unlikely to happen while political interference and cadre deployment remain widespread. Apart from obvious things like only appointing appropriately qualified and committed persons, better management will also involve putting in place better record-keeping systems and ensuring they are used properly — which will in turn help with the prevention of, and improved management of medical negligence. (Obviously, we are only scratching the surface here in terms of what is required to bring about better quality care.)

“It must be stated emphatically that legislative intervention alone cannot address the myriad of challenges faced by the public health sector. As is often said, there is no claim without negligence. Legislation can address procedure, establish bodies to deal with some issues, create interventions that do not currently exist, alter the method and timing of compensation, and so forth; but legislation cannot address systemic problems with leadership, governance, management, budgeting, and procurement, quality of care, lack of skills, personnel shortages, training, attitudes of staff and maintenance of facilities and equipment. The best legislation in the world will not make any difference unless it is applied, implemented, complied with, and monitored,” according to the SALRC discussion paper.

Given that general healthcare improvements like these will take time, there is also a compelling argument that some specific areas need urgent attention. Implementing interventions to reduce the number of cerebral palsy-type cases should, for example, be an urgent priority.

• Better distinguishing valid from invalid claims

One weakness in the system appears to be that valid claims are not always distinguished from invalid claims. Provincial health departments should ideally decide based on the facts of each case whether it makes sense to settle or to oppose a claim. But, due to a lack of capacity, or in some cases due to collusion, the department may settle some cases it could have won, thus wasting public funds. The Special Investigating Unit has been investigating cases of alleged fraud relating to medico-legal claims in the Eastern Cape.  

Proposals in the SALRC discussion paper include strengthening legal capacity within provincial health departments and support being provided to provinces by the National Department of Health, something that is already receiving some dedicated funding. In addition to increasing legal capacity, it would also help if more cases of fraud and collusion in this area are prosecuted and stiff sentences doled out where fraud is proven.

Where claims do go to court, judges do not always have the technical expertise needed to distinguish valid from invalid claims and there is little consistency in the compensation granted by courts. In response to this, some have proposed that special courts should be set up specifically for medico-legal claims and judges trained accordingly. Others have suggested that judges should be assisted by expert assessors. Having panels of impartial experts, rather than having each side bring their own experts, may also lead to better outcomes — as might requiring claimants to have an affidavit from a medical professional before their case can be considered by a court.

Since going to court is time-consuming and expensive, it may also help if more matters can be settled through mediation. One proposal is that courts should only consider claims if mediation had already been tried and failed. At present mediation is optional. The SALRC report proposes having dedicated alternative dispute resolution teams, from outside government, in each of the nine provinces.

• Changing the ways in which people are compensated

Deciding how to compensate someone for harm suffered due to medical negligence is a thorny and complicated question. There is a difficult balancing act here. On the one hand, people have a right to be given fair compensation — which may in some cases have to be very large if it is to be seen as fair. On the other hand, the state has only limited funds and there is an understandable impulse to limit how much of those funds go toward compensation payments.

Some might fear that, rather than dealing with the underlying problem of sub-standard care, government’s reforms are simply trying to reduce its liability for that sub-standard care.

Traditionally, medico-legal claims in South Africa have mostly taken the form of a single lump-sum payment (which is how damages work in South Africa). While lump-sum payments offer the simplicity of a single payment, how big they should be is very hard to judge and there is a significant risk of over or underpayment. On the other hand, they can prevent endless litigation by settling matters once and for all.

In some recent court judgments (as covered by Spotlight here), in the SALRC discussion paper, and in the State Liability Bill (recently reintroduced in Parliament), there is a shift away from lump-sum payments toward what is called structured settlements. Structured settlements can take various forms, but they may, for example, consist of payment for harms already suffered, periodic payments for future medical or other costs, and payment-in-kind, for example through healthcare services provided by the state. This latter element is arguably the most controversial, given the parlous state of much of South Africa’s public healthcare system. (The SALRC discussion paper contains a useful discussion of recent cases and the legal principles involved.)

• A learning culture or a punitive culture?

Even though the SALRC report and the State Liability Bill are aimed at the public sector, they will also impact what happens in private healthcare where the threat of large claims can lead to healthcare workers avoiding certain high-risk procedures and having to pay exorbitant liability insurance premiums. More broadly, legislation in this area could impact the extent to which we can nurture a learning culture in both the private and public healthcare sectors.

Even highly skilled and qualified healthcare workers make unintentional errors. This does not mean they are negligent, it simply means they are human. Allowing safe spaces for teams of healthcare workers in which to discuss their collective and individual errors can help reduce the risk of those errors being repeated. A more open, less adversarial process may also lead to fewer unrealistically large claims. On the other hand, an environment where healthcare workers feel under threat can lead to errors being swept under the carpet and repeated.

That said, there are obviously serious cases of medical negligence that should result in people losing their licenses to practice medicine and being held responsible through the law.

As recently reported by Medical Brief, a group of nine organisations has urged government to initiate a review into culpable homicide law and its application in a healthcare setting. That issue should ideally be considered alongside the broader question of how we deal with medical negligence and medico-legal claims. Of course, for there to be coherent policy around these issues, the roles and capacity of the Health Professions Council, the Office of Health Standards Compliance, and provincial health departments will also have to be considered or reconsidered.

What happens next?

The closing date for submissions on the SALRC discussion paper is 28 February 2022.

Since the State Liability Bill has been re-introduced in Parliament this year, the bill might well be published for public comment in the coming months. It could become law within the next year or so, but given how unpredictable the legislative process can be, we wouldn’t count on it. The bill process might also be delayed until the SALRC’s final report is out.

Finally, the underlying project of improving the quality of care provided in the public healthcare system and reducing medical negligence is complex and there is no single process that will address it. The further design and implementation of National Health Insurance is obviously something to watch, but in the shorter term, we are likely to learn much more about government’s commitment in this area by keeping close tabs on the health budget, the implementation or non-implementation of the HRH strategy, and whether we continue to see undue political interference in provincial departments of health and other health entities. DM/MC

*This article was published by Spotlight – health journalism in the public interest.