Provincial health departments are struggling with their obligation to provide healthcare services, while still having to pay out the billions in claims against them. In the private sector, medical specialists are being faced with exorbitant medical protection insurance premiums, causing healthcare costs to rise and impacting on practices.

Last year it was reported that Gauteng Health Department alone had paid out at least R1 billion in lawsuits since January 2015, while the Eastern Cape is facing payouts of R14 billion.

The Medical Protection Society SA (MPS), in 2015 settled a claim of almost R24 million on behalf of a member and has reported a 35% increase in the number of claims made against healthcare professionals between 2011 and 2016. The MPS further reports that claims over R1 million have increased nearly 550% compared to those of 10 years ago, and claims above R5 million increased by 900% from 2008 to 2013.

Justin Malherbe, Senior Associate at international law firm Norton Rose Fulbright, says that there are several reasons for the rise in medical claims, including an increase in public awareness of patient rights coupled with incessant and deliberate marketing by personal injury lawyers eager to capitalise on this awareness.

Legislation amendments

“Amendments to South African legislation, such as the Road Accident Fund (RAF) legislation are also to blame. Damages claims for personal injury during a motor vehicle accident is now less profitable for lawyers, causing some to turn to other forms of personal injury litigation like medical malpractice,” said Malherbe.

Professor Sylvester Chima, Associate Professor and Head at the Programme of Bio and Research Ethics and Medical Law at the University of KwaZulu-Natal, believes that the high levels of lawsuits in South Africa are due in part to the legal framework which both governs and protects patients and healthcare providers.

“A good example of this is the law around Termination of Pregnancy (TOP) which provides for termination up to 40 weeks of pregnancy for severe congenital abnormalities. This means that if a doctor fails to diagnose a severe abnormality, the parents may sue the doctor for maintenance costs for the child,” said Prof Chima, who will present his findings at the Africa Health Congress in May this year.

 South Africans are becoming increasingly litigious, with not only the number of claims rising but also the size of the claims. Malherbe explained that the costs of ‘catastrophic claims’, such as those for birth defects and brain injuries, have risen drastically as the cost of caring for patients has increased due to technological advancements which improve life expectancy and quality of life.

Both experts agree, however, that progressive interventions need to be found to stem the litigation tide.

Professor Chima suggests that the current system relies on ‘righting a wrong’ through the courts, which by its nature is expensive and adversarial. He believes the system should rather make provision for compensation without necessarily involving the courts.

Both Professor Chima and Justin Malherbe will be speaking at the Ethics, Human Rights & Medical Law Conference at Africa Health Exhibition & Congress 2018 to be held at The Gallagher Convention Centre from the 29 to 31 May.