South Africa’s medical-negligence crisis is exposing failures far beyond individual doctors and nurses, with experts warning that weak leadership, poor adherence to clinical guidelines, inadequate documentation, staff shortages, and a lack of reliable data are allowing preventable harm to remain invisible.

The warning comes as the Eastern Cape reports that its estimated medico-legal liability has almost halved, from R38 billion to just under R19 billion over five years.

But experts caution that a lower projected compensation bill does not necessarily mean fewer patients are being harmed. Former Health Ombud Professor Malegapuru William Makgoba says South Africa still lacks a reliable national picture of how many patients die or suffer serious harm because of failures in healthcare.

Professor Alex van den Heever, chair of Social Security Systems Administration and Management Studies and an adjunct professor at the Wits School of Governance, says the country’s estimated medical-negligence liability should be treated as a warning about healthcare delivery rather than simply a financial problem.

“The legal process is the consequence of the failure to prevent negligence,” he says.

The concerns come ahead of the South African Medical Legal Association’s (SAMLA) annual conference in Gauteng, where experts will discuss medico-legal risk, patient safety and accountability in healthcare.

Billions in potential liability

National Treasury puts provincial medico-legal contingent liabilities at R57.6 billion for 2024/25, down from R62.5 billion the previous year. The figures represent potential future obligations rather than money already paid. Actual provincial settlements average about R1.5 billion annually.

The Eastern Cape has sought to reduce its exposure partly by providing some injured patients with future care in public facilities instead of paying large lump sums for anticipated medical and rehabilitation costs. But that approach depends on the state’s ability to provide the promised care over the patient’s lifetime.

A Supreme Court of Appeal judgment on February 11, 2026, highlighted the risk. The court overturned an Eastern Cape High Court order substituting public healthcare and undertakings to pay for lump-sum compensation for a child injured through negligence. The province had conceded liability. The appeal court found that the evidence did not justify confidence that lifelong treatment and future payments would reliably be provided.

The scale of medico-legal claims has also prompted government intervention. The South African Law Reform Commission’s investigation into medico-legal claims was initiated following requests from the Department of Health and the Minister of Justice and Correctional Services, amid concern about escalating medical-negligence claims and their financial impact on the public health sector. The commission released its final report and proposed legislation on 29 September.

Warning signs in maternity care

Eastern Cape midwife and nurse educator Dr Luleka Gcawu’s research shows how failures at ward level can become medico-legal cases.  

A woman with abnormal blood pressure may be assessed but the required intervention does not follow. An abnormal foetal heart rate may fail to trigger the prescribed response. Monitoring may occur less frequently than guidelines require, or observations may be made without being recorded.

“Sometimes the woman’s BP is checked as per guidelines – but not documented,” Gcawu says.

She says training alone does not guarantee compliance. Some healthcare workers fail to implement updated guidelines despite having received training. Her research identified behavioural factors including poor patient relationships and failure to respond appropriately to identified problems, alongside system pressures. She also points to shortages of nurses, midwives and trainers, inadequate resources, high patient-to-nurse ratios, difficulty securing ambulances and unstable leadership.

“Sometimes training is scheduled, but midwives are not released to attend. They need to look after patients. And there are not enough trainers,” she says.

Her research found that behavioural and system-failure factors could account for more than half of the factors contributing to litigation. Gcawu says maternal healthcare illustrates the consequences. 

National Department of Health data put South Africa’s institutional maternal mortality ratio at 105.2 deaths per 100,000 live births in 2023. The Western Cape recorded 71.8, while the other provinces ranged from about 101.5 to 166.6. Neither every adverse maternity outcome nor every cerebral palsy case represents negligence.

But failures to recognise and respond to complications during childbirth can result in preventable injury and substantial medico-legal claims. For health authorities, the recurring question is whether systems are identifying these failures and changing practice.

Who is accountable?

Makgoba and Van den Heever both argue that accountability cannot stop with individual clinicians. Makgoba points to the Life Esidimeni tragedy as an example of how leadership and management failures can have catastrophic consequences.

“You can’t have a system of caring that’s devoid of good interpersonal or inter-institutional relationships,” says Van den Heever. He says hospital managers need both responsibility and the authority to enforce standards. “You have to have a captain of the ship.”

Van den Heever identifies leadership instability, political interference, fragmented workforce planning and weak management structures as factors that can undermine accountability.

Gcawu independently raises concerns about instability among senior managers, including the prevalence of acting appointments, and says system failures can compound individual shortcomings. The issue is therefore not simply whether a nurse, doctor or midwife made a mistake. It is whether the institution had the staffing, supervision, leadership and systems required to prevent, identify, and correct the mistake.

SA cannot fix what it cannot measure

Makgoba’s concern extends to the absence of reliable national data on medical error. Medical error is not routinely recorded as a standalone cause in national mortality statistics. Healthcare failures can therefore remain hidden within broader categories of disease or injury.

Makgoba says errors have traditionally been managed through internal processes such as morbidity-and-mortality meetings, pathology reviews, and management procedures.

Without reliable information, policymakers cannot accurately assess the scale of the problem, educators cannot target training effectively and managers cannot establish whether interventions are working.

The same information gap affects the private sector. Van den Heever has argued that insufficient transparency around adverse events and quality outcomes makes meaningful comparisons difficult. The result is a system in which the size of the compensation bill may be easier to quantify than the harm that generated it.

The issues will be among those discussed at the South African Medical Legal Association’s (SAMLA) annual conference in Gauteng from 8–10 October, where experts will examine medico-legal risk, patient safety, technology and accountability in healthcare.

Disclosure: Chris Bateman was contracted by the South African Medical Legal Association (SAMLA) to produce a digital magazine about its annual conference.