No need to wait for legislation to tackle medical negligence, say experts

Legislation to deal with the government’s ballooning medical negligence liability is likely to take time to get onto the statute books but there is a lot that can be done in the meantime to reduce it, experts believe.

Contingent liabilities by the state for medical negligence claims rose to a record R120.3bn in the 2020/2021 fiscal year, up from R111bn the year before, according to Treasury figures. Provincial health departments paid out a staggering R1.74bn in the year to end-March 2021. Cerebral palsy in children by far represents the majority of claims, with the average amount paid out about R20m per claim.

Actuarial Society of SA member Gregory Whittaker and obstetrician gynaecologist Ismail Bhorat said in an interview with Michael Avery on Business Day TV last week that the number of claims could be reduced a lot by accurately determining the cause of the cerebral palsy.

Bhorat noted that contrary to popular belief, cerebral palsy was not only due to a preventable cause during childbirth but — in the majority of cases — was caused in the antenatal or postnatal periods. The common misconception informed the legal profession, whereas only 10%-14% of all cerebral palsy cases were caused during childbirth.

Whittaker, who has also probed the inefficiencies in the existing system, said “astronomical” savings could be made immediately if causation was addressed as legislation was likely to take some time. The amounts paid out needed to be standardised throughout the country, he added, as there were huge disparities in the amounts paid out by provinces. Whittaker said R10.5bn had been paid out for claims between April 2012 and March 2021.

Bhorat pointed out that the judges who presided over civil trials did not have the necessary medical knowledge to accurately determine the cause of the cerebral palsy, whereas there was a 10-point checklist of the essential requirements to determine if it had been caused during birth. He proposed the creation of specialised medical negligence courts, an idea supported by Whittaker.

The 2018 State Liability Amendment Bill was intended to address the state’s huge medical negligence liability. It proposed to introduce structured settlements of claims against the state as a result of wrongful medical treatment by state doctors to replace lump-sum payments.

The bill was sent back by parliament to the departments of health and justice in January 2021 for further work. The bill lapsed before parliament could finish processing it when its term ended with the general election in 2019 and was reintroduced by the departments to a meeting of parliament’s justice committee in January. But the committee said more work was required — including consulting stakeholders — and sent it back to them.

In the meantime, the department of health, and the minister of justice, Ronald Lamola, asked the SA Law Reform Commission to investigate the matter and come up with proposals. The commission released its preliminary proposals in a discussion paper in November 2021, with end-February 2022 as the extended deadline for public comments. These will have to be processed before the commission releases its final report with recommendations. Then a bill will have to be prepared and submitted to parliament, all of which could take months if not years.

The SA Law Reform Commission’s proposals include compulsory mediation before initiating litigation, certification from a medical professional that a claim has merit, and replacing large lump-sum settlements with a structured schedule of annual payments. The commission wants to see dedicated teams in each provincial health department investigate and weed out spurious medical negligence claims, selectively defend matters, and settle out of court when it is clearly at fault.

Some of these things can be introduced immediately and don’t have to wait for legislation, senior state law adviser on the commission who was involved in writing the report, Ronel van Zyl, said in the interview. 

She noted that paying out medical negligence claims had become “absolutely untenable and unmanageable” as seven provincial health departments spent more on paying out these claims annually than their entire health budgets for the following year. This meant there was less money available for service delivery.

Van Zyl rejected the proposal to have specialised medical negligence courts as this would be expensive and there were not enough cases to justify them. But there should be the compulsory appointment of medically qualified assessors to assist judges, Van Zyl said.

ensorl@businesslive.co.za