Picture: THINKSTOCK
Picture: THINKSTOCK

The Western Cape health department has managed to stop a controversial lawyer from instituting any further medical negligence cases against it, pending the outcome of an investigation into his conduct by the Legal Practice Council (LPC).

Zuko Nonxuba has been accused of trying to extract more than R480m in fraudulent medical negligence claims from the department. The Western Cape health department has also instituted criminal proceedings against Nonxuba.

The department’s move has broad implications, as Nonxuba is a key figure in the barrage of medical negligence claims facing the Eastern Cape health department. The Eastern Cape is one of the provinces hardest hit by medical negligence claims. In 2017/2018 it paid out R876.7m to claimants, representing 32% of all the claims paid nationwide.

Investigators from the Special Investigating Unit (SIU) have been seconded to the Eastern Cape health department to investigate medico-legal claims and are looking into at least 77 claims brought by Nonxuba against the department with an estimated value of R497.7m. He is currently out on bail in the Eastern Cape in two separate medico-legal fraud cases involving claims totaling R135m.

The Western Cape health department launched legal action against Nonxuba last year.

On June 18, Judge Owen Rogers made a settlement agreement reached between the department and Nonxuba an order of the Western Cape High Court. In terms of the agreement, Nonxuba undertook not to institute any further medical negligence claims against the department, pending an investigation into him by the LPC. The department laid a complaint against him a year ago with the Cape Law Society, which subsequently became part of the LPC.

The judge directed the LPC to report back to the parties within six months. 

While the Western Cape health department is in a better position than other provincial health departments, it nevertheless faced 300 active medical negligence claims totaling R2.19bn at the end of the 2018/2019 financial year. Not all these claims are likely to be paid, but it is estimated that at the end of March it faced contingent liabilities of R334.5m.

Court papers show that Nonxuba had 57 medical negligence claims for birth injuries pending against the Western Cape health department in July 2018, representing about one third of all the obstetric-related claims it faced at that stage. Thirty-three of Nonxuba’s claims, totaling R484.1m, were alleged by the department to be “vexatious and fraudulent”. Five of those claims were subsequently withdrawn.

The department’s medico-legal advisor Anke Nitzsche said in an affidavit submitted to the court that Nonxuba allegedly touted for business at clinics and hospitals in the Western Cape, and lodged almost identical claims for multiple medical negligence cases, many of them for conditions that were unrelated to the child’s birth. These included claims for children with inherited genetic disorders, such as Charcot-Marie disease, or suffering the after-effects of childhood diseases, such as meningitis.

In his responding papers, Nonxuba denied the Western Cape health department’s allegations. He said he had extensive knowledge of the symptoms of birth injuries, and sought to weed out claims that were without merit. Moreover, the department assumed its records were accurate, but hospital records were often falsified, he said.  

He said the law societies (now the LPC) could take as long as they wanted to investigate the department’s complaints, which would leave his firm “hamstrung in perpetuity”. 

Correction: July 2 2019
In a previous version we incorrectly reported that the Western Cape High Court interdicted Zuko Nonxuba from lodging any further medical malpractice claims against the Western Cape provincial health department, pending the outcome of an investigation into his conduct by the LPC. We also reported that Judge Owen Rogers gave the council six months to report back to the court. In fact, the judge made a settlement agreement reached between Nonxuba and the department an order of court. He also directed the LPC to report back to the parties within six months. Business Day regrets the error.

kahnt@businesslive.co.za