Chris Hani Baragwanath Hospital. Picture: BUSINESS DAY
Chris Hani Baragwanath Hospital. Picture: BUSINESS DAY

There is no question that harm caused by the public health system requires redress. But every rand the government spends on compensation for medical negligence is a rand that could have been spent on services, and the current trajectory is unsustainable.

The government’s provision for future medical claims stood at an eye-watering R104.5bn by the end of March 2019, almost half the consolidated health budget for the 2019-2020 financial year, which stands at R222.6bn.

While the sums eventually paid out to legitimate victims are likely to be a fraction of the amounts claimed, provinces nevertheless confront growing pressures from medical negligence payouts, which are growing faster than their budgets and crowding out spending on health services. The annual claims paid out by provincial health departments doubled between 2015-2016 and 2018-2019 to reach R1.9bn, in the face of a health budget that barely kept pace with inflation.

The state’s provision of health care is lacking in many respects, and we daily hear stories of patients who do not get the care they require. But it is clear that the exponential rise in claims facing the state is at odds with many of the overall trends in health care in SA. For example, the institutional maternal mortality rate, one of the best indicators of the strength of a health system, has improved steadily over the past few years.

The indicator reflects the number of women who die as a result of childbirth, pregnancy or within 42 days of giving birth, and has fallen from 115.6 per 100,000 live births in 2015-2016 to 105.7 per 100,000 live births in 2017-2018, according to the 2018 SA Health Review.

Yet medical negligence claims more than tripled between 2014-2015 and 2018-2019, driven by a toxic combination of fraud, litigious lawyers and patients seeking larger claims, limited capacity within provincial health departments to defend themselves, and the stark failures within the public health system itself.

As this paper lamented a year ago, the issue is far from new. The government has been complaining about the problem for years, but has yet to devise a coherent and effective solution.

The legal reforms mooted by the justice department in the State Liability Amendment Bill, which sought to limit the liabilities facing the government by replacing lump-sum settlements with a “pay as you go” system of scheduled payments, were never fully considered under former president Jacob Zuma’s administration.

The bill lapsed before the last parliamentary session under his watch concluded its business shortly before the general election in May 2019. It was formally revived in October, but has yet to be considered by parliament. While the bill was panned by critics, who argued it eroded patients’ rights and would result in payouts that will balloon to unsustainable levels over time, it does not help anyone, the state included, to leave it gathering dust on a shelf.

In the meantime, the courts are taking the lead, developing the common law to tackle issues that the legislature has yet to grapple with in any meaningful way. Earlier this month, the high court in Johannesburg handed down a precedent-setting judgment that paves the way for provincial health departments to curtail the costs of medical negligence settlements by providing medical services in the public sector instead of handing over a lump-sum settlement for future medical expenses calculated at private sector rates.

While it is far from ideal for the courts to be left to deal with the matter on a case-by-case basis, the ruling does at least seek to strike a fair and reasonable balance between redress for the victim of the state’s negligence and the resources it has to hand. It is time now for parliament to bring some of that pragmatism to bear, and consider whether the State Liability Amendment Bill can tread the same path.

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