EDITORIAL: Health department must build trust if it is to care for victims of its negligence

Too many South Africans suffer injuries at the hands of the public health system. In the past decade, the scale of the medical negligence claims levelled against the state has risen exponentially, threatening the stability of provincial health budgets. 

They reported contingent liabilities for medical negligence claims — the cost to the public purse if they were all successful — of R120.3bn in the 2021/2022 fiscal year, the majority of which were for severe birth injuries. While only a fraction of these claims is likely to be paid out, the claims are unbudgeted expenses that leave less money for vital health services.

The reasons for the soaring medical-negligence claims are myriad: poor management, staff shortages, weak record keeping, an increasingly litigious public, the limited capacity of some provincial health departments to defend claims, and unscrupulous lawyers who cynically milk the state and siphon off funds intended for victims. The government has been sounding the alarm for years. Yet it has still not devised a coherent response: the SA Law Reform Commission has been investigating the issue since 2017 and only expects to finalise its position at the end of the year, while parliament says it won’t process the 2018 State Liability Amendment Bill until it’s seen the commission’s final report. 

That means the job trying to stem the haemorrhaging of public funds into trust funds ostensibly set up to provide private sector care for medical negligence victims, but all too often bled dry by family members or their legal representatives, has fallen to the courts. 

In 2021 the Constitutional Court established the principle that the state could provide medical negligence victims with the care they required at public health facilities, instead of paying huge lump sums for the estimated cost of lifelong care in the private sector. It said SA’s common law needed to be developed to accommodate this “public health remedy”, placing the onus on provincial health departments to come up with the evidence to convince a court they could provide the requisite care.

Earlier this month, the Eastern Cape health department did just that, obtaining a high court ruling that allows it to care for a child with cerebral palsy in its facilities and contract with the private sector when required, reducing the lump-sum settlement from more than R30m to just R2.1m. 

Given the snail’s pace at which the government’s legal reforms are moving, this well-considered ruling is welcome. The trouble is the doctors and nurses who harm these children are rarely held accountable. They bear no shame, and they keep their jobs. So we should remain sceptical of the state’s promises to care for the victims of medical negligence, and moves to send them back into the system that maimed them in the first place.