Which province might spend the most on medical negligence claims?

What does the data about medical negligence cases in the public health sector tell us? 

Bhekisisa analysed the numbers released by health minister Aaron Motsoaledi and the Special Investigating Unit (SIU) on August 24 at a press briefing to make it easier to understand where what kind of problem occurs — from dodgy lawyers and unethical health workers to just plain fishy cases. 

In 2017, the SIU was called in to look into what was afoot. By July 2024, it had flagged 2,830 cases out of 10,679 in total as fishy and to be investigated. 

Of these, the ones in the Northern Cape cost, on average, four times more per case than in Gauteng, even though the province’s health budget is far smaller than Gauteng’s.

Nearly one in three cases being looked at are from Mpumalanga, with KwaZulu-Natal on its heels. 

The third spot is a tussle, because though Gauteng’s claims being investigated are about double that of Limpopo, the value of those in the northernmost province is about a billion rand more. 

But first, some background. 

Where things stand now

By the end of March, provincial health departments faced about R78bn in medical negligence cases against them, which is almost 80% of the combined budget for such departments meant to be used for treating people.

About 90% of the total budget that the National Treasury allocates to health each year goes towards provincial health departments, as they are the ones that roll out the policies the national department develops.

Every financial year these departments start “on the back foot”, Thabelo Musisinyani, head of the unit that takes care of the health portfolio at the auditor-general’s office, told parliament last week. This, she said, is made worse because they have to then borrow from future budgets to pay for medical negligence claims from previous years.

In a decade, from 2012 to 2022, the amount the government spent on paying out compensation for medical negligence grew tenfold — from R265m to R2.6bn.

In 2018, claims against the departments sat at R70bn, which the government wanted to come down to below R18bn by 2024.

Instead, it is now four times higher.

These claims aren’t all legit, though. Because dodgy lawyers have found loopholes in the legal system and state hospitals’ record-keeping is not in order, large amounts of money are unnecessarily paid out.

The result of rising claims is a crippling ripple effect: more and more of the coming years’ money is used to cover expenses from previous years, leaving less and less to fund services that people need. 

So, what do the numbers show? 

1. Mpumalanga, KZN, Limpopo and Gauteng

Mpumalanga has 902 cases under the magnifying glass — nearly a third of the total number being looked at — at a combined value of just over R10bn.

KZN is second, with 713 cases to the value of R8.7bn. Third spot is Gauteng, but only when measured by the number of cases under investigation — about double that of Limpopo. But when it comes to the monetary value of potential payouts of those claims, the cases in Limpopo is about a billion rand more than in Gauteng. 

Payouts in medical negligence cases are generally big because they include the cost of future medical care — often in private hospitals, Motsoaledi says — and compensation for possible income the patient would have had if negligent treatment had not disrupted their life. 

The SIU found that some of the fishy claims were from lawyers suing the state for future medical costs even though the patients had already died. 

2. Free State

In the Free State, one of the drivers behind shady claims was stolen medical records, a situation the auditor-general had previously flagged as problematic when it found that state hospitals don’t have proper systems to keep track of patient files. 

This opens opportunities for records to be stolen and sold to unscrupulous lawyers, who know that without the files the state won’t be able to argue these cases. Musisinyani says this is one of the reasons the departments end up losing in court and having to pay. 

3. Northern Cape, Eastern Cape and North West

Even though the Northern Cape has only 20 fishy cases being looked at, each costs, on average, R28m; compare that with the roughly R7m per case in Gauteng and North West. 

Moreover, over half the total value of claims in the Northern Cape at the moment comes from only seven cases. Four of these had a combined value of R169m and were submitted by a single lawyer — who, patients say, they never instructed to lodge a malpractice claim. 

To open a case on someone’s behalf, a lawyer needs to be given power of attorney, which means they can act as the person’s legal representative in court. 

Three other claims in this province — for a total of R129m — involved touting, which is when an unscrupulous professional like a lawyer or nurse tries to recruit patients to sue the state by offering them big payouts.

In the Eastern Cape, claims flagged for investigation are worth about R19.3m each. The SIU’s findings showed that close to a third of the claims in the province came from a single law firm and had a total value of R600m. 

But its methods were dodgy, because the firm “pocketed” all of the money the state paid out and the patients “never received a cent of it”, Motsoaledi said at the SIU’s press conference in August. 

4. Western Cape

The SIU confirmed that it received claims data from the Western Cape in August but is still analysing it before it will be able to release findings for that province.

More spend with lower budget

Of the ones being investigated, a case in the Northern Cape costs about four times what it does in Gauteng — yet the province gets only about a 10th of what Gauteng does to spend on health. 

That’s because a province’s budget from the Treasury is based on its provincial equitable share, which is calculated using the size of its population. The small population in the Northern Cape — about 1.3-million people — means the province has to make do with a fairly small health budget. 

Over the next three years, this is about R20bn. But about 3% of that would have to cover medical negligence claims up until July 2022, which makes cases filed by dodgy lawyers even more worrying. 

If claims keep rising and the trend of dipping into future years’ kitties to pay for these continues, it will hamstring the state’s ability to give people proper health services, says the auditor-general’s unit. 

This, Musisinyani said, will mean that the health department will need to decide where they spend their money.

“Our message [to MPs] is that there needs to be a way of breaking the cycle, because if we don’t, it is [just] going to be continuous.”

This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.