Medical negligence claims against the state are rising at a “near exponential” rate, leaving provincial health departments with an R80.4bn headache that is putting services at risk, data obtained by Business Day reveals.
SA’s nine provincial health departments saw their medico-legal contingent liabilities increase by 33% year-on-year in 2017-18, to reach a level almost triple that of the 2014-15 financial year. Should all the 2017-18 claims be successful, the cost would equal 41% of their total budgets of R196bn for the next year, according to the Treasury.
“The provincial payouts are increasingly putting pressure on the budgets of provincial health departments, as funds have to be shifted away from service provision in order to pay the claims. What is particularly concerning is the rate at which the claims are increasing,” said Treasury.
Business Day’s analysis of provincial health department annual reports for 2017-18 combined with the Treasury figures show medical negligence claims against the state rose from R28.61bn in 2014-15, to R43.12bn in 2015-16, and then rose to R60.48bn in 2016-17 and to R80.4bn in 2017-18.
The provinces paid out a total of R2.75bn during the 2017-18 year, the biggest slice of which occurred in the Eastern Cape, which paid out R876.7m. This is a significant increase on the year before, when the provinces paid out a collective R1.17bn.
The hardest-hit provinces were Eastern Cape, Gauteng and KwaZulu-Natal, which accounted for more than three quarters of all the medical negligence claims against the state in 2017-18. The Eastern Cape saw a massive R8.4bn spike in claims, taking its total to R24.17bn; claims in Gauteng rose by R3.83bn to R21.7bn; and in KwaZulu-Natal claims jumped R3.25bn to R16.64bn.
The Treasury said the “near exponential” increase in claims and payouts was out of kilter with trends in SA’s healthcare quality and outcomes, and was being driven by a host of factors, ranging from increasingly litigious behaviour by law firms to poor record keeping and limited legal capacity within provincial health departments to defend themselves against claimants.
Health minister Aaron Motsoaledi conceded that many of the medical claims against the state were legitimate, but said provincial health departments had also seen a surge in claims for injuries sustained decades ago, fraudulent claims, and increased litigation by lawyers who had shifted their attention away from the technically insolvent Road Accident Fund to medical negligence matters.
“We wish to rebut the narrative that negligence by health institutions, malpractice by individual practitioners (both public and private) and adverse events are necessarily more on the increase than they were in the past,” said the minister.
“Many cases that have happened over a period of 20 years or more and were not acted upon, are now being dug out by litigants and being brought forward for a claim. We are aware that there are teams of people moving around the country looking for such old cases. We are not saying that this is an illegal practice, or the old claims are illegitimate. We are just providing reasons why the quantum of claims has jumped so high in the short space of time,” he said.
The increasing medical negligence claims have dire implications for the health-care system, said Motsoaledi. “It is a trend that needs to be stopped or at worst be slowed down.”
He said the government was tackling the problem on several fronts, including legal reforms that propose scrapping the current system of lump-sum settlements for successful medical negligence claimants, and replacing it with a pay-as-you-go system of much smaller, staggered payments. These measures are contained in the State Liability Amendment Bill, currently before parliament.
Motsoaledi said the medical fraternity needed to reflect on how to minimise mistakes, while provincial health departments needed to improve their record-keeping and legal capacity.
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