President Cyril Ramaphosa has authorised the Special Investigating Unit (SIU) to conduct a sweeping investigation into dodgy medical negligence claims against the state, in a move expected to rein in the soaring sums being paid out by provincial health departments.
While only a fraction of the claims levelled against provincial health departments are paid out, the government nevertheless handed over a staggering R1.74bn in compensation to victims of medical negligence in the year to March 31 2021.
Contingent liabilities rose to a record high of R120.3bn in the 2020/2021 fiscal year, up from R111bn the year before, according to the most recent government figures. The majority of the claims are for severe birth injuries, such as cerebral palsy. The Eastern Cape and Gauteng have been particularly hard hit, and paid out R920m and R392m respectively in the 2020/21 fiscal year.
The SIU’s probe is just one aspect of the government’s attempts to curb unbudgeted payouts for medical negligence claims, which are crowding out expenditure on personnel and vital health services.
The South African Law Reform Commission (SALRC) is considering public comments made in response to a discussion paper it released last November, which proposes a range of measures including replacing lump-sum settlements with a structured schedule of annual payments.
Once that process is completed, the government is expected to draft legislation updating the 2018 State Liability Amendment Bill, which was rejected by parliament’s justice committee earlier this year.
In a proclamation published in the Government Gazette on July 22, the SIU has been authorised to investigate allegations of fraud and maladministration involving the national health department and all the provincial health departments for medical negligence claims lodged between January 2013 and 22 July 2022. However its probe may extend beyond this time frame, and to other state entities such as the office of the state attorney. It will also seek to recover funds fraudulently obtained from the government.
David Bass, a retired medical adviser to the Western Cape health department, said the SIU investigation came “not a moment too soon”.
There had been a significant increase in medical negligence claims for birth injuries after 2013, many of which were suspiciously similar, he said.
A key figure in the state’s sights is attorney Zuko Nonxuba, who was earlier this year barred from practising law by Western Cape High Court judge Gcinikhaya Nuku, pending an application from the Legal Practice Council (LPC) to have him struck off. Nonxuba levelled claims of more than R480m against the Western Cape health department, as well as a slew of claims totalling R497m against the Eastern Cape health department.
In May, former assistant state attorney Nosipho Zibani, her sister, another woman and a private company were ordered by the Special Tribunal to pay back R4.5m they had defrauded from the Gauteng health department for fictitious medical negligence claims lodged between 2015 and 2019.
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