The office of the auditor-general has warned parliament that the government’s continued failure to rein in medical negligence claims poses a threat to its plans for National Health Insurance (NHI).
While the scale of the payouts for medical negligence is a fraction of the amount claimed against the state, it nevertheless has a profound effect on the ability of provincial health departments to provide services, as the funds are not budgeted for and reduce money available for medicines, equipment and other crucial supplies.
Despite acknowledging the risks posed by rising medical negligence claims, the government has made little headway in reversing the trend. It is set to miss its target of reducing medical negligence claims by 80% from 2019 to 2024 to below R18bn.
Provinces faced contingent liabilities for medico-legal claims in excess of R68bn in 2022/2023, equivalent to 75% of the health budget for that year, and paid out R1.45bn to successful claimants, parliament’s standing committee on public accounts heard on Wednesday.
The auditor-general’s office has repeatedly voiced concern about how provincial health departments manage medico-legal claims and the state’s slow pace in reforming the legal framework that determines the scale of the payouts.
“In addition to record-keeping, other health sector challenges that need attention include staff shortages, ineffective healthcare facilities and lack of implementation of policies and legal frameworks. If these matters are not addressed, they will have a detrimental long-term effect on the sector’s ability to deliver swift, good-quality healthcare services, jeopardising the essential building blocks for the NHI,” said the office’s senior manager, Mmule Thipe.
Auditor-general officials told MPs that little had changed since they conducted a countrywide investigation in the 2021/22 financial year that found extensive problems with how public health facilities managed patient records.
These records are crucial in contesting medical negligence claims, yet 15 of the 27 healthcare facilities visited reported records missing or lost, and 25 of the 27 facilities had insufficient storage space and poor access control to medical records. MPs were shown photographs of storage rooms overflowing with medical records and piles of boxes of records on floors and in passageways.
Provincial health departments were short of legal and medical experts to manage claims, had ineffective systems for retrieving and returning records to healthcare facilities, and lacked systems for archiving and disposing of records, said senior manager Maryke Schneigansz of the auditor-general's office.
Analysis of the R1.74bn paid to successful claimants in 2021/2022 showed the majority of cases were due to staff negligence, but some were conceded by the state and settled out of court as no records were available to contest the claims, said Thipe.
Health departments in four provinces — the Eastern Cape, Gauteng, KwaZulu-Natal and Northern Cape — had still not dealt with their record-keeping challenges, she said.
MPs heard that the Free State continued to be the only province using a R3.6m case management system procured by the national health department. The system was intended to help provinces defend themselves against medical negligence claims, and was to be rolled out in all the provinces except the Western Cape. The issue was flagged by the auditor-general last year. At the time the health department said it could not force provinces to use the system. It had not responded to Business Day’s request for comment on the lack of progress since then at the time of publication.
Parliament sent the 2018 State Liability Amendment Bill back to the departments of health and justice in 2021 for further work. A new bill is expected to be drafted after the SA Law Reform Commission releases its final report and recommendations on the issue. Its interim proposals included introduction of structured settlements and provision of future healthcare needs in the public sector instead of paying upfront lump sum settlements covering care in the private sector.
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