SA needs a new mechanism for assessing claims for medical negligence that relies on expert panels instead of the courts, health minister Aaron Motsoaledi says.
Medico-legal claims against the public health system and private healthcare providers had soared in the past decade, straining provincial health budgets and pushing up the cost of indemnity insurance for private providers, Motsoaledi told parliament on Wednesday.
Instead of lawyers “shooting it out in court” a panel of experts such as retired judges and healthcare professionals could determine fair compensation for people who had experienced medical injuries, said the minister, advocating the approach taken in Scandinavia.
“This method guarantees many people who are deserving get compensated (without) being subjected to long court cases whose outcomes may be uncertain,” he told a joint meeting of parliament’s portfolio committee on health, standing committee on public accounts, and appropriations committee.
Provinces faced contingent liabilities for medico-legal claims in excess of R75bn in 2022/2023, equivalent to more than 75% of the health budget for that year, and paid out R1.45bn to successful claimants, the office of the auditor-general of SA told MPs. The scale of the payouts was affecting provincial health departments’ ability to provide services, parliament heard.
Parliament’s justice committee previously rejected a bill that proposed changes to the compensation system for medical negligence claims, saying it wanted to wait for the SA Law Reform Commission to finalise its work on the issue before it considered new legislation.
The State Liablity Amendment Bill, which had been in the pipeline since 2018, proposed replacing lump-sum payouts for medical negligence with periodic payments and restricting future medical care to the public sector instead of awarding monetary damages.
The Law Reform Commission published a discussion paper on medico-legal claims in 2021, but has yet to release its final report. Its work is expected to make recommendations on both the mechanism for assessing claims and the system for compensating victims.
The minister said a large number of the medico-legal claims levelled against provincial health departments were fraudulent. The Special Investigating Unit’s nationwide probe into medico-legal claims, launched in 2022, had already reduced the scale of the claims against the state by R3.1bn, he said.
He described to MPs some of the most egregious attempted frauds, including cerebral palsy claims for children who were perfectly healthy, and claims for birth injuries against public hospitals for babies that had been born at home.
While he acknowledged medical injuries were a reality, most of his presentation focused on the harm done by corrupt lawyers filing spurious claims.
He was challenged by several MPs, including Freedom Front Plus Philip van Staden, who said: “We have a problem because the service delivery is not up to scratch. I released a report in November 2023, which I handed to the human rights commission, about the problems in our health system.”
The report painted a horrifying picture of the neglect and abuse confronting patients at the hands of overwhelmed staff working in filthy and ill-equipped facilities.
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