EDITORIAL | Reform the system for compensating medical negligence victims

South Africa desperately needs to overhaul its system for compensating victims of medical negligence.

Nowhere is the problem more stark than in the Eastern Cape, which paid out more than R630m in medical negligence claims in the 2024/25 financial year, or about 2% of its R30.1bn budget. These were funds that were not budgeted for, thus reducing the money left for salaries, medicines and equipment, and compromising the services available for other patients.

The province clearly needs to improve its standard of care: it has one of the worst maternal mortality rates in the country, with women who rely on its public hospitals and clinics more than twice as likely to die in labour or shortly after childbirth than women in the Western Cape. But just as importantly, both the victims of medical negligence and the state need a better compensation regime.

Under the current dispensation, every claimant has to go to court and embark on an adversarial and lengthy process that if successful will see only a fraction of the final payout land in their hands: attorneys, expert witnesses and senior counsel all take a generous cut. Historically, provincial health departments all paid “once and for all” lump sum settlements to successful claimants based on actuarial estimates of the future cost of care in the private sector, for the rest of a victim’s life.

Both the National Treasury and the national health department have for years sounded the alarm about the risks this approach poses to provincial health budgets. Yet there is still no sign of any real plan to change the legislative framework used to award damages to patients harmed in either the public or private sector.

The State Liability Amendment Bill, which proposed that medical negligence victims be provided with periodic payments and treated at public hospitals, was first flighted in 2018. It was rejected by parliament in December 2023, after MPs decided it would be premature to consider new legislation before the SA Law Reform Commission had completed its work on the issue.

Yet there is still no sign of any real plan to change the legislative framework used to award damages to patients harmed in either the public or private sector.

The commission published a comprehensive discussion paper on medico-legal claims in August 2020 that recommended establishing an administrative fund for smaller claims, mandatory mediation before court proceedings could get under way, and periodic payments instead of lump sum settlements. There is still no sign of its final report, nor any indication from either justice minister Mmamoloko Kubayi or health minister Aaron Motsoaledi about whether a new bill is in the offing.

Into this lacuna has stepped the Eastern Cape health department, which is seeking to develop the common law so it can stop paying out lump sum settlements and provide victims with care at public hospitals instead, with the proviso that if the state cannot meet a victim’s needs it will pay for the requisite services in the private sector.

After initial success with a test case in the Bhisho high court in 2023, its efforts were dealt a major blow last week by the Supreme Court of Appeal. It set aside the high court ruling and ordered the victim be provided with full upfront payment for the future cost of care, on the grounds that it was the job of parliament — not the courts — to change the law on such a contentious issue.

The Eastern Cape health department is now expected to take its fight to the Constitutional Court, as it believes the current compensation system benefits individuals at the expense of the large population that relies on the public health system. Its critics argue that its long history of mismanagement means it cannot be trusted to care for the very people it harmed in the first place. Both sides have a point.

The tragedy is that none of this wrangling would be necessary if the responsible ministers were truly seized with the issue and ensured swift reform of a compensation system that is so clearly not fit for purpose.