35% increase in the number of claims being made against healthcare professionals in South Africa
THE Medical Protection Society (MPS), a protection organisation for doctors, dentists and healthcare professionals, has again placed medico-legal claims under scrutiny as the SA Law Reform Commission surges forward with investigations into the possible change of law.
The Commission released an issue paper in July, pursuant to the request by Ministers of Health, and Justice respectively to launch investigations into medico-legal claims which have shown an unprecedented rise. The Commission is now preparing a discussion paper after submission for comments on the issue paper closed on September 30.
MPS has already made its stance clear that legal reform was necessary “if we are to begin to tackle some of the problems that have contributed to the challenging claims environment in SA”.
In its submission to the Commission’s issue paper, MPS said that over the six-year period from 2011 to 2016, there was a 35% increase in the number of claims being made against healthcare professionals in South Africa. Large claims were on the rise – an increase of 121% in medical and dental claims valued at over R1 million.
The organisation pointed out a multitude of complex factors that were contributing to the current claims environment. This include lack of a patient-centred and robust complaints system which leaves many patients with litigation as the only viable avenue for redress.
The lack of an efficient and predictable legal process for handling clinical negligence claims also contribute to delay, with the cost of settling a claim increasing as time goes on.
The reforms it recommended to the Commission included the introduction of a pre-litigation resolution framework and the development of a patient-centred complaints process that allows for local resolution.
MPS’ Africa head of medical services Dr Graham Howarth said: “The South African Law Reform Commission are to be commended for tackling this issue so comprehensively – significant reform is needed across a range of issues that are addressed in their paper on medico-legal claims. In 2016 we wrote our policy paper Challenging the Costs of Clinical Negligence; the case for reform, where we set out our proposals.2
“We believe the clinical negligence litigation system does not currently facilitate the efficient and fair resolution of disputes and is unnecessarily adversarial. Additionally, it lacks transparency and is time consuming and expensive. MPS is deeply concerned by the unsustainable increase in the cost of clinical negligence. It means that the state is diverting a significant amount of its funding away from front-line patient care towards claims. It is important that there is reasonable compensation for patients following clinical negligence, but this must be balanced against society’s ability to pay. Legal reform could help to make the system faster and more efficient for patients and their families, highlighting the importance of a patient-centred complaints system to address concerns without the need to resort to litigation.”
According to the national Treasury in its briefing to Parliament in March this year, claims against medical negligence and malpractice have increased from R28bn to R43bn.
Health Minister Dr Aaron Motsoaledi was earlier adamant that the law needed to be changed with a view to, amongst others, minimise the role of lawyers. He said then:
“There are some lawyers who raid homes for the disabled children in search of opportunities for claims. In some cases, lawyers claim huge amounts of money in the hope that the state will settle out of court.
“In one case, a lawyer was claiming R70m, but he wanted to settle out of court for R5m. It was later found that the case he is claiming for did not even happen at any of our facilities.”
It has recently been reported that escalating insurance premiums for doctors was one of the factors driving specialists such as obstetricians and gynaecologists out of practice because their insurance companies were hapless about claims being brought that dates back some 20 years ago.
However, the Law Society of South Africa, which has also made submissions to the Commission, believe health authorities should focus on addressing the shortage of skills and poor conditions at facilities than on limiting the right to fair compensation to victims and the role of lawyers in the claims.