Capping the cost of negligence

2013-09-01 14:00

Exploding costs of litigation forces the state to take action. Zinhle Mapumulo and Jeanne van der Merwe report

The health department is proposing a cap on medical negligence payouts to reduce the exploding costs of negligence litigation in both the private and public sectors.

Last week, City Press reported that the Gauteng health department was facing R1.9 billion in lawsuits for alleged medical malpractice.

The figures were revealed following an access to information request by City Press and Media24 Investigations.

Of the 336 individual cases – some dating back to 2000, but with a significant spike in claims between 2010 and last year – 35% were claims relating to babies who suffered brain damage or mental retardation, and subsequently developed cerebral palsy owing to alleged negligence during birth.

One professor of paediatrics, who works at a state hospital and spoke to City Press on condition of anonymity, estimates that half of the country’s child cerebral palsy sufferers developed the condition because of avoidable birth complications.

In a recent interview, Health Minister Aaron Motsoaledi confirmed that a maximum payout limit in negligence claims was being considered, and that proposals on how best it can be implemented would “soon” be thrashed out at a summit.

Patient rights activists and law experts have slammed the proposal, saying it could set a dangerous precedent and reduce accountability.

They say it will leave patients doubly disadvantaged – once by the consequences of negligence and again by receiving insufficient compensation to deal with the consequences.

But the minister is adamant that if government wins this battle, it would be in the best interests of South Africans.

“If we allow the current situation to continue the way it is, it will bankrupt the health system.

“We all know what happened with the Road Accident Fund and we don’t want to find ourselves in the same situation,” Motsoaledi said.

Capped medical malpractice payout systems in countries like New Zealand and Sweden involve government-funded bodies that adjudicate and reimburse all personal injury claims, including those related to malpractice.

Pieter Carstens, a law professor at the University of Pretoria, said: “You could perhaps argue that a particular amount is fair compensation for a specific injury, but how do you cap a payout without prejudice to the patient?

“In principle, one should be very careful to cap payouts where children are concerned. If a child is left a paraplegic owing to birth hypoxy, that child must have medical and other care for the rest of his or her life.

“Capping a payout in such circumstances could be unconstitutional.”

A no-fault compensation system is also being proposed in the US, to much criticism.

Motsoaledi wouldn’t be drawn on the model SA would adopt. “The details ... will depend on what stakeholders agree on when we meet at the summit,” he said.

“Discussions around the issue have been happening since last year, but no decision has been taken.”

Currently, negligence claims are paid out of provincial health departments’ hospital operational budgets, which reduces the funds available for equipment and medication, and leaves hospitals more vulnerable to litigation.

The Medical Protection Service (MPS), which provides cover for private sector doctors against malpractice claims, charges obstetricians with clean litigation records R254 230 a year. Private gynaecologists who don’t deliver babies pay R111 240.

A report in February’s edition of the SA Medical Journal outlined that MPS estimated the cost of reported malpractice claims to have more than doubled between 2010 and last year.

Claims exceeding R1 million have increased by nearly 550%, compared with a decade ago. Claims valued at more than R5 million have increased by 900% in the past five years.

MPS spokesperson Kim Watson said obstetricians’ premiums were high because courts awarded compensation based on harm suffered rather than the degree of negligence.

“It is a feature of obstetric claims that negligence can result in brain-damaged babies and very high levels of compensation to provide for long-term-care costs.

“With advances in medical technology, life expectancy is increasing, so the years of care provided for reflect this,” she said.

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