Skyrocketing medico-legal claims threaten to cripple South Africa’s public and private health sectors as specialists face exorbitant litigation. Without drastic intervention, experts warn, health care could soon become unaffordable – or unavailable. Meanwhile, legal experts say mediation could be a solution hiding in plain sight.
“Something’s got to give,” says David Campbell, managing director at medical indemnity insurance company MPLA. He says South Africa’s laws allow for medico-legal claims to haunt health workers up to 19 years after an incident. The possibility that healthcare workers will have to pay for mistakes made years ago is forcing insurance companies to increase medical indemnity rates radically, he says.
“The reason that the premiums are so high is not based on a projection of the future or the present, it’s based on what they might discover you did in the past, which you can't even remember,” Health Minister Aaron Motsoaledi told Bhekisisa in May.
Bhekisisa previously reported that in 2009 obstetricians and gynaecologists paid R78 000 for insurance. In 2017, the Medical Protection Society’s insurance costs around R800 000 – an increase of 925%.
Motsoaledi has said that professionals specialising in difficult areas of medicine, such as orthopaedic surgery, were among those most targeted by medico-litigation and a concurrent rise in insurance prices.
Campbell explains: “High-risk specialists like obstetricians and neurosurgeons will either become unaffordable or unavailable. Obstetricians are already leaving the field – and rightfully so. A 50-year-old obstetrician would be right to worry about a summons of however many zeros arriving at their door at age 69.”
President of medical professional body the South African Society of Obstetricians and Gynaecologists Johannes van Waat says the organisation’s records show about 50 obstetricians left the field in 2016 – almost 7% of their members. He says Sasog expects to lose 100 more this year if the litigious trend persists.
Van Waat explains: “Some members retired, but mostly obstetricians are reverting to gynaecology to avoid delivering babies since litigation is spiralling out of control.”
Campbell says backlogged claims should be given an expiry date. He adds that legislation should be amended to stipulate that future claims must be prosecuted within three years after the incident occurred, as was the case under the Road Accident Fund. Although he admits this might cause a sudden spate of claims, Campbell argues unclogging the system will give insurers a better chance at predicting future losses. This will, in turn, bring down medical indemnity rates and the cost of health care, he says.
“The people always pay”
According to health minister Aaron Motsoaledi, claims against his department stood at more than R61-billion as of October last year – a third of the country’s health budget.
Campbell says strain on the budget opens up the department to further litigation. He explains: “If clerical staff aren’t paying the accounts, you don’t have clean sheets and equipment doesn’t get fixed. Administrative problems pose a bigger threat to hospitals than failed operations.”
Bhekisisa reported last month that the North West department of health will cut 2000 of the province’s health posts, or 20%, to compensate for tight budgets. Spokesperson Tebogo Lekgethwane said administrative posts would be among the first to go.
Motsoaledi and Campbell agree the way patients are compensated for claims of medical malpractice and negligence is unsustainable.
The health minister says critical funds are lost when the department loses cases of negligence or malpractice and has to pay patients out in lump sums instead of annual payments. He explains that this is because these large upfront payments are often calculated by how much care the affected person will need in their lifetime. In absence of local data on the average life expectancy of patients with conditions such as cerebral palsy, these costs estimate are often based on calculations from wealthier countries. Cerebral palsy is a disorder that affects children’s ability to move or sit up without assistance. It is often associated with complicated or prolonged labours, says the US nonprofit the Mayo Clinic.
Motsoaledi explains: “There’s no chance South Africa’s life expectancy is the same as America’s – but that’s what the department is paying for.”
The health department may also be paying patients twice: “Charges are based on the child being cared for in a private hospital. But when the case is closed, the child is taken to a public facility – where the state takes care of that same child.”
Campbell says compensation should ideally be based on a nationally standardised level of care, such as one that will eventually be proposed under the National Health Insurance.
In the meantime, Campbell argues that compensation could instead be calculated based on the standard of care – public or private – that patients’ families are able to afford.
He explains: “If the goal is to curtail medical malpractice costs to be in line with our country's ability to afford, we need a more practical approach to compensation that suits the socio-economic conditions of the patient. The judiciary could decide that that the patient should not be entitled to more at the expense of the greater community.”
Ultimately, he says, everyone is paying for the country’s epidemic of medico-legal litigation, whether it’s through increased doctors’ fees as health workers pass rising insurance costs onto patients or rising taxes as the state recoups costs: “The people always pay. Whether through increased medical aid fees or increased fuel levies – it’s a disproportionate redistribution of wealth.”
A light at the end of the tunnel?
Meanwhile, the health department, legal experts and professional bodies are waking up to the benefits of mediation before litigation.
Mediation starts with accepting that something went wrong, says Motsoaledi: “But instead of fighting in court, let's sit down and talk about what you as a patient will regard as justice.”
He says the health department has requested the South African Law Reform Commission (SALRC) to legislate that mediation will precede any litigation against the state. Researcher at the SALRC Ronel van Zyl confirmed receipt of a joint request from the departments of health and justice. Van Zyl says the commission will release issue papers on the application in late July.
Society of Obstetricians and Gynaecologists’ Van Waat says the body strongly supports mediation. He says they will this month begin offering free pre-mediation meetings for members and patients wishing to explore litigation.
Van Waat says the prospect of mediation has already enticed some of his members to stay in the field: “We are closer to a solution than we’ve ever been. Since mediation has come onto the scene, a number of obstetricians are hanging around to see what happens.”
As part of meetings, doctors and patients will establish what the dispute is about and try to find suitable, trained mediators, says director of mediation at the South African Medico-legal Association (Samla) Alan Nelson. He explains: “Often it seems like a medical problem, but it turns out to be a racial issue where somebody wasn’t treated with the necessary dignity.”
Mediation is not binding until a written agreement is signed and does not stop any party from litigating, he says. “You don't lose a thing if you try this way first.”
Nelson practised as a litigation lawyer for 40 years before training as a mediator.“I loved every second of it. I thought that if I litigated hard and won cases for patients, I was doing good. At this stage of my life, I have to admit that I wasn’t.”
In 2015 Nelson co-founded nonprofit Mediation in Motion. The organisation has established a fund to provide a qualified mediator to anyone in need.
“Going to to court before mediation is like going into surgery if there is a pill to cure your pain,” he says.
And while litigation can take years before information about the root causes of problems are sent back to hospitals or clinics, these facts are sent back to facilities almost immediately as part of mediation. “The hospital can address the problem. With litigation, it’s defend and deny, and more people suffer from the same inefficiency or problem,” Nelson argues.
He tells of two women that both lost their babies at overcrowded hospitals during Easter weekend. The first he represented as a litigation lawyer. He explains: “We won the case and got one of the highest awards ever. But it took seven years out of my clients’ life. I saw a woman go through hell as she lived and relived the death of her baby.
“In the second case, the mediation took one day – and she was thrilled,” says Nelson. The woman did not receive a cash settlement but instead negotiated access to training and mentorship that eventually helped her find a job.
“This woman lost her baby, but through mediation she got a new life.”
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