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The National Health Insurance (NHI), for which membership will be compulsory, is a funding scheme that aims to address healthcare inequity in South Africa. The scheme will do this by creating a fund that the government will use to buy healthcare services at set fees from accredited public and private health providers. The NHI Bill was passed in the National Assembly in June 2023. It has to go to the National Council of Provinces for approval.

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Medical negligence claims threaten NHI

Due to the high costs of litigation medical negligence claims could bankrupt a future NHI, say experts.

Medical negligence claims may threaten the viability of South Africa’s proposed National Health Insurance (NHI) scheme due to high legal costs.

“The cost of unregulated medical negligence claims may likely impact the NHI scheme if funds needed to run the programme are diverted to pay for medical negligence claims,” said Sylvester Chima from the University of KwaZulu-Natal’s health sciences faculty in a press statement released on Tuesday.

Gauteng and KwaZulu-Natal’s health departments each have claims against them worth billions. Earlier this year, Jack Bloom, the Democratic Alliance’s health spokesperson in Gauteng, said the province’s hospitals face medical negligence claims of up to R1.268-billion.

Just last month, the Gauteng health department agreed to pay an HIV positive woman almost half a million rand in an out-of-court settlement because she was coercively sterilised in a Johannesburg hospital.

Chima said that high legal costs, including excessively high charges by lawyers and expert witnesses, “almost ruined” the United Kingdom’s National Health Service in the late 1990s and could similarly threaten the NHI.

“South Africa may need a no-fault compensation scheme similar to the Road Accident Fund in order to limit the costs of medical negligence and its impact on the NHI,” he said.

A no-fault compensation scheme would allow poor patients who can’t afford a lawyer to claim. It would also limit legal costs for the health department, as they would have fewer court cases.

“If a patient isn’t satisfied with the compensation they receive, they can take the case to court. But you will find most patients would prefer not to go through prolonged and expensive legal battles themselves,” he said.

In response, Health Minister Aaron Motsoaledi told the Mail & Guardian on Tuesday that “if we don’t do something [about increasing rates of medical negligence claims] the whole system will suffer immeasurable damage”.  “We will be holding a summit later this year with all stakeholders to address the issue of litigation to discuss what’s driving it and how we can deal with it.”

Amy Green was a health reporter at Bhekisisa from 2013 until 2016.