LSSA concerned at unsubstantiated allegations against attorneys regarding medical negligence claims

May 1st, 2017

By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) voiced its serious concern last month at the allegations made against the attorneys’ profession at a joint sitting of Parliament’s Standing Committee on Appropriations and the Portfolio Committee on Health in March. At the time of going to print, the LSSA was seeking a meeting with the joint committees in order to discuss what it views to be unsubstantiated and sensationalist allegations against attorneys with regard to medical negligence claims.

‘The country is still traumatised and shocked by the death of the 94 mentally and physically disabled patients as a result of the failing healthcare system, which included the neglect of the patients. We urge the Health Ministry to focus on addressing the dire skills shortages and poor conditions, as well as the duty of care owed by healthcare professionals and medical facilities to patients, rather than on curtailing their right to fair and legitimate compensation. Attorneys cannot be blamed for simply carrying out their duties on behalf of victims who have been wronged,’ said LSSA Co-chairperson, Mvuzo Notyesi, in a press release.

Mr Notyesi reiterated that: ‘The LSSA has consistently maintained that legal practitioners cannot “manufacture” malpractice injuries and claims – these are substantiated by experts and then by the courts.’

He added: ‘Where government or state facilities neglect to administer proper healthcare and treatment to patients, these patients rarely receive meaningful answers or feedback; and are even less so informed that a procedure went wrong due to negligence. They are also not told that they have rights at their disposal to seek relief. Where an individual’s family member suffers loss as a result of medical negligence, that victim has the right to be informed and to be legally assisted, thereby ensuring that fair justice is ultimately served.’

In the press release, Mr Notyesi said: ‘The LSSA has stated that it is the duty of legal practitioners to assist victims of medical malpractice – who are often the poor and vulnerable – to be compensated fairly for their losses if they have suffered life-changing and critical damage at the hands of the healthcare system and healthcare practitioners. Victims have the right to legal representation and they must have parity of arms if they are going to challenge the institutions that caused their loss in the first place.’

According to the press release, the LSSA has also requested to meet the Minister of Health, Dr Aaron Motsoaledi, on several occasions to discuss this issue. The LSSA is of the view that ‘… both the medical profession and the legal profession exist to serve the public and it is in the best interest of the public that they cooperate to ensure that members of the public and victims of medical malpractice are treated fairly and professionally.’

Mr Notyesi concluded by saying: ‘Attorneys are stringently regulated by the statutory provincial law societies, and touting or pestering of victims is certainly not tolerated. There are also strict rules regarding advertising. Should any member of the public, whether a victim or practitioner, have complaints against attorneys, they are encouraged to contact the relevant regulatory law society and follow the necessary steps to ensure that attorneys overstepping boundaries are dealt with. If there is alleged collusion between medical professionals and legal practitioners, as well as a downgrading of standards to create an opportunity for collusion, this must be reported to the relevant statutory provincial law society and to the law enforcement agencies. If attorneys are found to be overreaching or overcharging, the law societies have assessment committees that investigate the allegations and assess the fees charged. This is regarded as serious misconduct by the profession and by the courts.’

Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa,

This article was first published in De Rebus in 2017 (May) DR 19.