By Barbara Whittle

The Law Society of South Africa (LSSA) is seeking a meeting with Minister of Health, Dr Aaron Motsoaledi, so as to make a contribution to the discussion around medical negligence claims. In March, outgoing LSSA Co-chairpersons Max Boqwana and Ettienne Barnard, reacted sharply to public comments made by the Minister following a medico-legal summit held in Pretoria.

The LSSA voiced its serious concern at the sweeping statements made by the Minster and other organisations in the healthcare sector, regarding the possible limitation of the right to fair compensation of medical malpractice victims and the role of lawyers in these claims.

‘It cannot be that victims of medical malpractice – who are often the poor and vulnerable – should be expected to have the specialist knowledge, money or power to take on the state through an “administrative process” if they have suffered lifechanging and critical damage at the hands of the healthcare system and healthcare practitioners. Such victims have the right to legal representation and to be compensated fairly for their losses. They must have parity or arms if they are going to challenge the very institutions that caused their loss in the first place. That is the duty of lawyers. The Minister must 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 removing the right to fair and legitimate compensation from victims of malpractice,’ said the Co-chairpersons.

They added: ‘Legal practitioners cannot “manufacture” malpractice injuries – these are substantiated by experts. 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.’

‘We would have expected the Minister to raise his concerns with the LSSA before going to the media and to include the legal profession in recent discussions and in the way forward. 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,’ said the LSSA Co-chairpersons.

The Co-Chairpersons also held a press conference on the issue before the start of the LSSA’s annual general meeting in Durban on 19 March 2015 (see 4 of this issue.)

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (May) DR 21.