By Patrick van den Heever

There has been a sharp increase in both the number and value of medical negligence claims in South Africa (SA). Medical malpractice liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel involved in their treatment. A malpractice claim may be grounded in either contract and/or in delict and is governed by the law of obligations. In medical context liability may, inter alia, be incurred for –

• breach of a legal duty;
• professional negligence;
• assault due to a lack of informed consent;
• an invasion of privacy as a result of unwarranted disclosure of details concerning a patient;
• the performance of an unnecessary procedure; and
• breach of contract should health care providers fail to perform the medical intervention agreed on. (See WT Oosthuizen and PA Carstens ‘Medical Malpractice: The extent, consequences and causes of the problem’ 2015 (78) THRHR 269).

Reasons behind the increase in medical negligence claims

In my opinion, the amendments to the Road Accident Fund legislation may have encouraged attorneys to explore alternative types of personal injury litigation such as medical malpractice in an effort to indulge in more financially lucrative litigation. Some commentators have noted that attorneys are purposefully targeting the public and encouraging them to seek legal assistance if they have suffered adverse consequences as a result of sub-standard medical care. Patients who could previously not have afforded to institute proceedings are now assisted by the provisions of the Contingency Fees Act 66 of 1997, which allows for the litigation to be conducted on a ‘no win no fee’ basis thus permitting greater access to justice especially for indigent public sector patients. Certain questionable practices have developed, which have perhaps justifiably led to the perception that some lawyers are selfish, greedy and dishonest.

However, the legal profession and the public should take note of the fact that legal practitioners are bound by a wide range of ethical rules and duties to both their clients and the court. ‘It is in the injured patient’s best interest to have an attorney who will try and get the best possible settlement or reward. Again, if there was no malpractice there would be no need for malpractice litigation. The threat of an adverse order of costs does serve to deter meritless claims. It may be unfair to criticise attorneys, as their practices are determined by the liability and compensation system in which they function’ (Oosthuizen and Carstens ‘Medical Malpractice: The extent, consequences and causes of the problem’ (op cit) at 283).

It is important to distinguish between lawful advertising by attorneys and unlawful touting (referred to by the Minister of Health as ‘ambulance chasing’). In this regard hospital personnel should be advised to be on the look-out for people visiting patients from bed to bed (who are neither family, medical staff, nor religious leaders) who procure patients to sign powers of attorney so as to enable them to institute proceedings on behalf of such patients. They should be confronted to explain their presence in the wards and if no satisfactory explanation is forthcoming, they should be requested to leave. Hospital personnel have an obligation to exercise the right of admission reserved at the entrance to each hospital. This will assist in reducing unlawful touting (ambulance chasing) as understood by the Minister of Health.

Commentators have also suggested that the increase in claims has been brought on by a decline in medical professionalism and the standard of care. It has been suggested that the focus should be to put systems in place to avoid preventable mistakes. Health care practitioners should also ensure that they adhere to the standard of care expected of them in their particular branch of medicine. There should also be an increased emphasis on education and the enforcement of practical guidelines. An improvement in the detection of sub-standard care and the institution of appropriate corrective or disciplinary processes could also be constructive. Patients’ dissatisfaction may also be a major contributing and critical factor. A perceived lack of caring and a breakdown in communication between the health care practitioner and the patient often precedes the decision to litigate. In this regard, Oosthuizen and Carstens state: ‘Merely obtaining money may not be the only objective of injured patients; the reasons for filing suit may be due to the manner in which the practitioner subsequently managed the situation after the occurrence of the adverse event. Practitioners would thus be wise to adjust their behaviour accordingly. Communication is essential. Practitioners need to build a rapport with their patients and, in the case of an adverse event, they need to manage the situation sympathetically, whilst keeping in mind that patients may be immensely affected by such an unfortunate outcome’ (Oosthuizen and Carstens ‘Medical Malpractice: The extent, consequences and causes of the problem’ (op cit) at 282). ‘The devastating consequences of an injury often only become apparent in the long term. Additional surgeries and hospitalisation are likely to be required in more serious cases. The patient may also have to live with chronic pain, disfigurement, disability and depression, which could severely affect his or her quality of life and relationships’ (see WT Oosthuizen and PA Carstens ‘Re-evaluating medical malpractice: A patient safety approach’ 2015 (78) THRHR 380 at 382).

A further possible cause for the increase in medical malpractice litigation is the fact that patients are more aware of their rights. In this regard developments in legislation and case law towards patient autonomy have played a significant role. (See, for example, the Promotion of Access to Information Act 2 of 2000; The Consumer Protection Act 68 of 2008; The National Health Act 61 of 2003; The Children’s Act 38 of 2005; the Mental Health Care Act 17 of 2002; The Protection of Personal Information Act 4 of 2013 and the Constitution. With regard to case law see, for example, Oppelt v Department of Health, Western Cape 2016 (1) SA 325; Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA); H v Fetal Assessment Centre 2015 (2) SA 193 (CC); and Links v MEC Department of Health, Northern Province 2016 (4) SA 414 (CC)).

Defending medical negligence claims

Oosthuizen and Carstens submit that a number of factors contribute to the dire state of health care in SA. Problems with management and lack of accountability persist while severe human resource constraints caused by poor policy and budget decisions have led to increased workloads causing many medical interventions to be performed by inexperienced personnel without the assistance of more experienced practitioners. Infrastructures and equipment are in a desperate condition and frequent shortages of supplies and medication lead to a reduced standard of care. These factors compromise the standard of care patients receive in the public sector and potentially lead to more litigation. Money disbursed on malpractice claims directly impact on the ability to finance health care which in turn leads to a further decline in the quality of care provided (Oosthuizen and Carstens ‘Medical Malpractice: The extent, consequences and causes of the problem’ (op cit) at 275).

Pillay J in M v Member of the Executive Council for Health, KwaZulu-Natal (KZP) (unreported case no 14275/2014, 14-3-2016) says at para 79 that:

‘Although they represent as a bipolar dispute between a plaintiff and a defendant with the remedy being findings on liability, compensation and costs the problem of malpractice remains institutional. Malpractice suits are retroactive in the sense that they seek to remedy past wrongs. The litigation resolves the dispute but not the institutional problems. Remedies that are forward-looking, that seek to resolve problems for the future should be considered for long-term sustainable solutions. The court cannot initiate such remedies without the co-operation of the litigants.

…

[81] The growth of malpractice suits has been sudden. It might have caught the defendant unprepared. With the escalation of claims over the past five years the problems may seem overwhelming and insurmountable. These bespoke remedies could assist in fixing the problems. But this case shows that they are fixable if the law is simply obeyed.

…

[83] … This is a non-negotiable absolute requirement non-compliance with which will continue to escalate the costs and claims against the defendant. Given the instrumentality of this institutional deficit to malpractice costs, and for no better reason that it is the law, the defendant must look to holding the custodians of the records personally accountable, if necessary on pain of discipline, criminal prosecution or both. …

[84] Without compliance of these rules the defendant would not be able to defend itself effectively against escalating malpractice claims. Compliance with both rules is unrelated to either the volume of patients or the number of claims being lodged. They are about having efficient systems in place and law abiding, accountable employees responsive to patient needs.’

(See also Khoza v Member for Health and Social Development, Gauteng 2015 (3) SA 266 (GJ); and Ntsele v MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ).)

Conventional and fundamental reforms

Three categories of conventional reforms present themselves for consideration, namely –

• reforms that limits access to courts;
• reforms that alter certain liability rules; and
• reforms that directly address the size of the damages awarded (capping).

Reforms that limit access to courts include screening panels that determine and make recommendations before the matter proceeds to court and the shortening of statutes of limitation that limit access to courts. Measures that alter liability rules include the elimination of joint and several liability, the establishment of standards for expert witnesses and establishing additional criteria when proving the absence of informed consent. So-called capping may be applied to the total amount of damages or the non-economic portion of the claim. This would render malpractice claims less lucrative. It could also include periodic payments so that future medical costs are paid as they arise instead of lump sum payments. Although these suggested reforms may result in reducing claims, costs and premiums of indemnity insurance, it will probably not make health care safer. Patient safety and inherent systemic problems will not be addressed. Fundamental reform include enterprise liability, no-fault schemes and structures and alternative dispute resolution vehicles.

Enterprise liability involves the shifting of the litigation from the individual practitioner to the health care organisation where the patients received treatment. The costs incurred would function as an incentive to implement organisational changes in order to address systemic factors, which contribute towards injuries. No-fault schemes and structures are generally opposed since not assigning blame would result in practitioners not being held accountable and thus may not deter sub-standard care. Proponents hold the view that the costs saved on administrative and legal expenses make these schemes affordable. Alternative dispute resolution reforms seek to avoid litigation altogether. It includes conciliation, structured mediation, administrative tribunals and specialised medical courts.

National health insurance

The proposed National health insurance system is aimed at improving access to quality health care services and the provision of financial risk protection against catastrophic medical expenses for the entire population. In this regard, Oosthuizen and Carstens opine that: ‘Whether the [National Health Insurance] as currently proposed would be the best mechanism to achieve these objectives remains to be seen, but there are numerous concerns. Nevertheless, the Green Paper is correct in conceding that the quality of health care provided to a large majority of the public is poor’ (Oosthuizen and Carstens ‘Re-evaluating medical malpractice: A patient safety approach’ (op cit) at 394).

Conclusion

Some medical accidents are inevitable and others will always occur  as a result of want of care. Medical accidents that are attributable to systemic errors or methods of delivering health care which equate cost cutting with efficiency, which result in overworked personnel, inadequate safety measures, where there is an emphasis on quantity instead of quality of health care provision, should be scrutinised, so that reliable data is acquired with regard to the number of medical malpractice claims that are instituted, the causes for the escalation of such claims, the enormous costs of malpractice litigation and the difficulties involved in obtaining compensation for victims where such compensation is justified.

Patrick van den Heever BIuris LLB (UFS) LLM (UCT) LLD (UP) is an advocate of the Cape Bar.

This article was first published in De Rebus in 2016 (Oct) DR 49.