Addressing Provincial Health Departments’ Medicolegal Claims Liability: Developing The Law Of Delict

Provincial health departments face numerous claims for damages for medical negligence. The common law provides that payments must be made in one lump sum, but this impacts on health departments' capacity to provide healthcare for others. This brief considers how the courts have begun developing the common law to provide for payments in kind and periodic payments.

For years, the public healthcare system has been confronted with ballooning claims for compensation for harm occurring in public health facilities, with the most recent data placing provincial health departments’ potential liability at R105.8 billion, the bulk of which is comprised of medico-legal claims.[i] Various reasons have been advanced for this astounding figure, such as “inadequate quality of care, weak capacity in provincial medico-legal teams, poor administration of medical records, and high profitability for law firms specialising in this area”.[ii] This brief analyses an unexpected contributor to the ever-inflating medicolegal claims debt—the law itself. It considers how the rigid application of the principles of the law of delict has led to the near-collapse of the public healthcare system, and what the state is doing about it.

How The Law Impacts Public Health

After an incident of medical malpractice, compensation may be claimed for past and future medical expenses, loss of income or earning capacity, and pain and suffering. The common law contemplates that compensation on all these heads must be made in monetary terms, and must be claimed in one action.[iii] As such, courts order compensation to be paid in one lump sum.

Large awards of compensation cannot accurately be budgeted for because they are unpredictable and case-specific, leaving health departments to scramble to reallocate funds from their budgets to pay such claims. As a consequence, money is diverted away from the delivery of healthcare services, causing facilities to be consistently under-funded and resulting in even more claims of medical negligence.

The devastating effect of the diversion of funds was recently demonstrated by the freezing of the Eastern Cape Health Department’s bank account as attorneys enforced court orders relating to medico-legal claims, which left the department unable to pay its service providers and leaving toxic medical waste to accumulate at health facilities.[iv] Medicolegal claims are thus both a symptom and a cause of the ailing healthcare system.

A Delayed Legislative Response

To address this untenable situation, the State Liability Amendment Bill[v] was introduced in Parliament in 2018. The Bill contemplates that when the state is found liable to pay the cost of future care, future medical treatment and future loss of earnings, the court must either order that the compensation be paid periodically and only during the lifetime of the injured party, or that the State, in lieu of such payment, must provide the treatment at a public health establishment.[vi]

A laggard response by the legislature led to the lapsing of the Bill, but the Bill was revived in 2019.[vii] In January of this year, the Portfolio Committee on Justice and Correctional Services received a briefing on the Bill from the Health and Justice Departments, but referred it back to them after expressing its displeasure that critical information- like the investigation and research by the South African Law Reform Commission- was lacking.[viii] Notably, the Chairperson of the Committee stated that ‘there is no haste in respect of the Bill’.[ix] While the Committee was right to ensure that all the necessary information is before it, this comment misrepresents the need for urgent reform. In the meantime, the courts have stepped in to develop the law.

The Intervention Of The Courts

In a move that echoes the content of the State Liability Amendment Bill, courts have begun considering whether to develop the common law to provide that instead of a lump sum payment, the state may provide an injured party with medical services in the public sector instead of monetary damages (payment in kind), and/or periodic payments through a trust administered by a case manager and a trustee. In the latter case, trusts may be established with a claw-back scheme (providing that if an injured party dies before the funds are depleted, these would return to the State) and/or a top-up scheme (which allows a top-up of the funds if they became depleted during the injured party’s lifetime).

The road to this legal development had been paved in 2017 by the Constitutional Court in MEC for Health and Social Development, Gauteng v DZ obo WZ (“DZ”),[x] where it was stated that it was open to a court to develop the common law to allow for payments in kind or periodic payments if the factual foundation was established for such a development.[xi]

A question that subsequently arose was whether MECs already embroiled in litigation before DZ was handed down, but where damages still needed to be quantified, could approach the court to develop the common law to permit payments in kind, or periodic payments of monetary damages. Although some high courts had answered this in the affirmative,[xii] in June 2020, the Supreme Court of Appeal held differently.[xiii] It found that where a case on the merits had occurred before DZ, and an MEC had agreed that they “shall pay the plaintiff 100% (one hundred per cent) of her agreed or proven damages”, this meant that they had contemplated one lump sum payment. Any amendment to their pleadings to allow for a development of the common law should therefore be rejected.

On 1 April 2021, the Constitutional Court in MEC for Health, Gauteng Provincial Government v PN (“PN”) rejected the SCA’s approach, finding that there was “nothing magical about the word “pay””, and an agreement to pay 100% of damages dealt with one’s liability to compensate and not the method of compensation.[xiv] Further, the court found that whether DZ had been handed down or not was immaterial- it is always open to a litigant to seek to develop the common law and to preclude him from doing so would affect his right to access to court. [xv] As such, the Court reaffirmed that high courts have the power to develop the common law, and clarifies that where damages have not been finalised, MECs may amend their pleas to request that the common law be developed, whether or not the case was launched, or the merits decided, before DZ.

When Not To Develop The Common Law

DZ made it clear that common law could be developed where the factual foundation so permitted. This factual foundation was found to have been established in the 2019 case of MSM obo KBM v MEC for Health, Gauteng Provincial Government (“MSM”).[xvi] In January 2021, relying on the MSM judgement, the court in Mashinini v MEC for Health, Gauteng Province (“Mashinini”) also held that the facts in the case allowed for payment in kind to be provided. [xvii] The judges determined that that certain medical services required by the victims were capable of being provided by specialist surgeons at the Charlotte Maxeke Johannesburg Academic Hospital (CMJAH), a public health facility, and that the MEC should be ordered to render such services to the victims at the CMJAH. Cognisant that a failsafe was necessary, the judge in MSM ordered that in the event that the CMJAH was unable to provide the required medical services in the future, the plaintiff was entitled to approach the judge in Chambers for an order directing the MEC to pay them the amount claimed for the relevant service.[xviii] No such order was made in Mashinini.

On 11 March 2021, the plaintiff in Mashinini was granted leave to appeal to the SCA against the judgement of the High Court.[xix] Unfortunately, the case seems doomed to fail because the court failed to consider that MSM had developed the common law to permit payments in kind only in limited instances where:

  • the MEC is held liable for the negligent conduct of public healthcare staff causing injury during or at birth to a child in the form of cerebral palsy; and
  • the MEC establishes that medical services of the same or higher standard will be available to the child in future in the public healthcare system at no or lesser cost to the child than the cost of the private medical care claimed. [xx]

There are sound reasons for limiting the development of the common law to cover only those cases where the claimant suffered from cerebral palsy. First, such cases are unfortunately extremely common, with research indicating that 39.3% of the claims of medical negligence against the provincial departments of health were cerebral palsy cases.[xxi] Further, these claims are typically for substantial amounts of damages. MSM, for example, involved a claim of R5 628 209 for future medical expenses.[xxii]

Mashinini, meanwhile, involved a plaintiff who had been the victim of a botched gallbladder removal operation. Instead of considering why the common law development should be extended to cover cases beyond the scope of MSM, the judge simply held that the fact that the plaintiff brought its claims under the same heads as MSM, and because CMJAH was capable of providing certain medical services to the plaintiff at no or lesser cost than the cost of the private medical care, meant that the MEC should be ordered to do so.  

Apart from the questionable extension of the development of the common law to apply to any case of medical negligence, Mashinini also seems to be an inappropriate case to develop the common law. In MSM, it was noted that victims of medical malpractice would be treated as ‘special patients’ and dealt with on a preferential basis so that any treatment required but not available would be arranged, and equipment not available would be acquired.[xxiii] The witnesses made it clear that not everyone could be a ‘special patient’ within the facility’s available resources. As such, unless additional resources are allocated to cater for all special patients, MECs should approach the court to develop the common law only in cases which the damages claimed for future medical expenses are considerable. This was not the case in Mashinini, where the quantum of damages claimed for future medical expenses was R1 034 487.

Finally, it must be noted that the fire at CMJAH and the slow reopening of the hospital[xxiv] means that the victims in MSM and Mashinini will not be able to receive the treatment as stipulated in the court orders. Fortunately, as discussed above, the plaintiff in MSM will be able to approach the judge in his or her Chambers to order the MEC to provide monetary payment to the victim for the services that they would no longer be able to receive at CMJAH. The damage at CMJAH will no doubt affect the appeal of Mashinini to the SCA, where the court may (depending on when the case is heard and how long it takes for the hospital to fully reopen) find that the MEC is unable to provide payment in kind and thus monetary damages is mandated.


It is critical that the law regulating claims against medical negligence is amended in order to prevent health department’s medicolegal debt from increasing even further. Faced by a slow legislative response, MECs have approached the courts to request them to develop the common law to allow for payments in kind and/or periodic payments of damages. The Constitutional Court has recently reaffirmed that the High Court has the power to do this, and some of these courts have indeed done found that the law should be developed to allow MECs to provide treatment at a public health establishment. However, until a proper plan is put in place to provide medical treatment for all ‘special patients’, MECs should only approach the court in cases where the quantum of medical expenses claimed is substantial.

Zeenat Emmamally
Legal Researcher

[i] Auditor-General South Africa Consolidated general report on national and provincial audit outcomes (31 March 2021), available here.

[ii] National Treasury Budget Review 2020 (26 February 2020) at page 58, available here.

[iii] Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) para 16.

[iv] Estelle Ellis “Toxic mess: Debt crisis leads to medical waste pile-up at Eastern Cape hospitals” (Maverick Citizen;8 March 2021), available here.

[v] State Liability Amendment Bill 816- 2018 (Government Gazette 41658 of 25 May 2018)

[vi] Ibid s 2A(2).

[vii] Parliamentary Monitoring Group Status of State Liability Amendment Bill (B16-2018), available here.

[viii] Parliamentary Communication ServicesMedia Statement: Justice Portfolio Committee Sends State Liability Amendment Bill Back to Department’ (26 January 2021), available here.

[ix] Ibid.

[x] See note iii.

[xi] Ibid 57-58.

[xii] MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government 2020 (2) SA 567 (GJ); and N P obo N E v Member for the Executive Council for Health of the Gauteng Provincial Government (22473/2012) [2019] ZAGPJHC 24 (7 February 2019).

[xiii] PN v Member of the Executive Council for Health of the Gauteng Division Government (217/2019) [2020] ZASCA 66 (17 June 2020).

[xiv] (CCT 124/20) [2021] ZACC 6 (1 April 2021) para 23 and 24.

[xv] Ibid para 27.

[xvi] 2020 (2) SA 567 (GJ) (18 December 2019).

[xvii] Mashinini v Member of the Executive Council for Health, Gauteng Province (1352/2017) [2021] ZAGPJHC 11 (25 January 2021).

[xviii] MSM (note xii) paras 208, and para 5 of the Order.

[xix] Mashinini v Member of the Executive Council for Health, Gauteng Province (1352/2017) [2021] ZAGPJHC 26 (11 March 2021)

[xx] MSM (note xii).

[xxi]  Actuarial Society of South Africa “Medical malpractice claims drain SA’s public health funding” (22 June 2021), available here.

[xxii] MSM (note xii) para 44.

[xxiii] Ibid para 55.

[xxiv] Masego Mafata “Charlotte Maxeke partly reopened but only for cancer outpatients” (GroundUp; 28 June 2021), available here.