SORTING OUT MEDICAL MALPRACTICE
This brief reviews the Minister of Health's comments on the Medical Malpractice Issues in the Health Sector and responses to such comments
Introduction
On 10 March, in a summit held on legal aspects of medicine in Centurion, the Minister of Health, Dr Aaron Motswaledi, stated that lawyers dealing in Medical Practice are “driven by this pocket-lining phenomenon”. The Minister went on to state that “lawyers leading the litigation against medical practitioners were not doing it for the love of patients”.
The reasons why the Minister has criticized lawyers dealing with medical malpractice
The Minister thinks that medical negligence lawyers are asking for too much in their medical claims. He said that the costs of indemnity insurance for private specialists in neurosurgery increased by 573% in the period 2005 – 2013. The costs of the insurance for obstetricians in private practice have increased by 382% within a similar period. The Minister went on to state that the following medical fields are being targeted for malpractice suits: obstetrics & gynaecology, neurosurgery, neonatology and orthopaedics. He stated that doctors are consequently reluctant to practice in these fields due to these fields being targeted. The Minister also said that the Road Accident Fund is another example of a fund which has been bankrupted by the legal profession with such “pocket-lining” behaviour.
Response to the Minister’s Statement
Not surprisingly, the Minister’s statements have sparked responses from the legal profession. The Law Society of South Africa (LSSA) said that the Minister cannot impose limitations on such rights to fair compensation for medical malpractice victims and the role of the lawyers in such claims. The LSSA further stated that the Minister cannot expect casualties of medical malpractice to have the requisite expertise to litigate on their own against the State. Such victims have a right to seek legal representation and to be fairly compensated for their losses.
The Medical Protection Society stated that its member’s annual subscriptions were high and would continue to increase as the number of the claims in medical negligence increased.
Further claims about malpractice
In a recent article published by City Press titled “Cash scandal hits healthcare” published on 16 March, the Minister was reported as saying that public hospitals were “tipping off lawyers” to possible malpractice suits in their own hospitals for a kickback. The Minister stated that there would be an investigation into the CEO’s of the suspected hospitals. Some hospital CEO’s were alleged to deliberately fail to apply appropriate health norms and standards in the hope that something would go wrong and open the potential for possible medical malpractice to occur. The article further stated that when this happens the CEO’s inform the lawyers of the matter, encouraging them to start litigation and provide them with all the necessary paperwork.
The Minister in a Sunday Times article titled “So Many Questions”, stated that besides the collusion between the medical negligence lawyers and the CEO’s of hospitals, he has cause to believe that there are State lawyers deliberately mishandling cases because they were paid to. The Minister went on to further state that claims against State hospitals could be divided into three categories namely, those for negligence, malpractice and what he called “adverse outcomes”. This last category is where something is done in good faith but the outcome is catastrophic [1] .
The Minister condemned such behaviour, stating that it is “not just unethical but a crime that should be punished”. The Chairperson of the South African Medical Association stated that she was unaware of such behaviour by hospital CEO’s. However, the Minister is intent on bringing the suspected CEO’s to book as there is an investigation under way into their conduct.
Amounts paid out in medical malpractice claims
The Gauteng Health Department (GDoH) has had to pay out R276 million in the past two years for 110 legal claims, the majority of which are medical negligence matters. The Department of Health was overdue in payments for the period of 2013/14. Jack Bloom, of the Democratic Alliance, notes that due to the Department’s poor handling of cases, it has lost every single negligence matter in the past four years.
R16.5 million was paid out in the case of Kutloano Ntsebeng Makgomarela. This case, according to reports, involved a child who was born brain damaged as a result of the action of the Thembisa Hospital Staff.
Malpractice occurs in private hospitals as well. The highest amount paid out for malpractice in South Africa was the amount of R25 million which was paid to Kerri Mel O’Loughlin. Her left brain was damaged as a result of many botched operations by the Life Bay View Private Hospital in Mossel Bay.
Reasons quoted by the Department of Health for the increasing number of claims include the “increased awareness of rights by patients, a worldwide trend, better litigation, a legal profession touting for clients in hospitals and a culture for unprofessional conduct”.
What about the patient?
The reasons expressed above are, no doubt, important and need to be looked at when considering the arguments made above. The problem then is, given that the legal and medical professions are under scrutiny, what happens to the patients? These are people with real problems, victims of botched procedures or mishaps that occur whilst they are in hospital someone needs to be held accountable for such mistakes. The above arguments do not take into account the patient’s interests, which in both the medical and legal profession is of the utmost importance.
Conclusion
Corrupt collusion at the expense of third parties is always illegal and should attract exemplary punishment when proved. Systems ought to be in place to detect aberrations to the maximum extent possible. We support the Minister of Health and his Cabinet colleagues when they genuinely work to stamp out corruption. However, the existence of corrupt practices should not be used as grounds either to limit the rights of patients who are in real need of help, or to browbeat lawyers in general.
Sources referred to:
1. A doctor can be held liable for malpractice if he failed to foresee the risks involved in a procedure or failed to mitigate harm to the extent possible if the procedure is carried out. On the other hand, if he foresaw the risks, explained them to a patient and mitigated harm to the extent possible, he would not be liable.
2. http://www.iol.co.za/news/crime-courts/medical-litigation-crisis-motsoaledi-1.1829277#.VQXanHyUdic
3.http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=1010847&sn=Detail&pid=71654
4. http://www.health24.com/Medical-schemes/News/Medical-negligence-Lawyers-slam-Motsoaledi-20150311
5. http://www.netwerk24.com/nuus/2015-03-11-prokureurs-fynkam-tot-hospitale-s-minister
6. http://www.news24.com/SouthAfrica/News/Cash-scandal-hits-healthcare-20150316
7. http://www.news24.com/SouthAfrica/News/Gauteng-pays-R276m-for-medical-negligence-20150302
8. http://www.news24.com/SouthAfrica/News/Gauteng-medical-negligence-claims-up-20150304
9. http://www.news24.com/SouthAfrica/News/R25m-awarded-in-medical-malpractice-suit-20130616
Arvitha Doodnath
Legal researcher
arvitha@hsf.org.za