An article stated that  “South Africa is witnessing a sharp increase in medical malpractice litigation as patients increasingly become aware of their rights in a setting of an overburdened health system with limited resources.” This view is contrary to the view helped by the 19th century. In the early nineteenth century, it was an indeed unusual act for patients to sue their doctors in a court of law. Doctors are considered to be visible gods who can renew the life of persons who are languishing from diseases, injuries, and defects. They are trustworthy people. A patient who consults a doctor will presume that he is skillful and competent to heal his disease. The practice of medicine is capable of rendering noble service to humanity provided due care, sincerity, efficiency and professional skill are observed by the doctors”.

In the famous Bolam’s case, English law states that a doctor is not liable for negligence in a medical claim when he acted in accordance with a practice accepted as proper by a responsible body of medical men, skilled in the particular art. The United States based the relationship between doctor and patient on the doctrine of informed consent. Thus, a patient must be given all the required information regarding the nature of the treatment, the risks involved and the feasible alternative, so as to enable him or her to make a rational and intelligent choice about whether to proceed with treatment or surgery or not.

However, if the informed consent of the patient concerned is not obtained, the doctors will be liable. Today, the doctor-patient relationship has given rise to the question in relation to the protection of the patient which has become highly significant in the medical profession. This article will discuss the related damages, causes, consequences, and reform options of excessive litigation in South Africa for Medical Malpractice.

The related damages of Excessive Litigation in South Africa for Medical Malpractice.

At the Medico-Legal Summit held at St. Georges Hotel, Pretoria, Dr. Motsoaledi, publicly acknowledged the existence of medical malpractice. South Africa does not make provisions for its citizenry in regard to compensation for any harm which occurs as a result of medical malpractice. To be compensated, there is a need for legitimate claims. This implies that the victims that suffer any harm must institute a common law delictual or contractual claims in a civil court in an attempt to obtain compensation. Consequentially, all elements of liability must be proved on a balance of probability as they are not assisted by a reversal of the burden of proof. The victims decide to either file the claim against that person that is responsible for their harm or hold that person’s employer vicariously liable. 

According to an article published in StatPearls, “…each year, approximately 400,000 hospitalized patients are reported to experience some form of preventable harm at the hands of a care provider.” As reinstated earlier, South Africa does not have a statutory compensation scheme for harm arising from medical malpractice. This implies that the constitution of South Africa makes no provisions for victims that suffer harm as a result of medical malpractice to be compensated.

Ms. Mahlangu, the MEC (Member of Executive Council ) for Health, during her tenure confirmed that there are about 2,000 pending court cases against the Gauteng Provincial Health Department and the total quantum that was claimed amounted to approximately ZAR 3.5 billion. However, because of such a lack of provision, medical malpractice is on the increase. Moreover, in an attempt to cause harm to the culprits, the victims may “institute delictual proceedings against the employer of the person who caused their harm in a culpable and wrongful manner”. Likewise, this action taken by the victim could question or utterly destroy the plaintiff’s personality or character as to whether or not the plaintiff “faces particular challenges as far as proof of factual causation and negligence is concerned.” However, there has been a significant increase in medical malpractice litigation in the last decade.

Consequences of Excessive Litigation in South Africa for Medical Malpractice

In an article written by M. Pepper and M. Slabbert, the consequences of increased litigation are –

• A reduction in the state’s ability to finance health care as a result of large payouts; for instance, in 2013/14, the Gauteng Provincial Health Department spent about ZAR 256 million on legal costs payable to claimants’ attorneys, and due to lack of budget for those expenses, payments were made from funds designated for the acquisition of medical equipment and other purposes.
• An increase in malpractice premiums in the private sector.
• An increase in medico-legal claims causes insurance premiums for healthcare professionals to become exorbitantly expensive, whereby some practitioners leave their medical profession. This is due to the fact that the funds meant to renew old equipment and upgrade to modern equipment are used to pay the fees of claimants’ attorneys, and the health department’s ability to upgrade their equipment is undermined. This will result in further claims. For instance, an article submitted that the Medical Protection Society confirmed an increase in medical malpractice claims against their members of nearly 550% compared to 10 years ago. Likewise, the quantum of claims that exceeded ZAR 5 million per claim, also increased by 900%. Consequently, practitioners act more defensively in applying their trade, which results in additional and sometimes unnecessary tests that increase the costs of medical care thereby causing further grounds for the institution of claims.

In research conducted in relation to the increase in the claim of medical negligence, it was recorded that medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practicing defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. Medical negligence claims are instituted for a number of reasons, such as lack of communication between doctor and patient.

Birth-related claims are instituted most frequently. Pienaar further submits that “the contribution considers a decline in the level of professionalism amongst medical practitioners as one reason behind the increase, followed by the possibility that lawyers may be responsible for the increase in claims, and focuses on patient-centered legislation and pronouncements by courts that bolster patient autonomy and place patients in an ever stronger position to enforce their rights.” Furthermore, due to the sharp increase in medical malpractice litigation which has greatly affected healthcare providers, there have been adverse consequences in medical interventions in that “not only has there been an increase in the frequency of claims, but the amounts that have been awarded have also risen significantly.”

Reform Options for Excessive Litigation in South Africa for Medical Malpractice

Some reform options include – Alternative Dispute Resolution, and a healthy relationship between medical and legal practitioners which will lead to an improvement in the quality of health care, moreover, consideration needs to be given to issues such as specialist courts, claim quantum determination, and capping. M. Pepper and M. Slabbert submitted that “…Although these issues will technically not minimize the risk of negligence, they may assist in tempering the increasing litigation spiral. Adequate allocation of funding by the state will reduce the risk of claims against the state that result from inadequate human and other resources; this is an important political/policy debate that speaks indirectly to the litigation issue.”

Moreover, an article submitted that “…a victim of medical negligence who intends to sue an erring health care provider has the following options:

• Compensatory action: Seeking monetary compensation before the Civil Courts, High Court, or the Consumer Dispute Redressal Forum under the Constitutional Law, Law of Torts, Law of Contract, and the Consumer Protection Act.
• Punitive action: Filing a criminal complaint against the doctor under the Penal Code.
• Disciplinary action: Moving professional bodies like the Medical Council/State Medical Council seeking disciplinary action against the health care provider concerned.
• Recommendatory action: Lodging a complaint before the National/State Human Rights Commission seeking compensation.

Conclusion

This article has carefully noted that “…the inter-relationship between Medicine and Law is most commonly brought to the fore by cases involving medical negligence”. Besides, the relationship needs to protect all parties concerned based on the probability of reasonableness in terms of who performs the act as well as the patient affected by the act in question. Thus, this article reports the related damages, consequences, and reform options of the increased litigation in respect of medical malpractice. This article detailed that in South Africa, there has been an increase in litigations regarding medical malpractice. In addition, this article notes the effects of litigations on medical malpractice.

However, it is pertinent to note that legitimate claims need to be compensated thus, “…recent implementation of the Consumer Protection Act will increasingly place additional and direct responsibility on health professionals for claims made by patients for which they may be directly or indirectly held responsible. This article further considered that the use of alternative dispute resolution procedures in the context of medical malpractice and the regulation of the medical health profession by the Health Professions Council of South Africa is a reform option. Lastly, attention is given to certain proposals for reform of the law relating to the compensation of harm arising from medical malpractice.