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.
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 –
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.
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.