Wednesday, August 17, 2022
HomeHealthIt could soon become a lot harder to sue your doctor

It could soon become a lot harder to sue your doctor

Law reforms proposed to cap soaring payouts that are bankrupting provincial health departments

Suing medical professionals would be more difficult under proposals by the SA Law Reform Commission aimed at putting the brakes on spiralling negligence claims.

“It is crucial to cut down on litigation that consumes time and money,” the commission says in a discussion paper. A period for public comments on the document closed on Monday.

The ministers of health and justice asked the commission to propose new laws because claims threaten to bankrupt provincial health departments.

Its proposals to cut costs and keep a lid on frivolous and abandoned claims include:

  • Compulsory mediation before litigation can be launched
  • A requirement that a certificate of merit from an accredited medical practitioner should accompany court papers
  • Independent dispute-resolution teams in each province to provide redress outside court
  • Compulsory budgeting for legal costs and compensation payments
  • The possibility of a cap on damages

The commission has also proposed that the way future loss of income is calculated should be changed so it is based on average national income or income in the area where the claimant lives.

IN NUMBERS

R1.76bn: The amount paid by health departments for medical negligence claims in 2020/21

60: The number of summonses the Western Cape health department receives a year

Senior state law adviser Ronel van Zyl, the lead investigator on the project at the commission, said this could end up reducing payouts to  wealthier claimants.

She described the increase in litigation as a “vicious cycle” that in some cases meant health departments faced claims adding up to more than their annual budget.

“What that means is that the affected provinces cannot fill posts; they can’t buy equipment. The more you spend paying out claims, the less you have to improve your services. It has just become untenable.”

Van Zyl said most claims were for babies born with cerebral palsy and other neurological disorders. “Most of these children need lifelong treatment. Some cases run into millions of rand,” she said.

Prof Ismail Bhorat, who chairs the SA Society of Obstetrics and Gynaecology expert opinion panel, said the trajectory of medico-legal litigation was unsustainable and had driven insurance premiums for practitioners in his field to more than R100,000 a month.

The private and public sectors have been severely impacted by the astronomical amounts paid out in cases where causation has been poorly established and cases often settled on eloquent legal argument rather than on true scientific causality.

Prof Ismail Bhorat

In its comments to the commission, Bhorat said his panel advocated a pre-mediation process to deal with trivial complaints and a peer review committee to adjudicate complaints and establish prima facie evidence. 

“This body should have statutory powers and, in the event pre-mediation fails, it should decide whether the complaint is frivolous orhas merit. If the committee finds no negligence, no further action should be instituted and the decision should be final.”

Bhorat said a medical tribunal or health court could be used as a last resort.

“The private and public sectors have been severely affected by the astronomical amounts paid out in cases where causation has been poorly established and cases often settled on eloquent legal argument rather than on true scientific causality,” he said.

David McQuoid-Mason, professor of law at the University of KZN, said there was no need for law reform, and mediation could solve many of the complaints lodged against medics.

Writing in the SA Medical Journal, McQuoid-Mason said: “During a mediation to negotiate a settlement, admissions and statements may be made without prejudice so that they cannot be used against the party making them.”

The Democratic Nursing Organisation of SA welcomed the law reform commission’s recommendation that more nurses are needed, saying staff shortages are often the root cause of legal claims.

–Sunday Times

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