‘It's game over’ — Motsoaledi and SIU go after law firms submitting fraudulent medical negligence claims

It's game over for legal practitioners who have been submitting fraudulent medical negligence claims amounting to millions of rand out of “sheer greed”. They have been given two weeks to withdraw the claims before the Special Investigating Unit and the National Prosecuting Authority pounce on them.

The department of health and the Special Investigating Unit (SIU) have uncovered abuse and fraudulent medical negligence claims involving millions of rand by lawyers and law firms. In some cases, the so-called victims do not even exist.

Health minister Aaron Motsoaledi and SIU head advocate Andy Mothibi gave an update on investigations into medico-legal claims after a 2015 summit found a drastic increase in medical negligence claims.

It was found that several claims did not make sense and were fraudulent, and in some cases, the so-called prejudiced patient did not suffer any of the claimed medical negligence while other patients were not aware that a claim had been put forward in their name.

“Just as an example, a claim was submitted in which the claimant demanded R70m for a supposedly botched circumcision by a doctor in a hospital in Limpopo. On investigation of this claim, it was found out that no such circumcision was ever performed. It was found that the patient was actually treated for a very serious genital infection. The hospital actually saved his life,” Motsoaledi explained.

In 2022, the SIU obtained a proclamation from President Cyril Ramaphosa to investigate such fraudulent claims after it was found in 2017 that Gauteng and the Eastern Cape had the highest share of claims.

At the time, the Eastern Cape province sat with R15.9bn medico-legal claims and Gauteng’s claims totalled R21.2bn. These are the amounts the province’s health department would have paid had the court ruled in favour of the litigants.

The SIU’s investigations found that medical negligence claims targeted cerebral palsy, a condition caused when an infant suffers a type of brain damage due to lack of oxygen during the birth process.

However, while the condition is unfortunate, legal practitioners abused this for “sheer greed” as the SIU found that some of the claims were made on behalf of patients without their knowledge or without having such a condition, said Motsoaledi.

In other shocking cases, legal practitioners were found posing as social workers to target elderly people who took care of grandchildren by tricking them to sign power of attorney to sue. The elderly people were given the impression they were signing Sassa forms for child support grants.

One of the firms that has since been charged in court is Johannesburg-based Nonxuba Attorneys Incorporated which led most of the medico-legal claims in the Eastern Cape.

In a period of five years, between 2012 and 2017, the firm submitted 44 medical negligence claims amounting to R497m against the Eastern Cape department of health — most of which were for children supposedly born with cerebral palsy, said Motsoaledi.

Motsoaledi said it was found that claims submitted by Nonxuba on behalf of nine children were identical with R15m demanded for each claim despite there being different severities of brain damage.

“This was clearly suspicious and also indicated a lot of cut-and-paste on the part of this legal firm. Between 2010 and 2016, medico-legal claims increased from 46 to 529 in the Mthatha high court alone. There is evidence of collusion between attorneys, touts, nurses and doctors in both the public and private health care. In some instances, nurses stole the medical records and illegally handed them over to attorneys.”

This meant that once the claim is heard in court, the court would rule in favour of the claimant as there was no evidence to dispute the case as the file was missing. The lawyer would then claim fees from the department for failing to provide such records.

Claims highest in KZN, Gauteng and Eastern Cape

After the proclamation, the SIU briefed the health department on July 29 on the progress of their investigations, and found that three provinces, Gauteng, KwaZulu-Natal and Eastern Cape, had the highest number of claims.

KwaZulu-Natal had the highest number of finalised investigations, with 107 matters valued at R2.416bn completed and found to be fraudulent.

“Out of the 107 matters finalised, 76 relate to instances where the claimants are actually deceased and the value is R1.7bn. This money has been removed from the contingent liability. One attorney was found to have submitted a claim to the value of R16m after the death of a child. Significantly in court, the lawyer was claiming for future medical care based on private hospital rates and loss of amenities of life. This one will be referred for criminal prosecution.”

The SIU has made four referrals to the NPA and three to the Legal Practice Council against the attorney and private individuals who were found in possession of stolen medical records.

Gauteng is sitting with 2,450 medico-legal claims with 611 under investigation, valued at R4.175bn. Fifty-eight cases have been finalised and have so far saved the province’s health department R66m.

Again, cases of deceased patients were uncovered in the province as out of the 40 matters involving claims submitted to the value of R496m, 19 of them were on behalf of deceased children. Two of the 40 are people who are employed while the lawyer claimed for loss of income. 

“One child actually had no cerebral palsy whereas the claim was for this condition. Nine claimants’ attorneys withdrew when they realised that the SIU was investigating. The value of their claim was R149m. One case was struck off the roll and one patient denied having instituted a claim.”

In the Eastern Cape, SIU investigations found that out of 23 letters of demand, where R298m was demanded, 15 of them — amounting to R271.8m — were fraudulent as the claimants told the SIU they never visited any of the health facilities accused of medical negligence.

All of these letters were submitted by one law firm which could not be named as it had not yet been charged in court.

“There are 35 additional matters valued at about R600m, currently under investigation, initiated by Nonxuba Attorneys Inc in which no trusts were registered as per the court orders.”

In total, the SIU completed investigations to the sum of R3.1bn from various health departments with this value expected to increase as the probes continue.

Motsoaledi has given legal practitioners who have put forward medico-legal claims the opportunity to withdraw them before they face the SIU.

“We wish to take this opportunity to make an offer to lawyers, who might have knowingly submitted claims that are fraudulent, to withdraw them within two weeks and there will be no consequences. Failure to withdraw within two weeks would mean that the offer will have lapsed and the SIU will strike. Any employer found to be in collusion, the SIU will make sure they are charged and go to the National Prosecuting Authority. The game is over — come and withdraw,” he said.

The affected legal practitioners were referred to the Legal Practice Council (LPC) for misconduct and the Legal Practitioners Fidelity Fund (LPFF) to consider reimbursing claimants whose funds were embezzled by their legal representatives.

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