The South African healthcare system is facing a lawfare crisis as medical negligence claims spiral out of control, threatening not only the financial sustainability of the health budget but also the integrity of patient care.
What was once a critical legal tool for patients to seek justice has, in many cases, been co-opted by opportunistic and profit-driven lawyers, turning the health system into a battleground for profit.
In one case, a lawyer reportedly filed identical claims for nine children with cerebral palsy, even though the condition varies significantly from patient to patient. In another, a lawyer reportedly withheld R45m from clients who had won medical negligence cases against the state. In the Northern Cape, four elderly caregivers of injured children denied knowingly signing over power of attorney, yet their lawyers reportedly retained R169.4m on their behalf.
These are not isolated incidents.
Health minister Aaron Motsoaledi has highlighted these and other similar cases, warning that rampant fraud and abuse by some lawyers is eroding the health system's sustainability, ultimately harming those patients who have legitimate claims and leaving less money for the treatment of all patients.
The crisis stems from a confluence of factors.
One issue is the reliance on outdated, paper-based records, which are easily manipulated by a few colluding hospital staff working in cahoots with unscrupulous lawyers and courts that do not possess the specialist medical expertise to determine causes of injury. The proposal has been to use mediation in these cases to try to find a solution via alternate dispute resolution before using the courts, a solution which would better protect patient rights.
The rising wave of often spurious negligence claims now totals about R120bn — representing more than a third of the annual health budget. In response, some provinces are fighting back.
The trend of skyrocketing medico-legal claims started around 2016, when the Road Accident Fund (RAF) stopped using third-party lawyers for claimants, allowing individuals injured in accidents to file claims directly. As a result, many lawyers, whose income from RAF claims had dried up, turned their focus to medical negligence cases. In the Eastern Cape alone, the number of such claims increased by more than 1,000% in six years, from 46 cases in 2010 to 529 in 2016.
But not every claim is legitimate. Lawyers tend to focus on cases involving children with cerebral palsy, as these attract larger payouts as they are calculated on the lifetime cost of care. The younger and more injured the child, the more likely a claim is to be made.
While cerebral palsy can be caused by inadequate care during birth if a child is deprived of oxygen, in many instances, cerebral palsy can have other causes, such as complications during fetal development or disease after birth. It is estimated that fewer than 15% of cerebral palsy cases are caused during the birth process.
Yet, the legal system and judges are ill-equipped to make these nuanced medical determinations, and as a result, state hospitals continue to face mounting claims, often without merit. This growing wave of “lawfare”— the misuse of legal action — has profound consequences for the healthcare system.
Doctors are increasingly practising defensively, fearful of lawsuits, which in turn leads to higher costs and reduced access to care. Gynaecologists, for instance, are now paying well over R1m annually in insurance premiums, costs that are inevitably passed on to patients and medical aids. It is no surprise that South Africa has one of the highest rates of non-emergency C-sections globally, with nearly 70% of births in private hospitals delivered by this method. Doctors view this as a safer option, legally speaking, even when it may not be medically necessary.
While it is essential that South Africa addresses medical negligence challenges head-on, starting with more robust mediation processes to resolve disputes before they reach the courtroom, it must also prepare for newer and different forms of lawfare.
— Attorney David Erleigh
Efforts to contain this crisis have been slow. The State Liability Amendment Bill, which proposes structured, annual payments for claimants instead of lump sums, and which was introduced in 2018, was rejected by parliament. This approach would allow payments to be based on actual patient needs and would stop if the patient passes away, easing the burden on the health budget.
The South African Law Reform Commission investigated the issue and found that it should be compulsory for medical negligence claimants to make a bona fide attempt at mediation, even to address some, if not all issues, before instituting court proceedings.
The commission said if rejecting mediation and approaching the court, claimants and respondents such as doctors, hospitals or provincial health departments would then have to justify their failure to mediate. This compulsory requirement for an attempt at mediation before litigation would be a common-sense solution that could reduce the number of cases going to court.
In another example, surgeons supplying medical devices fall under the Consumer Protection Act (CPA), which encourages mediation before pursuing litigation. The CPA discourages consumers from heading to court without first attempting alternative dispute resolution. Should litigation proceed, court rules mandate that parties justify their decision to bypass mediation or explain their outright opposition to it.
Currently, every claim, many which of are invalid, heads directly to the courts, and the financial damage is extensive. Seven of the nine provincial health departments are now spending more on legal claims than on healthcare itself, an untenable situation.
The rise in medical negligence costs is unsustainable, pushing healthcare costs up year after year, well above inflation. This is a trend South Africa cannot afford.
And there is a new risk. Class action lawsuits could add another burden to the state, already collapsing under the weight of lawfare.
These also aim to obtain high payouts for a class of claimants, often represented by expert lawyers, and may target pharmaceutical companies, blaming drugs or medical implants for health problems — and suing for enormous amounts.
Such a phenomenon is common in the US, adding to the growing burden of legal costs and legal insurance and ultimately driving up health costs that all patients pay, as medical insurance premiums increase or doctors act more defensively as a result.
While it is essential that South Africa addresses medical negligence challenges head-on, starting with more robust mediation processes to resolve disputes before they reach the courtroom, it must also prepare for newer and different forms of lawfare. Failure to do so will break an already overstretched healthcare system.
In the end, the only winners in this broken system are the lawyers. The longer we delay reform, the more vulnerable our healthcare system becomes to collapse under the weight of rising legal costs and the less freedom doctors have to offer patients the care they need.
David Erleigh is an admitted attorney who has been practising in SA for 30 years.
For opinion and analysis consideration, e-mail Opinions@timeslive.co.za
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