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High cost of medical negligence

By Chelsea Pieterse

Medical negligence claims in KwaZulu-Natal have skyrocketed in the last eight years.

Pietermaritzburg – Medical negligence claims in KwaZulu-Natal have skyrocketed in the last eight years.

With over R5 billion in pending claims in KZN, the province has seen the number of cases rise from 50 in 2008 (more than R3 million in claims), to over 350 in 2015.

This startling increase leads to questions being asked as to the reasons behind the cases and why the number has risen so dramatically since 2008.

A confidential document titled “Medical Malpractice Litigation, a perspective and strategy to deal with the rising Medico-Legal Claims in the Department of Health, KZN”, leaked to The Witness, shows that the highest number of claims come from obstetrics and gynaecology, with the second highest number of claims from paediatrics.

A KZN Health Department senior official, who could not be named, said the specialities such as obstetrics and gynaecology often saw fewer doctors wanting to train in these areas as it was considered a “high risk” for malpractice claims.

“A lot of claims have to do with the quality of care, attitudes and unavailability of medicines and when it comes to children people will not back down,” said the source.

The document leaked to The Witness was presented at a meeting at Albert Luthuli Hospital, held in February this year to discuss forming a task team to deal with the litigation matter and to look at the “factors contributing to the high litigation costs”.

It said every claim brought to court by a successful claimant resulted in added legal costs to the claim, increasing the amount the state had to pay.

“The fact that the plaintiff has to prove one percent liability, leads to the department having to concede liability. Once this happens, the quantum amount escalates and this increases the cost of litigation even more.”

The document went on to say that “poor clinical governance” made room for errors where there were no consequences.

“Lost patient records are a serious challenge. The occurrence usually happens where an adverse incident took place. The records for such patients tend to ‘disappear’ and when a claim is made the department has nothing to rely on for its defence.”

It added that some of the cases were “very old” and cases involving children could not be closed, and the claim amount was carried through over the years.

The source said the department also believed the reasons behind the astronomical claims were that lawyers had “scouts operating in the hospitals”, encouraging people to claim medical negligence.

“Patients now also have rights to their medical notes and lawyers do go through these to find areas where they can sue.”

However, UKZN law lecturer James Linscott said attorneys could not create an “industry of claims” as the department would like to believe.

“In law, a litigant will have a claim only if a person has a cause of action. This is not something an attorney can manufacture,” said Linscott.

“An ethical and competent attorney would never advise a client to institute a civil claim, with all its attendant cost and stress, in circumstances where the prospects of success were slim or non-existent.”

Linscott said the high number of claims in the province should rather be attributed to the “worryingly low levels of professional skill and care in our public hospitals”.

“If the Minister of Health wishes to reduce the number of medical negligence claims, he should go to the root of the problem and address the underlying reasons for the extent of civil litigation on this issue. The persons bringing claims for harm suffered at the hands of health professionals in public hospitals and medical facilities are among the poorest members of our society, and they have the right to be compensated fairly for the losses they have suffered,” said Linscott.

“It is unethical and unprofessional for an attorney to tout for business, as such activity detracts from the dignity of the legal profession.

“If an attorney engages in touting, they can be reported to the law society for unethical/unprofessional conduct,” said Linscott.

Durban Friedman andamp; Associates attorney Michael Friedman, who has settled a number of medico legal cases over the years, said the public were becoming more aware of their rights.

“In most of the cases we have handled, the mothers are neglected in the labour ward by nurses, complications are not considered serious and invariably problems occur,” said Friedman.

“It appears the department’s staff are not adequately trained as appears time and time again in each and every case that comes before the court.

“The claims are not ‘getting bigger’, but are becoming more sophisticated as experts deal in-depth with each patient’s needs and requirements.”

Linscott said with civil courts becoming clogged with medical litigation, it meant justice was being delayed for claimants.

“The department is being endlessly embroiled in time-consuming and expensive litigation, and it may be desirable for these claims to be processed and adjudicated using a separate, streamlined process.”

Linscott said evidence would need to establish that such a separate adjudicative process was necessary, cost-effective and in the public interest.

“A separate process should not be established simply to allow the state to avoid paying compensation to litigants deserving of it in terms of the applicable common law principles. In any event, a separate adjudicative process would not make the underlying problems of low levels of professional skill and care in our public health system go away.”

In order to place a medical negligence claim against the state, Linscott said the court would need to determine whether or not the health professional in question acted negligently.

“As health professionals are experts, their conduct will be judged on the expert standard.

“In other words, the court will need to ask itself if the health professional acted as a reasonable health professional would have done in the circumstances.

“The court will be especially focused on whether the health professional had the requisite knowledge and skill to perform the procedure in question, and whether they demonstrated the requisite diligence and care in doing so.”

A South African Medical Association senior official, who could not be named, said the state would protect itself in a medical litigation, but had no duty to protect the health professional.

“The state protects itself but the practitioner is often hung out to dry,” said the official.

“Many medical practitioners pay malpractice insurance.”

The official said that the increase in claims could be linked to the increase in awareness surrounding medical negligence.

The official said some associations encouraged people to complain when it was not their role to do so.

• Obstetrics and Gynaecology: 526 claims costing R4 043 668 660,00

• Paediatrics: 181 claims costing R750 995 382,00

• Surgery: 135 claims costing R279 725 752,53

Orthopaedics: 54 claims costing R156 129 351,00

• General (non-medical errors ranging from maintenance, security and operational issues): 26 claims costing R23 027 194,53

• Incorrect medication: 12 claims costing R23 589 200,00

•Neurology: 9 claims costing R23 582 000,00

• Misdiagnosis: 8 claims costing R29 282 000,00

• Ophthalmology: 7 claims costing R33 400 000,00

• Oncology: 5 claims costing R24 000 000,00

• Urology: 4 claims costing R23 321 200,00

• Anaesthetics and Cardiology: 3 claims each costing R22 591 111,62

• Dental: 2 claims costing R3 928 280,00

• Radiology and Physiotherapy: 2 claims each costing R265 000,00