Durban - Health Minister Aaron Motsoaledi has put a radical plan on the table to limit payouts to victims of medical malpractice.
Instead of lump sum payouts, for those who successfully sued the state, the minister wants them to be paid in instalments, which would cease on death, with no payments going to their families.
And rather than cash payment for future medical expenses, a claimant would instead have to use public health facilities.
The sweeping reforms, which would require changes to the law, have been proposed by Motsoaledi in an effort to put a cap on the spiralling medical negligence claims facing the state.
During the 2012/2013 financial year, the KZN Department of Health faced medical negligence claims totalling almost R1 billion (more than R992 million). This was R300 million more than the previous financial year.
There were 306 medical negligence claims in Gauteng, amounting to R1.286 billion while the Eastern Cape department faced lawsuits in excess of R875-million in the same financial year.
Motsoaledi called a workshop last month where MECs, heads of department and private sector representatives discussed the rising medical negligence claims against the department.
It was also recommended at the January 13 meeting that the collateral source rule be ammended.
The collateral source rule prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant.
Motsoaledi said the reforms would stop people from cashing in lump sums and using the money and later becoming a burden to the state when funds run out.
The minister wants to ensure individuals with injury insurance policies do not benefit from both a state payout and a private policy.
If a claimant had suffered because of medical negligence, then on awarding the claim, the court should consider the private insurance policy payout as part of the department payout.
But Ronald Bobroff, of personal injury law firm Ronald Bobroff & Seni, this week hit out at Motsoaledi’s proposal and said he should rather look within if he wanted to decrease medico-legal claims against his department.
Bobroff said the minister should focus on restoring good practice in his department, instead of “targeting” victims of medical negligence.
“The perspective one must have is what caused the problem in the first place. It is known that even government officials and their families do not go to public health care facilities. The answer to the problem doesn’t lie in penalising the victim, but in getting the public health facilities in order,” Bobroff said.
He said instead of paying claimants in instalments, the courts, on awarding a claim, can suggest setting up a trust whereby the dependants of the claimant, in the event that he or she dies, can still have a livelihood as opposed to stopping payment completely.
“If the department could spend half the money it pays out to claims on bettering the health facilities, we could see a reduction in the number of claims instituted against the department,” he said.
Bobroff criticised the running of state health facilities by people with no medical background.
“What do you expect when you have government health facilities run by people with no medical qualifications and background? In my view, government should seek to partner with the private health sector and take advantage of the expertise,” he said.
Barry McCulloch, of Berkowitz Cohen Wartski, and president of the KZN Association of Personal Injury Lawyers, said the health care profession should focus on raising its standards rather than limiting its liability to the detriment of the patient.
McCulloch said the public and private health sector would do well to involve claimants through patient representative bodies and the legal profession.
He said: “It is clear that the health sector is looking at taking a similar approach to that followed in RAF claims. The suggestion appears to be something of a hybrid between the manner in which RAF claims are dealt with currently. It would seem as if a claimant would be forced to seek treatment at a state health-care institution.”
He said a claimant should be entitled to seek treatment at private health-care institutions, where the standard of care is generally regarded as higher.
“It is a fallacious argument to assume or contend that a claimant, if s/he were to receive a lump sum to cover past and future medical treatment, would spend that money on other things,” McCulloch said.
Dr Chris Achers, chief executive of SA Private Practitioners’ Forum, supported Motsoaledi’s ideas, saying negligence claims were now unsustainable.
He said this year his insurance cover against lawsuits was R450 000.
Health Department spokesman Joe Maile said the department’s first step was to establish a task team to look into this matter in depth and make recommendations aimed at preventing not only the number of medico-legal claims, but also the extent of these claims in the health sector.
“The task team is still at work so we are unable to get into details at this stage. It’s safe to say indeed we convened an initial workshop which was attended by health officials and stakeholders,” Maile said.
Daily News