Durban - The medical fraternity, which has seen a staggering rise in negligence claims at a cost of millions of rands, has mooted the establishment of a statutory body in an attempt to cut out “frivolous litigation” and hefty court costs.
Some experts have acknowledged that medical negligence claims are becoming “an industry” for some legal practitioners.
But the recommendation, which comes after a medico-legal summit earlier this year, has been rejected by a Durban attorney, and the Law Society of South Africa said while it was not against the idea in principle, it should allow complainants to still have legal representation and not shut the door on those who still wished to go to court.
At the March summit, Health Minister Aaron Motsoaledi launched a scathing attack on attorneys and some health practitioners and said litigation in the medical field had reached “crisis proportions”.
“Many of the highly litigating lawyers care less about the concept of patient safety. They are simply in hospitals because the platform from which they have been lining their pockets has now changed.”
He said the main categories for claims were obstetrics, gynaecology, neurosurgery and orthopaedics.
Wits University Professor Ames Dhai, writing in the South African journal of Bioethics and Law, suggested that a statutory body or council be set up to deal with claims.
Dhai said the idea of such a council was one of the recommendations that came out of the summit.
She said she believed that such a body would be a better way in which to determine fair compensation.
“It would also mean that the quantum claimed would be lower as the patient would not have to share the payout with the legal team.”
She said given the claims in the fields of obstetrics and others, it was not surprising that there were reports of doctors shying away from working in these disciplines.
“The reality is that practitioners will not specialise in certain disciplines resulting in skills shortages in these fields.”
While there were no statistics about the quantum of claims against government hospitals, quoting from medical insurer Medical Protection Society’s presentation at the summit, Dhai said the insurer had seen a significant rise in the quantum of claims in the private sector with the highest in 2008 being R14 million compared with R33m last year.
Durban attorney Michael Friedman, who specialises in medical negligence cases, particularly in government facilities, said: “The solution is not to set up another body to look at claims. State attorneys should concede liability swiftly in matters that have merit or fight if there is a defence.”
He said state attorneys often determined to fight “indefensible cases” which ran up huge legal costs and then accepted responsibility on the day the trial was due to start.
He also said that taking on contingency cases was the only way for poor or middle-class people to litigate.
“We can spend tens of thousands of rand on a case but then withdraw if we find that there is no negligence and causation.”
He questioned whether any action was taken by the Health Department against nurses or doctors found to be negligent.
The South African Medical Association’s vice-chairman, Mark Sonderup, said the association would support the establishment of the body if it limited the amount of “frivolous litigation”.
He said he agreed with Motsoaledi’s assertions that claims had become an “industry for some” and said the association had suggested that there should be a limit on claims and there should be more use of an ombudsman before litigation was embarked upon.
He also said there should be mandatory mediation before the matters went to court as often there was no real “case”.
Motsoaledi’s spokesman, Joe Maila, said the ministry had set up a team to look at all options including the establishment of such a council to bring down the number of claims.
“They are taking a holistic approach including looking at how the claims can be prevented.”
On the allegation that the claims were turning into a “cottage industry”, Friedman said the department needed to get “its house in order”.
“It is easy to hit out at attorneys who are helping indigent people. The question should be: Why are there so many cases?”
Meanwhile, KZN Health MEC Sibongiseni Dhlomo is expected to address the provincial legislature today on swift action the department has taken in dealing with medical negligence cases.
Dhlomo is to give an update on disciplinary cases and progress made in filling of senior posts.
The Mercury