Recent accusations from the National Health Minister that medical malpractice claims were skyrocketing as a result of personal injury lawyers taking advantage of the system is simply a way to divert attention away from a failing health system.
This is according to an attorney at DSC Attorneys, Johann Roux, who says that deteriorating conditions in state hospitals, as well as incompetence and gross negligence on the part of staff members, are at the root of these claims - the majority of which were ruled in favour of the plaintiffs.
“Assuming that the Department of Health and the office of the State Attorney do their work diligently when it comes to defending claims, no payments out of all the millions paid out (more than R73 million last year alone) would have been made in any of those individual cases if there had not been a medical expert who said that there was negligence on behalf of a State employee or employees.”
He continues: “It is not the attorney who ultimately answers the question as to whether or not there was negligent conduct.
"The escalation in claims is a result of an incompetent system being exposed. Blaming attorneys for bringing these acts of negligence to the fore is clearly a diversion tactic.”
The anticipated costs in respect of future medical expenses usually make up the bulk of the total amount awarded to a victim of medical negligence.
"It is a well-known fact that medical costs in the private sector have soared in recent years and attempts to curb this have proven futile, Roux explains.
“Medical service providers in private practice are lamenting the fact that these claim amounts have escalated in recent years and it is our experience that the escalation in claim amounts is directly related to the escalation in medical costs,” he says.
“If these costs (determined without restriction by their peers) seem exorbitantly high to those mostly affluent members of society, imagine the burden that middle- to lower-class people and medical aid schemes must feel.”
He continues: “Is it then so manifestly unfair to relieve this burden for the victim of medical negligence and transfer it to the offending doctor, hospital or state entity?
“We suggest that the answer is an emphatic ‘no’.”
The (shocking) reality in South Africa
The sharp rise in cases of medical negligence are disturbing with medical negligence claims against provincial Health Departments increasing by around 25% a year between 2011 and 2016.
A very high proportion of claims against state hospitals - upwards of 43%, according to a study by the Free Market Foundation - is for birth-related injuries such as brain damage, especially cerebral palsy.
A paediatrics professor at a leading medical school has stated that up to 50% of children with cerebral palsy in South Africa may have the condition because of avoidable birth complications.
How can one accept these statistics?
Similarly, Roux says that how can one make sense of individual cases like that of 5-year-old patient, who was admitted to hospital for burns on her hands but ended up having both legs amputated?
Or of 94 psychiatric patients losing their lives last year because of causes like head injuries, dehydration and diarrhoea after they were moved from a licensed home to unregistered facilities?
Or of a man who was admitted for heart surgery and instead lost a leg? Or of an 8-year-old child who suffered brain damage as a result of negligence?
But doesn’t malpractice litigation just add to the problems?
“It’s true that medical malpractice litigation adds to the financial burden faced by the South African Department of Health.
“However, especially where people’s health and lives are at stake, certain standards and boundaries have to exist and be enforced,” says Roux.
“Litigation is one way of doing this. It’s a way of adding accountability to the system and, when necessary, of saying ‘this is not acceptable’ - in a manner that will have an impact.”
He concludes: “The fact that our health-care system is already in trouble shouldn’t be used as a reason for South Africans not to stand up for their rights, including the right to competent, ethical medical treatment.”
For more information visit www.dsclaw.co.za
Van Vuuren is a PR Strategist/Wave-maker at Tin Can PR