Durban - As a form of settlement, cash-strapped health departments are opting to provide physical items or medical services to patients (golden tickets), who are successful with medical negligence claims in court.
Instead of handing lump sum cash payouts to successful claimants, some health departments are offering “golden tickets”.
A golden ticket entitles the holder to preferential medical treatment for all future visits to public hospitals, subject to certain conditions.
But experts are sceptical over whether health departments would honour such court-endorsed promises to golden ticket holders, given the perilous state of country’s health care system.
Some suspect departments will use golden ticket compensation as a means to get out of honouring their full liability obligations to patients, who suffered medical injuries at their hospitals.
The viability of golden tickets gained more traction after a Constitutional Court sitting, earlier this month, ruled that lower courts can consider them as a form of compensation, if health departments provide evidence they are able to honour their promises.
The Constitutional Court decision related to a mother who claimed R32 million in damages after a birth injury in a Joburg hospital left her child with cerebral palsy.
She raised her claim at the Gauteng High Court and was successful.
With regards to compensation, the Gauteng MEC for health offered medical services, which the judge accepted.
The dissatisfied mother approached the Supreme Court of Appeal (SCA), and the ruling was in favour of the parent.
It ordered that compensation for the damages must be a lump sum payout.
When the Gauteng MEC took the matter to the Constitutional Court, the health MECs for KZN, Northern Cape and Eastern Cape applied to join the matter as interested parties.
Their respective applications were granted.
Professor Alex van den Heever, chairman, social security systems administration and management studies at Wits University’s school of governance, and former health economist, believes golden tickets are akin to transferring poor performance to poor households.
“The question is whether provincial departments can provide the required level of service equivalent to the private sector.
“Presently my view is that they can’t. There is evidence which strongly indicates they can’t.”
Van den Heever said in the recent Constitutional Court matter, submissions that huge medical negligence payouts were made each year was “false” and “nonsense”.
“The amount of claims paid out each year averages just over 1% of a province’s health budget each year, which is relatively mild.
“What was emphasised in court were contingent liability. Those claims are linked to cases that has to be still determined by courts.”
He claimed that the information put before the court was a “massive misrepresentation of the issue and a falsification of evidence.”
Van den Heever said claims in the last ten years that were yet to be resolved by the courts was raised.
“Some of those matters can be thrown out.
“My view is that these departments are asking for their incompetence to be rewarded instead of paying the financial compensation that would genuinely mitigate the harm they have done to poor families
“These are poor families, dependent on the public sector for health services.”
Van den Heever said if you took someone with a cerebral palsy case, the child would need care for the rest of their lives, in an income compromised family. “There are no guarantees the department will provide the services effectively and efficiently all the time.
“That will amount to an already poor person going to court multiple times to get the court’s decision enforced.
“What happens to the patient’s health in the meantime. What if the patient moved to another province, will the golden ticket still stand?
“Therefore, it makes no sense to transfer government’s incompetence onto a poor household,” he reasoned.
Professor Donrich Willem Thalder, a health law expert at the University of KZN’s School of Law, said golden tickets won’t solve medical negligence problems, it will only address the symptoms, it won’t address the underlying causes.
“There are many reasons why there were so many claims but the only solution was for the national and provincial health departments to do introspection and produce a proactive plan to build a culture of accountability.”
He said there was no consequences for those who were negligent.
Thalder said the department’s HR practitioners needed to produce policies that would hold doctors and nurses accountable for their actions.
“We only have to look at the hospitals and see the level of negligence. It is shocking and horrifying.
“One may say that society is getting more litigious but a lawyer can't conjure a case. Often they work on contingency. So they only take genuine cases
“If people are more litigious, that is good. It means people know their rights.
“I think a certain portion of claims could be paid in lump sums for emotional damage etc. Treatment should be done with tickets and they should be made transferable to other provinces.”
The National Department is forging ahead with its National Health Insurance plans, golden tickets could be linked to it. If the NHI does become a reality, a golden ticket would be very useful.
Ntokozo Maphisa, spokesperson for the KZN department of health, said: “As part of our ongoing efforts to reduce our medico-legal bill, we have come up with a strategy that not only entails improving the level of clinical care, but also equipping a number of centres of excellence with enough capacity to attend to the healthcare needs of children who are born with cerebral palsy and other ailments.
“Because we will be able to prove that we can provide continuous care for these children, we are confident this will reduce our litigation bill.
“For now, these facilities will be located at Pietermaritzburg Assessment Therapy Centre, Phoenix Assessment Therapy Centre, Grey’s Hospital, King Edward VIII Hospital, KZN Children’s Hospital, Ngwelezane Hospital and Queen Nandi Regional Hospital.
“These centres offer the following services, among others: occupational therapists, physiotherapists, audio therapists, speech therapists, and dentists.
“This is assisting a great deal in reducing the costs awarded against the department, in relation to future medical expenses. More details will be shared with the public in due course regarding this.”