Johannesburg - The Department of Health loses over R2 billion annually due to medical malpractice at the hands of its staff at hospitals in the country.
According to Gregory Whittaker from the Wits School of Statistics and Actuarial Science, almost 2 000 complaints are laid with the department due to medical negligence. That translates into lawsuits amounting to billions of rand.
In his presentation at the Actuarial Society of South Africa Annual Convention last year, titled “Medical malpractice in the South African public sector”, Whittaker indicated that contingency liabilities were about R100bn and were continuing to grow.
These cases include a 17-year-old who was pregnant when she lost her child in the Free State after waiting six hours for an ambulance at a local clinic, where she claims that the staff ignored her when she sought assistance. Her baby was in a breech position and needed urgent medical attention. She claimed that the clinic staff took time to assist her, resulting in a fatality.
Another case involves a newborn baby left brain damaged at a hospital in the Eastern Cape in 2018 when the hospital staff allegedly failed to monitor the mother and child during labour. The case was heard at the Mthatha High Court. However, the factual cause of the child’s brain damage could not be established.
The Eastern Cape was among the provinces with a high number of medical malpractice cases between 2021 and 2022. The region had 379 medical negligence cases, with Limpopo (277) and KwaZulu-Natal (204) rounding out the top three provinces.
Overall, the department had received at least 1322 medical malpractice claims potentially costing it R13 241 152 521.21 in the two years.
Paul du Plessis of Paul du Plessis Attorneys said some of the challenges lawyers face in a medical negligence case include establishing and proving that there was indeed malpractice involved.
“To be successful with a medical negligence claim, one needs to prove that the doctor or staff acted negligent(ly) and that the negligent act or omission resulted in severe damage and financial losses. It is, therefore, vital to prove that the damage suffered is causally related to the negligent act or omission. Establishing the causal link between negligent care and harm is more often than not complicated and needs to be evaluated and refined continuously,” said Du Plessis.
According to Du Plessis, the majority of medical malpractice claims involve children who sustained birth injuries such as cerebral palsy. These children often require frequent admissions to healthcare facilities, burdening the already crumbling healthcare system.
The law firm has been dealing with medical negligence for the past 15 years and has instituted at least 120 claims. And it has, in the past few years, seen an increase in medical malpractice claims. Du Plessis believes that various reasons are contributing to the increase in these claims.
“The public is more aware that they are in a position to claim compensation when they were negligently injured. Also, the low and inadequate service delivery in some healthcare facilities contributes on a large scale to the rising number of medical negligence cases reported.”
While du Plessis said he could not estimate the mortality rates as a result of medical negligence, based on his experience, infant deaths are much higher than any others in medical malpractice cases.
“Based on the enquiries we receive at our firm, most deaths associated with negligence occur in infants during labour or birth. We have a minority of cases where a breadwinner has passed away due to medical negligence,” he said.
The national Department of Health said the recourse for victims of medical malpractice is to claim damages through the courts, and compensation would be based on the severity of the injury. Moreover, the department said that when a healthcare worker is found guilty of negligence, the provincial health department in which the worker is stationed would be responsible for taking action against the employee.
“The provinces are held liable for the actions of their employees. This is a legal principle of vicarious liability. The medico-legal declaration provides the measures to be in place to minimise the medico-legal cases,” said the department’s spokesperson, Foster Mohale.
The breakdown of claims by province:
- Eastern Cape: 379 cases with a total cost of R4 542 556 761
- Free State: 52 cases with a total cost of R446 981 920
- Gauteng: 107 cases with a total cost of R974 802 814.21
- KwaZulu-Natal: 204 cases with a total cost of R1 885 019 875
- Limpopo: 277 cases with a total cost of R2 452 118 059
- Mpumalanga: 142 cases with a total cost of R1 427 477 670
- Northern Cape: 20 cases with a total cost of R326 816 465
- North West: 64 cases with a total cost of R379 378 957
- Western Cape: 77 cases with a total cost of R806 000 000