In my first brief, I considered that an urgent reform of the common law is needed to permit provincial health departments to provide payment in kind or make periodic monetary payments to victims of medical negligence in public health facilities. While the prevailing law, which only provides for immediately due lump sum payments, is partly to blame for the health departments’ medicolegal liability, the state’s litigation strategy and corruption by law firms and the State Attorney offices are also deserving of censure. This brief show that the state has repeatedly litigated in a negligent manner and wasted public funds, but finds that it is corruption in the State Attorney offices that has contributed to more than half of the health departments’ estimated R105.8 billion potential liability. [i] The brief then considers the measures that have been put in place to tackle these problems.
A Shoddy Approach To Litigation
In the course of defending claims of medical negligence, the State Attorney, which uses public funds to defend criminal and civil cases instituted against State officials, has often litigated recklessly and negligently, by failing to call crucial witnesses and subsequently losing the case,[ii] ignoring its own experts and legal teams’ recommendations on the amount to be offered as settlement,[iii] and denying liability for years before conceding that the state was responsible for the injuries caused.[iv] The negligence continues after litigation, with departments’ delays in paying damages after judgement having negative financial implications, since interest accumulates until payment is made.
Apart from irresponsibly wasting public funds, the state’s litigation strategy is actually life-endangering. In one case, the court noted that by denying liability for negligence that had resulted in a child developing cerebral palsy and drawing out litigation for years, the state had prevented the victim’s mother from accessing interim payment that could have been utilised to pay for urgent medical assistance.[v] By the time the Department conceded that it was, in fact, responsible, the child had died, leading the court to conclude that the death was preventable, or that at the very least, the state could have made the child reasonably comfortable by providing the required medical care. [vi]
In the 2020 Budget Review, Treasury conceded that some of the health departments’ potential liability was attributable to “weak capacity in provincial medico-legal teams”,[vii] and stated that the problem was being addressed by contracting external legal capacity and firms with medico-legal expertise.[viii]
Additionally, by adopting mediation strategies, provinces like Gauteng have settled medical negligence claims for damages at amounts lower than would have been the case if the matter had proceeded to court, thereby also saving on years of litigation costs.[ix] Between October 2019 and February 2020, thirteen cases had been mediated, saving the Gauteng health department R10 million.[x] Alternative dispute resolution mechanisms also benefit the victims of medical negligence, since the process is faster than litigation. In 2017, the South African Law Reform Commission found that 75% of medical malpractice claims took over five years to be finalised through litigation, with the longest case taking just over sixteen years.[xi] Recognising the value of mediation for both parties, the High Court Rules have been amended, making it compulsory for parties to consider mediation before commencing with any contemplated litigation.[xii]
Corruption And Collusion
In 2018, then-Health Minister Aaron Motsoaledi announced that the state had lost over R60 billion since 2013 on a scam involving corruption and collusion between State Attorneys and law firms in which State Attorneys would deliberately lose the case, or settle claims out of court and then receive a portion of the damages eventually paid out.[xiii] The corruption also involves claims for damages for alleged malpractice in procedures that had not been performed, claimants who had not been to any medical facility, duplications of claims with the victim’s name changed, or the same claims being filed in different courts in the province.[xiv]
To address this, President Ramaphosa authorised the Special Investigations Unit (SIU) to investigate maladministration in the Office of the State Attorney.[xv] Criminal cases have since been opened against various advocates, prominent attorneys, and the former head of the Mthatha State Attorney’s Office.[xvi]
Further, the State Attorney Amendment Act 13 of 2014, which came into effect on 7 February 2020, provides for the Minister of Justice and Correctional Services to appoint a Solicitor General, who must ‘exercise control, direction and supervision over all Offices of State Attorney’.[xvii] This position is currently filled by Mr Fhedzisani Pandelani who was appointed to act as a Solicitor General for a period of 24 months from 2 April 2020.
In a briefing earlier this year, the Solicitor General noted various policy areas within which the turnaround the Offices of the State Attorney have been planned.[xviii] Among the changes introduced is a replacement of the system of one office with branches with a new structure under which there will be thirteen heads of Offices of the State Attorney with the Solicitor General at the helm, in order to provide for better coordination. Further, the Solicitor General has developed policies on briefing protocols to ensure the fair allocation of briefs to legal practitioners; outsourcing legal work; and the standardisation of fees to prevent counsel from charging the state higher fees.[xix] It is too soon to predict whether these policies will be successful in eradicating wrongdoing in the Offices of the State Attorney, but the appointment of the Solicitor General is a step in the right direction.
Finally, health departments have begun the shift to an “e-health filing system”, rather than the manual patient filing system currently used.[xx] The theft or loss of files is common under the manual filing system, causing departments difficulties in defending medicolegal claims. It is also hoped that the e-health filing system will help to stem fraudulent claims. However, recently thirteen hospitals in the Eastern Cape been unable to access electronic patient files, after the health department failed to pay the software company.[xxi] This is alarming because in the meantime, doctors cannot access patients’ medical information, and fraudulent claims may prosper once again.
Conclusion
Over half of health departments’ potential medicolegal debt is due to negligent conduct and intentional wrongdoing in the Offices of the State Attorney. A range of measures have been adopted to address the issue- the increased use of alternative dispute resolution mechanisms, SIU investigations into collusion between law firms and Offices of the State Attorney, the appointment of a Solicitor General, and a move towards electronic filing systems. Along with a change in the law regulating medicolegal claims, these measures may save health departments billions of rands, and allow money to be used where it is most needed- to improve healthcare services and prevent medical malpractice from occurring in the first place.
Zeenat Emmamally
Legal Researcher
zeenat@hsf.org.za
[i] Auditor-General South Africa Consolidated general report on national and provincial audit outcomes (31 March 2021), available here.
[iii] Nompumelelo Mngomeni obo Endinakho Nqobile Zangwe v Member of the Executive Council for Health, Eastern Cape (1972/2014) ZAECMHC (20 June 2017) para [24].
[v] Ibid.
[vi] Ibid.
[viii] Ibid.
[x] Ibid.
[xi] South African Law Reform Commission “Issue paper 33: Project 141-medico-legal claims” (20 May 2017) at page 22.
[xii] Rule 41A of the Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa, as amended.
[xiv] Ibid.
[xv] Proc R33 of 2018, published in GG 42577 of 12 July 2019.
[xvii] Section 3A.
[xix] Business Day “EDITORIAL: Solicitor-general can save the state billions” (22 February 2021), available here.
[xx] Estelle Ellis “Fallout from decades of chaotic litigation poses new threat to the Eastern Cape Department of Health” (Daily Maverick; 28 March 2021), available here.
