Can private obstetric care be saved in South Africa?

• Author: P. Carstens,G. Howarth
• Published date: 01 November 2014
• DOI: 10.10520/EJC161552
• Date: 01 November 2014
• Pages: 69-73

ARTICLE

November 2014, Vol. 7, No. 2 SAJBL 69

The sustainability of private obstetric care will soon

be under threat. Claims ination leads to increasing

indemnity costs, which means that private obstetric

in demnity cover will probably be unaordable by

the end of the decade. This not only has serious consequences for

private obstetricians and private parturients of the future, but there

are also serious public health sequelae. As obstetrics is the vanguard

of the threat we are concentrating on private[1] obstetrics, but private

neurosurgery and spinal surgery face similar imminent threats.[1]

Invariably there is an unhappy story behind every case of litiga-

tion involving obstetric care where a child has been compromised.

As these children now often survive, and then live longer as a

result of sophisticated expensive care, obstetric claims are inevitably

extremely high value and run into millions of rands. While an indi-

vidual obstetrician may be at relatively low risk of having a claim of

the magnitude of an obstetric claim, the claim’s value can be so high

that a single individual could not afford to compensate a deserving

claimant. The financial risk has to be transferred to an insurer or

shared by a not-for-profit indemnifier.

Those accepting the financial risk of obstetric claims require

sufficient reserves to meet future administrative and claims costs.

Insurers are already avoiding the market and, as a result of claims

inflation, not-for-profit indemnifiers are becoming progressively

unaffordable as their subscription rates reflect actuarially calcu-

lated obstetric risk. Based on the claims inflation and subsequent

subscription inflation, there are concerns that indemnity for obstetric

risk will be unaffordable by the end of the decade.[2]

Obstetricians who are not indemnified would be poorly advised

to continue practising obstetrics. A single case would leave them

financially ruined, and a deserving patient would be inadequately

compensated. Additionally they may be precluded from practising by

regulation or by the private hospital where they deliver – it is unlikely

that private hospital groups would knowingly allow an obstetrician

who is not indemnified to deliver at their facility.

Patients will continue to fall pregnant and require delivery. If they

cannot deliver in private facilities, they will have to deliver in state

facilities. This will increase the workload of already heavily burdened

state facilities by an additional 10% nationally, but inevitably more

in the urban areas where private patients tend to reside, which

already act as referral centres for rural state patients. Not only

will the increased workload shift across to state facilities, but the

obstetric liability will move from private care to the state. Already

overburdened facilities will have to cope with patients who expect

private healthcare and the system will be placed under even more

stress – probably increasing the litigation burden on the state.[3]

Who are the potential losers here? Private patients are unlikely to

be endeared by the prospect of delivering in state facilities. Private

obstetricians’ income may fall. Already busy state facilities will be placed

under increased strain, and this burden will be disproportionately

placed on units that already accept referrals from urban areas. State

patients will be inconvenienced; their labour wards will become busier

with an influx of demanding patients. There is likely to be an increased

litigation burden that will further disadvantage state patients, as

the state does not budget independently for litigation and every

rand spent out of the health budget is a rand no longer available for

healthcare or to improve facilities. Private patients, private providers,

public patients, public providers, policymakers and politicians all have

a vested interest in resolving the problem.

Medical approaches

The intuitive response from the medical profession is to blame and

vilify lawyers. Lawyers will rightfully argue that obstetricians are

responsible for the predicament in which they nd themselves. There

is either a problem with the care oered by individual obstetricians, or

Can private obstetric care be saved in South Africa?

G Howarth,1 MB ChB, MMed (O&G), MPhil (Bioethics); P Carstens,2 BLC LLB, LLD

1

Head of Medical Services: Africa, Medical Protection Society, and part-time lecturer Steve Biko Centre for Bioethics, Faculty of Health Sciences,

University of the Witwatersrand, Johannesburg, South Africa

2

Associate member of the Pretoria Bar; Head of the Department of Public Law and Professor of Medical Law, University of Pretoria, South Africa

Corresponding author: G Howarth (graham.howarth@mps.org.uk)

This article examines the question of whether private obstetric care in South Africa (SA) can be saved in view of the escalation in medical

and legal costs brought about by a dramatic increase in medical negligence litigation. This question is assessed with reference to applicable

medical and legal approaches. The crux of the matter is essentially a question of aordability. From a medical perspective, it seems that

the English system (as articulated by the Royal College of Obstetricians and Gynaecologists) as well as American perspectives may be well

suited to the SA situation. Legal approaches are assessed in the context of the applicable medicolegal framework in SA, the present nature of

damages and compensation with reference to obstetric negligence liability, as well as alternative options (no-fault and capping of damages)

to the present system based on fault. It is argued, depending on constitutional considerations, that a system of damages caps for non-

economic damages seems to be the most appropriate and legally less invasive system in conjunction with the establishment of a state excess

insurance fund.

S Afr J BL 2014:7(2)69-73. DOI:10.7196/SAJBL.319