Is South Africa on the verge of a medical malpractice litigation storm?

• Date: 01 June 2011
• Author: Michael S. Pepper,M. Nothling Slabbert
• Pages: 29-35
• DOI: 10.10520/EJC64524
• Published date: 01 June 2011

Until recently, South Africa appeared to have been spared the rap-

idly escalating global trend towards increasing litigation for medi-

cal malpractice. Recent data, however, indicate that the country

may be on the verge of a medical malpractice litigation ‘storm’, as

the number and size of claims appear to be increasing rapidly. This

is occurring in both the public and the private sectors. As an exam-

ple it is worth noting in the public sector that apparently, according

to its annual report, the Gauteng Department of Health and Social

Development faced malpractice claims totalling R573 million in

2009 - 2010.1 The Department ascribes this to an increase in the

size of the claims rather than their number. The largest payouts

have been in obstetrics and gynaecology and orthopaedic surgery.

Given that the Department has a xed annual budget, claims of

this size will inevitably reduce the quality of care in an already

resource-strapped setting.

A healthy tension between the legal and medical professions

probably serves to improve the quality of care and helps to re-

inforce and possibly dene standards of care that are evidence-

based.2 Patients have legitimate claims that need to be addressed.

The question arises, however, whether the system is open to

abuse, particularly when it comes to determining quantum in the

assessment of damages.

Medical malpractice litigation in

South Africa

There has been a very signicant increase in both the size and

frequency of claims in South Africa over recent years.

1. According to information provided by the Medical Protec-

tion Society (MPS):3 (i) it is currently assisting more than

895 members in South Africa who have ongoing negli-

gence claims, while there are more than 1 000 open les

that are potential claims awaiting assessment; (ii) of the

outstanding claims, almost 1 in 5 is in excess of R1 million

– this represents an increase of nearly 550% compared

with 10 years ago; and (iii) the number of claims over R5

million has increased by 900% in the past 5 years, with

several topping the R30 million mark.

2. According to the Health Professions Council of South Af-

rica (HPCSA), between April 2008 and March 2009 about

90 doctors in South Africa were found to be guilty of un-

professional conduct, including cases of insufcient care,

refusing to treat patients, misdiagnosis, practising outside

of scope of competence, overcharging or charging for ser-

vices not rendered.4

3. Statistics from the HPCSA also show that 44 doctors have

been struck from the roll since 2005 due to unethical and

unprofessional conduct.4

There is little doubt that South Africa is experiencing a drama-

tic increase in the number of claims made for medical negligence.

Most claims relate to obstetrics and gynaecology and orthopaedic

surgery, although others such as cosmetic surgery, which are less

frequent, are potentially the most expensive. Although the form of

fault for which medical malpractice liability may be incurred will

usually be negligence, it may in certain circumstances take the

form of intention.5 Malpractice liability may also include a range of

other causes such as liability for breach of contract (e.g. in failing

to perform an operation agreed upon) or liability for invasion of

privacy by unwarranted disclosure of the patient’s medical details

to outsiders.

South Africa is witnessing a sharp increase in medical malpractice litigation as patients increasingly become aware of their rights in

a setting of an overburdened health system with limited resources. Legitimate claims need to be compensated. However, the conse-

quences of increased litigation are: (i) a further reduction in the state’s ability to nance health care as a result of large payouts; and (ii)

a continuing increase in malpractice premiums in the private sector. A healthy tension between the medical and legal professions should

lead to an overall improvement in quality of health care, but consideration will need to be given to issues such as specialist courts,

alternative means of resolution, claim quantum determination and capping. Although these issues will technically not minimise the risk

of negligence, they may assist in tempering the increasing litigation spiral. Adequate allocation of funding by the state will reduce the

risk of claims against the state that result from inadequate human and other resources; this is an important political/policy debate that

speaks indirectly to the litigation issue. The recent implementation of the Consumer Protection Act will increasingly place additional and

direct responsibility on health professionals for claims made by patients for which they may be directly or indirectly held responsible.

Is South Africa on the verge of a medical malpractice litigation

storm?

Michael S Pepper, MB ChB, PhD, MD

Unit for Advanced Studies and Department of Immunology, Faculty of Health Sciences, University of Pretoria, and Department of Genetic

Medicine and Development, University Medical Centre, Geneva, Switzerland

M Nöthling Slabbert, BA, BA (Hons), MA, DLitt, LLB, LLD

Department of Jurisprudence, University of South Africa

Article

29 June 2011, Vol. 4, No. 1 SAJBL