Medical negligence claims against provincial Health Departments has increased by about 25% per year between 2011 and 2016, according to Managing Director at DSC Attorneys, Kirstie Haslam.

According to Haslam, the Gauteng Department of Health (GDoH) receives a particularly staggering number of negligence claims each year. Since January 2015, the GDoH has been forced to pay out more than R1.017 billion to settle 185 medical negligence claims.

Deteriorating conditions in state hospitals, as well as incompetence and gross negligence on the part of staff members, are at the root of these claims – the vast majority of which were ruled in favour of the plaintiffs, says Haslam.

Obstetrics and gynaecology crisis

Medical malpractice litigation claims in the obstetrics and gynaecology fields have increased dramatically over the past few years, particularly those involving babies born with brain damage, says Haslam. Haslam cited an incident in KwaZulu-Natal (KZN) where medical staff at a public hospital failed to perform an emergency C-Section, despite significant evidence that this was required. This led to oxygen starvation of the baby, who suffered physical and mental impairment. The plaintiffs received R12.9 million in damages from the KZN Department of Health.

According to news reports, the increasing number of lawsuits brought against health professionals could result in a shortage of specialists if the escalating costs are not curbed. During a medico-legal summit in 2015, Health Minister Dr Aaron Motsoaledi warned of the crisis, saying it was not only in the public sector but also in the private sector. The Health Minister was quoted saying: “More and more doctors are avoiding gynaecology and obstetrics due to the high rate of claims being brought forward.” According to Dr Motsoaledi, gynaecology, neonatology, neurosurgery and orthopaedics are increasingly being targeted.

Maltreatment of mentally ill patients

Haslam says that a particularly shocking case of gross medical negligence came to the public’s attention earlier this year when the Health Ombudsman, Prof Malegapuru Makgoba, released a report which revealed the death of 94 mentally ill patients. The deaths occurred after the GDoH transferred 1,300 patients from Life Esidimeni facilities to 27 unlicensed NGOs that were under resourced and were ill-equipped to care for them, in an attempt to cut costs. Patients reportedly died from causes such as dehydration, diarrhoea, epilepsy, heart attacks and other conditions unrelated to their mental illnesses.

Negligence by hospital support staff

Haslam points out that some shocking cases of gross negligence include surgical mix-ups – ranging from amputations of the wrong limbs to infections due to items being left in patients’ bodies.

“However, it’s not necessarily the massive mistakes like amputating wrong limbs that are leading to malpractice claims but the less obvious ones that are responsible for a significant percentage of South African medical malpractice cases,” says Haslam.

Haslam cites examples such as failing to react to obvious indicators that medical intervention is needed; failing to listen to patients and their families; ignoring measures for keeping environments and equipment sterile; incompetence in basic tasks like inserting drips – actions like these can have devastating consequences for patients.

Not just a public health issue

Medical malpractice may be rife in public hospitals, but Haslam warns that it can also occur in private facilities, referring to a 2012 case where the Medical Protection Society reached a settlement of R25 million with the father of a child injured during a series of botched operations.

The case involved a little girl who was born in Ireland with a bleed on the brain. She underwent surgery at the age of five to drain excess cerebrospinal fluid and water from the brain. When her family relocated to South Africa a few years later, the child began to complain of headaches. A neurosurgeon at a private hospital in Mossel Bay advised the parents that their daughter needed a new shunt.

The first operation was unsuccessful, and two more surgeries were performed. The first two operations resulted in brain damage. The child now suffers from cognitive, memory, speech, visual and mobility issues.

Impact on health systems

While compensation for medical negligence may ease the associated financial burden and cover the costs of required treatment, rehabilitation and support, high ligation costs could negatively impact an already stretched public health system. Meanwhile, the private sector is faced with exorbitant medical protection premiums and ever increasing pay-outs, resulting in higher medical costs in the private sector. The Institute of Health Risk Managers (IHRM), an independent training provider specialising in the healthcare industry, suggest that utilising mediation and other forms of alternative dispute resolution (ADR) tools as a first line remedy when such claims do arise, could help curb costs.

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