Justices of the Constitutional Court on Thursday had many questions about Gauteng’s attempt to institute a pay-as-you-go scheme for the victims of medical negligence at state facilities and seemed singularly unimpressed by the answers they got.
In mid-2014, the province’s department of health agreed to pay nearly R20-million in estimated future medical expenses for the now seven-year-old Wandile Zulu, who suffered severe brain damage because of medical negligence during his birth at the Chris Hani Baragwanath Hospital in Soweto. According to long-standing law and procedures, such amounts are normally paid in a lump sum into a trust account.
On Thursday, a legal team for the Gauteng MEC for health tried to persuade the court to sign off on the legal underpinnings of a plan that would see Wandile’s medical expenses paid when required and based on quotations. This kind of legal evolution is critical, the province insisted, although it neglected to explain why.
“There is nothing on the record that shows, for instance, if the MEC has to pay the lump sum, she won’t be able to discharge her responsibilities in respect of other people to give them healthcare,” Justice Chris Jafta told Gauteng’s advocate Viwe Notshe during one of several fractious exchanges.
Notshe agreed, the province had never sought to prove to any court that paying R20-million towards Wandile’s care would deprive anyone else of medical care — and so the province was not permitted to argue that point, which is central to the debate about medical negligence, before the court.
Nor did Gauteng seem to be arguing there was anything unlawful about the high court awarding a lump-sum payment, which was later upheld by the Supreme Court of Appeal, both Judges Johan Froneman and Raymond Zondo pointed out.
“Aren’t you asking us to engage in an academic exercise?” asked Zondo. Froneman was ever more blunt. “Why are we here, then?” he demanded.
Ideally, Notshe suggested, the court would declare that rules on civil damages claims should not preclude a pay-as-you-go approach, and refer the Zulu matter back to the high court. Or it could open the door for innovative court orders, such as that the parents of a child left brain-damaged by negligence must obtain three quotations for any future care and that the province could pay the lowest amount.
There are ways to deal with such “bolts and nuts” of restitution that would not imperil the health system with huge payouts, he argued.
But Wandile’s family does not care about future cases, or the development of common law, his mother’s advocate Steven Budlender told the court. Although she appreciates that changes may be required, that does not stand in the way of the MEC paying an amount already agreed on, so vindicating Wandile’s rights by providing for his treatment.
The court reserved judgment.
Controversy dogs medical negligence ‘pandemic’
The Gauteng department of health has paid out more than R1-billion in medical negligence claims since 2015, but that figure may yet come to seem small.
Between them, the nine provinces have R40.9-billion in medical malpractice contingent liabilities on their books.
In the last financial year for which there is published data and which ended in 2016, Gauteng reported R3.8-billion in new potential civil claims relating to medical treatment, and KwaZulu-Natal R3.5-billion. For both provinces, that represents more than 10% of their total health budgets.
Early indications are that in the current financial year, during which health budgets will struggle to keep up with inflation, such claims will double.
“When a snake, in the form of medical harm, enters your house, you do not bomb the whole house with your children inside; you try to find a better way to rescue your children,” Health Minister Aaron Motsoaledi railed in June, describing the medicolegal litigation as a “pandemic” that threatens “the very existence of our mothers and children”.
That children are at the heart of the problem is undisputed — the majority of medical negligence claims against the state in recent years have involved birth complications.
On every other aspect of the problem, there is no agreement whatsoever.
If anything, the quality of healthcare has improved while the claims have exploded, argue Motsoaledi and provincial officials. But there has been no serious effort to reduce negligence by state medical staff, opposition parties charge.
Victims of negligence increasingly ask for and receive exorbitant settlements, the provinces say. But the settlements are often reached by agreement, representatives of the victims say, because the provinces know they cannot argue for lesser amounts.
Perhaps the most controversial claim of all is the state’s claim that lawyers, working on contingency arrangements that can net them up to 25% of any settlement, are milking the system.
“We aren’t the ones running a factory for making brain-damaged babies,” one specialist medical negligence lawyer says. “We just help people get justice.”
What should be done legally is no less controversial. South Africa has no legislation to deal specifically with medical negligence claims, so they are dealt with in terms of the same common law as all other damages claims. The Gauteng province has tried in nine separate cases to convince the high courts and the Supreme Court of Appeal that the common law must be amended, but this has been rebuffed every time. Meanwhile, Gauteng’s efforts have drawn the ire of two of its fellow provinces, the Western Cape and Eastern Cape, which fear Gauteng’s subpar legal approach will imperil their efforts to reform the system.
Also, in early 2015, one of Gauteng’s attempts caught the attention of Justice Michael Masutha, who feared the province was pushing to change law settled for three centuries without proper investigation. He asked the South African Law Reform Commission to undertake an investigation, and in July this year the commission published an issue paper calling for comments on current and future legislation.
The commission says serious consideration has to be given to a range of legislative changes to deal with medical negligence, but in the shorter term each province should set up a budget specifically to deal with litigation and compensation. Paying medical negligence settlements out of health budgets will, in the end, “lead to more litigation due to the resulting deterioration in the standard of service delivery”, it warned.
Claims: A tale of three provinces
The Gauteng province wants a child who was left brain-damaged because of medical negligence at a state facility to submit quotations for future medical care.
The Eastern Cape wants the same child to draw on state facilities for all possible treatment, and to seek reimbursement for private care when the state cannot provide this.
And the Western Cape has an approach all of its own.
“I’m surprised by the different approaches that are being advanced before us,” Constitutional Court Judge Chris Jafta said on Thursday. “The provinces are all part of the same government,” he pointed out, somewhat sharply.
Both the Eastern Cape and Western Cape appeared as friends of the court.
The Eastern Cape hopes, in November, to argue before a high court that the increasing cost of settling medical negligence actions is hampering healthcare for others, and affecting fundamental rights.
On Thursday the province all but begged the court not to shut the door on it making that argument if it finds against Gauteng’s only vaguely similar legal claim.
The Western Cape also asked the court not to be overly broad should it find against Gauteng, but with an altogether different approach.
“In our case, the primary concern is not actually to save money. “The primary concern is to ensure that substantial amounts of money intended for healthcare services are, in fact, used for healthcare services,” advocate for the Western Cape Geoff Budlender told the court.
In a system the Western Cape says is already showing promise, it deposits a lump sum into a trust set up for future medical care in negligence cases, such as when a baby is brain-damaged during delivery.
Such trusts come with both “top-up” and “claw-back” provisions, by which they are replenished if money runs out but any remaining funds are returned to the state when the injured party dies.