New interventions needed to curb costly state malpractice claims

A surge in the number and value of medical malpractice claims against the state is placing mounting pressure on South Africa’s cash-strapped public healthcare system, prompting calls for alternatives to traditional payouts. This, according to Dr Robyn Conradie, who recently obtained her doctorate in private law from Stellenbosch University. Conradie identified two alternative methods to calculate and pay compensation to victims of medical malpractice, namely the undertaking-to-pay for future medical expenses and a cap for pain and suffering.

“The current legal system, which regulates the calculation and payment of future medical expenses and compensation payable for pain and suffering to victims in medical malpractice cases against the state is unsatisfactory,” she said. Conradie said an increase in claims against the state means that the public purse is used to litigate and pay compensation to successful claimants, which leaves less money available for accessible, quality public healthcare. “Because public healthcare facilities pay this compensation from a shrinking health budget, and although the state may have ‘deep pockets’, it could find itself unable to continue paying compensation claims for medical malpractice and simultaneously provide healthcare,” she said.

This may leave medical malpractice victims at risk of not receiving redress for harm suffered.” Conradie said data from the South African Law Reform Commission showed that in the 2020/21 financial year, nearly R2 billion was paid out in damages, with contingent liabilities exceeding R120 billion in the same year. Conradie argues that her alternatives to calculate and pay compensation to successful claimants would balance fairness for victims with the long-term sustainability of the public healthcare system. “Instead of paying victims a once-off lump sum for future medical expenses, the Department of Health could undertake to pay for any future medical expenses as and when they arise by virtue of an undertaking-to-pay certificate,” she said.