Target for cut in medico-legal claims missed

• Negligence and poor performance of provincial health departments stymies government bid to reduce caseload

The government has failed to meet its target of reducing medico-legal claims against provincial health departments, an official at the office of the auditor-general told MPs on Wednesday. The claims stood at R77bn by endMarch. The total health budget for 2023/24 is R60bn.

The government has failed to meet its target of reducing medico-legal claims against provincial health departments, an official at the office of the auditor-general told MPs on Wednesday.

The claims stood at R77bn by end-March. The total health budget for 2023/24 is R60bn. The R77bn was 10% more than the baseline of 2018.

The National Development Plan (NDP) for the 2019-24 medium-term strategic framework targeted a reduction in the government’s contingent liability of medico-legal cases by 80% (less than R18bn) in 2024 from the 2018 baseline of R70bn.

Medico-legal claims arise from medical negligence. Many are birth related and include brain damage, cerebral palsy, caesarean sections and “nonstandardised” procedures.

Most cerebral palsy cases are categorised as nonstandardised due to the poor quality of hospital information.

President Cyril Ramaphosa has issued a proclamation authorising the Special Investigating Unit to investigate the medico-legal claims.

Auditor-general officials said that by the end-March 2022 — and in the context of scarce resources — the cumulative total value of all 15,148 claims against the health department stood at R125.3bn, with 96% being for medico-legal claims. Altogether R1.8bn was paid out for medicolegal claims in 2021 and R855.7m in 2022. Of the 15,148 claims, 4,443 were from the Eastern Cape, 3,783 from Gauteng, 2,915 from KwaZulu-Natal and 1,617 from Limpopo.

Auditor-general acting business unit leader for health Thabelo Musisinyani explained the discrepancy between the R77bn and R125bn figures as being due to provinces reassessing some of the claims “based on prior year payment trends as well as the investigations on some of the claims submitted. The sector also engaged to discuss appropriate measurement of the claims to ensure consistency. The process resulted in some provinces revising the amounts they previously reported.”

The R77bn figure was still being finalised with provinces.

Department of health director-general Sandile Buthelezi reported that in 2021/22 1,256 medico-legal cases totalling R9bn were brought against provincial health departments, in 2021/22 there were 141 cases for R13.8bn and in 2022/23 1,043 the cases totalled R10bn.

Officials of the auditor-general’s office and the health department, led by deputy health minister Sibongiseni Dhlomo, briefed members of the National Council of Provinces’ select committee on appropriations along with eight health MECs and heads of departments. The presentation highlighted poor record keeping by hospitals that compromised their efforts to contest claims in court.

“Unfortunately, over the years, the balance [of medicolegal claims] has increased significantly above the baseline, rather than the planned/intended reduction. The sector is currently at 110% of the target, with one year remaining in the medium-term strategic framework,” Musisinyani told MPs.

Auditor-general co-ordinator of health sector performance auditing Maryke Schneigansz. noted that “due to poor performance and poor record-keeping, money is being diverted away from being spent on improving and delivering quality and timely healthcare services to the citizens.”

She said some provincial health departments were diverting funds from health services to pay for claims.

Problems included the lack of dedicated staff or co-ordinating structures to oversee the management of patient safety incidents and patient complaints. Delays in finalising patient safety incident cases and patient complaints could increase the likelihood of litigation.

Schneigansz said that medical records were not always filed in a systematic and orderly manner. “Poor practices were identified in the storage, archiving and disposal of medical records (and there was) limited use of recommended electronic archiving processes.”

She also highlighted the lack of human resources and medical expertise to manage the medico-legal caseload in the legal departments of provincial health departments.

Buthelezi told MPs that the department took several measures to limit medico-legal claims. He said the status of the State Liability Amendment Bill and its continued processing by parliament’s justice committee was still under consideration. The bill would provide some temporary relief, but there might be constitutional challenges.

If passed, the legislation will introduce structured settlements of medico-legal claims to reduce government’s liability. Instead of upfront lump-sum payments, compensation exceeding R1m would be split into three parts: a large sum paid immediately, smaller, periodic payments, and free treatment at a public health facility instead of cash for medical expenses.