In recent years, the number of claims for damages against the state for harm caused by medical malpractice has grown. The values of these claims have also increased significantly, placing financial strain on South Africa’s public healthcare system and raising concerns about whether the state will be able to provide accessible healthcare to those who depend on it. 

“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. We lack meaningful political and regulatory interventions to address this issue,” says Cape Town-based legal practitioner 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 ceiling cap for pain and suffering.

She says 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 public healthcare. This becomes a vicious cycle.

“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. This may leave medical malpractice victims at a risk of not receiving redress for harm suffered.”

To illustrate the scale of the financial burden, Conradie highlights data from the South African Law Reform Commission showing 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.

According to her, the increase in incidents of medical malpractice is due to various reasons, including patients becoming more aware of their rights, corruption, and the mismanagement of funds and resources.

She says the undertaking-to-pay for future medical expenses and a ceiling cap for pain and suffering could help balance fairness for victims with the long-term sustainability of the public healthcare system.

“Instead of paying victims a once-off lumpsum 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. 

“This will overcome the department’s cash flow problems as well as reduce litigation costs when calculating future medical expenses because the value of these expenses won’t have to be calculated at the end of litigation, thus reducing the potential for over- or under-compensation of claimants.” 

“The increase in costs (to pay for the potentially increased administrative burden of introducing an undertaking-to-pay) can be off-set by the financial savings brought about by no longer having to pay once-off lumpsums. Where no lumpsum is paid, the money can be invested and ring-fenced for healthcare services. 

“This may reduce transaction costs, such as legal fees and the high costs of obtaining expert opinion, which may no longer be required because these future medical expenses no longer have to be calculated upfront.”

Conradie points out that it is expensive and time consuming to calculate future medical expenses and claimants are likely to be over or undercompensated under current law. 

“The state pays compensation to claimants who receive a windfall, where the financial resources could have been used for public healthcare. On the other hand, undercompensation results in the inadequate redress for claimants.

“Both the over- and undercompensation of claimants worsen the medical malpractice crisis. The values paid for future medical expenses are high and are draining the financial resources of the state. It also causes the state cash-flow problems.” 

Conradie says because her alternative approach reduces the potential for undercompensation, a claimant will not outlive his/her award for future medical expenses. 

“As long as the litigant lives, they will have access to the undertaking-to-pay certificate, and their medical expenses will be covered. As it stands, if the award turns out to be too little, as is often the case, then the claimant is undercompensated and out of pocket. 

“The Department of Health won’t have to pay large lumpsums all at once to individual litigants, meaning there is an increase in cash flow which can be re-invested into the healthcare sector. 

“It would also be reasonable to limit the compensation for pain and suffering and to calculate non-patrimonial damages based on the overall extent of a person’s impairment.”

Conradie says it would be possible to implement the suggested alternatives without any major financial implications for the state. 

“We are not yet at a point of no return and with the right interventions, we could see real improvement of public healthcare while ensuring that victims of medical malpractice are compensated fairly.”