Cause and effect
There is no definitive answer to what is causing this sharp rise in claims frequency and value, but there are probably a number of contributory factors. As already mentioned, the reaction of lawyers to the Road Accident Fund Amendment Act, which capped the amount of compensation payable to road accident victims, and lawyers’ more extensive advertising, is likely to have had an effect. In addition, as Dr Graham Howarth, MPS Head of Medical Services (Africa), told SAMJ, a developing country like South Africa was always likely to see patient awareness of their constitutional rights grow, making them more likely to make a medical negligence claim.1
Something that is definitely on the radar of Health Minister Dr Aaron Motsoaledi is the “no win, no fee” system promulgated by the Contingency Fees Act 1997. The system allows prosecuting lawyers to take a significant cut of any payout – doubling their hourly rate to take up to a maximum of 25% of the payout – when they win their case. Dr Motsoaledi told the Medical Chronicle: “I want a system that will put doctors back in hospitals and lawyers in courts – not the other way around as we are now seeing. Medical litigation and the practice of defensive medicine are the main contributing factors to the outrageous cost of healthcare in the USA because, there, doctors don’t just treat patients – they also have to treat the lawyer behind the patients and we can’t allow this to happen in SA.”2
Another possible factor is the increasingly stressful environment in which healthcare professionals are working. Higher patient expectations and the fear of the consequences of making an error can, paradoxically, lead to more errors occurring. An overly stressed doctor is not at their most effective, and MPS sees no evidence that the profession is intentionally letting its standards slip; the commitment to providing safe care to patients remains as strong as ever.
Stress within the medical profession has arguably never been higher; in 2009, MPS introduced a counselling service for members in South Africa to address anxiety that results from facing a complaint or claim.3 In 2010, Dr Tim Hegan, Director of International Operations at MPS, told SAMJ that many private doctors cited high patient demands and the fear of being reported to the authorities as their main stressors.4
In 2006, a study by Thomas and Valli on stress levels in a public sector hospital found higher levels of occupational stress compared to the average working population.5 The main sources of pressure included understaffing, lack of resources, lack of control, difficult work schedules, inadequate security, and poor career advancement and salaries.