30 November 2017
Legal reform is essential if we are to begin to tackle some of the problems that have contributed to the challenging claims environment in South Africa, the Medical Protection Society (MPS) said today.
In its response to the South African Law Reform Commission Issue Paper on medico-legal claims1 MPS said that over the six-year period from 2011 to 2016, there was a 35% increase in the number of claims being made against healthcare professionals in South Africa. Large claims in particular are on the rise. MPS has seen an increase of 121% in medical and dental claims valued at over R1 million.
MPS said there are a multitude of complex factors that are contributing to the current claims environment – such as the lack of a patient-centred and robust complaints system which is leaving many patients with litigation as the only viable avenue for redress. The lack of an efficient and predictable legal process for handling clinical negligence claims also allows the size of claims to increase and makes delays endemic, with no parties benefitting; and the cost of settling a claim increases as time goes on.
MPS believes whole system legal reform is essential and would have the biggest impact. The reforms it recommends include the introduction of a pre-litigation resolution framework and the development of a patient-centred complaints process that allows for local resolution. In a legal system that can at times be unduly complex and potentially inaccessible, MPS said there is value in exploring alternative dispute resolution, similar to the South African Dental Association’s effective mediation process.
Dr Graham Howarth, Head of Medical Services, Africa, at MPS said:
“The South African Law Reform Commission are to be commended for tackling this issue so comprehensively - significant reform is needed across a range of issues that are addressed in their paper on medico-legal claims. This is a subject where MPS takes a considerable interest, and we are keen to be part of the debate. In 2016 we wrote our policy paper Challenging the Costs of Clinical Negligence; the case for reform, where we set out our proposals.2
“We believe the clinical negligence litigation system does not currently facilitate the efficient and fair resolution of disputes and is unnecessarily adversarial. Additionally, it lacks transparency and is time consuming and expensive.
“MPS is deeply concerned by the unsustainable increase in the cost of clinical negligence. It means that the state is diverting a significant amount of its funding away from front-line patient care towards claims. It is important that there is reasonable compensation for patients following clinical negligence, but this must be balanced against society’s ability to pay.
“Legal reform could help to make the system faster and more efficient for patients and their families, highlighting the importance of a patient-centred complaints system to address concerns without the need to resort to litigation.”
Notes to editors
- South African Law Commission – issue paper 33:
- Challenging the cost of clinical negligence: The Case for Reform
- For more information please contact Rajiv.Pattni@medicalprotection.org (+44) 207 640 5183