Is South Africa on the verge of a medical malpractice litigation storm?

Abstract

South Africa is witnessing a sharp increase in medical malpractice litigation as patients increasingly become aware of their rights in a setting of an overburdened health system with limited resources. Legitimate claims need to be compensated. However, the consequences of increased litigation are: (i) a further reduction in the state’s ability to finance health care as a result of large payouts; and (ii) a continuing increase in malpractice premiums in the private sector. A healthy tension between the medical and legal professions should lead to an overall improvement in quality of health care, but consideration will need to be given to issues such as specialist courts, alternative means of resolution, claim quantum determination and capping. Although these issues will technically not minimise the risk of negligence, they may assist in tempering the increasing litigation spiral. Adequate allocation of funding by the state will reduce the risk of claims against the state that result from inadequate human and other resources; this is an important political/policy debate that speaks indirectly to the litigation issue. The recent implementation of the Consumer Protection Act will increasingly place additional and direct responsibility on health professionals for claims made by patients for which they may be directly or indirectly held responsible.