Impact of Medical-Legal Claims on Provincial Budgets Briefing
The briefing discusses the impact of medical-legal claims on provincial budgets, focusing on strategies and solutions to manage medico-litigation efficiently. It covers the magnitude of the problem, provision of future medical treatment, implementation of court decisions, and national interventions. The litigation strategy aims to enhance patient safety through legal, administrative, and medical solutions, emphasizing record-keeping, communication, and legal interventions. The culture of patient safety and accountability is crucial in healthcare institutions to prevent adverse events and ensure adherence to standard procedures.
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SELECT COMMITTEE ON APPROPRIATIONS BRIEFING ON BRIEFING ON THE IMPACT OF MEDICAL-LEGAL CLAIMS ON PROVINCIAL BUDGETS 27 SEPTEMBER 2023
Table of Content Litigation Strategy Magnitude of problem: claims against the Provinces Provision of of Future Medical Treatment in Lieu Of Future Medical Expenses Implementation of the Eastern Cape Court Decision: Provision of future medical treatment at public health establishments; Progress on the SALRC Medico-Legal Reforms Investigation; National Interventions; Establishment/Capacitation of Medico-Legal Units.
Litigation Strategy After the approval of the Medico-Legal Declaration, a Litigation Strategy was developed. The aims and objectives of the Strategy are to provide efficient and effective Medico - Litigation management through short term, medium term and long term solutions as stipulated in the Medico-Legal Summit Declaration. Medical Solution (Patient Safety) - This is aimed at reducing the incidences of the negligence, medical malpractice or unethical behavior and adverse events amongst others. Administrative Solution - This strives to ensure proper record keeping that will minimize the loss or theft of medical records and proper communication with patients and members of the public. Legal Solution - This looks at various legal interventions including but not limited to mediation; contingency fees; the common law rule of once and for all ; the periodic or staggered payment instead of a lump sum payment.
Litigation Strategy cont . Patient Safety A culture of patient safety and medical accountability must be enforced by the Head of the institution i.e. in the case of hospitals, the Chief Executive Officer (CEO); All hospital managers must implement the Patients Rights Charter; Clinical governance must be uniformly implemented; Morbidity and Mortality (M&M) reviews and clinical audits of all adverse events must be implemented immediately; There must be a compulsory multidisciplinary approach in ward rounds, M&M and other peer review meetings; The referral of patients must occur at an early and appropriate time; and There must be strict adherence to standard operating procedures (SOPs) and scope of practice at all times to avoid preventable safety failures.
Litigation Strategy cont . Administration and Management There must be reliable, complete and accurate record-keeping at all health facilities including Electronic record keeping. The proper management of medical records must be strictly enforced by clear SOPs. Adequate and appropriate supervision must be ensured in health facilities. A Uniform National Reporting System of adverse events related to patient safety must be implemented. Hospital administrators must be accountable for their actions. Hospital administrators must ensure improvement in staff attitudes and continuously re- enforce positive attitudes. Remunerative Work Outside the Public Service (RWOPS) must be actively managed.
The magnitude of Medico-Legal Cases in Provinces 2020/21 Financial Year Province Cases Received Amounts 135 Cases R 3 775 785 656.00 Eastern Cape 72 Cases R 744 220 990.29 Free State 178 Cases 329 Cases R 984 108 752.98 R 727 706 522.00 Gauteng Kwazulu- Natal 157 Cases R 1 155 510 500.00 Limpopo 48 Cases R 425 388 635.91 Mpumalanga 15 Cases R 531 716 811.04 Northern Cape 61 Cases R 325 119 700.00 North West 65 Cases R 513 315 400.00 Western Cape TOTALS 1 256 Cases R 9 182 872 968.22
The magnitude of Medico-Legal Cases in Provinces cont . 2021/22 Financial Year Province Cases Received Amounts 391 cases R 5 900 000 000.00 Eastern Cape 53 cases R 468 981 920.00 Free State 109 cases 229 cases R 982 802 814.21 R 2 484 825 126.00 Gauteng Kwazulu-Natal 276 cases R 825 334 000.00 Limpopo 194 cases R 1 538 041 867.05 Mpumalanga 23 cases R 436 869 465.00 Northern Cape 62 cases R 446 920 347.00 North West 75 cases R 704 562 566.00 Western Cape TOTALS 1 415 cases R 13 788 338 105.26
The magnitude of Medico-Legal Cases in Provinces cont . 2022/23 Financial Year Province Cases Received Amounts 257 cases R 3 500 000 000.00 Eastern Cape 63 cases R 614 187 852.25 Free State 132 cases 175 cases R 1 298 251 324.00 R 1 680 775 208.00 Gauteng Kwazulu-Natal 148 cases R 728 648 800.00 Limpopo 121 cases R 1 264 208 842.00 Mpumalanga 10 cases R 126 132 610.00 Northern Cape 65 cases R 393 750 000.00 North West 72 cases R 549,579,056 Western Cape TOTALS 1 043 cases R 10 155 533 692.25
Provision of Future Medical Treatment in Lieu Of Future Medical Expenses Gazetting of Facilities to render services to Cerebral Palsy cases Provinces were requested to submit lists of facilities to be designated to render services to cerebral palsy patients in their respective provinces. Based on the list provided, the Minister gazetted the facilities on 5 September 2019 (Notice No 1146 in the Government Gazette No 42687). Below is the list of the gazetted health establishments per province. This list will be reviewed based on further inputs by the HoDs: PROVINCE DISTRICT Eastern Cape OR Tambo District FACILITY Nelson Mandela Academic Motheo District Johannesburg F SD Johannesburg D SD Tshwane Central District Tshwane ODI Health District EThekwini Metropolitan Municipality EThekwini Metropolitan Municipality Universitas Hospital Charlotte Maxeke JHB Chris Hani Baragwanath Steve Biko Academic George Mukhari Academic Free State Gauteng Inkosi Albert Lithuli Hospital King Edward VII Hospital KwaZulu Natal 9
Provision of Future Medical Treatment in Lieu Of Future Medical Expenses cont . PROVINCE DISTRICT FACILITY Capricorn District Municipality Polokwane Complex Mankweng Hospital Limpopo Ehlanzeni District Municipality Rob Ferreira Hospital Robert Hospital Mpumalanga Northern Cape Francis Baardt District Municipality Mangaliso Sobukwe Matlosane District Municipality Cape Town Metropolitan Municipality Klerksdorp Tshepong Hospital Groote Schuur North West Western Cape Cape Town Metropolitan Municipality Tygerberg Hospital Cape Town Metropolitan Municipality Red Cross Children's Hospital 10
Implementation of the Eastern Cape Court Decision - Provision of future medical treatment at public health establishments Public Healthcare Remedy in terms of the matter of TN obo BN against the EC MEC: The MEC was directed to provide free of charge to BN the following: All of the services, consultations, therapies, surgeries and other procedures ( the medical services ); and All of the supplies, supplements, medicines, devices, and other equipment ( the medical supplies ). Furthermore, the Court held that no claim shall lie in respect of lumpsum money damages to the extent that any of the future medical services and medical supplies required by the Plaintiff are provided at a reasonable standard at a public healthcare institution. It is clear from the Court decision that the standard of service must be reasonable. However, the Departments must therefore ensure that such standard of service is in line with the relevant protocols. The above case has just reaffirm the Constitutional Court and other High Courts decisions that developed the case to enable the State to provide future medical treatment where it show that it is able to do so.
Progress on the SALRC Medico-Legal Reforms Investigation Discussion Paper: The SALRC published the Discussion Paper on 12 November 2021 for public inputs. The SALRC has since received inputs from the public and various stakeholders and is in the process of considering the inputs. The SALRC is now in the process of finalizing their Report which come up with the legislative proposal to deal with legal solutions identified in the Medico-Legal Declaration. State Liability Amendment Bill, 2018: As part their investigation, the SALRC proposed the State Liability Amendment Bill as a short term solution. However, the Justice Portfolio Committee indicated that they don t want to deal with piecemeal Amendments. The Minister of Justice then wrote a letter to the Department indicating that the Bill is going to be withdrawn. However, both Ministers of Health and Finance wrote letters to Minister of Justice indicating that the Bill must not be withdrawn from the Parliamentary process. The DDG in Justice has advised that the letters of support have been brought to the attention of both the Minister of Justice and the Justice Portfolio Committee and will provide an update in due course.
National Interventions Case Management As the contract for Case Management System (System) has come to an end, the NDoH is in the process of engaging with the previous Service Provider through NDoH s internal ICT. This is to ensure that the internal ICT is fully capable of running the System. The System will greatly assist the Provinces in the following areas among others: Demand Amount by Claim fields - The System assist in the indication of which areas (fields) are targeted both in the numbers of claims and the amounts claimed, e.g. Obstetrics and Gynaecology, and Surgical. This will enable the Provinces to investigate the causes thereof and deal with such causes. Number of Cases per Hospital - This assist in providing indication of which Hospitals are most affected within the Province and this will assist the Provinces to have targeted interventions on the most affected Hospitals. Top Plaintiff's Attorneys by Summons Amount - This will assist in the investigations on the unethical conduct by Attorneys such as touting. Possible duplication / fraudulent of Medico-Legal cases - Through the use of ID or Passport numbers and date of birth, the System can pick the possible duplication of cases and trigger the possibility of fraudulent claims.
National Interventions cont . Forensic Investigations Forensic Investigations The Department also conducted forensic investigations on the top law firms that are litigating against the State (Provincial Departments of Health) on medico-legal matters. The investigation seeks to establish if there are suspicious claims that may be vexatious and frivolous and raise the potential unethical conduct by attorneys. These claims will be reported Legal Practice Council if they are found to be vexatious and frivolous and constitute unethical conduct by attorneys. The National Proclamation has been signed by the President authorizing the SIU to conduct investigations on the medico-legal claims. The Forensic Reports from the Service Providers appointed by the Department have been provided to the SIU to form the basis of their investigations. The SIU has already visited NDoH and some of the Provinces.
Establishment and /or Expansion of Medico-legal Units The National Treasury commissioned a study by the Clinton Health Access Initiative (CHAI) Health Financing team in March 2019, to investigate the Medico-Legal crisis across the country. One of the critical recommendations is that Medico-Legal Units at Provincial level should be established and properly capacitated. Where there are already Medico-Legal Units, they must be expanded and properly capacitated. It is essential that the structure of a Medico-Legal Units accurately reflects its multi- disciplinary nature; i.e. there must be both clinical and legal expertise to improve efficiency of process and effectiveness of legal defences. The National Department is also in the process of procuring the panel of experts that will assist the Provinces with compiling and putting together acceptable and reliable evidence and support the respective Medico-Legal Units and Legal Services with negotiation of reasonable settlement agreements (where necessary).
The magnitude of Medico-Legal Cases in Provinces 2020/21 Financial Year Province Cases Received Amounts Amounts Spent 135 Cases R 3 775 785 656.00 R 916 575 585.08 Eastern Cape 72 Cases R 744 220 990.29 R 2 700 000.00 Free State 178 Cases 329 Cases R 984 108 752.98 R 727 706 522.00 R 339 038 978.70 R 93 724 747.41 Gauteng Kwazulu- Natal 157 Cases R 1 155 510 500.00 R 79 611 967.38 Limpopo 48 Cases R 425 388 635.91 R 15 832 319.33 Mpumalanga 15 Cases R 531 716 811.04 R 4 814 122.58 Northern Cape 61 Cases R 325 119 700.00 R 42 577 681.31 North West 65 Cases R 513 315 400.00 R 97 000 000.00 Western Cape TOTALS 1 256 Cases R 9 182 872 968.22 R 1 591 875 401.79
The magnitude of Medico-Legal Cases in Provinces cont . 2021/22 Financial Year Province Cases Received Amounts Amounts Spent 391 cases R 5 900 000 000.00 R 34 500 000.00 Eastern Cape 53 cases R 468 981 920.00 R 7 050 000.00 Free State 109 cases 229 cases R 982 802 814.21 R 2 484 825 126.00 R 376 025 367.33 R 265 883 740.85 Gauteng Kwazulu-Natal 276 cases R 825 334 000.00 R 41 020 921.02 Limpopo 194 cases R 1 538 041 867.05 R 39 875 197.41 Mpumalanga 23 cases R 436 869 465.00 R 355 266 465.00 Northern Cape 62 cases R 446 920 347.00 R 25 395 446.40 North West 75 cases R 704 562 566.00 R 63 992 589.77 Western Cape TOTALS 1 415 cases R 13 788 338 105.26 R 1 209 009 727.78
The magnitude of Medico-Legal Cases in Provinces cont . 2022/23 Financial Year Province Cases Received Amounts Amounts Spent 257 cases R 3 500 000 000.00 R 101 730 183.00 Eastern Cape 63 cases R 614 187 852.25 R 9 513 404.84 Free State 132 cases 175 cases R 1 298 251 324.00 R 1 680 775 208.00 R 512 203 017.80 R 162 705 550.49 Gauteng Kwazulu-Natal 148 cases R 728 648 800.00 R 100 743 200.00 Limpopo 121 cases R 1 264 208 842.00 R 149 877 545.04 Mpumalanga 10 cases R 126 132 610.00 R 126 132 610.00 Northern Cape 65 cases R 393 750 000.00 R 86 564 760.92 North West 72 cases R 549,579,056 R 162 905 138.88 Western Cape TOTALS 1 043 cases R 10 155 533 692.25 R 1 412 375 410.97
