Clipboard with documents about medical negligence on a table.

With medical negligence claims in both the private and public healthcare sector escalating to billions of rands in the past few years, the South African Law Commission (SALRC) has released proposals aimed at alleviating the financial burden of medico-legal claims against the state on the fiscus, and to provide for alternative procedures for the speedy resolution of medical negligence claims.

Released for public comment, the Discussion Paper follows the SALRC’s investigation into medical claims that started in 2015 following requests from the Department of Health and the Minister of Justice and Correctional Services. It is the second Discussion Paper to be published and contains the Commission’s preliminary research results and puts forward proposals on possible solutions.

Some of the most important proposals are that:

  • A national expert teams be established to oversee and assist the provinces to address identified problems and implement proposed solutions;
  • Mediation be introduced as a first step to deal with disputes before court proceedings are instituted;
  • The appointment of specialist assessors to assist judges in complex medical negligence matters;
  • The awarding of compensation in the form of a structured settlement – with part of the compensation paid in a lump sum, part of the compensation paid as periodic payments, and part of the compensation provided as payments “in kind” by means of the delivery of services;
  • Implementing the solutions and corrective measures to improve the quality of public healthcare contained in reports from the Public Protector, the Office of Health Standards Compliance, the 2018 Presidential Health Summit Compact, the Auditor-General and the SA Human Rights Commission;
  • Reviewing, implementing and monitoring existing guidelines on record-keeping and patient safety incident reporting;
  • The inclusion of a certificate of merit affidavit by an accredited and suitably qualified medical practitioner in the papers when action is instituted for medical negligence damagesnto avoid frivolous, meritless, fraudulent or abandoned claims;
  • The adoption of an administrative compensation system, based on the Welsh redress system, for smaller medical negligence claims;
  • The introduction of a pre-action protocol similar to the United Kingdom’s protocol for clinical disputes for larger medical negligence claims;
  • The amendment of civil procedures to improve pre-trial procedures, as well as court case flow and management to expedite and simplify the finalisation of claims;
  • The use of joint expert witnesses by the parties and when necessary, a panel of three joint expert witnesses from the discipline concerned, for technical medical evidence.

The SALRC stresses that a no-fault compensation system is not a viable solution to South Africa’s medico-legal claims crisis, since it would lead to an enormous increase in the number of claims.

It also proposes the introduction of a “Good Samaritan” law exempting a medical practitioner acting in an emergency situation from negligence claims as long as certain conditions are complied with.

The full Discussion Paper is available on the SALRC website at: www.justice.gov.za/salrc/dpapers.htm.

The closing date for comment is 31 January 2022. All comments and submissions must be sent for the attention of Ronel van Zyl to the following address: The Secretary South African Law Reform Commission Private Bag X668 Pretoria 0001 or email: RovanZyl@justice.gov.za