Mitigating against Litigation

Mitigating against Litigation

While disciplines such as obstetrics, neurosurgery, neonatology and orthopaedics are the most exposed to these claims, South Africa’s health system, both public and private, is becoming increasingly litigious for all disciplines of health service providers. According to the DA website, in the past 4 years the Department of Health has incurred R1.2 billion in legal costs relating to medical malpractice, while in the private sector, the cost of doctors protecting themselves has reached breaking point, with many doctors electing to cease practicing in the ‘high risk’ areas.

In an article, entitled, ‘Counting the cost: The consequences of increased medical malpractice litigation in South Africa’, the SAMJ reported that in 2013, claims exceeding R1 million had increased by nearly 550% compared with those of 2003, while claims valued at over R5 million had increased by 900% between 2008 and 2013.

The consequences of practicing ‘defensive’ medicine include an increase in healthcare costs because healthcare practitioners perceive every patient as a potential malpractice suit and therefore perform additional tests and procedures in order to mitigate against possible legal action. Some experts cite the threat of litigation as the reason behind the abnormally high C-section rate within the private sector.

But our legal system, while focused on applying the law, is not necessarily focused on seeking justice.

In his article, entitled, ‘Access to court, or access to justice? Mediation in medical negligence cases’, Professor Benny Jordaan of Stellenbosch University says of medical malpractice litigation,

“Think of it this way: litigation involves entrusting their conflicts and the associated risks to a system over which they have no control, that is renowned for its high costs and delays, that is more than likely to destroy whatever business or other relationship they had with the other party and is also potentially subject to numerous appeals – all in pursuit of an outcome that is uncertain and could go either way.”

It is therefore critical that progressive alternatives are sought to stem the litigation tide.

One of these alternatives is mediation.  According to Jordaan, while there is a role for litigation, mediation is the primary form of alternate dispute resolution, or ADR, and one that should employed as a first resort.  He further explains in his article that,

“Mediation is a flexible process conducted confidentially in which an impartial third party actively assists the parties in working towards a negotiated settlement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.”

But whichever way one looks at the problem, what is clear is that money spent on costly legal battles is not in the interest of achieving affordable healthcare for all South Africans and therefore fair and just solutions must be sought.

The Institute of Health Risk Managers (IHRM) will be hosting a seminar to provide delegates with practical strategies to assist them in avoiding costly malpractice suits.

The seminar, entitled, “Mitigating against Litigation – Progressive remedies for South Africa’s medical malpractice claims explosion”, boasts an impressive line-up of eminent speakers, including:

  • Dr Chris Archer, Founder and CEO of the South African Private Practitioners Forum (SAPPF)
  • Advocate Alan Nelson SC, Founder of Mediation in Motion and the Nelson Peace Centre; and, Mediation Director, SAMLA.
  • Dr MM Bhikhoo, Honorary Lecturer at the Department of Family Medicines at Wits; Chairman of Profmed Medical Scheme; Faculty member of the Medical Protection Society (MPS).
  • Dr Debbie Pearmain, Independent Legal Advisor; author of “The Law of Medical Schemes in South Africa”; and, former legal advisor to Dr. Aaron Motsoaledi, Minister of Health.
  • Graham Anderson, Chief Executive and Principal Officer, Profmed Medical Scheme.
  • Volker von Widdern, CEO of Constantia Insurance Group
  • Stephen Kellerman, of Natmed Medical Defense

This one-day event will be held on the 6 May 2017 in Johannesburg