UCT-SAMLA COURSE 1: FOUNDATIONS OF MEDICO-LEGAL PRACTICE

Subject 1: South African law applicable to personal injury litigation

A. Introduction Introductory lecture for lawyers and experts of all disciplines

Judge C.J. Claassen

© This material is copyright protected and owned by the author. This material may only be used by those

people who have registered for the SAMLA Foundations of Medico-Lego Practice course and only for personal study.

Introduction

1. In most western countries, a crisis in the healthcare industry is looming large. The interaction between the medical and legal disciplines is causing social and economic turmoil to the detriment of both disciplines and the public who are dependent upon the expertise of the practitioners involved in such disciplines. The costs involved to the practitioners in exercising their professions have become prohibitive resulting in many healthcare professionals closing up shop, thus leaving the public in the lurch and dependent upon state healthcare institutions for their medical needs. The state healthcare institutions are equally hampered by excessive claims for damages instituted by lawyers – some meritorious and others purely vexatious.

2. Currently, there are about 2000 pending court cases against the Gauteng Provincial Health

Department, the total quantum being claimed amounting to more than R15 billion. During 2013/2014 this department spent about R256 million on legal costs payable to claimants’ attorneys. No budget for these expenses exist resulting in payment being made from funds designated for operational expenses such as the acquisition of new medical equipment and other purposes. This undermines the department’s ability to renew old equipment and upgrade to more modern equipment, resulting in further incidents of medical negligence. More claims are therefore to be expected. The Medical Protection Society also confirmed an increase in medical malpractice claims against their members of nearly 550% compared to 10 years ago. The quantum of claims that exceeded R5 million per claim, also increased by 900%.1

3. As a result of the dramatic escalation in the number and quantum of claims instituted for alleged

medical malpractice and/or medical negligence, a substantial industry has developed in the medico-legal field. All stakeholders have recognized the need to address this phenomenon as a national crisis requiring immediate attention and redress, by members of the private and public sector. During March 2015, the Minister of Health, the Honourable Dr. Aaron Motsoaledi, called for a summit of all role players in the public and private sector to gather in Pretoria to discuss ways and means to address this crisis by devising a national plan of action. Pursuant to this summit a national

1 De Rebus, April 2015, “Mediation: A perfect solution to healthcare disputes” by Marietjie Botes page 29; See also MS Pepper and MN Slabbert, “Is South Africa on the verge of a medical malpractice litigation storm?” (2011) 4 SAJBL 29.

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declaration of areas requiring remedial action was drafted.2

4. The escalation of the medico-legal industry has resulted in a new specialized branch of law and medicine. A new breed of practitioners consisting of legal representatives and medical health providers has evolved which require them to acquire particular skills and knowledge in both disciplines. Specialists were required to assist the court in deciding whether or not certain sequelae suffered by individuals resulted from injuries sustained in motorcar collisions for purposes of holding the Road Accident Fund (“RAF”) liable to compensate such individuals. In so doing, an industry of drafting medical reports for submission to courts has caused some specialists to reduce their medical practices to exclusively writing medical reports. Simultaneously, certain attorneys and advocates are currently devoting their practices exclusively to deal with RAF matters in court. This development has necessitated certain lawyers to acquire extensive medical knowledge and certain medical specialists to acquire extensive knowledge of testifying in court in order to assist the court in coming to an understanding of the applicable medical science in any given case. A further consequential development resulted from the insolvency of the RAF. A perception amongst lawyers has developed that the grass seems greener on the other side of the RAF fence, i.e. in the medical malpractice industry. This change in emphasis has caused the floodgates to open in litigation against hospitals and individual medical practitioners, both in the private and the public sectors. Thus, a specialized profession of medico-legal practitioners originated to deal with medico-legal issues both in RAF and common law medical negligence cases.

5. The explosion of cases in the medico-legal field has necessitated the specialized education and training of these practitioners to deal with the intricacies of the two disciplines. Most of the current practitioners practicing in this field acquired their forensic abilities by default as they began to learn from others like their opponents and their masters who were skilled by experience in conducting medico-legal litigation. Lawyers are not trained at university to conduct medico-legal cases, nor are medical practitioners taught the intricacy of preparing expert medical reports for submission in court proceedings and how to conduct themselves as expert witnesses. This obvious lacuna in the training of both lawyers and medical practitioners has necessitated the establishment of a postgraduate course in medico-legal skills. It is the very purpose of this course to fill that gap. The course will train and educate practitioners keen on obtaining a certified postgraduate academic and practical qualification as medico-legal practitioners endorsed by a recognized University.

The causes for the escalation of medico-legal litigation

6. 6.1 The desire for monetary compensation: It is quite understandable that parents would seek

compensation for themselves to maintain their children who have been negligently injured. They are also entitled by law, to claim damages on behalf of their injured children e.g. such as compensation for loss of amenities of life, past and future pain and suffering, disfigurement etc. Equally, dependents (widows and children) are by law entitled to claim for the loss of support from their provider who has been negligently injured or killed.

6.2 Abusive “soft” or “easy” claims: Claims in respect of minors only begin to prescribe after they

reach 18 years of age + 1 year.3 Notionally, a parent can delay the institution of claims on behalf of a minor for 19 years, by which date the defendant will usually no longer have access to the hospital records or the private practitioner’s records in order to defend the case adequately. The plaintiff may therefore be in a much stronger position to prove his/her case

2 See Annexure “A” attached hereto. 3 See Act 68 of 1969, section 13(1)(a); Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A)

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resulting in soft and easy settlements, sometimes unrelated to the reality of any negligence that may or may not have occurred. Often a forced settlement is concluded by a defendant because of the absence or death of the relevant personnel who were involved at the time the alleged injury to the minor occurred. This results in abusive claims being instituted. Recent statistics indicate that the bulk of medical malpractice claims involve negligence in maternity wards resulting in babies being born with Cerebral Palsy. These days, lawyers tend to institute action for damages soon after birth because of the “once and for all” rule4 requiring all past and future damages to be claimed in one action. This rule has resulted in abusive litigation for future losses of income, which the baby may have earned during its lifetime. These claims run into millions of Rand, the current average being in the region of R20 million. If the baby should die before the amount is expended on its behalf, the guardians normally pocket the remainder of the award. This is so because once damages have been paid by the defendant such money belongs exclusively to the plaintiff. On the other hand, if the baby outlives its life expectancy, the monetary award may prove to have been insufficient.

6.3 Touting and advertising by lawyers: Touting is illegal but advertising is legal.5 Touting means

“to solicit custom”.6 The dangers of touting are threefold: (i) It constitutes unfair competition against other members of the profession; (ii) Touts who are paid substantial sums of money may tend to fabricate claims, thus harming the administration of justice and the medical healthcare industry; (iii) Members of the public may be exploited in the sense that the attorneys involved overcharge them, share in the proceeds of successful claims, pay touts out of the awards made to clients and fail to render a proper professional service.7 Touts are often seen in hospital wards carrying a briefcase full of Powers of Attorney authorizing their employing attorney to institute on behalf of a patient, a claim for damages against the hospital or any medical health provider. The tout normally attends each patient in every bed with a proposition to sign a Power of Attorney, where after the attorney will institute action for damages free of charge on condition that, if successful, the attorney will be entitled to 25% of the damages recovered. It induces the patient to institute litigation without the fear of losing the court case and having to pay his attorney any legal costs. However, this proposition induces a false sense of security because if the case is lost, the client may have to pay substantial costs to the successful defendant. Hospital staff should be encouraged to enforce more readily the hospitals “Right of Admission is Reserved” notice by removing from the hospital premises persons caught touting for work from patients. On the other hand, advertising is legalized by the Attorneys Act and the Rules and Regulations passed there under.8 It, therefore, stands to reason that both unlawful touting and lawful advertising have substantially increased the amount of medico-legal litigation.

6.4 Claiming on a contingency fee basis: Attorneys and advocates are now entitled to take on

legal work on a contingency fee basis in terms of the Contingency Fees Act 66 of 1997.9 Where the legal representative agrees with the client to act on a contingency fee basis, no risk is involved for the client, as the attorney is paid nothing if the claim fails but receives up to 25% of the award successfully recovered provided that the success fee shall not exceed the normal fee by more than 100%, i.e. not more than twice the normal charges for the legal work

4 See Truter v Deysel 2006 (4) 168 (SCA) at pages 175G – 176A 5 See Attorneys Act 53 of 1979 6 See Simaan v SA Pharmacy Board 1982 (4) SA 62 (AD) at 75H. 7 See Cirota and Another v Law Society, Transvaal 1979(1) SA 172 (AD) at 175E – F. 8 See Act 53 of 1979 sections 83 (11) (e) and (f). 9 See Thulo v Road Accident Fund 2011 (5) SA 446 (GSJ); Price Waterhouse Coopers Inc v National Potato Co-op Ltd 2004 (6) SA 66 (SCA).

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performed10. The intention of this act is to enhance access to justice by impecunious members of the public. However, it is also open to abuse, especially when touts are employed by attorneys as indicated in paragraph 6.3 above. Instituting litigation against medical personnel in terms of contingency fee agreements has substantially increased the number of claims and this has caused many medical specialists to terminate their practices in the vulnerable disciplines of e.g. obstetrics, neurosurgery, spinal surgery, reconstructive/plastic surgery and orthopaedics, because of the very high premiums charged by their insurance companies.

6.5 Lack of proper doctor/patient communication: Pressure of work in busy medical practices

often causes misunderstandings or miscommunications between doctor and patient. Such lack of proper explanations of possible adverse outcomes, make patients feel they have been wronged. They then seek redress through the courts. This lack of proper communication both pre- and post-medical interventions, tends to undermine the “informed consent” principle.11 During this course much will be said about the ethical duty for medical practitioners to make sure that all possible eventualities are explained in layman’s language to the patient. Should unforeseen complications occur the duty to be open and frank with the patient about the causes, should be the hallmark of an open and professional relationship between doctor and patient. Failure to comply with these tenets often leads to unwanted and unnecessary litigation and trauma for both doctor and patient.

6.6 Overburdened and understaffed medical personnel and equipment in disrepair or out of

date: Claims against hospitals escalate disproportionally due to vacancies not being filled. Understaffing leads to overburdened medical staff. Undue long hours of work tend to result in mishaps, which could have been avoided. In addition, equipment is not renewed or properly serviced causing adverse outcomes or incorrect diagnoses. It is a common feature in provincial hospitals that no budget is prepared to pay for the award of damages against such hospital. Funds allocated to operational expenses are then utilized to pay the awards leaving fewer funds to repair and/or substitute equipment. This results in a vicious circle of increased adverse outcomes leading to more claims because of outdated or defective equipment.

6.7 Criminal conduct: It has been reported that healthcare staff and patients unlawfully sell

hospital records to attorneys leaving the hospital defenseless against subsequent claims instituted by those attorneys. The hospitals are placed in the predicament that they have no records to establish whether or not the claims should be defended. Often such predicament leads to inequitable forced settlements. Attorneys found in possession of original hospital records, should be reported to the police for the investigation of theft.

6.8 Advent of Constitutional protections: Our Constitutional dispensation has generated new

causes of action, which previously did not exist or were not sufficiently circumscribed to warrant the institution of actions.12

6.8.1 In terms of section 10 everyone is guaranteed an inherent right to dignity and the right

to have their dignity respected and protected. This right would allow members of the public to sue any medical practitioner who has violated the dignity of a patient.

10See section 2 of the Contingency Fee Act. 11 This principle rests on three independent legs of knowledge, appreciation and consent. See Christian Lawyers Association v Minister of Health 2005 (1) SA 509 (TPD) at 515F – G. To establish informed consent it must be proved that the risk was known, that it was realized, and that it was voluntarily undertaken. See Waring & Gillow Ltd v Sherborne 1904 TS 340 at 344. 12 See the Constitution Act 108 of 1996.

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6.8.2 In terms of section 11 everyone has a constitutional right to life. Any medical

intervention which has the effect of curtailing a patient’s life expectancy or detrimentally affecting a patient’s amenities of life, would permit and action under this constitutional provision.

6.8.3 Section 12(2) protects a person’s right to bodily and psychological integrity, which

includes the right (i) to make decisions concerning reproduction; (ii) to security in and control over their body; and (iii) not to be subjected to medical or scientific experiments without their informed consent. Any violation of these rights would entitle a person to institute an action for damages against any healthcare worker who has contravened this section and caused the person damage. Section 27 enshrines everyone’s right to have access to healthcare services including reproductive healthcare. It also determines that no one may be refused emergency medical treatment. This section has on occasion underpinned an action for damages against a hospital that failed to timeously make available an ambulance to transport a patient.

6.8.4 Section 28 provides that every child under the age of 18 has the right to basic healthcare

services and to be protected from maltreatment, neglect, abuse or degradation. It is quite conceivable that a violation of these rights afforded children, could form the bases of claims instituted against medical health providers by a child’s parent or guardian.

6.9 Inadequacies of medical providers: A troublesome issue is the question whether or not the escalation of medical negligence cases is due to the lack of training, ethical behaviour and/or professionalism on the part of the medical providers themselves. No statistical evidence is currently available of the amount of mishaps caused by such inadequate training, ethical behaviour and/or professionalism. The challenge for medico-legal practitioners will be to devise programs for the accumulation of such statistics as it is difficult to solve a problem without empirical and statistical evidence.

6.10 The Consumer Protection Act 68 of 2008: The preamble to the act provides “that it is

necessary to develop means to fulfill the rights of historically disadvantaged persons and to protect the interests of all consumers and provide efficient redress for consumers who are subjected to abuse or exploitation in the marketplace.” This act makes patients and clients aware of their rights arising from goods supplied and services rendered. “Goods” are defined inter alia as anything marketed for human consumption. This definition will obviously include any medicine administered to a patient on the advice or instruction of a medical healthcare worker. “Service” is defined inter alia as including but not limited to any work or undertaking performed (i) by one person for the direct or indirect benefit of another; (ii) the provision of any information, advice or consultation; and (iii) the transportation of any individual. This act came into force on 31 March 2011. It affects the services rendered by lawyers and medical professionals and requires a careful study and comprehension of some of its salient terms and provisions by all medico-legal practitioners. Some of these terms are highlighted herein.

6.10.1 Section 22 prescribes that any notice or document provided or displayed must be in plain language so that an ordinary consumer with average literacy skills could be expected to understand its content, import and significance without undue effort. This prescription will apply to all lawyers and healthcare workers rendering goods and/or

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services to consumers. It is consonant with the purpose of the act as set out in section 3, which is to reduce any disadvantages experienced by low-income and vulnerable consumers whose ability to read is limited by reason of low literacy, vision impairment or limited fluency in the language in which it is presented. It is, however, doubtful that any transgression of this provision standing alone will result in any action for damages. It may, however, result in an action for damages where the transgression of this provision resulted in the patient not being able to give his/her informed consent.

6.10.2 Section 48 prohibits the inclusion in any contract for the supply of goods or service of any unfair, unreasonable or unjust terms. Section 48 (2) describes quite comprehensively what kind of terms will be deemed to be unfair, unreasonable or unjust, e.g. (i) one-sided terms favouring the supplier; (ii) adverse terms that are inequitable to the consumer; (iii) false representations provided by the supplier upon which the consumer relied; or (iv) terms that were not but should have been drawn to the attention of the consumer as stated in section 49. In terms of section 49 a duty rests upon the supplier of services to draw the consumer’s attention to any provision in the contract that (i) limits the risk and liability of the supplier; or (ii) places any risk or liability on the consumer; or (iii) records an acknowledgement of any fact by the consumer; or (iv) the fact that a facility or activity could result in serious injury or death.

6.10.3 Section 51 prohibits a supplier to contract for terms which either directly or indirectly purports to waive or deprive a consumer of any right under the act or avoids a supplier’s obligations under the act or limits the supplier’s liability for gross negligence. Any such provision that contravenes this section is declared void and will, therefore, not protect the healthcare provider against an action for damages instituted by a wronged patient.

6.10.4 Sections 53 and 54 entitle consumers to services that are free from defects and performed in a manner and of a quality that consumers are “generally entitled to expect” subject only to the circumstances of the supply and any specific criteria or conditions agreed to between the suppler and the consumer. Medical services rendered that are below the threshold of what a patient is generally entitled to expect may give rise to an action for damages.

6.10.5 In terms of section 61 a supplier of services (legal and/or medical) will be liable for any harm caused by any goods supplied in conjunction with the rendering of such services. Any claim for such damages has to be instituted within 3 years after the event or after knowledge of the cause of the damages came to the knowledge of the consumer. So it is not only the negligent services that may result in a claim as stated in the previous subparagraph but also harm caused by any product supplied in conjunction with such services.

6.10.6 Regulation 44(1) introduced by the Minister responsible for consumer protection matters, provides that a consumer agreement is presumed to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier.” In Britain the Unfair Terms Act of 1977, prohibits the exclusion of liability for negligence, including ordinary negligence, leading to bodily injuries or death. In terms of section 2(2)(a) of our Consumer Protection Act, courts in South Africa are permitted to take cognizance of “appropriate foreign and international law” when interpreting the Act and

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may well in future lean towards greater protection of patients’ rights as is provided in the UK. This provision is also in line with section 39(1) and (2) of our Constitution, which enjoins courts to develop the common law in the spirit, purport, and objects of the Bill of Rights and, in doing so, it must take cognizance of international law and may consider foreign law.

6.11 In Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA), a case decided PRIOR to the promulgation of the Consumer Protection Act, the Supreme Court of Appeal in Bloemfontein, enforced an exemption clause in the admission document of the hospital that absolved:

“… the hospital and/or its employees and/or agents from all liability and indemnified them from any claim instituted by any person (including a dependant of the patient) for damages or loss of whatever nature (including consequential damages or special damages of any nature) flowing directly or indirectly from any injury (including fatal injury) suffered by or damage caused to the patient or any illness (including terminal illness) contracted by the patient whatever the cause/causes are, except only with the exclusion of intentional omission by the hospital, its employees or agents.”

The negligence of a nurse (tying bandages too tightly which cut the blood supply to a wound) caused complications and the claimant suffered damages, but the court ruled that such negligence was excluded by the exemption clause and held the hospital not liable for the claimed damages. The SCA per Brand JA held that the clause was binding upon the patient in spite of the fact that he did not read it and in spite of section 27(1)(a) of the Constitution. It is doubtful whether this conclusion would in future be upheld in light of the clauses referred to above in the Consumer Protection Act.

Comparative statistical evidence

7. United States of America

7.1 According to Wikipedia13 there are divergent views regarding the causes for the increase

or decline of medical malpractice litigation in the USA.

“Doctors' groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975. More recent research from the same source has found that tort (“delictual”) costs as a percentage of GDP dropped between 2001 and 2009, and are now at their lowest level since 1984. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000. However, more recent research from the U.S. Department of Justice has found that median medical malpractice awards in states range from $109,000 to $195,000.

13 https://en.wikipedia.org/wiki/Medical_malpractice_in_the_United_States as on 8 April 2017.

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These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems. Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, with medical malpractice lawsuits being the primary driver. Despite noting multiple reasons for rate increases, the report goes on to state that the ‘GAO found that losses on medical malpractice claims, which make up the largest part of insurers’ costs, appear to be the primary driver of rate increases in the long run.’ More recent data has indicated that medical malpractice rates are generally no longer rising. In 2011, data pooled from the industry by the publication Medical Liability Monitor indicated that medical malpractice insurance rates had declined for four straight years. The decrease was seen in both states that had enacted tort reform and in states that had not, leading actuaries familiar with the data to suggest that patient safety and risk management campaigns had had a more significant effect.”

7.2 The major reforms for medical malpractice litigation suggested in the USA relate to (i)

establishing special medical malpractice courts; (ii) the capping of non-economic damages; and (iii) reducing the prescription period for the time within which claims are to be instituted.

7.3 A study by Rand Corporation researchers published in October 2014 in the “New England

Journal of Medicine” concluded that laws restricting medical malpractice suits do not reduce the amount of "defensive medicine" or health-care costs. The researchers examined 3.8 million Medicare patient records from hospital emergency departments from 1997 to 2011, comparing care in three states that enacted strict malpractice reform laws about a decade earlier (Georgia, Texas and South Carolina) to care in neighboring states that did not enact such laws. The study found that the laws had no effect on whether doctors ordered defensive resource-intensive care (e.g., CT or MRI scans and hospitalization).

8. United Kingdom

8.1 In England and Wales liability of staff employed by the National Health Service (“NHS”,

founded in 1948) for clinical negligence is addressed by a program currently known as the Clinical Negligence Scheme for Trusts.14 It is general practice in cases of clinical negligence that National Health Service Trusts and Health Authorities are the bodies that are sued, rather than individual clinicians. Under this practice, NHS Trusts and Health Authorities are vicariously liable for the negligent acts and omissions of their employees – including doctors, nurses, and clinicians. This liability arises from the duty of care that the NHS Trusts owe to their patients. This application of vicarious liability has resulted in a government policy known as NHS Indemnification, which arises when employees of the NHS in the course of their work, are responsible for a negligent act or omission.

8.2 NHS indemnity covers only the financial consequences of a clinical negligence program, not

complaints, or disciplinary or regulatory hearings, and does not extend to General Practitioners (primary care physicians), general dental practitioners, pharmacists or optometrists; other self-employed health care professionals (e.g., independent midwives);

14 https://www.loc.gov/law/help/medical-malpractice-liability/uk.php as at 8 April 2017.

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employees of private hospitals; local education authorities; or voluntary agencies. General Practitioners typically belong to a medical defense society or union like the Medical Protection Society (“MPS”) that will provide advice and may undertake the defense and settlement of the case.

8.3 With the current operation of NHS indemnity, NHS Trusts, rather than the Department of Health, are expected to meet the costs of damages awarded against them. Given that damages awarded could reach millions of pounds, which would negatively affect the budget of these Trusts in providing healthcare to the population, a number of programs (known as “schemes” in England) were established to address claims for medical negligence. As stated previously, the current program is the Clinical Negligence Scheme for Trusts, which was established to deal with claims made after April 1, 1995. The Clinical Negligence Scheme for Trusts is administered by the NHS Litigation Authority, which was established amid concern of the rising cost of clinical negligence claims. The Litigation Authority is a Special Health Authority, meaning that it is part of the NHS. It manages the legal side of claims through a panel of solicitors and is responsible for the payment of any damages or legal costs.

8.4 The NHS Litigation Authority was required to operate within a budget set by the government

(known as the Revenue Resource Limit) of £2,642.36 million for the financial year 2007-08. During this period, the Litigation Authority had a surplus of £3.13 million. Additionally, at the end of 2007-08 the Litigation Authority had a cash balance of £124.9 million. Part of the mandate of the NHS Litigation Authority is to avoid litigation, where possible. Its Framework Document notes that it aims to maximise the resources available for patient care, by defending unjustified actions robustly and settling justified actions efficiently. Furthermore, the Litigation Authority notes that it encourages NHS bodies to offer patients explanations and apologies. They encourage the use of apologies, and stress that apologies do not constitute an admission of liability. In addition, they do not dispute any payment, under any scheme, solely on the grounds of such an apology. They seek to avoid formal litigation as far as possible and their historical data show that only about 4% of their cases go to court, including settlements made on behalf of minors, which must be approved by a court. It also aims to spread the costs of settlements more evenly over time through the use of periodical payments made to claimants throughout their lives, as it considers that this is the fairest method of settling the costs of personal injury claims when costs are significant.

8.5 In 2007-08 the NHS Litigation Authority closed 6,679 claims. During the same period, damages

awarded to patients in connection with clinical negligence claims and legal costs paid by the NHS Litigation Authority amounted to £633.3 million. The average time it took the NHS Litigation Authority to deal with a claim, either to the point of conclusion or discontinuation, was 1.46 years. The policy of the NHS Litigation Authority in seeking to avoid litigation is demonstrated in the statistics of the cases that it has processed. It reports that 96 percent of cases it handled were settled out of court through a variety of methods of alternative dispute resolution and that over the past ten years, from all clinical claims it handled, 41% were abandoned by the claimant; 41% settled out of court; 4% settled in court, with these being mainly court approvals of negotiated settlements; and 14% remain outstanding. It notes that fewer than fifty clinical negligence cases a year are contested in court.

8.6 In view of the fact that NHS Litigation Authority did not apply to all health professionals, the

UK Ministry of Justice established a Clinical Disputes Forum to assist in the magaging and

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resolution of medical negligence claims. This Forum issued various Pre-Action Protocols15 intended to apply to all claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. This Protocol is intended to be sufficiently broad-based and flexible to apply to all sectors of healthcare, both public and private. It also recognises that a claimant and a defendant, as patient and healthcare provider, may want to have an ongoing relationship. It is important that each party to a clinical dispute has sufficient information and understanding of the other’s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on-the-table approach when something has gone wrong with a claimant’s treatment or the claimant is dissatisfied with that treatment and/or the outcome. A copy of this Pre-Action Protocol is attached hereto as Annexure “B”.

9. Canada

9.1 The Canadian system is more accurately described as a “single-payer” system than a

“socialized” one.16 However, even this description needs to be qualified. Canadian physicians are not required to submit bills for their fees to the provincial health insurance plans. They can “opt out” of the systems and bill their patients directly. However, physicians who do decline to participate in a provincial plan must operate entirely outside it as they are generally prohibited from billing the insurance plan for some of their services and patients for others. In other words, physicians cannot be partial participants. For this reason, the vast majority of Canada’s physicians are enrolled in the provincial health insurance plans and earn virtually all of their income from the bills they submit to them.

9.2 Canada’s provincial health insurance plans do not cover all services. Dental care, eye examinations, and cosmetic surgery are three examples of services that generally are not covered. However, most Canadian employees have supplemental medical insurance provided by their employers that give at least partial coverage for these services. For example, supplemental insurance will usually cover one eye examination and one pair of glasses per year. Many collective bargaining agreements provide for supplemental insurance. In other cases, supplemental insurance is offered as a non-mandated work benefit, but it is not required by law.

9.3 Canadian physicians who are in private practice or work for hospitals are required to obtain medical liability insurance. Such insurance is available through the Canadian Medical Protective Association (CMPA). Insurance premiums or “membership fees” are based upon the type of work a physician performs and the region in which he or she practices. The CMPA has published Fee Schedules. Fees are not based upon a physician’s record and are not increased for a history of complaints or on account of claims paid.

9.4 Membership fees paid to the CMPA give physicians insurance coverage and a right to representation in medical malpractice lawsuits. However, provincial governments reimburse

15 Separate Pre-Action Protocols were issued for (i) Disease and Illness Claims; (ii) Personal Injury Claims; (iii) Low Value Personal Injury Claims in Road Traffic Accidents; and (iv) Low Value Personal Injury (Employers’ Liability and Public Liability Claims. 16 https://www.loc.gov/law/help/medical-malpractice-liability/canada.php

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physicians for at least a portion of their membership fees. These arrangements are not generally made public. However, a recently released Memorandum of Understanding between the Ministry of Health, the Ontario Medical Association, and the CMPA reveals that physicians are currently reimbursed for about 83 percent of their membership fees. It has been reported that the Ontario government paid about Can$112 million to reimburse physicians for medical malpractice fees in 2008. Government officials in Ontario have explained that the purpose of the reimbursement program is to encourage physicians to practice in the province and not to move to another province or the United States where average incomes may be higher. Critics contend that because the CMPA’s fees are not based upon a physician’s record, the system does little to penalize physicians who are found to be liable for malpractice even on multiple occasions. Physicians who have committed acts of malpractice may, however, be disciplined by their provincial licensing body. Discipline can range from suspensions to losses of the privilege to continue practicing medicine.

9.5 One other feature of Canadian law that tends to discourage parties from suing physicians for malpractice is that the Supreme Court has set out guidelines that effectively cap awards for pain and suffering in all but exceptional cases. In a trilogy of decisions released in 1978, the Supreme Court established a limit of Can$100,000 on general damages for non-pecuniary losses such as pain and suffering, loss of amenities and enjoyment of life, and loss of life expectancy. The Supreme Court did state that there may be extraordinary circumstances in which this amount could be exceeded, and courts have allowed the figure to be indexed for inflation so that the current suggested upper limit on awards for non-pecuniary losses is close to $300,000. Nevertheless, the flexible cap on non-pecuniary losses is a major disincentive to persons considering whether they should sue a physician for malpractice and for lawyers to specialize in or seek out malpractice cases.

9.6 Despite the above factors that discourage medical malpractice lawsuits in Canada, there are numerous reported cases in which doctors, hospitals, and health care professionals have been found liable for acts of negligence in the delivery of health care. In order to be successful, a plaintiff must show that the defendant owed him or her a duty of care, the defendant did not deliver the standard of care owed, the plaintiff’s injuries were reasonably foreseeable, and the defendant’s breach of the duty of care was the proximate cause of the plaintiff’s injuries. An error of judgment is not necessarily negligence even if it causes injury.

9.7 Controversy over the effect that malpractice lawsuits are having on the delivery of health care have never risen in Canada to the levels that they have in the United States. Awards against physicians have, on a per capita basis, been much less frequent than in the United States and awards have generally been much smaller for similar injuries. There are a number of factors as to why this is the case. Proving negligence can be harder, the CMPA defends malpractice lawsuits very vigorously, there is a flexible cap on non-pecuniary losses, and punitive damages are seldom awarded. Nevertheless, there is a growing body of case law respecting medical malpractice that demonstrates a tendency of the courts and juries to be somewhat more open to claims that a physician should be held liable for committing an act of negligence that causes injury to a person to whom he or she owes a duty of care.

10. Germany

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10.1 Medical malpractice claims are mostly settled with the liability insurers, often after mediation services of the medical associations or the social health insurers have given expert opinions. Only 8 percent of medical malpractice cases are litigated. The causes of liability for medical malpractice under German law are similar to those encountered under the laws in the United States. German damage awards, however, are still much lower than those awarded in the United States, even though the German awards have increased in recent years. At the same time, there has been an increase in medial malpractice claims in Germany to about 40,000 claims per year, out of a population of 82.5 million.17

10.2 German awards for tangible damages are low, because most of the losses resulting from a personal injury are borne by the social security system. Treatment and care is provided by the health insurers, and disability pensions by the pension insurers. These insurers, however, may recover the expenses attributable to the injury through the statutory subrogation of the plaintiff’s claim.

10.3 German awards for pain and suffering are low because of several features of the legal system: there are no juries in civil cases and a plaintiff who claims a higher award than the court adjudicates must bear part of the litigation cost. Moreover, in determining damages for pain and suffering, the judges are guided by standardized tables that compile the going rates for various types of injuries. Damages for pain and suffering have been increasing slowly under this system. The highest recent awards have been in the vicinity of €500,000 and these have been awarded for severe physical and mental disabilities resulting from medical malpractice at birth. For lesser injuries, such as the loss of an eye or a limb, awards have stagnated at below €40,000 during the last two decades.

10.4 There is much disagreement on the incidence of medical malpractice. Consumer advocacy

organizations have stated that medical malpractice is committed in 400,000 cases, or even 650,000 cases per year. According to estimates made by a medical mediation center, some 130,000 malpractice incidents occur in German hospitals and clinics per year. The number of claims submitted to the liability insurers has been estimated as amounting to 40,000 per year. Germany has a population of 82.5 million inhabitants.

11. India

11.1 The Consumer Protection Act, 1986, of India provides protection of the interests of

consumers. The Act brings within its ambit the services of the medical profession and treats patients as consumers of such services. For expeditious disposal of complaints of negligence or deficiency in service, a consumer may file a complaint in a District Forum for recovery of damages. Appeals from the District Forum may be filed before the State Commission and then before the National Commission. Decisions of the latter are appealable to the Supreme Court.18

11.2 The law of delict takes over where the protection of the Consumer Protection Act

17 https://www.loc.gov/law/help/medical-malpractice-liability/germany.php 18 https://www.loc.gov/law/help/medical-malpractice-liability/india.php

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ends. Resort to the law of delict enables recovery, and provides a remedy even where a physician provides free service. Therefore, where the services offered by the doctor or hospital do not fall within the ambit of “service” as defined in the Act, patients may rely on the law relating to negligence under the law of delict and successfully claim compensation.

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Suggested measures that may reduce medical negligence claims

12. The Ministerial Task Team

12.1 As stated earlier, the Minister of Health instituted a Task Team as the vehicle by which all the provincial health departments are to be apprised of the contents and objects of the National Declaration, Annexure “A” hereto. The Task Team consists of three medical specialists, one advocate, one attorney from the State Attorney’s Office, one retired judge and a representative from the South African Law Reform Commission. The Task Team has visited Limpopo, Mpumalanga, Gauteng, Northwest, Western Cape, Eastern Cape, KwaZulu Natal and the Northern Cape. The Freestate Provincial Health Department will be visited on 28 April 2017.

12.2 As appears from Annexure “A” the declaration incorporates an action plan to increase patient

safety, improve the management and administration, implementing various legal solutions and the research and drafting of law reforms to state hospitals in order to mitigate the incidents of medical negligence leading to claims being instituted. These principles are being explained and discussed with all the stake holders from nurses to CEO’s at provincial level. It is hoped that this effort will result in the reduction of medical negligence at state hospitals.

13. Mediation

Mediation has the following attributes and benefits which litigation lacks for the quick reduction of the backlog of claims already instituted against state hospitals and the resolution of disputes.

13.1 Mediation is far less costly than litigation or arbitration. According to Government Gazette (GN 854 GG 38163/31-10-2014) mediation tariffs have been set, inter alia determining that a level 1 mediator may charge R4500-00 and a level 2 Mediator R6000-00 as a maximum fee per day shared equally by both parties.

13.2 Mediation is far less time consuming than litigation or arbitration. It has been estimated that

the largest portion of mediations are completed in less than a day. Mediating parties are also not subject to waiting time for trial dates as in the courts. It is only the mediator and the parties who have to coordinate their diaries for a suitable date.

13.3 Mediation is a voluntary and not a compulsory process and under no circumstances does it

deny a party’s right to withdraw and enforce his right to litigate in court. If any party feels aggrieved by the mediation process, withdrawal at any stage therefrom is permissible. In such event, the mediator would usually ask for a private session with the aggrieved party to enquire the reason for his/her dissatisfaction in order to have an opportunity to remove any misunderstanding, hopefully to convince that party to continue with the process. Where the mediator is of the view that the aggrieved party is unreasonable in his refusal to continue with the mediation, he will record such fact and a subsequent court hearing the dispute, may issue a punitive costs order against such party. Although it is generally not a compulsory process, certain legislation obliges disputing parties to submit their disputes to mediation first before

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instituting litigation.

13.4 Mediation is an informal process. The formal laws of evidence and the rules of court do not bind the parties. Knowledge of court procedures is, therefore, not a prerequisite for parties to engage in mediation successfully.

13.5 Mediation is without prejudice to either party’s rights. This allows parties to speak freely

without fear of their rights being adversely affected. Such freedom often leads to the parties getting to grips with the real problem. If, however, the mediation fails, then neither party is allowed to refer to anything said or admitted during the mediation during any later court proceedings.

13.6 Mediation is a private and confidential affair where no adverse publicity will influence the parties to withhold the truth. It is a safe place to speak the unadulterated truth! It is also permissible to have your own attorney present throughout the mediation process. Experience has shown that it is sometimes beneficial to have the parties’ attorneys present. It makes their clients feel safe and comfortable and undermines any fear they may have that they will be prejudiced.

13.7 Mediation is client based, i.e. the interest or needs and not the rights of each party are

paramount. It is not rights based, as is the case in litigation or arbitration. The skilled mediator guides the parties to a mutual solution satisfactory to them irrespective of their legal rights. Thus, they arrive at a solution designed by their own needs leaving two winners instead of a loser and a winner. In arriving at a solution, the parties are not limited to their legal remedies. Often, a mere apology, suffices to bring healing to broken relationships. It would be wise to remember, “having your day in court” does not always result in “having your say in court”.

13.8 Mediation called for at the earliest moment possible, allows the parties to face one another

after the event sooner than in litigation. At such early stage, attitudes have not yet hardened and the relevant documentation and personnel that can shed light on the causes of the problem are usually still available. No waiting time for trial dates is required and the problem can be resolved while everything is still fresh in the memory of the respective parties.

13.9 The mediator facilitates any lack of understanding or any miscommunication existing

between the parties in language devoid of legal formalism or scientific technicalities. Where the problem is, however, technical or scientific in nature, the mediator will be in a position to guide the parties to appoint a single independent expert to look at the problem and give a neutral view or explanation. Both parties are encouraged to agree in advance to accept the independent expert’s conclusion and to share equally his/her fees. Usually this procedure will resolve the problem resulting in a far more cost effective resolution of the dispute than a procedure where each party employs his/her own expert.

13.10 Another benefit of mediation is that it engenders equality between the parties and removes

any imbalance in power between the “stronger” professional and the “weaker” lay patient. This balance occurs during private sessions that the mediator conducts with each party in the absence of the other where the weaker party is free to speak without reservation. This freedom usually discloses the real nature of the dispute and the real needs of the party.

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13.11 Mediation allows the parties greater control over the process in comparison to litigation where their legal representatives are in control. The process of mediation removes the disadvantages of the adversarial nature of litigation. The adversarial process produces surprises that are often devastating to the parties. Cases are often decided on legal principles far removed from the parties interests, e.g. a case may be decided on who the onus of proof rests, a concept far removed from the parties’ interests and real needs.

13.12 A mediator does not supply the parties with a verdict. Nor does the mediator judge the

credibility of the parties and/or their witnesses. A mediator does not cross-examine any one as is done in court or arbitration proceedings. The bona fides of each party or person are accepted without question, and this removes the threatening atmosphere that is so often prevalent in court proceedings. It is a safer place to protect one’s dignity and reputation.

14. South African Private Healthcare National Task Team

14.1 Recently a new initiative to curb medical negligence originated at a conference arranged

by the MPS at the OR Tambo Airport. At this conference the idea was first broached to establish a Task Team representative of all the stake holders in the private sector in South Africa involved in the supply of medical services.

14.2 Representatives of MPS approached representatives of SAMLA to co-ordinate the

establishment of a centralised forum representing a broad spectrum of role players, including insurance companies,in the health industry. This forum would be informed by the Clinical Dispute Forum established in the UK. The forum will meet to discuss ways and means to curb medical negligence that leads to claims for damages instituted against all healthcare providers in the private sector.

14.3 One of the first goals of such a forum would be to establish a Pre-Action Protocol on the lines

contained in the protocols designed by the UK Ministry of Justice referred to earlier herein. The drafting and implementation of Pre-Action Protocols will obviously require the cooperation and collaboration of the South African Department of Justice and Constitutional development as well as the Judges President of the various High Courts and the Rules Board. The implementation of the protocols in the UK has substanially reduced the amount of medical malpractice claims reaching the courts for resolution. It is hoped that the same reduction will occur in South Africa.

Conclusion

15. The comparison to medico-legal laws and practice in other countries is insightful only to the

extent that they are compatible with the socio-economic realities of South Africa. Care should, therefore, be taken not to endorse the provisions that seem to function well in other countries and apply them to South Africa. A system should be developed that will be functional and affordable in South Africa.

16. It is the designed purpose of this post graduate course to educate and train medico-legal

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practitioners that will be in a position, through their qualification and subsequent practices, to assist in the development of those measures that will best suit the South African disciplines of law and medicine.