EDITORIAL: Fix health system to avoid lawsuits

THE liability insurance problems faced by medical specialists in SA and enunciated by Health Minister Aaron Motsoaledi on Monday are real enough, as are the potential consequences if a solution is not found.

However, his explanation of the origins of the looming crisis is deficient, which means SA’s approach to addressing it runs the risk of either being ineffective or making matters worse. The law of unintended consequences looms large.

As Motsoaledi explained, medical liability insurance premiums have soared in recent years, a global phenomenon that has contributed significantly to medical inflation and caused severe service disruptions in countries such as the US and Australia, where the health system came close to collapse 15 years ago.

For example, annual insurance premiums for obstetricians and gynaecologists in SA have jumped from R75,000 eight years ago to about R450,000 at present, a result of a sharp rise in both the number of suits and the size of monetary settlements awarded to plaintiffs by the courts. The government alone has a contingent liability of more than R25bn for medical malpractice lawsuits, which will take a large bite out of a health budget that is already stretched.

Specialists operating in the private sector have had to increase their fees to cover the higher costs, and medical schemes have balked at following suit, with the result that patients are having to pay the difference out of their pockets. That in turn has led to an increased burden on the public health system as people who would otherwise use the private sector turn to state clinics and hospitals for treatment.

It is also true, as Motsoaledi pointed out at a medico-legal summit, that graduates are increasingly avoiding specialities that are by nature more exposed to litigation, such as those dealing with women’s health and childbirth, while some younger practitioners are going so far as to change careers, and their more senior colleagues simply avoid risky procedures even if these may save lives. Combined with a still-high emigration rate in the medical field, the shortage of certain specialists is becoming critical in parts of the country.

This is clearly a problem that must be addressed, but judging from Motsoaledi’s comments, the government is struggling to see the issue properly.

Legal experts say medical malpractice suits have become more common in part because of the legal change that allowed lawyers to charge on a contingency fee basis, which has encouraged more patients to sue. The state’s attempt to limit personal injury claims against the Road Accident Fund has also had the unintended consequence of persuading some lawyers to switch focus to medical malpractice claims.

Most important, Motsoaledi avoids the obvious means of reducing the burden placed on the state by high medical malpractice settlement costs — minimising the number of such incidents. Just as SA’s horrific road accident rate could be reduced through more efficient and consistent policing, so negligence and malpractice in state hospitals would be reduced by addressing their causes.

Mistakes happen when doctors are placed under undue pressure because they are forced to work unreasonably long hours; when inexperienced interns are given more responsibility than they can handle; when they do not have access to the equipment they need to do their jobs properly; and when poor working conditions result in stressed and distracted staff.

If criminal syndicates including state-employed doctors, lawyers and justice department officials are conspiring to milk the system, as Motsoaledi alleges, then they must clearly be pursued and prosecuted. But if the courts are awarding large amounts in damages, it is surely mainly because malpractice is being proved, and that should be the focus of attempts to find a lasting solution. – BDLive