Medical negligence claims and the value of mediation

16 April 2014

Experts say that South Africa is facing a medical negligence crisis. What can we do to ameliorate this crisis, and resolve the attendant conflicts? Have the human and material costs of medical malpractice spiraled out of control? How do we deal with and respond to misdiagnoses, the supply of wrong medication, leaving surgical swabs or instruments in patients during surgery, faulty hip replacements, etc.

In the Public Health Sector:

  • Gauteng Health Department faces negligence claims amounting to R1.28-billion for FY2012/2013. 

  • Eastern Cape faces claims of R876-million 

  • North West paid out R13.3-million for an instance of negligence at a state hospital. 

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Health Minister Aaron Motsoaledi suggests a cap on payouts to help health departments avoid bankruptcy.

In the Private Health Sector:

  • cost of reported claims more than doubles over 2 years

  • claims exceeding R1 million have increased by nearly 550% over the last decade

  • claims exceeding R5 million have increased by 900% in the past 5 years

(See J Malherbe, ‘Counting the cost: The consequences of increased medical malpractice litigation in South Africa’, 2013 SAMJ, Vol. 103, No 2)

Consequences:

  • growth in negligence claims produces dramatic increases in the cost of insurance for doctors;

  • gynecologists and neurosurgeons can pay as much as R200 000 per annum in insurance premiums;

  • higher costs for patients;

  • work in these specialist areas becomes unsustainable;

  • massive costs of litigation, along with delays, appeals, counter-claims.

The role of mediation in addressing these issues:

"It is not suggested that there is no role for litigation in ensuring justice, but, like warfare, it should always be a last resort. It should be the alternative if a problem-solving process such as mediation fails to provide a mutually agreeable solution to a dispute. Currently, however, most legal practitioners view mediation as the alternative and litigation as the primary process for resolving differences." Barney Jordaan, "Access to court, or access to justice? Mediation in medical negligence cases” 2014.

Complaints and claims against healthcare professionals have particular features. 

The Conflict Dynamics workshop is an occasion to learn about:

  • Why mediation works well in resolving these types of disputes

  • International experience of mediation in the clinical sector – successes and challenges;

  • The demands on mediators;

  • The demands on patients and healthcare staff;

  • Process design and group claims;

  • Reducing the cost of time, money and strain to patients and health services;

  • The impact on insurers and the legal profession.

There will also be a demonstration of a typical medical negligence mediation. 

This workshop is ideally suited to claimants and patient organisations, medical practitioners, administrators and insurers, judges, policy-makers in civil justice, mediators and lawyers with an interest in resolution of clinical disputes.

The leaders of the workshop are internationally-acclaimed experts in their fields, including Tony Allen. Tony is an English solicitor who was accredited as a mediator by CEDR (the UK’s Centre for Effective Dispute Resolution) in 1996 during his thirty years in private practice dealing primarily with personal injury and clinical claims.  He joined CEDR as a full-time Director in 2000, since when he has been deeply involved in developing mediation in clinical and personal injury claims, running many seminars and training courses for mediators and lawyers on mediating such claims, and representing parties in such mediations. He has trained a number of South African mediators for CEDR and Conflict Dynamics in general commercial mediation, as well as training world-wide. He is the author of Mediation Law and Civil Practice and has published several articles in South Africa on civil justice reform. 

The workshop is likely to create benchmarks for the resolution of medico-legal disputes in South Africa.

 

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