Investigating the Impact of Medical Malpractice Litigation on Healthcare Delivery in Gauteng

Abstract

The purpose of this study was to investigate the consequences of the increasing cases of malpractice litigation for the South African health care delivery system. Malpractice litigation has been on the rise in both state and private hospitals, throughout the country. The study was conducted in the province of Gauteng where increasing malpractice litigation has cost the Health Department millions of Rands. The study followed a quantitative research methodology approach. The data collection was conducted through a questionnaire survey; a technique which was selected because it enabled the collection of large amounts of data from many people in a short space of time. The targeted population numbered 244 and the sampling was done using a probability sampling technique (simple random sampling), which gave all the respondents an equal chance of being selected for the sample. The data analysis was carried out using the Statistical Program for Social Sciences computer program. The results were presented in frequency tables and charts. Kew Words: Impact, Medical, Litigation, Malpractice, Healthcare. Introduction The issue of medical malpractice is fast gaining momentum throughout the world and the South African health sector has not been spared. Medical malpractice is defined as the failure of a medical practitioner, hospital or hospital employee, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances (Reed, 2009:1). According to Pepper and Slabbert (2011:29), litigation involving medical malpractice has been rising in South Africa. Medical malpractice claims have escalated, in terms of both size and frequency, and this is affecting both private and public sectors, equally. The rise in cases of medical malpractice litigation has been further increased through people being encouraged by the legal fraternity to become aware of their rights. According to Studdert, Mello and Brennan (2004:283), there are three main social goals of malpractice litigation: to deter unsafe practices, to compensate persons injured through negligence of medical , 2016 1 Vol. 2, No. 1 Journal of Research and Development (JRnD) 150 www.arabianjbmr.com practitioners, and to enable corrective justice. Choctaw (2008:13) argues that medical malpractice litigation has a negative impact on the retention of doctors, as doctors are now leaving the field of medicine, and those who remain are working in fear and silence. Child (2015:1) further stated that Health Minister Dr Aaron Motsoaledi announced an investigation into the reasons for the increase in medical litigation and negligence claims, as well as recommendations for remedial action. The rise in medical negligence lawsuits led the Health Minister to set up a team to investigate cases of medical malpractice. The minister suggested a cap on payouts to help health departments avoid bankruptcy. Subsequently, a litigation summit was held in Pretoria in March 2015 where the Minister affirmed that the country is experiencing an explosion in malpractice litigation (The Citizen 2015:1). The Aim of the Study The study aims to investigate the consequences of increasing medical malpractice litigation for health care delivery in South Africa, Gauteng. Research Objectives The objectives of the study are as follows: To identify the causes of the increase in medical malpractice litigation in South Africa; To ascertain the consequences of medical malpractice litigation for stake holders; and To offer and provide recommendations to the state and professional bodies regarding mitigating the causes of medical malpractice in South Africa’s health delivery system. LITERATURE REVIEW The issue of increasing medical malpractice is becoming grim in South Africa. Government health institutions, as well as private institutions, are increasingly being confronted with litigation related to medical malpractice. Pepper and Slabbert (2011:95) have reported that South Africa has been gradually gaining prominence in matters relating to medical malpractice. The problem of medical malpractice has resulted in medical insurance premiums rising rapidly and doctors are now more wary of being sued by patients than in the years before. There have been numerous incidences which have indicated the seriousness of medical malpractice in South Africa. The Medical Law website (2015:1) reported that according to a well-known medical journal in 2011, the percentage of reported negligence claims rose by over 130 % in South Africa over a period of two years. This rise was attributed to the increased awareness of patient rights across the world. The downside of the rise in medical malpractice in South Africa has been the rise in medical costs. Medical Malpractice Explained Medical malpractice, also known as medical negligence, has been defined by the American Medical Association as a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances (Brenner, 2010:9). Oginski (2012:87) defined medical negligence as the departure from good or accepted medical care. Medical negligence has also been defined as the lack of reasonable degree of care and skill or willful negligence exhibited on the part of Medical Practitioner while , 2016 1 Vol. 2, No. 1 Journal of Research and Development (JRnD) 151 www.arabianjbmr.com treating a patient, resulting in bodily injury, ill health or death (Bardale, 2011:33). Medical malpractice includes other forms of irregular medical practice that medical health professionals might engage in, which is not fair or constitutes wrong practice. Negligence is described as a state of mind, amounting to carelessness that leads to failure to meet the set standards (Erasmus, 2008:5). Statsky (2012:124) defines negligence as the failure to use reasonable care that an ordinary person would have used in a similar circumstance, and which results in harm or some other kind of loss. The researcher defines negligence as the failure to take the reasonable precautions that a reasonable person in the position of the health professional would take when in conducting work as a health professional. The definition by Erasmus (2008:5) brings in two key elements with regard to negligence: carelessness and failure to achieve agreed standards. According to Oginski (2012:87), medical negligence can cause significant and permanent injuries to the victims. Society protects the rights of those who have been negligently injured in botched operations, or simply through the negligence of health professionals in the hospitals and clinics. Doctors are required to prepare for such eventualities by paying for medical insurance. In the United States, doctors are required to take out annual malpractice insurance, which usually costs over R1,54 million, while foreign doctors operating from the US are expected to pay insurance equivalent to R46,000 (Connell, 2011:121). Due to the rising levels of medical malpractice litigation, health professionals are urged to understand the factors which lead to possible civil claims for negligence, and to considerably more serious charges of criminal negligence. Both categories can arise from a failure to uphold required and suitable standards of care (Bryden & Storey, 2011:124). Medical Malpractice in South Africa The global rise in medical malpractice litigation has reached South Africa, a developing African country, which is now facing a serious rise in the numbers and frequency of legal battles related to medical negligence. According to Pepper and Slabbert (2011:29), until recent years, South Africa appeared to have been spared the scourge of rapidly escalating global trend towards increasing medical malpractice litigation. The country has since experienced a 132 % spike in clinical negligence claims, with the five highest claims being reported between 2006 and 2010 (Bateman, 2011:216). According to Bateman (2011:216), the most expensive medical negligence claim to be paid on behalf of a South African doctor was R17 million, paid to a patient who suffered catastrophic neurological damage in 2010. The largest claims have emanated from obstetrics, gynecology and orthopedic surgery (Pepper & Slabbert, 2011:29). The increases in malpractice settlements in South Africa have included compensation being made to young children who have been harmed through negligent treatment, specifically the substantial costs of funding lifetime care packages (Bateman, 2011:216). According to Dr Graham Howarth, MPS Head of Medical Services for Africa, obstetricians, spinal surgeons and pediatricians who perform neonatal work bear the greatest chance of facing the most expensive negligence claims (Bateman, 2011:217). According to Malherbe (2013:83), the cost of reported claims more than doubled between 2011 and 2012. The author states that claims exceeding R1 million have increased by nearly 550 %, compared with those of 10 years ago, while claims which are valued over R5 million rose by 700 % in the past 5 years. This trend in medical malpractice litigation in South Africa is , 2016 1 Vol. 2, No. 1 Journal of Research and Development (JRnD) 152 www.arabianjbmr.com approaching that of the developed world, and this is an indication that the problem is expanding with recent times. Other countries that have experienced notable malpractice suits include Taiwan, where the largest settlement was between $100 000 (R1 151 million) and $200 000 (R2, 3 million), and Kenya where one case reached $500 000 (R5.75 million) (Uejima, 2011:24). The results of the increase in medical malpractice litigation have seen a move away from compassion-Centred health care towards ‘defensive medicine’, and have also revealed the devastating emotional effects of lawsuits on health professionals (Moore & Slabbert, 2013:60). Medical practitioners are now being more careful as they attend to patients and they are more fearful of facin