Bhisho to challenge medicolegal payments

The broke Eastern Cape health department is taking extraordinary legal measures in a bid to cut back on its medicolegal bill, including a high court application to stop lump sum payouts in medicolegal claims.

Provincial health spokesperson Sizwe Kupelo says the department is “under siege”, with medicolegal claims sucking dry the fiscus and hindering health service delivery.

The department has haemorrhaged billions of rand in damages for medical negligence in the past decade.

Since 2015 alone, Kupelo said about R3bn had been paid out in medicolegal claims, with R4bn being absorbed by accruals from previous years.

The department faced letters of demand amounting to an unbelievable R37bn in damages.

He confirmed at the weekend that the provincial government would resort to court to stop millions of rands worth of lump sum payouts.

He did not go into detail about who the respondents of such a blanket application would include — given the department is facing hundreds of medicolegal lawsuits.

The Dispatch sent more than a dozen questions to the department on Friday for comment, but Kupelo said they had not yet managed to respond to all of them.

Apart from the urgent application to stop lump sum payouts, the Dispatch has in its possession a letter, purportedly sent to the state attorney and various private attorneys representing the department in its medicolegal claims, in which the department dictates that a particular legal script be followed in handling all existing and future medicolegal claims.

The letter, dated July 9, from former acting head of health Mahlubandile Qwase, starts with the alarming premise that neither the provincial treasury nor the department was in a position to pay out “globular sums in damages claims where the quantum exceeds R500,000 as a lump sum”.

It instructs that in all medicolegal claims against the department, it must be pleaded on the department’s behalf that it could not afford lump sum payouts.

This was due to its immediate and medium-term budgetary shortfalls, its reduced equitable share from national government, and the “accruables and payables” from historic payouts of excessive medicolegal claims over several years.

It also instructs that emphasis be placed by attorneys acting on its behalf on the impact these payments have on the department’s ability to meet its constitutional mandate to render health services.

It says the court must be asked to order that any damages payout be paid in “instalments over three to eight years” and without any interest accruing to the judgment debt.

They must also plead that the damages amount be reduced by any amount for apparatus which the department itself could provide.

This would mean a person injured by hospital neglect may again be required to attend that hospital for care for the injury caused by that neglect.

Rather ominously, the department’s letter warns that any awards made as a result of a procedure contrary to these instructions would result in the department seeking a rescission of the judgment.

But, there is a human welfare side to a prohibition on lump sum payouts, which any entity or person seeking to oppose these matters is likely to highlight to the courts.

There are babies, children and adults left with life-threatening, dire health conditions caused by shocking public hospital negligence.

If they are not provided with the financial wherewithal to treat these conditions, or to meet special shelter, dietary and other needs they could die.

DA health spokesperson Jane Cowley recently pointed out that it was a collapsed and compromised healthcare system that caused negligence and the resulting spate of medicolegal claims in the first place.

It was not the payment of medicolegal claims that led to the collapse.

“Years of systemic corruption, maladministration and cadre deployment have left the department desperately short of both capacity and strong leadership,” Cowley said.

“Consequently, quality of care has eroded over the years, which has contributed significantly to the ever-growing number of medicolegal claims against the department.”

The Special Investigation Unit has tried in vain to stop some of the court-ordered payouts to particular claimants which the SIU claimed the department had not properly defended.

In 2020, it failed in a bid to stop the payout of about R72m to four women whose babies were born with cerebral palsy due to the failure of proper care from the various provincial hospitals they had attended during childbirth.

At the time, acting Bhisho high court judge Siphokazi Jikela described as “unfair and unjustified” that the SIU sought to deprive the four caregivers of the cerebral palsy children of the benefits without the judgments ever having been appealed.

She said the four children were disabled and in desperate need of medical care, equipment and other aids, and that their lives would be “unbearable without rehabilitative treatment”.

It is not immediately clear when the high court application will be argued.

Consequently, quality of care has eroded over the years, which has contributed significantly to the ever-growing medicolegal claims against the department