Capping malpractice claims could reduce doctors' insurance costs

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He said there had been a flurry of litigation cases and judgments recently against medical practitioners for medical malpractice, which was driving up the cost of personal indemnity insurance for doctors and specialists. This has become a significant issue in both the public and private healthcare sectors.

"With many attorneys taking these cases on a contingency basis, we're seeing an increase in medical malpractice litigation generally - across both the public and private healthcare sectors."

Most of the judgments involving medical malpractice have been in the Supreme Court of Appeal. The Constitutional Court has also been seized and is fairly consistent in its judgments on recurring themes.

Many of the claims involved 'baby claim' judgments. These related to pregnancy and birth as well as the issue of informed consent. The quantum of claims had rocketed, with claims as high as R10-20 million in damages having been settled.

Capping medical malpractice claims for general damages as well as past and future medical claims could go some way to reducing costs involved with the claims, he said. He added that the rise in litigations was an international trend and regulators globally are stepping in to cap in claims as a way of dealing with the problem.

An intermediate step to reduce costs could involve legislative intervention in terms of how claims were assessed and damages awarded.

"Another form of intervention could be to make periodic, rather than lump sum awards for future expenses. Periodic payments would avoid the extensive costs involved with determining longevity and stipulate what the pay-out could be used for.

He said a medical ombudsman system would also take away the heat of the matter and the legal costs involved in taking a medical malpractice case to court. A voluntary system where insurers submitted to an ombudsman in terms of dealing with claims would be helpful. Insurers are bound by the ombudsman's decision, but patients had the option to litigate if they did not agree with the ombudsman's decision.

The annual HASA gathering brings together healthcare experts from around the world, including government leaders, hospital executives, medical practitioners, funders, economists, researchers and academics, to address the critical issues facing the healthcare industry. The focus of this year's conference, themed "Converge, Connect, Co-create - Embracing Change," was on some of the key challenges facing the South African healthcare system.