Over the past 15 years, South Africa has experienced an increase in medical malpractice litigation, especially in the fields of obstetrics and gynaecology, neurosurgery, neonatology and orthopaedics.
Criticism of attorneys in the media
Since 2015, when the Road Accident Fund (RAF) started running into significant debt, personal injury attorneys have been criticised in the media for an increase in medical malpractice litigation. It's implied that because changes to legislation have made RAF claims less lucrative, attorneys have turned their attention to medical malpractice.
Even Health Minister, Aaron Motsoaledi, argued that this "pocket-lining phenomenon" has led to a crisis in healthcare – according to him, "the same crisis that occurred in the United States."
The implication is that because of lawyers, we'll soon be "like America", where doctors are afraid to practise, hospitals have to insure themselves to the hilt and parties can be sued for millions at the drop of a hat – or if someone spills hot McDonald's coffee on themselves.
In the words of an old David Bowie song, though, "this is not America".
The (shocking) reality in South Africa
There's simply no comparison between the US system and the severity and scope of the gross medical negligence we're experiencing in South African state hospitals.
In 2015 alone, Gauteng state hospitals recorded a total of 503 serious adverse events (SAEs) – the term used to describe untoward medical acts or omissions that result in significant harm to patients. This is twice as many serious adverse events as were reported in 2010.
Similarly, cases in KwaZulu-Natal rose from 50 in 2008 to over 350 in 2015. Figures for 2016 don't appear to have been publicly released.
A very high proportion of claims against state hospitals – upwards of 43%, according to a study by the Free Market Foundation – is for birth-related injuries such as brain damage, especially cerebral palsy.
A paediatrics professor at a leading medical school has stated that up to 50% of children with cerebral palsy in South Africa may have the condition because of avoidable birth complications.
How can one accept these statistics?
Similarly, how can one make sense of individual cases like that of a five-year-old girl, who was admitted to hospital for burns on her hands but ended up having both legs amputated?
Or of 94 psychiatric patients losing their lives due to causes like head injuries, dehydration and diarrhoea?
Or of a man who was admitted for heart surgery and instead lost a leg? Or of eight-year-old children who suffered brain damage as a result of negligence?
Problems facing the medical profession
There's no denying that our hospitals, doctors and nurses in South Africa face enormous challenges, with resource shortages, heavy case loads and populations that are highly vulnerable to diseases like HIV/AIDS and tuberculosis.
A lack of funds, skills and infrastructure aren't problems that are easy to overcome.
Many go above and beyond the call of duty, putting in long hours and not only providing highly competent care, but giving patients and their relatives compassion and kindness, too.
But doesn't malpractice litigation just add to the problems?
It's true that medical malpractice litigation adds to the financial burden faced by the South African Department of Health.
However, especially where people's health and lives are at stake, certain standards and boundaries have to exist and be enforced.
Litigation is one way of doing this. It's a way of adding accountability to the system and, when necessary, of saying "this is not acceptable" – in a manner that will have an impact.
The fact that our healthcare system is already in trouble shouldn't be used as a reason for South Africans not to stand up for their rights, including the right to competent, ethical medical treatment.
Protection for victims
For those who have suffered severe injury or other harm as a result of medical malpractice, litigation also plays a vital financial role.
It can help ensure that victims receive the compensation they need to pay for necessary medical treatment, rehabilitation and on-going support – which in some cases, people will need for the rest of their lives.
How do personal injury attorneys fit in?
It's true that personal injury attorneys profit from their role in representing clients. Attorneys are highly qualified individuals, and are compensated for their work.
There are cases in which attorneys behave unethically, and this is something we need to fight.
The best attorneys conduct themselves with integrity and dignity, in ways that uphold the law while showing empathy and respect for others. At DSC Attorneys, these principles will continue to guide our work in assessing and prosecuting medical malpractice cases.