Imagine being injured in a government hospital due to negligence and, after suing the facility, being told by the court that your compensation is to go back into the same hospital for treatment.
This scenario could become more common in South Africa after a High Court ruling that a state hospital or facility can “take care of the injured patient’s medical needs in future” in lieu of a lump-sum payout.
Why this ruling is problematic
Being admitted to hospital for any reason is traumatic. If, due to negligence, a patient suffers physical injuries in that hospital, the emotional trauma is compounded.
Being sent back to the same facility would not only heighten that trauma, it would negatively impact the patient’s physical and mental well-being.
Taking away a claimants’ choice when it comes to future treatment also compromises the rights of a victim.
It’s reasonable for a patient who is treated negligently in a state facility to feel safer going to a private hospital for treatment.
Medical malpractice cannot be taken lightly
Medical negligence can result in serious injuries, chronic conditions and even death.
The consequences of medical negligence extend beyond the medical costs of future treatment.
Compensation for medical malpractice cases needs to be carefully considered so that the victims are covered for physical injuries sustained, on-going treatment, loss of income and mental trauma.
Malpractice cases in South Africa have involved patients dying from neglect, severe brain damage due to birth complications, wounds becoming infected due to poor hygiene practices and accidental amputations.
These negligent outcomes have lasting effects on the victims and their families.
They cannot be minimised by claiming that covering future medical treatment – in the same facility where the original trauma took place – is adequate or appropriate compensation.
Why government opposes payouts
The Department of Health has pursued this type of ruling before.
In 2017, it lost a prominent case when its legal team argued that paying a lump sum to a woman whose child was brain-damaged due to negligence would place undue strain on the department’s finances.
Using this argument to try to avoid paying lump-sum compensation is becoming increasingly widespread in medico-legal cases against the state.
Naturally, personal injury attorneys strongly oppose this because it’s not in the best interests of the victim.
Government’s fears that citizens will become overly litigious shouldn’t affect a patient’s right to pursue a medical malpractice case when he or she has been a victim of negligence.
A patient should be entitled to the compensation he or she deserves and needs despite the Department of Health’s financial woes.
The recent “cutting-edge” ruling
Earlier this year, the Department of Health successfully argued that the public health system could offer the same services as a private hospital.
Its legal team claimed that is was unnecessary to make a lump-sum payment to the mother of a child who suffered cerebral palsy as a result of avoidable complications at birth.
The mother opposed this argument. She stated that she would feel safer taking her child to a private hospital for treatment.
Ruling in the department’s favour forces her to risk subjecting her child to the same substandard level of care that caused his brain damage.
This takes away her right to choose the best treatment provider for her child’s chronic condition.
Unfortunately, the judge ruled in favour of the Department of Health, stating that payments for medico-legal claims are draining money from the “already cash-strapped” public healthcare system.
Medical malpractice claims with DSC Attorneys
At DSC Attorneys, we strongly believe that victims of medical malpractice by government hospitals should have the choice of going to a private hospital in future. As such, we advocate for lump-sum payouts as compensation for medical negligence.
DSC Attorneys specialises in medical malpractice claims. Our personal injury attorneys and medico-legal team can assess your claim, help prepare supporting evidence and represent you in legal proceedings.