New medical deal ‘won’t work’

This article appeared in The Witness on June 19, 2018. It can be read on News24.

The recipient of an R11,5 million payout for a medical negligence claim has spoken out against a proposed bill that would entitle health authorities in future to pay such claims in “instalments”.

Her son Andile Mchunu* needs frequent supervision, medical tests and a session of physical therapy every week.

The five-year-old developed a chest problem after he was placed in an incubator at a KwaZulu-Natal hospital and as a result he is confined to a wheelchair, and cannot talk or move his head.

A year after his birth, in 2014, his mother, Priscilla*, received R11,5 million in a settlement after she successfully sued the provincial Department of Health for medical negligence.

“With the money I am able to pay for a caregiver, his medication and for a special school in Durban, which costs R3 000 a month, where he gets speech therapy, physiotherapy and occupational therapy,” Priscilla Mchunu told The Witness.

“We can afford to take him to a private hospital where there are no queues for us to wait in. If he needs a nurse or a doctor, then I can get them for him now,” she explained.

But a new bill that is currently open for public comment seeks to pay medical negligence claimants in installments rather than lump sums. It also envisages that the patient would be referred for treatment to public hospitals or facilities — sometimes the very hospital where the negligence occurred in the first place.

Critics believe the new Public Liability Amendment Bill would “double the trauma” of claimants, as they would be limited to public hospitals that meet standards set by the Office of Health Standards Compliance (OHSC).

“It would make things impossible,” Mchunu said. “There is no care like private health care for somebody like my son.”

Lawyers specialising in medical negligence cases also said installments would not cover the day-to-day needs of patients, who require expensive equipment like wheelchairs and frequent physiotherapy.

Michael Friedman of Friedman & Associates explained that successful claimants were owed money to cover future hospital costs as well as emotional damages.

He said the department is also liable for “past expenses” — those expenses incurred before the legal action was brought and while the matter was before court.

“We spend hundreds of thousands [of rands] getting clients effective care while legal proceedings are ongoing. In almost all our cases we find that our client has had limited access to medication or therapy. We normally have to fund items like wheelchairs.”

Gary Austin, of Gary Austin Inc, said referring successful claimants back to public hospitals would be disingenuous.

“We all know that to get medicine at any state hospital now means queuing for hours on end if not days,” he said pointing out that if the bill were passed, disabled patients faced the prospect of joining these queues.

“There are horrific waiting lists at state hospitals for operations, and medication is not always available,” he added.

Alex van der Heever, a professor at the Wits School of Governance, said there were only five public hospitals in the country that meet the OHSC standards.

“There seems to be no willingness by the department to address systemic failures at public facilities.

“What would be a more useful strategy of dealing with medical negligence would be to look at inappropriate people who are appointed or promoted to higher positions.”

The KwaZulu-Natal Department of Health has budgeted more than R1,1 billion for medical claims for the next three years, according to a budget presented to the health portfolio committee this year.

It paid out more than R420 million in claims in the 2017-18 financial year.

* Not their real names.