Attorneys have gravitated to medical malpractice claims as a source of revenue after changes in compensation offered by the Road Accident Fund. Medical malpractice underwriters are questioning the sustainability of their insurance products following the explosion of the medical litigation industry, says medical rapporteur Melody Emmett in an analysis in Business Day.

She adds changes to the legal framework have led to claims that are disproportionate to socio-economic circumstances, with outstanding claims against government and provincial hospitals reaching between R50bn and R60bn. David Campbell, GM of GPLA – an underwriting management agent on behalf of Lloyd’s of London – claims the fundamental causes of escalating medical malpractice court cases are changes in the legal landscape, growth in contingency fee litigation, larger awards made by the courts, and poor management at hospitals.

While the Contingency Fees Act caps the percentage an attorney can take at 25%, it does not cap the amount that can be claimed or the advocates’ fees.

To get to the SCA, ‘you are probably looking at net costs of between R3m to R4m', said Campbell.

He believes the solution lies in legislative reform – capping medical malpractice claims at R10m, implementing administrative training programmes at hospitals, introducing treatment protocols commensurate with socio-economic conditions, and limiting the prescription period to three years from the date of the negligent treatment. Also required are tight management controls, improved clinical risk management and meaningful consequences for breaches of protocol or administrative incompetence.

Full analysis in Business Day