AFJOG

For the past fifteen years obstetricians & gynaecologists in South Africa has been at the receiving end of a discipline- threatening logarithmic rise in medical malpractice insurance premiums. The current medico-legal predicament is broadening its scope, like a monster that has now grown two additional heads. The medical profession in South Africa is now facing an unprecedented convergence of legal, ethical, and systemic challenges. The threat is no longer limited to rising litigation for adverse medical outcomes, as we are also now experiencing criminal prosecutions on an unprecedented scale. To add insult to injury, malpractice litigation, has now been infested with fraud, which is by now a well-established and entrenched cancer plaguing South Africans at large in virtually all aspects of society on a daily basis. These pressures are reshaping the landscape of healthcare delivery to the detriment of practitioners, society, the delivery of medical care, and most importantly, has the potential to severely harm patients. MEDICAL NEGLIGENCE CLAIMS The practice of obstetrics and gynaecology is inherently one of high stakes. It involves multifaceted decision making, balancing the complexities of science and the profound vulnerability of human life, especially that of the unborn foetus who has to make the sometimes hazardous transition from the intrauterine environment to the outside world. One of the risks of this foetal journey is that of the susceptible foetus developing cerebral palsy (CP). It is now widely accepted that the vast majority of CP cases are not as a result of medical malpractice, yet every CP case is a potential litigation threat running into millions of rands. In recent times there has been an increase in the number of and value of claims. This has contributed significantly to unaffordable medical malpractice premiums. Despite efforts in the background frommany role players, including the South African Society of Obstetrics & Gynaecology (SASOG), this crisis is escalating at a steady and unrelenting pace, with no light at the end of tunnel. The challenges faced by the medical malpractice industry is to provide sustainable quality risk based products with affordable premiums. The absence of transparency on how costs and escalations are determined, has unfortunately contributed to the impression that medical malpractice industry is part of the medico-legal challenges faced by gynaecologists in SA. Obstetricians & gynaecologists bear the brunt of a legal system increasingly driven by malpractice claims. Lawyers making their living from personal injury claims, enthusiastically assisted by expert O&G witnesses making a living from providing expert opinions, and who frequently provide biased opinions not supported by evidence-based medicine, is what is essentially driving this culture. One of the most troubling aspects of this crisis is the exploitation of the public healthcare system by medico-legal experts and fraudulent actors within the legal community. In many instances, these experts provide testimonies that exaggerate negligence claims, enabling inflated pay-outs. This issue is compounded by unscrupulous legal practitioners who target vulnerable patients, often coercing them into litigation that benefits the lawyers far more than the claimants. FRAUDULENT MEDICO-LEGAL CLAIMS Fraudulent medico-legal claims in South Africa, especially targeting provincial health departments, has been a frightening issue highlighted in recent investigations. The Minister of Health, Dr Aaron Motsoaledi, at the recent SASOG congress, revealed systemic abuse by some lawyers and healthcare professionals collaborating to defraud the state through inflated or fabricated claims for billions of rands. Key issues identified include inflated claims, where legal practitioners submitted exorbitant claims for events that either never occurred or were exaggerated. Some lawyers collude with state health workers to fabricate evidence or mislead vulnerable patients into signing legal documents without understanding their implications. Cases involving conditions like CP were particularly targeted, as they are associated with high settlement values. Poor record-keeping in public hospitals is enabling fraudulent claims, creating opportunities for rogue legal practitioners and healthcare workers to exploit the public healthcare system, essentially stealing money from the poor and the sick to enrich themselves. Just last week, reports surfaced in the news media of a law firm being accused of failing to distribute settlement funds to claimants in medical malpractice cases. This includes significant settlements awarded to patients affected by brain injuries due to medical negligence. Allegedly, the firm did not pay out the full amounts to the claimants as stipulated in the settlements, raising concerns about exploitation of vulnerable individuals. CRIMINALISATION OF MEDICAL SPECIALISTS The O&G community was shocked to its core in 2016 when one if our senior colleagues received a five-year prison sentence following the demise of a patient from post- partum haemorrhage. Since then, we have witnessed a rising trend of criminalisation of medical specialists, with several practitioners facing criminal prosecutions and arrests for medical malpractice following adverse events. This trend has been particularly highlighted by high- profile cases such as those involving paediatric surgeon Dr. Peter Beale, anaesthetist Dr Abdulhay Munshi and the general surgeon Dr. Avindra Dayanand, which brought the criminalisation of medical errors into public focus. These prosecutions typically revolve around claims of gross negligence or intent, often following patient deaths, The incessant escalation of medico-legal challenges of South African healthcare professionals: Prof Leon C Snyman The current Honorary Secretary of SASOG and Chair of the SASOG Medico-legal Committee EDITORIAL African Journal of Obstetrics and Gynaecology | Volume 2 | Issue 3 | 2024 | 01