AFJOG

African Journal of Obstetrics and Gynaecology | Volume 3 | Issue 2 | 2025 | 35 OPINION African Journal of Obstetrics and Gynaecology | Volume 3 | Issue 3 | 2025 | Medico-Legal Challenges for Legal and Medical Practitioners in South Africa in 2025 INTRODUCTION South Africa’s medico-legal landscape in 2025 is complex and challenging. 1 Systemic public healthcare reform, a medical negligence litigation crisis, rapidly evolving data-protection enforcement, and emerging health technologies represent examples of the challenges confronting medical practitioners today. Both medical and legal professionals must, amid significant uncertainty, prepare for difficulties arising from the implementation of the National Health Insurance Act (NHI Act). 2 Practitioners also face heightened scrutiny of healthcare services in both the public and private sectors, stricter privacy- law enforcement, and unresolved questions regarding telehealth and AI in clinical care. A REFORMING HEALTH SYSTEM AND EMERGING UNCERTAINTIES The NHI Act was signed into law on 15 May 2024. In 2025, many operational details relating to its implementation remain dependent on future proclamations and transitional measures. This creates practical uncertainties regarding service provider accreditation, patient referrals, funding channels, and the boundary between public and private healthcare coverage. These uncertainties also complicate contractual relationships, informed consent discussions (particularly around patient choice and service coverage) and the allocation of risk between facilities, professionals, and the proposed NHI Fund. Various stakeholders have indicated their intention to challenge aspects of the scheme legally, suggesting that the Act’s implementation timeline and scope may remain contested for years. For medical practitioners, the NHI Act’s initial rollout not only increases the risk of costly litigation but also compounds anxiety about the future of the medical profession in South Africa. PROCEDURAL AND EVIDENTIARY CHALLENGES IN MEDICO-LEGALLITIGATION Medical negligence litigation, especially against provincial health departments, continues to grow in prominence. Cases involving birth injuries 3 due to alleged negligent treatment in public facilities, for example, have reached unprecedented levels. 4 Medical negligence claims now represent one of the most significant forms of personal injury litigation in South Africa, second only to Road Accident Fund claims. Compounding these issues are over-congested court rolls, 5 repeated delays, postponements 6 , difficulty obtaining expert witnesses in certain disciplines, and challenges related to forensic linguistics and court translation. 7 In some instances, these procedural difficulties are exploited by legal practitioners in the hope that the prospect of protracted litigation will compel medical practitioners (or their Protection Societies) to settle on a cost-based risk analysis, regardless of the merits of the case. Public concerns highlight that claims volumes threaten service delivery, as healthcare resources are already strained. Allegations of medical aid fraud (including inflated claims and “ghost patients”) persist. Inconsistent treatment of claims by medical aid funds, or disputes over the interpretation of “prescribed medical benefits” (PMBs) under the Medical Schemes Act 8 , also result in delayed patient care and delayed payments to medical practitioners. To address these challenges, the South African Law Reform Commission has invited submissions from stakeholders, includingmedical practitioners, regarding a proposedMediation Act. 9 The legislation aims to establish a uniform mediation framework for commercial, civil, and community disputes. Additionally, newly introduced practice directives in Gauteng seek to reduce the number of personal injury claims. 10 PROCEDURALCHALLENGES INDISCIPLINARY HEARINGSBEFORETHEHPCSA Although the HPCSA plays a crucial disciplinary role, its regulations and guidelines governing hearings before disciplinary tribunals do not allow for adverse cost orders in cases of vexatious or groundless complaints. As a result, practitioners are subjected to lengthy 11 and burdensome processes without recourse to a deterrent mechanism, such as adverse costs orders. Such challenges impose unnecessary burdens on medical practitioners, and an investigation into procedural difficulties faced by respondents in HPCSA disciplinary tribunals is warranted. CHALLENGES INEXPERTEVIDENCE Medico-legal litigation relies heavily on expert evidence. Courts must weigh conflicting evidence from specialists in fields such as neurology, neonatology, and orthopaedics. 12 The quality and impartiality of expert witnesses remain problematic in some cases, as experts are accused of bias toward either plaintiffs, defendants, or the State. Judges, who are not medically trained, must distil accurate findings of fact from opposing professional opinions, 13 increasing trial length, costs, and uncertainty in outcomes. Problems also arise when experts act as advocates for one of the parties to litigation. Expert witnesses must remain independent, providing unbiased opinions within their area of expertise. They should avoid advancing legal arguments, such as labelling conduct as “negligence,” as the court alone determines such findings. 14 Failure to adhere to these standards may necessitate costly appeals with no guarantee of reversal. QUANTUMANDFUTURE-CARECALCULATIONS Estimating reasonable future medical and assistive-care expenses is increasingly complex due to ongoing debates over pricing and service availability under the NHI, as well as judicial considerations of whether state facilities can reliably provide appropriate care instead of awarding cash damages. 15 GAPS INETHICALGUIDANCE The Health Professions Council of South Africa (HPCSA) Alexander Politis Senior Lecturer, Department of Private and Mercantile Law, Akademia Advocate of the High Court Associate Member of the Pretoria Society of Advocates, Pretoria, South Africa Medico-Legal Challenges for Legal and Medical Practitioners in South Africa in 2025 CORRESPONDENCE: A Politis | Email: alexanderp@akademia.ac.za