Will mediation stop dodgy lawyers from milking the health department?

Paying billions of rands for court cases in which doctors and hospitals are sued for supposed malpractice or botched treatment is “archaic”, says Health Minister Aaron Motsoaledi — and the government is putting its foot down.

This comes after a joint press briefing by the health department and the Special Investigating Unit (SIU) on Saturday on the findings from the unit’s ongoing inquiry into 10 679 legal claims against the state’s health departments from 2015 to 2020, amounting to a total of R107 billion. 

This amount is close to half of what the health department’s budget was in that five-year period — about R215-billion — which should best be used for hiring health workers, buying medicine and running hospitals.

The SIU’s work has, so far, saved the health department R3 billion. But if dealing with a dispute between doctors and their patients after treatment didn’t always have to end up in court, it might not have been so easy for dodgy lawyers to exploit the system in the first place.  

An “explosion” in legal cases brought against doctors and hospitals (so-called medicolegal claims) occurred since 2015, the health department said previously, which led to President Cyril Ramaphosa ordering the SIU to look into possible fraudulent claims two years ago. 

So far, the investigators have found cases of unscrupulous lawyers getting patient records illegally, claims having been made on behalf of patients without their knowledge or patients being “tricked” into suing the state.

Turning to the court to decide on a medical negligence claim is not necessarily in patients’ best interest, said Motsoaledi.  

“Because in court, it depends [on] who has fired more bullets or who has fired the first shot that hit. So we want to change that method.”

The silicosis class action

Something that could yield a better outcome is to opt for mediation — and “we have seen it work”. This was a reference to the out-of-court settlement reached between mineworkers and mining companies in a class action on behalf of workers who had developed silicosis as a result of their labour.

Silicosis is an incurable lung disease caused by breathing in large amounts of dust from grinding or drilling into rocks, like during mining. 

Mediation is a process in which two opposing sides negotiate a settlement with the help of a qualified independent adviser so that they come to an acceptable agreement together instead of having to go to court. 

For example, in the silicosis class action, the miners’ representatives and the different mining companies decided to talk to each other rather than present their case to a judge. After three years, a settlement was reached that let the miners who developed lung disease as a result of their work get compensation payouts to cover their and their families’ costs from a trust fund set up as part of the settlement. 

Negotiating the deal meant the case didn’t need to go through the court process, which may not necessarily have ruled in the miners’ favour, and could have meant their losing out on compensation.

But mediation is not common in medical disputes — despite a 2020 rule (called R41A) that is meant to guide legal proceedings in civil matters. The rule says that negotiation must be considered as a way to resolve a dispute first, before the case is taken to court. 

If a case does end up having to go to trial, the lawyers need to show that their clients had considered mediation but that there were valid reasons why it couldn’t work and the case therefore has to be argued before a judge. 

Settling disputes faster

With R41A, the idea is that fewer cases will end up unnecessarily clogging up the courts, likely bringing down the high costs that come with lawsuits, and get disputes resolved faster.

An analysis of 19 medical lawsuits by the South African Law Reform Commission (SALRC) found that it took anything from one year and six months to as long as 16 years and one month to get to a judgment. In fact, three-quarters of the cases took longer than five years to draw to a close. 

Lengthy lawsuits make costs pile up, as applicants need to pay for the services of an attorney, travelling to court, submitting documents and hiring expert witnesses (when needed). In most cases, lawyers charge an hourly rate for their work, so the more often they have to go to court or the longer a case drags on, the more expensive a case becomes. Sometimes, depending on the outcome of the case, a court can make one party cover the legal costs of the other.  

But the Contingency Fee Act gives lawyers’ clients the option of not having to pay anything upfront or for many billable hours; instead, if the ruling is in their favour, the lawyer is entitled to up to 25% of the payout. 

Because medical malpractice cases often involve large awards as compensation for a patient’s suffering or loss in quality of life, this is an attractive option for unscrupulous lawyers.   

And, said Motsoaledi, while the cap of 25% exists in theory, “in practice we know that many take more”.

The SIU’s investigation found instances of law firms keeping most of the money that the state paid out. For example, for one case in the Eastern Cape the department paid R373 million to a single firm for 22 different claims — but “[the firm] pocketed all the money for themselves”. 

‘Creative potential to find solutions’

Mediation can save time and costs, says Shamal Ramesar, a medical doctor and qualified mediator who heads a nonprofit called Mediation in Motion Mediators (MiMM).

Advisers can charge only up to R6 000 a day as opposed to the up to R6 000 an hour a highly experienced attorney could charge.  

But the outcome of mediation doesn’t always have to be a financial reward, says Jacques Joubert, advocate of the high court and who also works as a mediator. The idea is to settle the dispute in a way that is the best for both parties, which means “there’s a creative potential to find solutions, such as, for example, the hospital or doctor offering further treatment”. 

To encourage people to choose negotiating a deal outside court as a way to settle medical disputes, the MiMM has partnered with the South African Medical Association (Sama) to offer doctors and their patients a free meeting should a conflict arise after treatment.

The MiMM drew up a clause for a pre-mediation meeting that doctors can add to their patient consent forms. If the option for such a meeting is taken up, an appointed mediator will listen to both sides to hear what the conflict is about and then advise on whether it can be solved with mediation rather than going to court. In this both parties can make an informed decision about their course of action.

A study by the United Kingdom government shows that attending a pre-mediation meeting helped people dealing with family disputes to try negotiation rather than a lawsuit.

Participants were interviewed before and after attending a session with a mediator, who gave them information on the process and also assessed whether it would be a good option for their case. Most of the participants decided to negotiate with their opponents, with clients who knew little about the idea of mediation getting the most benefit from the pre-meeting.

Although a part of rule 41A says that if one of the parties in a dispute refuses mediation and rather opts to take the case to court, they may have to foot the bill for the court application, the stipulation is rarely enforced and there are even talks about removing it in special cases. 

That’s where a pre-mediation meeting clause, like the one doctors have an opportunity for through the mediation pilot project, could come into play. 

In fact, a discussion paper by the SALRC recommends including this type of clause in patient admission forms to help people consider mediation instead of going straight to court, especially in the public sector, where negligence claims are high.

Says Ramesar: “You’ve got nothing to lose in this meeting. And as it’s free and voluntary, and able to be stopped at any stage, why not give it a try?”

 This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.