The scientific thinking about cerebral palsy has changed.
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- A new study, commissioned by the Actuarial Society of South Africa, found that almost 40% of successful legal claims against provincial health departments were for medical negligence that resulted in cerebral palsy.
- But while in the past it was believed that the majority of cerebral palsy cases were caused by oxygen deprivation during labour, the scientific thinking has changed and other factors are now also blamed.
- This should be considered in court, and could save government billions.
Over the past seven years, South Africa's provincial hospitals paid almost R10 billion in medical negligence claims to patients.
Research, commissioned by the Actuarial Society of South Africa (ASSA), showed that almost 40% of these successful legal claims were for medical negligence that resulted in cerebral palsy. Cerebral palsy is caused by damage to an infant's developing brain resulting in neurological disorders that permanently affect body movement and muscle coordination.
In a statement issued by the ASSA, the actuary and damages expert Gregory Whittaker points out that for close to a century, the majority of cerebral palsy cases were believed to have been caused by oxygen deprivation before or during labour. "This theory was, however, challenged when medical interventions like electronic foetal monitoring and caesarean sections reduced the number of stillbirths and infant deaths, but cerebral palsy prevalence rates remained constant."
Whittaker points out that it is now widely accepted that cerebral palsy is often caused by a number of sequential factors rather than a single cause. Contributing factors can include maternal obesity, alcohol consumption and smoking, infections and birthweight.
However, in his analysis of the successful lawsuits over cerebral palsy cases against the provincial health departments, "contributory negligence" was not argued in the cerebral palsy matters. He says that birth weight, for example, presents a significant risk factor in cerebral palsy. Yet, in more than 70% of the successful lawsuits, there was no reference to birth weight.
He says the lack of consideration of these factors is concerning. "If contributory negligence of 10% can be proven in respect of each plaintiff for example, the state would save hundreds of millions of rand in claims payments."
According to Whittaker, an examination of the placenta within 24 hours of a birth can most accurately reveal the causes of abnormalities in a newborn. But there are no national guidelines in the South African healthcare system for the post-birth examination of placentas, and in addition, there's a dire shortage of specialised pathologists with experience in placental pathology in the state sector.
Treasury currently has a contingent liability of around R111.5 billion at the end of March 2020 for medical legal claims against provincial departments of health. This represents almost half of the country's total health budget, but could be reduced if claims registers are assessed and individual case reserves are established, says the ASSA.
Whittaker points out that there is currently no legislation in South Africa that regulates legal claims in the medical field. He adds that as a result medical malpractice claims are generally dealt with by way of the common law of delict and of contract.
"The negative impact that medical malpractice claims have on the public purse and on the rendering of health services in the public and private sectors means that urgent attention must be given to regulating the system."
He proposes creating specialist medical malpractice courts, which could use medically trained judges.