We called this media briefing to provide a progress report on the ongoing investigations by the Special Investigating Unit (SIU) into medico-legal claims made against the Department of Health across the country.

Background

Around 2015 the Health Sector experienced an explosion of medical practice litigation cases directed against health institutions as well as individual medical practitioners in both the public and private practice.

This explosion happens to have coincided with the Road Accident Fund (RAF) strengthening its systems. It is common cause that RAF had been hollowed out by a multiplicity of claims that brought it down to its knees.

In the aftermath legal practitioners who used to litigate against RAF seem to have migrated en masse to the Healthcare Sector.

In response, the Department of Health convened a medico-legal claim Summit in 2015. The following is the summary of the background of the Summit:

• It was attended by various stakeholders including representatives from both the public and private healthcare sectors, the legal profession itself and other health experts.
• Over and above the RAF migration phenomenon mentioned above, delegates deliberated on contributing factors and/or other reasons for the escalation of medico-legal claims and identified possible solutions.

The possible solutions were classified in three (3) broad areas:

(i) Patient safety:  It was recognised that adverse events do happen in health facilities and practices the world over, on the one hand. On the other hand incidences of negligence, malpractice or unethical behaviour by health practitioners do also occur. The Summit then focused on the plans to reduce these incidences.

(ii) Administrative solutions:  This entails proper keeping of good medical records, minimising theft of medical records and proper communication with patients and members of the public.

(iii) Legal solutions:  This entails looking at various legal interventions even before matters went to court. This includes but not limited to mediations, possible review of contingency fees and staggered payment to claimants.

However, the Department of Health noticed several claims which were completely out of synch and made no sense at all. There were claims that were evidently fraudulent.

Just as an example, a claim was submitted in which the claimant demanded R70 million for a supposedly botched circumcision by a doctor in a hospital in Limpopo Province. On investigation of this claim, it was found out that no such circumcision was ever performed. It was found that the patient was actually treated for a very serious genital infection. The hospital actually saved his life.

The SIU was then called in to look into these very suspicious claims.

In 2017, the SIU started their work by targeting provinces with the highest share of claims.

These were in Gauteng and the Eastern Cape Provinces.

By that time, the Eastern Cape contingent liability in respect of medico-legal claims amounted to R15,9 billion while in Gauteng the figure was R21,2 billion.

This means that should all the cases be won in court by the litigants, then the Department of Health would had to pay this staggering amounts.

General findings of the SIU:

• Most of the claims were targeting cerebral palsy, a condition in which babies develop some form of brain damage due to depravation of oxygen during the process of birth.
• While it is recognised that cerebral palsy is a very debilitating and unfortunate occurrence to come from the healthcare system, it is a matter of very serious concern that it is abused by legal practitioners, due to sheer greed. The level of abuse was such that the SIU found that some of the claims were made on behalf of patients without their knowledge.
• Elderly people who are taking care of their grandchildren in the absence of their mothers, were tricked into signing the Power of Attorney to sue, whereas they were told that they were signing SASSA forms for child support grants. This simply means that legal practitioners or their scouts were masquerading as social workers.

Specific findings in the Eastern Cape:

• In the Eastern Cape, most of the medico-legal claims emanated from one Johannesburg-based law firm. We are able to name the firm today because they have already been charged in a court of law. This is Nonxuba Attorneys Incorporated. In a period of 15 years, i.e from 2012 to 2017 this law firm submitted 44 medico-legal claims to the tune of R497 million against the Eastern Cape Department of Health. Most of their claims as mentioned above were for children supposedly born with cerebral palsy. Cerebral palsy is not necessarily a homogenous condition. This means that the effects of the brain damage are not the same for all individuals because different parts of their bodies may be affected. However, the claims submitted by Nonxuba for each of nine children for whom claims were submitted were identical in that he demanded R15 million each. This was clearly suspicious and also indicated a lot of cut-and-paste on the part of this legal firm.

• Between 2010 and 2016, medico-legal claims increased from 46 to 529 in the Mthatha High Court alone.

• There is evidence of collusion between attorneys, touts, nurses and doctors in both the public and private healthcare. In some instances nurses stole the medical records and illegally handed them over to attorneys. The attorneys would then apply through PAIA (Promotion for Access to Information Act) for the same records they are illegally in possession of. Naturally such records will not be found and the lawyer then claims fees from the Department for failing to provide records.

• Unfortunately there was also collusion involving some officials in the Office of the State Attorney, whereby out-of-court settlements for hefty sums were entered into without the mandate or even the knowledge of the department.

• Litigating attorneys would even sue for one case in two different courts. A variation of that is a situation where two different lawyers would claim for the same patient using identical details. Notably, whereas the patient is one person, the two attorneys will claim for vastly different amounts. One attorney would claim R7,5 million and the other R25 million for the same patient and same condition. This clearly indicates the arbitrariness of the claims.

• In the Eastern Cape, most of the medico-legal claims emanated from one Johannesburg-based law firm. We are able to name the firm today because they have already been charged in a court of law. This is Nonxuba Attorneys Incorporated. In a period of 15 years, i.e from 2012 to 2017 this law firm submitted 44 medico-legal claims to the tune of R497 million against the Eastern Cape Department of Health. Most of their claims as mentioned above were for children supposedly born with cerebral palsy. Cerebral palsy is not necessarily a homogenous condition. This means that the effects of the brain damage are not the same for all individuals because different parts of their bodies may be affected. However, the claims submitted by Nonxuba for each of nine children for whom claims were submitted were identical in that he demanded R15 million each. This was clearly suspicious and also indicated a lot of cut-and-paste on the part of this legal firm.

• Between 2010 and 2016, medico-legal claims increased from 46 to 529 in the Mthatha High Court alone.

• There is evidence of collusion between attorneys, touts, nurses and doctors in both the public and private healthcare. In some instances nurses stole the medical records and illegally handed them over to attorneys. The attorneys would then apply through PAIA (Promotion for Access to Information Act) for the same records they are illegally in possession of. Naturally such records will not be found and the lawyer then claims fees from the Department for failing to provide records.

• Unfortunately there was also collusion involving some officials in the Office of the State Attorney, whereby out-of-court settlements for hefty sums were entered into without the mandate or even the knowledge of the department.

• Litigating attorneys would even sue for one case in two different courts. A variation of that is a situation where two different lawyers would claim for the same patient using identical details. Notably, whereas the patient is one person, the two attorneys will claim for vastly different amounts. One attorney would claim R7,5 million and the other R25 million for the same patient and same condition. This clearly indicates the arbitrariness of the claims.

After these findings in the Eastern Cape, the National Health Council (NHC) then decided that the SIU investigates all provinces. Hence the SIU obtained proclamation R74 of 2022 from the President of the Republic.

On the 29th July 2024, the SIU briefed the Department about progress in this regard.

PROVINCIAL BREAKDOWN OF MEDICO-LEGAL CLAIMS

Eastern Cape Department of Health (“ECDoH”)

Free State Department of Health (“FSDoH”)

Gauteng Department of Health (“GDoH”)

KwaZulu Natal Department of Health (“KZNDoH”)

Mpumalanga Department of Health (“MDoH”)

Limpopo Department of Health (“LDoH”)

Northern Cape Department of Health (“NCDoH”)

North West Department of Health (“NWDoH”)

Western Cape Department of Health (“WCDoH”)

So far, in the matters completed by the SIU, the sum of R3,104,684,800.00 has been saved for various Departments of Health. We believe that this amount will increase as the investigations are still ongoing.

CONCLUSION

The relationship between the department and the SIU in the fight against corruption is not only limited to the medico-legal investigation but extends to areas of the department where corruption rears its ugly head.

This will also include among others the implementation of the National Health Insurance (NHI), which many people believe is being planned on a foundation of corruption. We are already working together through the health sector anti-corruption forum.

There are naysayers that investigations by institutions like the SIU are just public relations exercises and are meant not to yield any results. This was said by a prominent South African in May this year after the Department of Home Affairs called the SIU to raid the Refugee Reception Centres after a tip-off by a whistleblower. We can assure you today, that the results of those raids on Refugee Reception Centres will be announced in due course by the SIU, as we are now announcing the results of the medico-legal claims investigation.

We wish to take this opportunity to make an offer to lawyers who might have knowingly submitted claims that are fraudulent, to withdraw them within two weeks and there will be no consequences. Failure to withdraw within two weeks would mean that the offer will have lapsed and the SIU will strike.

For media enquiries, please contact:

Mr Foster Mohale

Health Departmental Spokesperson 0724323792

Foster.mohale@health.gov.za Or

Kaizer Kganyago

Spokesperson: Special Investigating Unit 082 306 8888

KKganyago@siu.org.za