iTOO Special Risks, a specialty risk underwriter and EthiQal, a medical professional indemnity provider for specialist doctors, have announced an exciting strategic partnership. This collaboration, backed by Hollard, one of South Africa’s largest non-life insurers, aims to bolster EthiQal’s mission to protect healthcare professionals with robust, reliable coverage and medico-legal support.
Together, the partnership reinforces the comprehensive suite of medical malpractice insurance cover available across the spectrum; iTOO’s focus on allied professionals, General Practitioners, institutions and clinical trials continues and EthiQal remains focussed on specialist practitioners.
Together this partnership unlocks valuable opportunities to achieve the shared vision of strengthening the protection of the medical profession, without which the delivery of high quality healthcare is not achievable.
EthiQal Reinforced
EthiQal’s dedication to safeguarding specialist practitioners aligns perfectly with iTOO’s extensive network and expertise in specialty insurance. This partnership, ‘EthiQal Reinforced,’ aims to leverage the strengths of both entities to enhance their offerings and deliver world-class products and services to their clients.
“We are saying this partnership is ‘EthiQal Reinforced’ because while EthiQal is already a strong entity, together with iTOO, it becomes even bigger and stronger,” says Justin Naylor, CEO at iTOO. “iTOO’s extensive network and resources bring additional and complementary skills and capabilities to support EthiQal and its customers.”
Naylor further elaborates, “We have a 20-year track record and well-established risk underwriting capability with a market-leading diverse product range, backed by a complete cradle-to-grave infrastructure. This partnership combines the expertise and track records of both iTOO and EthiQal, reinforcing their excellent offerings.”
EthiQal’s Vision and Strengths
Alex Brownlee, CEO of EthiQal, highlights the alignment of principles and vision that initially brought the two parties together. “iTOO brings a legacy of deep insurance expertise, an extensive network, and additional skills that complement our own. This partnership provides enhanced financial backing, stability, and reliability,” says Brownlee.
Brownlee emphasises the focused and niche market that EthiQal serves, which requires leading risk management support. “Medical malpractice, particularly in fields like obstetrics, spinal surgery, neonates and neurosurgery, involves high risks and long-duration claims. This has driven us to develop deep expertise and understanding of the medico-legal landscape,” he notes.
EthiQal’s team includes a dedicated clinical team, an in-house legal team available for urgent advice and legal support, and personalised quality service. Brownlee assures that the partnership will not change the way EthiQal does business, nor change its products or services, but will reinforce and support the dedicated and steadfast EthiQal team in their commitment to support doctors.
Financial Resilience and Support
EthiQal has strong financial capacity, with a Solvency Capital Requirement above 120%, well beyond the regulatory 1-in-200-year event solvency requirement. The firm enjoys continued financial backing from Dr. Christo Wiese’s Titan Group and reinsurance cover from Lloyd’s of London. Along with iTOO and Hollard, this combination offers improved financial support, stability, and reliability “for our clients’ benefit”, Brownlee stresses.
“EthiQal offers incredible value for medical specialists, and Titan will continue to invest significant resources to build EthiQal’s capacity to measure, mitigate and absorb medical malpractice risk. Alex Brownlee and the team’s drive and capability is what attracted us to the business and what will ensure EthiQal continues to offer value to its policyholders and broker partners”, says Titan’s investment executive Zac Pitsillis.
Engagement and Education
Brownlee also confirmed that EthiQal will remain actively involved in the medical community through conferences, presentations, and educational grants. “Over the last 2 years in particular we have been extremely active in sharing our knowledge and insights, aiming to support doctors and their medical societies.”
Commitment to Quality and Service
“This partnership with iTOO, backed by Hollard, reinforces the quality and value of EthiQal’s products and people, demonstrating confidence in EthiQal’s future and the team that makes it happen,” Brownlee concludes. “The alignment in our values, vision and approach to clients is a critical reason why this partnership is ideal.”
A key part of the National Health Insurance Act is the requirement of private healthcare facilities to obtain a Certificate of Need (CON) in order to practise. Now it, this component has been struck down by a Pretoria High Court judge. Judge Anthony Millar struck down the Act’s key section, saying that it was “akin to an attempt to indenture the private medical service in the service of the state”.
The case had been brought by the Solidarity Trade Union, the Alliance of South African Practitioner Associations, the South African Private Practitioner Forum, the Hospitals Association of South Africa (HASA) and a number of healthcare providers and owners of healthcare establishments.
Sections 36 to 40 of the NHI Act would introduce a Certificate of Need (CON) scheme, essentially tying down doctors to a specified geographical location, which would be the only location where they could render their services.
It is declared that sections 36 to 40 of the National Health Insurance Act 61 of 2003 are invalid in their entirety and are consequently severed from the Act.
Judge Anthony Millar’s ruling
Any new healthcare facility would have to apply for a CON, which would be valid for 20 years. Existing facilities would have two years’ grace period to apply. This would applicable to hospitals, clinics, pharmacies and even to private rooms set up within the home of the practitioner. Operating without one would be a criminal offence – punishable with a fine, five years in prison or both.
It had been argued that because the regulations for CON had not been promulgated, the applicants’ argument was “hypothetical” and not “crystallized”. In Tuesday’s ruling, Judge Millar cited previous rulings and the constitutionality of the matter was still worth testing.
The CON scheme was extensive, Judge Millar noted, and would impact not only healthcare practitioners who worked in healthcare facilities and their employees, but also “juristic persons“, ie corporations or other organisations that can be legally liable.
In terms of its constitutionality, the applicants’ argument was that, “at least six constitutional rights are infringed. They say it tramples on their rights including where they want to reside, send their children to school and the communities they belong to.”
Judge Millar noted, would mean that setting up a hospital was a hefty investment of R500 million or so, and there was no provision any support. Taken together with the 20-year CON validity, would serve to discourage private investment and became a “blunt instrument” with which the Director-General of Health could control private healthcare in the country.
Even though this provision was ostensibly to serve many, this could not come at the cost of individual freedoms, among them Section 22 of the Constitution which provided for the freedom to choose an occupation within the rule of law.
“The scheme is silent on the extant rights of both the owners of private health establishments, private healthcare service providers and private healthcare workers. Such extant right include their integration and professional reputations in the communities which they presently serve together with the significant financial investments and commitments made by them to be able to render the services that they do.”
Since health establishments are purpose-built and hard to convert for other use, this constitutes a de facto deprivation, he wrote.
“It does not behove government in pursuing transformation, to trample upon the rights of some ostensibly for the benefit of the many.”
‘Effective indenture’ of private healthcare
While the legal teams for President Cyril Ramaphosa, the minister of health, Dr Aaron Motsoaledi, and the director-general of health, Dr Sandile Buthelezi, argued that the public healthcare sector was overburdened, Judge Millar replied that this amounted to the effective indenture of the private healthcare system.
Among other problems, contesting CON issuance was without recourse and by turning down a certificate the DG could essentially deprive the affected parties of income, as doing so would see them prosecuted under Section 40.
The ruling was welcomed by healthcare professional associations.
As reported in the Daily Maverick, Solidarity chief executive Dr Dirk Hermann said, “This judgment is a major blow to the total NHI [National Health Insurance] idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle.
“The NHI in its current format cannot be implemented as the essence of the NHI is central planning – and this has now been found unconstitutional.”
In a statement, HASA said that it regretted that the matter had to come to court. “We would have preferred achieving the objective of a stronger health system through a negotiated and collaborative effort to increase the number of medical students and nurses in medical training facilities to address the healthcare system’s needs,” the association stated.
Most of the non-profit organisations that were flagged in a forensic audit by the Gauteng Department of Social Development have been cleared of all findings and have started to receive subsidies from the department again.
The forensic audit, announced by Gauteng Premier Panyaza Lesufi during his 2023 State of the Province Address, was a key intervention by former social development MEC Mbali Hlophe and aimed to uncover fraud and corruption in the non-profit sector. The department pays about R1.9-billion in subsidies to more than 700 non-profit organisations every year.
In a list circulated to affected organisations on Wednesday by the department, which GroundUp has seen, 34 of the more than 50 organisations that had audit findings against them, have been cleared after they rejected the findings. The organisations, which include drug rehabs and women’s shelters, have had to endure three months without any funding since the start of the new financial year on 1 April.
According to the list, six organisations are yet to receive the final outcome of their submissions. These include the training academies Daracorp and Beauty Hub, which collectively received R114-million in funding in 2022 and 2023. There are still unanswered questions about why these two organisations received so much in subsidies while budgets were cut for other organisations that care for people with HIV and older persons.
Social work organisation Kitso Lesedi Community Development, which has rejected the findings against them, is also still awaiting the final outcome of their submission.
The department has decided to “uphold” the decision not to fund two organisations, according to the list. These are Life Healthcare’s non-profit drug rehab in Randfontein and Tembisa Society for the Care and Welfare of the Aged. GroundUp understands that Tembisa is taking steps to appeal the decision.
Also, eight organisations are part of a Hawks investigation, according to the list. These include several foodbanks and Godisang Development, which has historically played a key role in the department’s Welfare to Work programme.
The department has not responded to GroundUp’s questions on the Hawks’ investigation, and the Hawks told us that it will be difficult to answer questions without a case number.
According to the department, 14 officials have been suspended since the forensic audit was launched, but their identities, the allegations against them, and the status of their disciplinary processes remain unknown.
Total Organisations on List
51
Organisations cleared
34
Hawks Investigation
8
Organisations yet to receive outcome
6
Organisations that did not make submissions (But one of these organisations, Carroll Shaw, claims it made a submission)
2
Organisations that remain unfunded due to investigation (decision upheld after submissions)
2
The forensic audit caused catastrophic delays in this year’s funding adjudication process, forcing hundreds of organisations to survive the first two months of the 2024/25 financial year without any funding. Some organisations retrenched staff, scaled down services or even shut down.
The department decided to centralise the process of allocating funds and appointed external adjudication panels. The department claimed this was because of findings by the Auditor-General, but the Auditor-General told GroundUp no such findings or recommendations were made.
The centralisation delayed the allocation of funds and the whole process ultimately collapsed, with the department deciding to simply extend contracts with organisations already signed in 2023.
The department did not respond to GroundUp’s questions.
Organisations vindicated
Organisations that have been cleared and have received findings told GroundUp that they feel vindicated and relieved.
Derick Matthews, CEO of Freedom Recovery Centre, which provides in-patient drug rehabilitation, told GroundUp that they have started admitting patients again and ordering supplies.
“Crazy days, but super excited,” Matthews said.
Mpule Lenyehelo, director of A Re Ageng, which runs women’s shelters and gender-based violence care centers, says it will take time to repair the relationship with the department.
“I am very angry and disappointed with the department,” Lenyehlo said. “Their allegations were unfounded and could not be substantiated as we have always received positive feedback from their monitoring and evaluation team. What the department seems to conveniently forget is that the organisation is providing essential services to the most vulnerable people in the community as well as 114 staff members in terms of job creation.”
One organisation caught in the cross fire was MES. The organisation never appeared on the list of organisations under investigation but nevertheless received a letter saying that there was a finding against them and that they would not be receiving funding. The finding was that they had not spent their full subsidies.
Leona Pienaar, CEO of MES, said she was confused because there was no money left over. She wrote to the department asking for clarity but received no reply. She then wrote to FSG Africa, the forensic auditing firm that was appointed to conduct the probe. FSG Africa told Pienaar that they made no findings against MES. After meeting with the department, MES finally had their funding for 2024/25 reinstated.
Lisa Vetten, chair of the Gauteng Care Crisis Committee, which has led litigation against the department and organised pro-bono legal assistance for affected organisations, says that she appreciates recent efforts by the new MEC Faith Mazibuko and some officials in the department to resolve the issues faced by the nonprofit sector.
“Corruption deprives people of services and has no place in the social care sector. But serious questions should be asked about the value of this audit, which not only came at great cost to organisations and their beneficiaries, but also, up to this point, hasn’t yielded much of substance,” said Vetten.
The former manager of an operating theatre at Universitas Hospital has successfully sued Netcare for failing to protect her and take action against an abusive surgeon because, she claimed, it was well known that he was a “money spinner” for the company.
Tilana Alida Louw also sued Dr Stephen Paul Grobler but, following his sudden death in June 2022, entered into a confidential settlement agreement with the executor of his estate.
She then pursued her case against Netcare Universitas Hospital.
In a ruling this month, Bloemfontein High Court Judge Ilsa van Rhyn directed Netcare to pay her R300 000 for damages, past and future medical expenses, and to pay part of her costs on a punitive scale.
Louw was appointed as surgical theatre manager at the hospital in 2005. Her role was to oversee and manage operating theatres and theatre staff and monitor patient care.
At that time, she was warned by the then hospital manager, and others, that Grobler had an “aggressive type personality”.
She said she soon experienced first hand his temper tantrums.
In her claim, she said he had verbally abused her continually, hurling profanities, insults, using blasphemous language and obscenities at her in the presence of other operating theatre staff and even members of the public.
She said Netcare had failed to come to her assistance, in spite of her numerous requests and complaints.
Netcare had also failed to act against Grobler, even though it was common knowledge that he behaved this way.
Louw alleged that Netcare had failed in its legal duty to create a work environment free from verbal abuse and intimidation and to take reasonable care of her safety and protect her from psychological harm.
As a result she was humiliated, degraded and suffered shock, anguish, fear and anxiety. She experienced post-traumatic stress syndrome.
She wanted to be compensated for this. And she wanted Netcare to publish a written apology in a local newspaper.
Netcare defended the action. It denied that it had breached its duty to Louw and said it had taken action against Grobler.
After Louw and her witness, labour law expert Professor Halton Cheadle, testified, Netcare offered to pay her for damages and to apologise.
Louw accepted the financial offer, but she was not happy with the wording of the apology and the scale of costs tendered.
Judge van Rhyn said Louw had testified that her complaints and those of others had been largely ignored by management.
“She explained that several of the scrub nurses refused to work with Dr Grobler and she would step in and assist him during surgeries. Her sense of duty and pity for the patients, many of them being cancer patients who were in dire need of urgent and timeous surgeries, caused her to bear the brunt and endure the constant abuse.”
Louw had said she and other personnel were “not allowed” to lay complaints against Grobler because he was a “so-called money-spinner for Netcare”.
Cheadle, in his evidence, said given the number of grievances lodged against Grobler and given Netcare’s professed zero-tolerance approach to harassment, a reasonable employer would have warned Grobler about his behaviour after the first complaint and would have terminated his contract at the very least, after the third complaint.
Judge van Rhyn said Netcare’s offer of damages during the trial had been made after Louw had endured years of abuse at the hands of Grobler and eight years of litigation.
“I also agree with argument on behalf of the Plaintiff (Louw) that Netcare evidently allowed its employees to be abused by Dr Grobler for its own financial interests. Netcare was acquainted with Dr Grobler’s disgusting behaviour even prior to her (Louw’s) appointment as the unit manager,” she said.
This conduct was deserving of a punitive costs order, the judge said.
Louw had rejected the proposed apology because it contained the words “we apologise sincerely that you felt that Netcare did not sufficiently support you”.
The judge said she agreed with Louw’s perception that this did not, in its plain and ordinary meaning, convey a sincere regret and remorseful apology.
She said she had been informed during argument that Netcare had published the apology in the local newspaper.
However, she said, she would not make any order regarding the apology, because it would not be lawful in a case which was not based on defamation.
Discovery Health had an “overwhelming case” against the Road Accident Fund (RAF) and its CEO Collins Letsoalo showing it was clearly in breach of a 2022 court ruling that the fund was not allowed to withhold payments for past medical expenses from road accident victims who had been paid out by their medical schemes.
This was the submission of Advocate Wim Trengove, on behalf of Discovery, at a special court hearing seeking to hold the fund and Letsoalo to account.
While initially Discovery, in its application before Gauteng Judge President Dunstan Mlambo and judges Ingrid Opperman and Noluntu Bam on Thursday, were seeking orders of contempt of court, Trengrove said it was now only seeking an order of “breach” and to compel compliance.
He said this would give Letsoalo a further opportunity to “have his say” as to why he should not be found in contempt and possibly jailed for it.
In 2022, Judge Mandla Mbongwe ruled in the Pretoria High Court that a new directive – effectively refusing to pay for past medical expenses of those claimants already paid out by medical aids – was unlawful.
The RAF was unsuccessful in its appeals to both the Supreme Court of Appeal and the Constitutional Court.
Read the original Pretoria High Court judgment here
Trengove argued that the RAF had continued to implement the directive, regardless of the court ruling.
“We have a list of about 20 cases, all of which are in line with the Mbongwe judgment,” he said.
After the apex court refused to grant the RAF leave to appeal the Mbongwe judgment, two further “directives” came to light in which the fund seemingly sought to side-step the legal implications of the Mbongwe judgment.
Trengove said “directive two” was also raised once in litigation and was rejected. Under this directive, the fund had argued that it should not have to compensate medically insured victims if they had been paid out in accordance with prescribed minimum benefits.
“Then it produced ‘directive three’ which is equally spurious,” he said.
This was based on a section of the RAF Act, which prohibited compensation to anyone who had agreed to share compensation with another person. The fund argued that the agreement between a medical scheme and its members fell foul of this.
“But that agreement is merely an agreement to avoid double-compensation. That the medical aid pays upfront and if the member recovers (from the fund), then that member will reimburse the medical aid,” Trengove said.
He said regardless, the new directive did not absolve the fund from complying with the Mbongwe ruling.
That ruling, he said, confirmed that a claim against the fund is a claim in delict: the fund steps into the shoes of the wrongdoer, and “the perpetrator is not entitled to benefit from the insurance proceeds of the victim”.
“Our courts have held that medical schemes, for the purposes of claims, are akin to insurance, and claims cannot be taken into account when determining the quantum of liability,” Trengove said.
RAF denial
But advocate Cedric Puckrin, who appeared with advocate Gerhard Cilliers for the fund, said Trengove had argued his case “with rose-coloured glasses”.
Cilliers said the fund was entitled to implement the first directive during the period when the appeal process had been underway.
He said Discovery was arguing a new case, not an enforcement of the Mbongwe ruling, and had based it on ten examples where the fund had responded to letters of demand by claimants, indicating that it would dispute liability for any claim for past medical expenses.
Cilliers suggested that Discovery had no standing in court, and that it was up to individual claimants to take their matters to court.
He also said the ten examples did not show that the fund was in breach.
“It is not Discovery’s case that RAF is enforcing the 2022 directive. It wants you to go further and ask you to find that the subsequent directives are the same. And we submit that is not the proper process to follow. It is an abuse of the process.”
Advocate Puckrin argued that while the third directive might be “entirely wrong”, it was a different directive which could only be set aside by a separate application to the court.
He said it could not be considered a “breach” of the Mbongwe judgment.
But Judge Opperman suggested that it was just a “new piece of paper” dealing with the same issue.
“But it’s based on a new principle,” Puckrin said. “It’s far more limited.”
In reply, Trengove said the Mbongwe judgment has set out a statement of “general principle” that the fund could not free itself from paying full compensation to medical aid members.
He said Letsoalo and other fund officials had made a series of public statements which reflected their “unlawful disdain” for the ruling.
“A delinquent public body cannot insulate itself against compliance with a court order by adopting a directive in effect not to comply with it. It is contrary to the rule of law.”
The South African Medical Association has for years raised concerns about the criminalisation of medical errors, stressing that current legal practices may undermine patient safety and deter doctors from performing high-risk procedures.
Individual healthcare workers or teams of healthcare workers, like all other people, sometimes make unintentional errors. Though public recognition of the problem may be lacking, there is substantial scientific literature recording and describing the issue. In its landmark “To err is human” report published in 1999, the United States Institutes of Medicine wrote that “the problem is not bad people in health care – it is that good people are working in bad systems that need to be made safer”.
Medical errors can take many forms – from diagnostic and surgical, to medication and device and equipment. Pinning down a definition is hard although two formulations in academic literature are: “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim” and “unintentional deviation from safe practice”. Some argue against the use of the term “errors”, given that it stigmatises those who make “errors”.
A variety of approaches have been used to reduce medical errors. One of the most striking is the use of aeroplane-style checklists before and during surgery – with one such checklist having been backed by the World Health Organization. A review of such checklists published in the British Medical Journal in 2012 concluded that “surgical checklists represent a relatively simple and promising strategy for addressing surgical patient safety worldwide”.
Error v negligence
While the terms medical errors and medical negligence are often used interchangeably, they are in fact quite distinct, explains Professor Ames Dhai, SAMA’s vice chairperson and former director of the Steve Biko Centre for Bioethics at Wits University, in an interview with Spotlight.
“Medicine is exceedingly complex and errors do unfortunately occur from time to time (in most instances no harm comes from them). In most instances, the error cannot be attributed to the ‘fault’ of a person and is just a consequence of the procedure or other systemic factors.” The element of “fault”, Dhai says, is what distinguishes errors from medical negligence. Medical negligence occurs, she says, when the standard of care fails to meet the expected standard of the reasonable doctor in that discipline under the prevailing circumstances, leading to the patient suffering harm.
“If the ‘fault’ is deemed to be intentional, one is no longer negligent, and [therefore] potentially guilty of murder (the distinction being negligence vs intent),” Dhai explains.
“To be clear, doctors who are grossly negligent or reckless need to be held accountable. However, nearly all doctors don’t fall into this category. They are ethical, caring, and only want the best for their patients,” she says.
According to SAMA, due to a lack of proper, transparent structures to investigate, explain, account, and resolve instances of medical errors, families understandably turn to the criminal justice system for answers and accountability. This means some cases end up in court.
One high-profile case is that of paediatric surgeon Professor Peter Beale, who faces multiple charges, including three counts of murder and two of fraud, linked to the deaths of three children between 2012 and 2019. The state claims the deaths were caused by wrongful and negligent actions and unnecessary procedures by Beale.
But SAMA argues that the criminal justice system, designed for addressing criminal acts, is not the most suitable mechanism to navigate the complexities of medical practice. They stress that their concerns about charging, prosecuting, and convicting doctors in no way seek to minimise the impact of such devastating events on the families and loved ones involved.
“Instead, we are worried that criminalisation of bona fide medical errors and adverse events is an unsuitable response that would do little to prevent future tragedies and may in fact lead to other unwanted consequences that would be detrimental to both the profession and patients,” explains SAMA chairperson Dr Mvuyisi Mzukwa. He argues that criminalising errors would potentially ensure that they will be concealed and unreported, adding that “by hindering disclosure and reporting, one stifles opportunities to learn from errors and improve the system”.
But not everyone agrees. Dr Siraaj Khan, a lecturer at the Steve Biko Centre for Bioethics, describes the relevant law as straight-forward and says it is not in need of reform. “I think we need to differentiate being charged with medical negligence in a criminal court and being held liable or found guilty at the end of the day. And you’ll see that there are very few instances where a medical practitioner is actually found guilty,” he says. “So in my opinion, the law as it stands doesn’t require any intervention.”
Khan points out that if a medical doctor makes an error, it doesn’t automatically mean that they are negligent. The error has to be one that a reasonable doctor in the position of that particular medical doctor would not have made. Only if the standard falls short of the reasonable expert in that position will the conduct be criminalised, and that needs to be proven beyond a reasonable doubt in a criminal court. “So it’s a higher standard than that used in a civil court,” says Khan. “In a civil court, if there’s an action for medical negligence, it just needs to be proven on a balance of probabilities. Whereas if you charge a doctor with culpable homicide, for example, the standard of negligence needs to be proven beyond a reasonable doubt in a criminal court.”
But Dhai is critical of the status quo. She argues that the law, as it stands and as it is applied, may hamper patient safety and the achievement of a safety culture (where systems thinking, rather than individual blame, is applied to learn from incidents to create better systems and provide safer care). “The criminal justice system often ignores systemic factors to instead target the individual who happened to hold the scalpel when the incident occurred,” she says.
“The environment of fear and the threat of litigation and criminal proceedings may also disincentivise doctors from practicing in high-risk specialties or operating on complex and difficult cases, thereby impeding access to much-needed care,” Dhai adds. Khan acknowledges the argument that criminalising medical errors encourages defensive medicine, but, “on the other hand”, he says, “the counter-argument is that if we do criminalise this, it sets the standard and it would require doctors to act with more prudence when performing these operations”.
Gross negligence
SAMA’s position is that the threshold for criminal proceedings should be elevated from negligence to gross negligence and recklessness. As pointed out by Larisse Prinsen, a senior law lecturer at the University of the Free State, in an article published by The Conversation, gross negligence is the standard in countries such as New Zealand, Australia, and England. SAMA also says that investigators and the National Prosecuting Authority (NPA) should be specially trained to fully appreciate the complexities involved in medical errors and adverse events. The NPA is responsible for criminal prosecutions in South Africa.
Photo by Tingey Injury Law Firm on Unsplash
In addition to increasing the threshold for prosecution from negligence to gross negligence or recklessness, Dhai argues that there is much more that needs to be done. This includes better application of the law, including better complaint management, alternative dispute resolution, and support for affected patients and health practitioners.
Changes to the relevant laws might well be on the way.
The South African Law Reform Commission (SALRC) has confirmed to Spotlight that they “received a request from a coalition of various healthcare-related bodies asking that the SALRC conduct an investigation to review the law of culpable homicide and the application thereof in a healthcare setting”. According to the SALRC, the request was approved by the Minister of Justice and Correctional Services on 27 June 2023 and the research is underway as “Project 152 Criminal Liability of Healthcare Professionals”.
Though much of SAMA’s current spotlight is on criminalisation of medical errors, South Africa does also have a much wider challenge of medico-legal claims against provincial health departments. Most of these claims are for alleged medical negligence relating to birth-related complications, particularly cerebral palsy. Though amounts paid out are a small fraction of total claims, they nevertheless amount to hundreds of millions per year and are a severe strain on provincial health budgets. A bill aimed at addressing state liability in such cases was introduced in the last parliament, but has not been passed. The SALRC has for several years also been looking at the issue of medico-legal claims and published a discussion paper on the matter in November 2021, though more than two years later, their final report on the matter has not yet been published.
What about the HPCSA?
The Health Professions Council of South Africa (HPCSA) regulates health professions in the country. This involves, among others, managing the licensing of doctors.
As explained in an article by the Medical Protection Society’s Dr Yash Naidoo, less serious complaints made to the HPCSA are handled through a process of mediation. If complaints are more serious, or if mediation fails, a formal complaints process kicks in. In some cases, this can turn into a formal professional conduct inquiry.
“When a matter proceeds to a formal inquiry, that is when costs – money and time – start to escalate,” writes Naidoo.
“Think of the inquiry as you would a typical courtroom matter on television. The complainant is represented by the HPCSA’s pro forma complainant, and the practitioner is the respondent who may have their own legal representation. Each party can call witnesses and the inquiry itself can take a day or more – depending on the number of witnesses and the complexity of the matter.”
As Naidoo explains, penalties can range from a caution or reprimand to large fines or removal from the register (which amounts to the person no longer being allowed to work as a health professional).
Speaking to Spotlight, HPCSA’s Acting Head of Division Corporate Affairs, Priscilla Sekhonyana, says that the HPCSA has a dedicated line for lodging complaints and investigating authority and committees for adjudication of matters. “The HPCSA has committees of experts in place to adjudicate on matters and all rules of natural justice inclusive of fairness are observed.”
She says the council has engaged with various parties on the criminalisation of medical errors. The HPCSA respects the laws of the country, Sekhonyana says, but she also notes that practitioners are starting to be discouraged from engaging in what may be perceived as risky procedures. “The HPCSA has had engagements with the National Prosecuting Authority on the matter and unfortunately, the situation has remained the same. However, should there be activities aimed at legal reform, the HPCSA will participate in that process and make its views known at that juncture,” she says.
Spotlight made several attempts to get comment from the National Department of Health on the criminalisation of medical errors. The department had not provided a response by the time of publishing.
By Wayne Janneker, Executive for Mining Industrial and Health Management at BCX
In the intricate field of healthcare, where privacy and patient’s data security are of utmost importance the Protection of Personal Information Act (POPIA) emerges as a cornerstone legislation. Specifically crafted to safeguard individual privacy, POPIA carries profound implications for the healthcare sector, particularly in the protection of a patient’s medical data.
POPIA establishes a framework for healthcare professionals, mandating that they exert reasonable efforts to inform patients before obtaining personal information from alternative sources. The Act places significant emphasis on the secure and private management of patient’s medical records, instilling a sense of responsibility within the healthcare community.
Section 26 of the Act unequivocally prohibits the processing of personal health information, yet Section 32(1) introduces a caveat. This section extends exemptions to medical professionals and healthcare institutions, but only under the condition that such information is essential for providing proper treatment and care pathways. It’s a delicate balance, ensuring the patient’s well-being while respecting the boundaries of privacy.
A breach of POPIA transpires when personal information is acquired without explicit consent, accessed unlawfully, or when healthcare professionals fall short of taking reasonable steps to prevent unauthorised disclosure, potentially causing harm or distress to the patient. The consequences for non-compliance are severe, ranging from substantial monetary compensation to imprisonment.
For healthcare providers, especially those venturing into the realm of telehealth services, navigating POPIA compliance is of critical importance. Good clinical practices become the guiding principles in this journey of upholding patient confidentiality and privacy.
Let’s delve into the essentials of ensuring privacy in healthcare, where understanding the nuances of privacy laws becomes the bedrock for healthcare providers. It’s not merely about keeping up with regulations; it’s about aligning practices with the legal landscape, creating a solid foundation for what follows.
When we shift the focus to telehealth, selecting platforms tailored to meet POPIA requirements becomes even more crucial—it’s imperative. Envision these platforms as protectors of patient information, featuring end-to-end encryption and secure data storage, creating a fortress around sensitive data. But we can’t merely stop there; we need to be proactive. Regular risk assessments become the secret weapon, requiring healthcare providers to stay ahead of the game, constantly evolving, and nipping potential security threats in the bud.
Managing the human element—the healthcare team—becomes significant. Educating them about compliance, data security, and the significance of patient confidentiality adds another layer of protection. When everyone comprehends their role in maintaining compliance, it’s akin to having a team of protectors ensuring the safety of patient data.
Establishing clear policies and procedures around telehealth use, patient consent, and the secure handling of patient data is our compass for ethical and legal navigation. It’s not just about ticking boxes; it’s about creating a roadmap that ensures we’re on the right path.
Informed consent is the cornerstone of this journey. It’s about building trust with patients by transparently communicating through secure communication channels, encryption of patient data, stringent access controls, regular internal audits, and airtight data breach response plans, all of which forms part of a strategy, ensuring a state of readiness to tackle any challenges that come our way.
In this dynamic landscape, technology can’t be static. Regular updates to telehealth technology, software, and security measures are our way of staying in sync with evolving threats and regulations.
Healthcare providers aren’t necessarily experts on the Act or technology, which is why consulting with legal experts specialising in healthcare can provide accurate information on which to base decisions. It ensures that practices aren’t just compliant but resilient against any legal scrutiny that may come their way.
The final and most crucial element is the patient. Their feedback is like a map, guiding healthcare providers to areas of improvement. By monitoring and seeking insights from patients regarding their telehealth experiences, providers uncover ways to enhance their compliance measures.
In embracing these best practices and remaining vigilant to changes, healthcare practitioners and providers can navigate POPIA compliance successfully and deliver high-quality health and telehealth services. It’s a commitment to patient privacy, data security, and the evolving landscape of healthcare regulations that will propel the industry forward.
In an age where healthcare integrity is of the utmost importance, a coalition of industry pioneers and technological trailblazers must lead the charge in driving transformation to combat fraud, waste and abuse (FWA) in the healthcare sector.
As a focal point of discussion on day two of the 2024 BHF Annual Conference, Vusi Makanda, HFMU Deputy Chairperson, and Manager of Fraud Management at Bonitas, set the stage for an interactive discussion on these healthcare issues.
“Collaboration is paramount in addressing the challenges of healthcare FWA, evidenced by the erosion of trust and substantial financial losses highlighting the call for collective action,” says Makanda.
Dr Hleli Nhlapo, MD of the medical schemes division at Dental Information Systems (DENIS), echoed Makanda’s sentiments. To this end, Nhlapo set the scene on the current state of FWA in the healthcare industry, suggesting that it exerts unnecessary pressure on resources while undermining trust between stakeholders.
“Perpetrators are employing increasingly sophisticated tactics, leveraging technology and syndicates to orchestrate large-scale schemes, while regulatory delays and prosecutorial challenges hinder effective resolution,” says Nhlapo. “Despite this, collaboration among healthcare funders has emerged as a crucial solution, with recent initiatives indicating a promising shift towards industry-wide cooperation in addressing these complex challenges.”
Following Nhlapo’s address, Roxane Ferreira, Head of Department at the Association of Certified Fraud Examiners (ACFE), alluded to several global trends in FWA that are plaguing the global industry.
The impact of these is extensive and has led to concerning financial situations for healthcare systems around the world. So much so that Ferreira’s insights suggest that in the United States, it is estimated that as much as $68 billion is lost every year on the back of FWA.
“In South Africa, the problem is not much better, with between R8 billion and R13 billion being lost annually to this. With between 15-35% of all claims submitted regarded as being fraudulent or abusive, the plight is adding approximately R22 billion to the cost of private healthcare,” adds Ferreira.
Healthcare fraud is perpetrated by a variety of actors within the system, ranging from medical scheme staff to service providers and even syndicates. These perpetrators exploit vulnerabilities at different points in the healthcare process, whether through falsifying claims, overbilling or engaging in other deceptive practices.
Moreover, medical scheme members themselves, as well as patients, may also be complicit in fraudulent activities, while brokers and manufacturers can also play a role in facilitating these plans.
Ferreira highlighted the multifaceted approach employed in identifying healthcare fraud, citing that 70% of cases stem from tip-offs or received information, while the remaining 30% are uncovered through data mining, audits and investigations.
“Healthcare fraud encompasses various deceptive practices,” suggests Ferreira. “ Some of the most common ones include merchandising, where pharmacies sell non-healthcare merchandise, but claim for a healthcare service; false claims by claiming for services rendered; ATM scams where doctors submit false claims and provide cash to patients; card farming where members lend their membership cards to non-members; code gaming that involves doctors manipulating billing rules to increase revenue; and lastly, the hospital cash plan fraud that entails doctors and members colluding to arrange unnecessary hospital admissions.”
In response to the escalating challenges of healthcare fraud, Ferreira adds that the sector is increasingly turning to innovative solutions, with the integration of Artificial Intelligence (AI) emerging as a pivotal strategy.
“AI technology offers the capability to analyse large volumes of data rapidly and accurately, enabling the identification of suspicious patterns and behaviours,” she says. “By leveraging AI algorithms, healthcare providers can proactively identify questionable activities, thereby safeguarding resources and maintaining the integrity of healthcare systems”
Using these advanced algorithms, AI can swiftly identify irregularities, such as sudden spikes in billed procedures and visit rates. Furthermore, it can compare billing practices, verify purchases, compare the geographical location of a patient against the practice, and treatments billed for the same or similar treatment by other practices.
In the fight against healthcare FWA, collaboration and technological innovation are emerging as critical pillars. By harnessing advancements such as AI, healthcare systems can effectively detect and prevent fraudulent activities, thus safeguarding resources, upholding the integrity of patient care and rebuilding trust.
By Lisa Swaine, Partner & Bronwyn Singh, Associate at Webber Wentzel
Lisa Swaine (L), Partner & Bronwyn Singh (R), Associate at Webber Wentzel
In a recent case of MM obo GM v the North West Province’s Department of Health MEC, (782/2022) [2024] ZASCA 52, an appellant’s claim for certain damages was struck from the roll by the Supreme Court of Appeal and her claim for personal damages was remitted to the trial court for determination.
The appeal arose from a medical negligence claim by the appellant (MM), a mother of a child (GM), who was born on 16 October 2010 and later diagnosed with cerebral palsy. MM alleged that the respondent’s staff at the two hospitals where she had been admitted for obstetric treatment and care were negligent, resulting in GM’s cerebral palsy. MM claimed compensation for her own emotional shock and trauma and, in her representative capacity on behalf of GM, she claimed for future medical expenses as well as future loss of earnings and general damages for pain and suffering. Her claims made in her representative capacity were dismissed by the trial court which found, that whilst the staff at the hospitals were negligent in certain aspects of MM’s treatment and care prior to GM’s birth, their negligence did not cause GM’s cerebral palsy. The trial court determined that GM’s cerebral palsy was caused by placental abruption – a complication that results in the placenta gradually separating from the uterus, thus reducing the foetus’ oxygen. MM appealed against this finding to a full bench and subsequently to the Supreme Court of Appeal (SCA). The issue on appeal was limited to causation, in other words, whether or not the negligence of the hospital staff caused GM’s cerebral palsy.
Prior to the hearing of the appeal in November 2023, it was discovered that GM passed away in August 2022. In light of GM’s passing, the SCA had to consider the effect of GM’s passing on the claims made by MM on his behalf.
MM’s personal claim for compensation for emotional shock and trauma
MM alleged that witnessing her first child with cerebral palsy had left her severely shocked and traumatised. She claimed to have suffered general damages for anguish, psychological trauma and loss of amenities of life. However, no evidence of a detectable psychiatric injury at the hearing in the trial court was presented on her behalf.
The SCA reiterated the legal principles set out in Road Accident Fund v Sauls[1]and Komape v Minister of Basic Education[2] that a plaintiff may only claim damages for emotional shock if a detectable psychiatric injury has been sustained and can be proven by way of evidence.
In the absence of evidence of a detectible psychiatric injury, MM failed to discharge this burden of proof. The judgment of the trial court focused solely on the issue of negligence and its causal relationship to GM’s cerebral palsy. The trial court ought to have dismissed MM’s claim for emotional shock or granted absolution from the instance, however, it did neither. MM’s claim in this regard appears not to have been dealt with by the trial court.
As the appeal was restricted to the issue of causation and the trial court failed to deal with MM’s personal claim, the SCA did not have the power to make a finding on her claim and had no option but to remit it to the trial court for determination.
The effect of GM’s death on the claims pursued on his behalf
In light of GM’s passing, the claims for future medical expenses and future loss of earnings fell away.
Non-pecuniary claims for general damages transfer to a deceased’s estate once Iitiscontestatio has been reached. The SCA found that the claim for general damages was transmissible to GM’s estate as litis contestatio had been reached well before GM’s death. However, since the claim was transmitted to GM’s estate, only the executor of his estate could prosecute the claim. Because MM had not reported GM’s death to the Master, an executor was not appointed. MM therefore had no authority to act and lacked the necessary locus standi to pursue the claim for general damages. The claim for general damages had to be stayed pending the appointment of an executor. Due to this, the only viable order for the SCA under these circumstances was to strike the matter from the court roll. Following this, MM was ordered to pay the costs of the appeal.
This case serves as a harsh reminder of some of the intricacies of litigation. It underscores the fundamental principles of locus standi, the legal right to sue, and the burden of proof. One’s mind must be applied before separating or limiting the issues to be heard by the court.
For MM, the delay but perhaps not the denial of justice has probably come with a hefty price tag.
[1] Road Accident Fund v Sauls [2001] ZASCA 135; 2002 (2) SA 55 (SCA).
[2] Komape and Others v Minister of Basic Education [2019] ZASCA 192; 2020 (2) SA 347 (SCA).
Technology continues to play a strong role in shaping healthcare. In 2023, the focus was on how Artificial Intelligence (AI), became significantly entrenched in patient records, diagnosis and care. Now in 2024 the focus is on the ethical aspects of AI. Many organisations including practitioner groups, hospitals and medical associations are putting together AI Codes of Conduct, with new legislation planning to be passed in countries such as the USA.
The entire patient journey has benefited from the use of AI, in tangible ways that we can understand. From online bookings, the sharing of information with electronic health records, keyword diagnosis, sharing of visual scans, e-scripts, easy claims, SMS’s and billing, are all examples of how software systems are incorporated into practices to facilitate a streamlined experience for both the patient and doctor. *But although 75% of medical professionals agree on the transformation abilities of AI, only 6% have implemented an AI strategy.
Strategies need to include ethical considerations
CompuGroup Medical South Africa, (CGM SA), a leading international MedTech company that has spent over 20 years designing software solutions for the healthcare industry, has identified one main area that seems to constantly be the topic for ethical consideration.
This is the sharing of patient electronic health records or EHR’s. On one hand the wealth of information provided in each EHR – from a patient’s medical history, demographics, their laboratory test results over time, medicine prescribed, a history of medical procedures, X-rays to any medical allergies – offers endless opportunities for real time patient care. On the other hand, there seems to be a basic mistrust of how these records will be shared and stored, no one wants their personal medical information to end up on the internet.
But there’s also the philosophical view that although you might not want your info to be public record, it still has the ability to benefit the care of thousands of people. If we want a learning AI system that adapts as we do, if we want a decision making support system that is informed by past experiences, then the sharing of data should be viewed as a tool and no longer a privacy barrier.
Admin can cause burnout
Based on their interactions with professionals, CGM has informally noted that healthcare practices spend 73% of their time dealing with administrative tasks. This can be broken down into 38% focusing on EHR documentation and review, 19% related to insurance and billing, 11% on tests, medications and other orders and the final 6% on clinical planning and logistics.
Even during the consultation doctors can spend up to 40% of their time taking clinical notes. Besides the extra burden that this places on health care practices, this also leads to less attention being paid to the patient and still requires 1-2 hours of admin in the evenings. (Admin being the number one cause of burnout in clinicians and too much screen time during interactions being the number one complaint by patients.)
The solution
The ability for medical practitioners to implement valuable and effective advanced technical software, such as Autoscriber, will assist with time saving, data quality and overall job satisfaction. Autoscriber is an AI engine designed to ease the effort required when creating clinical notes by turning the consultation between patient and doctor into a structured summary that includes ICD-10 codes which is the standard method of classification of diseases used by South African medical professionals
It identifies clinical facts in real time, including medications and symptoms. It then orders and summarises the data in a format ready for import into the EHR, creating a more detailed and standardised report on each patient encounter, allowing for a more holistic patient outcome. In essence, with the introduction of Autoscriber into the South African market, CGM seeks to aid practitioners in swiftly creating precise and efficient clinical records, saving them from extensive after-hours commitments.
Dilip Naran, VP of Product Architecture at CGM SA explains: “It is clear that AI will not replace healthcare professionals, but it will augment their capabilities to provide superior patient care. Ethical considerations are important but should not override patient care or safety. The Autoscriber solution provides full control to the HCP to use, edit or discard the transcribed note ensuring that these notes are comprehensive, attributable and contemporaneous.”
