A critical examination of the State Liability Amendment Bill (2018) and its implications for medical negligence litigation in South Africa.
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Date
2021
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Abstract
Medical negligence litigation in South Africa is an ever-growing problem that places a great
burden on public hospitals and threatens their ability to render health care services. The number
and monetary value of these claims against the State have reached alarming levels. The causes of
this increase in claims are multifactorial, but they appear to follow a similar global trend of
increasing medical negligence litigation. While other countries have developed legislation to deal
with this problem, South Africa has yet to pass legislation to solve the problem. The State Liability
Amendment Bill (2018) aims to make changes that would help mitigate the financial burden
arising from this litigation against the Department of Health. The Bill’s provisions appear to
favour the State at the expense of compromising the rights of victims of medical negligence.
These provisions include replacing lumpsum payments in favour of periodic payments and having
public healthcare facilities render future medical care instead of awarding monetary damages. So
far, the State Liability Bill has not been kindly received by various legal commentators, and it is
unlikely to withstand the inevitable constitutional scrutiny it will face if passed. The recent
Constitutional Court ruling in Member of the Executive Council for Health, Gauteng Provincial
Government v PN obo EN (Member of the Executive Council for Health, KwaZulu-Natal
Provincial Government and other as Amici Curiae) [2021] JOL 49995 (CC) will allow for greater
use of the Public Healthcare Defence and Undertaking to Pay Defence which will help lessen the
financial impact of successful claims against the Department of Health. This will allow the State
more time to give greater thought and consideration into making the State Liability Amendment
Bill a fairer proposition for all parties involved in medical negligence litigation.
Description
Masters Degree. University of KwaZulu-Natal, Durban.