A critical examination of the State Liability Amendment Bill (2018) and its implications for medical negligence litigation in South Africa.

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.