Over the recent years, a lot has been said about the ever-increasing quantum of medical malpractice claims in South Africa in both the public and private sphere. In the public sector alone, the Gauteng Department of Health has reportedly paid out ZAR544 million in respect of medical malpractice claims since 2010.

In most cases, the majority of the quantum is attributable to the future medical expenses that are claimed. Unlike Road Accident Fund claims, legislature makes no provision for a certificate or undertaking to be issued in respect of the future medical expenses and instead the amount is paid in a lump sum.

Often in medical malpractice claims, as with other personal injury claims, when a person is injured as a result of a doctor or hospital staff's negligence, they will require future ongoing treatment. As a result of the financially crippling payments that have to be made in almost every claim, there has been a call from the key players in the public and private sectors to facilitate the payment of future medical expenses. However, it is not as simple as merely amending the National Health Act 61 of 2003.

A claim for damages can be founded either in the law of contract or the law of delict, but all claims for damages, irrespective of which principles of law they are based upon, follow the common law "once and for all" rule. A claimant may not claim his or her damages piecemeal and must claim all accrued and prospective damages in the same action. The matter of Custom Credit Corporation v Shembe 1972 (3) SA 462 (A) provides a good understanding of the rule as it was stated in the case that "[t]he law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause".

In itself, the once and for all rule poses difficulty when claiming for future medical expenses because as the damages have not yet been suffered and there is only a possibility that the lump sum claimed is actually the lump sum required in order to provide the injured party with the medical care that they need. When the lump sum is finalised, the possibility that insufficient or overly sufficient funds have been claimed for future medical expenses always exists. Therefore, in order to make provision for these uncertainties, contingencies are applied when calculating the future medical expenses. Presently, the use of contingencies was the best method to address the issues that uncertainties pose. However, having regard to the extent of the claims for future medical expenses arising from medical malpractice, it may be necessary to have more certainty with regard to the exact amount required by a claimant.

The once and for all rule also imposes a hurdle for those who wish to alter the manner in which a claim for future medical expenses is paid out, from a lump sum payment to individual payments made as they arise. The once and for all rule establishes that a claimant must claim all damages arising from a single cause of action in the same action against the opposing party. However, the suggestion in respect of an amendment is that the entire claim for future medical expenses need not be calculated at the time of finalisation of the claim, but that instead provision be made for each medical treatment required by the injured party at a later date be paid for by the party who is liable for the claim.

This proposal clearly contradicts the once and for all rule, however, it is not as if this has not been done before. Section 17 of the Road Accident Fund Act 56 of 1996 is a good example of legislation that has been amended in order to make provision for damages that may be claimed as and when the expenses are incurred. Should the manner in which future medical expenses stemming from medical malpractice incidents are paid be amended, it has already been established by the Supreme Court of Appeal that this could only be done through the amendment of legislation. This decision was included in the judgment of The MEC for Health and Social Development of the Gauteng Provincial Government v Zulu (1020/2015) [2016] ZASCA 185, which is discussed below.

The Zulu matter was handed down by the Supreme Court of Appeal on 30 November 2016 and is very relevant to the changes to medical malpractice litigation that are currently being discussed. In the Zulu matter, Dumile Zulu was awarded damages against the MEC on behalf of her minor child, Wandile. It was found that as a result of the negligence of the staff employed at the Chris Hani Baragwanath Hospital, Wandile had suffered a brain injury during childbirth. Prior to the hearing on quantum, the MEC amended her plea to include two issues to be determined, which are:

  • As opposed to monetary compensation, that the MEC pay the person who will administer the service to the plaintiff directly within 30 days of receiving a quotation.
  • Should the court award a lump sum in respect of future medical expenses that the amount be excluded when calculating the amount payable to the plaintiff's attorneys in terms of their contingency fee agreement.

In the court a quo, the damages were settled between the parties in the amount of ZAR23 272 303 of which ZAR19 970 631 was allocated for future medical expenses. Both of the issues included by the MEC were decided against her, but the matter was taken on appeal to the Supreme Court of Appeal (SCA).

The SCA in the opening portion of its judgment clearly stated that the request by the MEC to have the lump sum for future medical expenses substituted by an undertaking cannot be granted as it is incongruent with the once and for all rule. The concern raised by the court regarding the submission made by the MEC that the common law should be developed to allow for this type of payment process was that the common law would have to be abolished as opposed to modified, for an order in this regard to be granted. The court cannot simply make a change as profound as the one they are asked to make, as this development would undermine the basis on which a claim for damages in South African law is founded.

The concept is best encapsulated by a quote taken from R v Salituro [(1992) 8CRR (2d) 173, [1991] 3 SCR 654], which was cited by Kentridge AJ in Du Plessis v De Klerk [1996 (3) SA 850 (CC) para 61] by stating that "In a constitutional democracy such as ours it is the Legislature and not the courts which has the major responsibility for law reform…. The Judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society". By asking the court to develop the common law, the MEC was asking the court to step into the place of the judiciary, which the court cannot do. The court stated that the modification to the common law as requested by the MEC was not incremental, but would instead require a significant policy change that would be better suited to the processes of the judiciary.

Moreover, the MEC's attempt to have the lump sum converted to payments made by the department, as and when the injured party would require the treatment, imposed practical implications that the court had to consider. The fact that the MEC requested that payment be made within 30 days after a quotation had been submitted to the MEC's office created the predicament. The wording of the MEC's prayer created too many uncertainties and difficulties for the claimant if the minor child required vital care as a matter of urgency, his access to this care would be inhibited by the 30-day delay in payment. Furthermore, only a quotation would be submitted and therefore there was an opportunity for the quotation to be rejected, which would require further litigation to compel the MEC to accept the quotation. Therefore the SCA refused to make any change to the common law once and for all rule.

Having regard to the second request by the MEC, that should a lump sum award for future medical expenses be made, that the amount be excluded from the calculation of what is owed to the Ms Zulu's attorneys in terms of the Contingency Fees Act 66 of 1997. The MEC submitted that should the amount for future medical expenses be included in the calculation, that Wandile would have less money at his disposal for future medical treatment and that this would be to his detriment as he would not have sufficient funds to undergo treatment. Furthermore, that if the amount awarded for his future medical treatment was reduced, Wandile would make use of public healthcare facilities, which would in essence mean that the Department of Health would be paying for Wandile's future medical expenses twice.

The court held the view that in arguing the matter, the MEC had submitted that in terms of section 28(1)(c) of the Constitution, every child had the right to basic healthcare services and thus the MEC had accepted that even if Wandile's funds awarded for medical treatment were depleted, he would still be able to obtain treatment at a public healthcare facility. Therefore, by allowing the amount awarded for future medical expenses to be included in the contingency fee calculation, Wandile would not be deprived of his rights in terms of the Constitution.

Furthermore, section 2(2) of the Contingency Fees Act makes reference to the fact that the attorney's fees are determined by reference to the total amount awarded in the proceedings. The SCA as a court is afforded no power in terms of the Act to alter the amount that must be considered when calculating the attorney's fees. And the contingency fee agreement between the attorney and client has an important role to play, because without this agreement in place, it is unlikely that the client would have been able to obtain judgment at all. Therefore the court suggests that the contingency fee agreement (provided it is entered into in terms of the Act) is beneficial for both attorney and client, and that the attorney is entitled to have his payment calculated from the full award.

The appeal was dismissed based on the reasons discussed.

A remark was made in the Zulu matter that this was not the first occasion that the MEC had requested the court to make an amendment to the common law and that the MEC had in fact done so in numerous matters that preceded the Zulu matter. This is evident in the matter of T obo T v Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government (28471/2012) [2015] ZAGPJHC 141. In this matter, T had already proven liability on the part of the MEC for the negligence of the staff of the hospital when, as a result of her prolonged labour and the failure of the medical and nursing staff to perform a C-section, her son sustained an injury during birth and was born with cerebral palsy. The main issue in contention in the matter was the aspect of future medical expenses, which the parties had calculated at ZAR13 302 492.50.

The MEC alleged that the plaintiff had a duty to mitigate her damages and, in doing so, that the minor child should attend treatment at a state-owned facility. The court was taken aback by the suggestion and stated that "The defendant or its health facility has caused damages to the plaintiff and now wants to dictate the form of compensation that the plaintiff should accept under the guise that plaintiff should mitigate its damages".

The court went further to quote Judge Tsoka in the unreported case of Souls Cleopas v The Premier of Gauteng case No 09/14967 where he stated "It sounds strange to the ear and even bordering on arrogance for the defendant to seem to suggest that it will negligently cause damages to the plaintiff and thereafter arrogate to itself the form of compensation that the plaintiff should accept. It is not for the defendant to determine the form of compensation for plaintiff’s damages. Once the plaintiff has determined the extent of defendant’s duty to compensate him, the defendant has no choice but to pay up so long as the damages have… been proved”.

Therefore, once the plaintiff has proven her damages, the defendant is liable to make payment. A consideration that was touched on was the provisions of the Public Finance Management Act 1 of 1999 (PFMA). The use of the defendant's finances is governed by the PFMA and no substitution for payment by way of services is made. Therefore, in terms of legislation the defendant provides services to plaintiff as opposed to making payment to her.

The MEC raised the same argument as in Zulu, that the contingency fee agreement between the plaintiff and her attorneys will have a negative effect on the minor child as when the contingency fee is calculated, a portion of his funds will be depleted and he may not have enough to sustain his medical treatment in the future and therefore the state would be responsible to provide him with treatment. Therefore the MEC raised the same argument that the state would have to pay for the minor's treatment twice.

The court found this argument to be without merit. In terms of section 34 of the Constitution, all peoples within the Republic have the right to access the courts and have their matter heard. The Contingency Fee Act makes this right possible for a number of indigent litigators. Attorneys who work on a contingency fee agreement take the matter knowing that there is a possibility that the matter may not be successful and they may not make any fees from the matter. The Contingency Fee Act has built in safeguards to ensure that should the plaintiff be unsatisfied with the amount charged by her attorney, she has recourse. Furthermore, as the defendant would be liable for the plaintiff’s party and party costs, the majority of the costs would be covered, however there would always be a small portion of attorney own client costs to be covered. Therefore, it was found that the contingency fee agreement would not be unfair towards the minor child.

The court made the final order that included an amount of ZAR24 378 090.31 in respect of future medical expenses.

These cases are two of the most recent examples of this attempt to amend the manner in which future medical expenses are paid out; there are many cases that have addressed the same issues. As indicated in the Zulu matter, the courts are not the correct forum in which these amendments should be addressed. The legislature would need to draft the necessary amendments, not only to the National Health Act, but also to all the Acts that are interlinked and may have an influence on the matter (such as the PFMA).

These amendments will only be possible after the necessary investigations and research have been attended to and after public comment on the matter has been heard. In making these amendments, the legislature will change the common law once and for all rule, but only in so far as it relates to medical malpractice. The amendments will not be easy or be prepared quickly as there are so many intricate factors to consider when drafting these amendments to ensure that the injured party's rights are protected, public versus private healthcare and ensuring that payment is made timeously. The cases as discussed above do, however, provide a good starting point to determine what hurdles may need to be overcome. But to ensure the protection of all parties involved, these amendments need to be undertaken as quickly as possible.