State could save millions in claims for cerebral palsy – Gregory Whittaker

For the past 100 years, the majority of cerebral palsy cases were believed to have been caused by oxygen deprivation before or during labour. This has resulted in massive claims against the state, with R10bn paid out over the past 7 years. In a study commissioned by the Actuarial Society of South Africa, Gregory Whittaker found that millions could be saved if other factors – that are currently not considered – are taken into account. BizNews spoke to Whittaker to find out what his research revealed, asking him what he recommends to claw back a sizeable chunk of the money spent annually on medical negligence claims. – Linda van Tilburg

Gregory Whittaker on the research:

The Actuarial Society has a public interest actuary who has been encouraging research into various public interest areas. One of the areas he’s identified is the medical malpractice problem in South Africa’s public sector. To just give some numbers we’re seeing, roughly, about two thousand claims a year that are being lodged for medical malpractice. The vast majority, as we’ve identified, are cerebral palsy claims. There’s obviously a variety of different reasons why people sue over medical negligence. The actual rand amounts that have been paid out for these claims is averaging around R2 billion at the moment.

We’ve seen in the last seven years, about R10 billion paid out in medical malpractice claims. Then each Department of Health reflects the contingent liability, which is basically if the claim is lodged with a particular department, they record, generally, the claim value that’s been put in the summons. But in terms of the continued liability in South Africa at 31 March 2020, the figure was sitting at over R100 billion, which is roughly half of the National Department of Health budget.

On why there are so many malpractice claims for cerebral palsy:

Generally, the cost of caregiving for these children is substantial. Also, the cost of therapies and the cost of administering the awards and the amounts awarded for general damages. You can often see those sort of claims are set for something of the order of R20 million, for example – just one claim. When you think about that, if one person is getting R20 million, what could the reach of that money be in terms of other people – children who are born with cerebral palsy not as a result of negligence. They’re not getting anything or they have to just rely on whatever they can get from the public sector.

On the investigation into cerebral palsy malpractice claims:

What we did was quite a substantial literature review, where we’ve looked at the various causes of cerebral palsy, for example, and we list a variety of risk factors – but it’s a whole causal chain. There could be things that occur pre-birth that result in an adverse outcome. One of the things along the way may be, for example, a delay in a caesarean section as a result of not monitoring foetal distress.

Even though there is negligence, there may still be pre-existing factors that results in that outcome. It’s not a simple exercise. In actual fact, a paper that’s recently been released by the South African Medical Journal [written by] a number of obstetricians and gynaecologists where they set out a sort of holistic, scientific review that needs to take place in these sorts of cases. One of the things that we do touch on – which is also touched on in that paper – is using placental pathology, which gives a very objective account of what’s happened prior to the birth.

On the other factors that may contribute to cerebral palsy:

Some of the risk factors that we list are things like maternal alcohol consumption. There could be obesity issues. There are a number of different risk factors which we’ve listed. We’re just saying that when these cases are being reviewed and dealt with by the courts, we really need to be assessing it on a holistic and multidisciplinary basis – often the courts are only guided by the evidence that’s before them in the papers.

I think the problem that we’ve identified is, if you go and look at settlement values across the various provinces – it’s quite obvious, for example, that the Eastern Cape is paying out substantially more in compensation than other provinces. One has to ask, why is this happening? Is there a standardised way of dealing with these claims on the merit aspects of these claims? It shouldn’t be at the whim of an advocate or an attorney. There should be some sort of standardisation of the investigative process in these matters and getting proper evidence and giving as much as you can in terms of things like family history.

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