Medical malpractice disputes in South Africa: the potential role of mediation as an alternate dispute resolution mechanism.
Maharaj, Niren Ray.
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It is generally acknowledged that the progress of a nation is dependent on the health of its people. In South Africa, public health care services are compromised by the rapid escalation in medical malpractice cases and the high costs of settlements. The prevention of the impending collapse of public healthcare services has necessitated the exploration of alternate dispute resolution mechanisms for medical malpractice cases. Court-annexed mediation was inaugurated in certain Magistrates Courts, whilst more recently the State Liability Amendment Bill was introduced to structure the settlement of claims against the State. Mediation is a ‘neutral, non-coercive and non-adversarial’ alternate dispute resolution mechanism that facilitates negotiations between disputants. It has been associated with high satisfaction rates, reduction in delays, and reduced costs in specific settings. Mediation is well established in labour disputes, family law, and community matters. However, its application to healthcare disputes remains novel and will require trained mediators. Moreover, issues relating to power imbalances, confidentiality, and privacy can complicate the process. In the background of these challenges, this dissertation explores the medical malpractice landscape in South Africa and the potential use of mediation as an alternative to litigation. The perception of mediation being more cost and time effective than litigation is not supported by evidence as studies show wide variation in these areas. A practice survey of medico-legal attorneys is also included in the dissertation, which highlights local experiences, current practice trends and costs, including the high cost of various experts, a significant cost driver in litigation cases. Similarly, the perceived benefit of decongesting the courts may not materialise, as most cases are settled before court dates that may have been set beforehand. Other potential benefits and challenges associated with mediation, including beneficial strategies for the successful implementation of mediation are discussed further in the study. In summary, mediation has benefits such as open communication, personal interaction and transparency, provided that a neutral environment exists. Patient and provider satisfaction are also more likely given the privacy and confidentiality associated with mediation. Improved relations, which may become strained by the adversarial nature of litigation, are also more likely to be achieved with mediation. There will be reduced procedural and legal professional costs to an extent. However, the costs of experts and quantum payments will remain similar if they are determined by the same experts. The number of disputants who litigate after failed mediation attempts may escalate costs further. It is proposed that the successful implementation of mediation is likely to be achieved with appropriate training of mediators and support staff, efficient administration, widespread access to mediation panels, and acceptance by the community as a suitable alternate to the courts.