Medico-legal claims (Health Sector): engagement with Office of the Auditor-General

Public Accounts (SCOPA)

08 November 2023
Chairperson: Mr M Hlengwa (IFP)
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Meeting Summary


In a virtual meeting, the Auditor-General of South Africa (AGSA) briefed Scopa on the current status of the medico-legal claims of the Department of Health.

The AGSA emphasised the accountability ecosystem and said that it is important for all stakeholders to contribute to achieving service delivery. The AGSA raised concerns about the Department of Health failing to meet its targets concerning medico-legal claims.

Members raised concerns about the mentioned problems being repetitive. Members said improving the quality of health services is important as the focus should not only be on paying medical-legal claims. Members also questioned consequence management when the Department of Health failed to meet its targets or follow recommendations. 

Meeting report

The Chairperson welcomed everyone and acknowledged the presence of the Auditor-General of South Africa (AGSA). The Chairperson said the meeting with the AGSA was necessary as the Department of Health (DoH) has failed to meet its targets with medico-legal claims.

Auditor-General Briefing
Mr Andries Sekgetho, Head of Portfolio, AGSA, presented first and introduced the team. He emphasised the importance of an accountability ecosystem that holds all stakeholders accountable. He reminded the Committee that every action of the AGSA is for the benefit of South African citizens.

Mr Sekgetho summed the presentation up by highlighting the following points:
Compensation claims are made against departments through litigation due to a loss caused by the department.
The most common type of claim is medical negligence against provincial health departments.
Departmental budgets make no provision for such claims, or if they do, they often do not budget enough.
Deficiencies were identified in the measures implemented by departments to manage and defend medico-legal claims.
The wide-ranging challenges and factors that contributed to the escalation in medico-legal claims over the years were analysed and consolidated into three broad areas, namely patient safety, management, as well as administration and legal services.
Recommendations were formulated according to the three broad areas and consolidated into a medico-legal declaration and national litigation strategy.

Challenges highlighted in public health care facilities were presented as:
Unnecessary loss of life due to medical negligence.
Serious harm due to medical negligence.
Poor record management.
Lack of sufficient resources in public facilities.

Continued focus areas are:
Management of patient safety incidents and patient complaints.
Management of medical records.
Management of existing medico-legal claims.
Implementation of case management project.

Ms Maryke Schneigansz, coordinator of health sector performance auditing, AGSA, presented the key observations made. These are:
Inadequate human resource capacity and lack of medical expertise to manage the medico-legal caseload in the legal services directorate.
Ineffective systems between the provincial departments and the health care facilities to coordinate the request and submission of medical records related to medico-legal cases.

To address these shortcomings, the following recommendations and commitments were made:
The DoH was advised to review the human resource requirements and organogram of the legal services and the relevant provincial policies and procedures.
A needs assessment should be performed to determine the human resource requirements for the management of medico-legal claims at provincial level.
Clear delegations need to be in place for staff members who must monitor, coordinate and report the requests for medical records.

Further observations made were:
Lack of human resources to manage medical records.
Responsible staff members managing medical records received no training.
Medical records were not always filed in a systematic or orderly manner.
Tracking of medical records issued from the filing system is not done efficiently and effectively.
Medical records are lost, missing or stolen from healthcare facilities.
Medical records are not stored under optimal conditions.
Non-adherence to procedures for the archiving of eligible medical records.
Disposal of eligible dormant medical records not done.

The recommendations and commitments to address these are:
The DoH was advised to prioritise the recruitment and filling of vacancies of the posts responsible for the management of medical records at the health care facilities.
A comprehensive training needs analysis must be undertaken to determine the training needs of the staff members responsible for the management of medical records.
The DoH needs to compile an annual training plan, whereby the training needs of staff members in the health care facilities in the districts are captured.
The DoH is to review if the infrastructure requirements align with the healthcare facilities that need to store medical records.
Annual clean-up of the storage areas needs to be scheduled and planned and the plans implemented.

The audit findings made are:
Lack of dedicated staff and/or coordinating structures to oversee the management of patient safety incidents (PSIs) and complaints at healthcare facilities.
Ineffective processes in the recording, reporting, and resolution of patient safety incidents.

To mitigate the finding, the following recommendations and commitment were issued:
The DoH was advised to have formal committees established to supervise, manage, and report on PSIs and patient complaints at the facilities.
The DoH was advised to review the staff requirements and organogram in line with the services rendered by them.
The DoH should monitor the staff members’ adherence to the requirements and, where required, hold the staff accountable when instances of non-adherence are noted.

Ms Mmule Thipe, Acting Business Leader, AGSA, presented an overview of the claims. She said that the Eastern Cape, Kwa-Zulu Natal and Limpopo were leading the sector in terms of the value of the claims. Overall, there were data limitations which led to inconsistent and poor quality of data for these claims. No locations were recorded in the data from the North-West, while the province had the highest number of brain damage claims. This may lead to inconsistent and poor-quality data for the management of claims. Departmental policies and procedures on the management of medico-legal claims were developed and implemented in all nine provinces. However, there were shortcomings in the measures implemented by management.

Ms Nelisiwe Mhlongo, Engagement Manager: Sector Coordinator, AGSA, presented a Portfolio Committee and National Council of Provinces (NCoP) oversight recommendation. Oversight strengthening points to consider are:
Follow through on claimants’ payments made to ensure that the funds reach the claimants.
 Implementing systems and processes aimed to produce quality, reliable information to enable adequate oversight.
Enhance collaboration with other committees on the portfolio for effective, efficient, and timely payments.
Public health care facilities must have necessary skilled midwives and availability of necessary medication as per essential drug list (EDL). Facilities must initiate care of pregnant women.
The oversight committee must request the sector leadership to provide plans to be implemented to improve internal controls relating to financial and performance management disciplines and service delivery. This must be supported by proper governance processes.
The Portfolio Committee must, through improved collaboration with the NCOP, closely monitor areas, including medico-legal claims, that are contributing to the depleting of funds from the sector. These funds could have otherwise been used to procure and/or maintain much-needed equipment, infrastructure, increase capacity and skills in the sector. The areas must include medico-legal claims, fruitless and wasteful expenditure, and better management of goods and services.

The identified key root causes contributing to the situation are:
Lack of resources responsible for the management of medical records at facilities.
Insufficient storage space and poor storage practices for active and/or archived medical records.
Non-adherence to archiving procedures with no consequence management.
Lack of implementation and utilisation of the case management system.

Recommendations to sector leadership
Prioritise the recruitment and filling of staff members who will be responsible for managing medical records and train those dealing with these claims.
Review the infrastructure requirements in line with the healthcare facilities’ need to store medical records. Should there be a need for additional infrastructure to store medical records, the DoH should plan accordingly.
Monitor staff adherence to archiving procedures and, where applicable, hold staff accountable for instances of non-compliance.
Full implementation and utilisation of the case management system in line with the intended objectives.

See attached for full presentation

The Chairperson thanked the AGSA for their presentation. He said that the Compensation Fund and the Road Accident Fund are ticking time bombs and need to be addressed as soon as possible. He opened the floor for questions from Committee Members.

Mr R Lees (DA) said that he is concerned about the emphasis placed on administration and documentation because he believes that what is more concerning is the large number of claims based on poor health care. The key should be fixing the poor healthcare delivery. The administration is bad, however the services provided at these facilities are also bad. The intervention process of just focusing on administration is wrong. The DoH should be dealing with the root cause of the claims which is the quality of services.

Mr S Somyo (ANC) welcomed the presentation. He said he is concerned that a similar conversation has already taken place. He expressed appreciation for the work that is done by the AGSA. Considering the diminishing revenue highlighted by the Minister of Finance in his medium-term budget speech, he said it is important to find a way to deal with issues in the DoH. He is concerned that some provinces are not following the plan devised by the AGSA. There must be consequence management. The Committee is now able to challenge the DoH to find working solutions following the presentation from the AGSA. He said that the Committee should drive consequence management. He thanked the Office of the AGSA for their hard work.

The Chairperson agreed with the two previous speakers. He said that professionalism and conduct of medical professionals need to be improved. The situation is concerning and if it is not improved, it will pose a risk to the fiscus and service delivery due to the high number of claims. Claims and payouts should not be a default remedy. Consequence management needs to also be focused on. The default position of, “it’s okay, we will pay” and there is money to do that, is an incorrect view to have. A constructive engagement with the DoH is required.

The Chairperson thanked the AGSA for their briefing and said that the Committee would be in touch with the AGSA later after looking at the presentation and discussing the solutions and recommendations. There will be a site visit to the DoH and the research team will continue their research.

The meeting was adjourned. 


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