Alternative dispute resolution in medical malpractice in south Africa
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Date
2020
Authors
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Journal ISSN
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Publisher
University of the Western Cape
Abstract
South Africa has seen a spike in medical malpractice litigation, including the number and size
of claims instituted against healthcare practitioners. This has led to a backlog in medical
malpractice court cases throughout South Africa and a strain on both the public and private
healthcare sectors, affecting an already burdened healthcare system. The surge in medical
malpractice litigation is not a new phenomenon in developed countries. Most have curbed
this through alternative dispute resolution (ADR). This has been facilitated by effectively
introducing efficient legal frameworks that promote ADR. Unfortunately, this is not the case
in a developing country such as South Africa.
To date, much research and literature has attributed blame for the large-scale increase in
medical malpractice litigation to legal practitioners. This has been aided by comments made
by the former Minister of Health, Dr Aaron Motsoaledi (Dr Motsoaledi). In as much as this
may be the common perception, there appears, to the contrary, to be systematic problems
in the South African healthcare system. The legal profession is only a minor contributing factor
to the increase in medical malpractice litigation. The strained financial resources and shortage
of healthcare staff in public hospitals contributes to the increased risk of medical malpractice
cases. Furthermore, when considering the South African legal system, contingency fee
arrangements have, in certain circumstances, increased vexatious litigation and, as such, it is
on this basis that medical malpractice litigation has been on the increase in South African
courts. This study seeks to analyse the current state of the South African healthcare system,
and in light of the increasing number of medical practice claims and litigation, propose ADR
mechanisms that offer efficient, cost effective, and expeditious channels to resolving these
issues and to ensure that parties recognise the full benefits of ADR.
This study proposes legal reform in medical malpractice litigation in South Africa. This thesis
compares the experiences, legislative and policy frameworks in Australia and the United
States of America (USA), in order to learn lessons that could assist South Africa in framing
legislation and best practices for ADR. It contends that, in order to effectively develop and
implement ADR to address medical malpractice litigation, it requires the involvement of the
government, legislature, judiciary, legal profession and the public. It has identified court-
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annexed mediation as the appropriate ADR mechanism in addressing medical malpractice
litigation.
Description
Magister Legum - LLM
Keywords
Alternative Dispute Resolution Department of Health Health Profession Council of South Africa Mediation Mediation in Motion Medical Malpractice Medical Practitioners Medical Protection Society Obstetrics and gynaecology South African Society of Obstetricians and Gynaecologists