A feasibility study of the legislative intervention to reform the medical neglegence litigation and damages is South Africa

Abstract

In South Africa, there is currently no legislation regulating medical negligence litigation and damages. The common law, through its “once and for all” rule, remains the applicable law in litigation of this field of law. In terms of the common law, proven claims must be paid as a lump sum to the successful party as claimed “once and for all.” The National Department of Health faces a challenge of medical claims increasing every year, both in the number of claims and quantum claimed. The state pays millions of Rands for its liability every year as compensation towards injured parties who have successfully proven their claims in court. The payments for compensation are made as a lump sum from the same budget made for the operation of hospitals. The State ends up running out of funds to keep the healthcare facilities operational, in a good state and offering quality service to the rest of the public. Legislative intervention is recommended to reform this current crisis in the medical negligence field of law. This dissertation aims to determine whether it is feasible to enact legislation as an intervention to reform the current state of law. In doing so, recent case law will be analysed and provisions of the constitution considered, as it is crucial for any applicable law, including the current applicable common law to promote the spirit, purport and object of the Constitution of the Republic of South Africa, which it does not as argued in this dissertation.