WeeklySA_AdminCOMPENSATION: Falling medico-legal liabilities offer little reassurance without evidence that patients are safer. Experts warn that weak leadership, staff shortages and poor reporting continue to conceal preventable harm…
By Chris Bateman
South Africa’s medical-negligence crisis exposes failures far beyond individual doctors and nurses, with experts warning that weak leadership, poor adherence to clinical guidelines, inadequate records and staff shortages are allowing preventable harm to go undetected.
The warning comes as the Eastern Cape reports that its estimated medico-legal liability has almost halved, from R38 billion to just under R19 billion over five years.
But a lower projected compensation bill does not necessarily mean fewer patients are being harmed. Former Health Ombud Professor Malegapuru William Makgoba says South Africa still lacks a reliable national picture of deaths and serious injuries caused by healthcare failures.
“We still have no idea what the contribution of the medical profession is to mortality.”
Professor Alex van den Heever, chair of Social Security Systems Administration and Management Studies at the Wits School of Governance, says medical-negligence liabilities should be treated as a warning about healthcare delivery.
“The legal process is the consequence of the failure to prevent negligence,” he says.
These concerns frame discussions at the South African Medical Legal Association’s annual conference in Gauteng from October 8–10, examining medico-legal risk, patient safety, technology and accountability.
Billions at stake
National Treasury puts provincial medico-legal contingent liabilities at R57.6 billion for 2024/25, down from R62.5 billion the previous year. These represent potential future obligations, rather than money already paid. Actual provincial settlements average about R1.5 billion annually.
The Eastern Cape has sought to reduce its exposure partly by offering injured patients future care in public facilities instead of large lump-sum payments for anticipated medical and rehabilitation costs.
That approach, however, depends on the state delivering the promised care throughout a patient’s lifetime.
A Supreme Court of Appeal judgment on February 11, 2026, highlighted this risk. It overturned an Eastern Cape High Court order replacing lump-sum compensation with public healthcare and undertakings to pay for a child injured through negligence.
The province had conceded liability. The appeal court found insufficient evidence to justify confidence that lifelong treatment and future payments would reliably materialise.
Escalating claims have also prompted government intervention. The South African Law Reform Commission investigated medico-legal claims following requests from the Department of Health and the Minister of Justice and Correctional Services. It released its final report and proposed legislation on September 29.
Warning signs
Research by Eastern Cape midwife and nurse educator Dr Luleka Gcawu shows how failures in routine care can develop into medico-legal cases.
Abnormal blood pressure may be detected without the required intervention. An abnormal foetal heart rate may fail to trigger the prescribed response. Monitoring may fall short of guidelines, while observations sometimes go unrecorded.
“Sometimes the woman’s BP is checked as per guidelines – but not documented,” Gcawu says.
Training alone does not guarantee compliance. Some healthcare workers fail to implement updated guidelines despite receiving training. Her research identified poor patient relationships and failures to respond appropriately to clinical problems, alongside substantial system pressures.
These include shortages of nurses, midwives and trainers, inadequate resources, high patient-to-nurse ratios, ambulance delays and unstable leadership.
“Sometimes training is scheduled, but midwives are not released to attend. They need to look after patients. And there are not enough trainers,” she says.
Her research found that behavioural and system failures could account for more than half of the factors contributing to litigation.
National Department of Health data put South Africa’s institutional maternal mortality ratio at 105.2 deaths per 100,000 live births in 2023. The Western Cape recorded 71.8; other provinces ranged from about 101.5 to 166.6.
Neither every adverse maternity outcome nor every cerebral palsy case indicates negligence. Nevertheless, failures to recognise and respond to childbirth complications can cause preventable injuries and substantial claims.
The central question is whether health authorities identify recurring failures and change practice.
Accountability beyond the bedside
Makgoba and Van den Heever argue that accountability cannot end with individual clinicians. Makgoba cites the Life Esidimeni tragedy as evidence of the catastrophic consequences of leadership and management failures.
“You can’t have a system of caring that’s devoid of good interpersonal or inter-institutional relationships,” says Van den Heever.
Hospital managers need responsibility and the authority to enforce standards. “You have to have a captain of the ship.”
He identifies leadership instability, political interference, fragmented workforce planning and weak management structures as obstacles to accountability.
Gcawu also raises concerns about unstable senior management, including acting appointments. The question extends beyond whether a clinician made a mistake to whether the institution had adequate staffing, supervision and systems to prevent and correct it.
Harm that goes uncounted
Makgoba warns that medical error is not routinely recorded as a standalone cause in national mortality statistics. Healthcare failures can therefore disappear within broader disease or injury categories.
Errors have traditionally been addressed through internal processes, including morbidity-and-mortality meetings, pathology reviews and management procedures.
“If you know what percentage of deaths are from medical errors, then you can plan and educate your doctors properly.”
Without reliable data, policymakers cannot measure the problem accurately, educators cannot target training effectively and managers cannot establish whether interventions work.
The information gap also affects private healthcare. Van den Heever argues that limited transparency about adverse events and quality outcomes obstructs meaningful comparisons.
Until that changes, South Africa may remain better able to calculate the cost of compensation than measure the harm behind it. – Health-e News
