By Sam Baleson, a Legal Risk Advisor at Aon South Africa

[Nov 2016] The first of what is expected to be one of many large hospital chains, are shutting their maternity wards down. Obstetricians and gynaecologists simply cannot afford the escalating cost of insurance and are forced to weigh up the risk versus the reward; the risk and cost currently far outweighing the reward and benefit of practicing in an ever evolving industry. 

A combination of the high-risk nature of obstetric and gynaecological disciplines; an increased and heightened awareness ofpotential litigants of their rights; and lawyers offering services on a contingency/ no-win no-fee basis are all factors that contribute to a high pressure pot that is bubbling over at an alarming rate. 

Damages can take the form of patrimonial loss (a reduction in a person's financial position, such as in the case where the claimant incurred medical expenses) or non-patrimonial damages (damages that cannot be related to a person's financial estate, but compensation for example pain and suffering).

Medical Malpractice Claims of this nature average and can easily be in excess of R10mil. Factors that contribute to such high quantum claims include: 

Extended Prescription:

As there are many medical negligence claims on behalf of a minor (under the age of 18) by his/her parents/ guardians, it must be kept in mind that the normal prescription period does not run against a minor. If for example there is negligent conduct by an obstetrician during the birth that causes a child to suffer damages, the child's claim will only prescribe 3 years after he/she turns 18, i.e. when he/she turns 21.  However, if the parents or guardians have a claim arising out of the same negligent conduct and based on the same cause of action, for example, the past hospital and medical expenses paid by the parents or guardians, this claim would prescribe after the 3 year period as discussed above.

Such injured/disabled children often survive, and then live longer as a result of sophisticated expensive care, contributing to the extremely high quantum of claims of this nature. While an individual obstetrician may be at relatively low risk of having a claim of the magnitude of an obstetric claim, the claim’s value can be so high that a single individual could not afford to compensate a deserving claimant. The financial risk has to be transferred to an insurer or shared by a not-for-profit indemnifier.

Long-term costs:

This pertains to extensive patrimonial and non-patrimonial damages/loss in addition to the excessive costs of rehabilitation and maintaining an injured/disabled baby for the duration of his/her life. Example: A doctor doesn't use reasonable care and erroneously decides to deliver a baby prematurely. As a result, the baby suffers severe brain damage for the duration of his/her life. The parents may sue to recover medical expenses incurred to pay for ongoing rehabilitation and developmental needs (i.e. the cost of equipping ones home to cater for a disabled child/person), as well as pain and suffering since the baby will experience the ongoing trauma of physical and mental disability.

Injury to mother:

The mother can bring a claim for medical malpractice if the doctor's carelessness caused her injury prior to or during birth. For example, if the doctor fails to note the mother's high blood pressure prior to delivery, a sign of a condition known as preeclampsia, and the mother has a seizure during delivery), the mother may have a claim for medical malpractice to recover for injuries caused by the seizure.

Non-patrimonial loss- Emotional injury to parents:

The parents may also be to sue for the emotional pain and suffering they experience because of their baby's injury.

The South African Society of Obstetricians and Gynaecologists (Sasog) says the cost of insurance is expected to climb to R800, 000 in 2017. This is because the Medical Protection Society (MPS) has experienced a drastic increase in the number and quantum of legal claims since 2009. With the exception of a few, other insurers have declined to quote on providing cover to such specialists, entirely.  

Sasog has proposed a solution and has urged Health Minister Aaron Motsoaledi to intervene with new legislation, that place a cap on the limit of liability i.e. the maximum amount that a potential claimant/injured party could claim in the case of such medical malpractice. This would have the knock-on effect of reduced and affordable insurance premiums, which would make it affordable/ viable for gynaecologists/obstetricians to remain in practice. In the event of a negligence based claim, it is essential for a policy to be in place in order to cover an awarded amount for damages.