What happens when trust - the cornerstone of healthcare - is broken? In South Africa, the answer is increasingly found in litigation. As medical malpractice claims soar and public confidence in health systems teeters, the call for urgent reform is unmistakable. At the centre of this complex issue lies a simple truth: Risk is inevitable but unmanaged risk is unforgivable.

Leandren Naidoo, Manager of Business Risk Solutions at OLEA South Africa, says, “Medical malpractice is more than a legal matter, it’s a profound rupture in the sacred relationship between healthcare providers and patients. At its core, it is about harm - physical, psychological and often, emotional. But it is also about dignity. Neuroscientific studies show that psychological injury registers in the brain in much the same way as physical harm. Yet, while a physical injury may receive swift attention, a bruised sense of dignity can linger and fester indefinitely.

“The perceived violation of dignity can fuel resentment, prolong trauma and, ultimately, drive patients to seek justice in courtrooms rather than consulting rooms.”

What is driving the rise in malpractice claims?

Across the globe, medical malpractice claims are on the rise.  In South Africa in 2023 a parliamentary report revealed that medico-legal claims, against the state, exceeded R78 billion, nearly tripling over the past decade. In high-risk disciplines like obstetrics, claims have risen by over 25% annually.

He says, “several forces are converging to create this perfect storm. Greater public awareness of patient rights, aggressive legal marketing and the adoption of ‘no win, no fee’ legal models have all made it easier to pursue claims.”

So, what does medical malpractice incorporate?

Errors and omissions, care related injuries, misdiagnosis, incorrect dispensing or prescription of medication, unnecessary surgery or treatment and medical equipment related injuries.

Court or conversation: What works best for resolving claims?

Naidoo says, “despite perceptions of rampant litigation, most malpractice cases never reach court. An estimated 95% of claims are resolved before trial, often on the proverbial courthouse steps. The reasons are manifold. Overloaded dockets, lengthy trial timelines (often five to seven years) and soaring legal costs.

“But there’s a deeper problem, courtrooms aren’t designed to resolve emotional trauma. Patients often seek validation more than victory,” he says, “They want to be heard, not just compensated.”

Why is risk management more urgent than ever?

In an environment where claims are increasing by 3 to 4% annually and legal defence costs are rising by 6 to 8%, risk management is no longer optional, it’s essential. It’s the only true defence healthcare providers have against both reputational damage and financial ruin.

What does effective risk management look like in practice?

1. Patient safety protocols: Clear procedures to minimise errors, from surgical checklists to medication audits.

2. Staff training: Empowering healthcare professionals with up-to-date clinical and legal knowledge.

3. Record-keeping: Robust documentation that supports clinical decisions and protects against unfounded claims.

4. Communication strategies: Cultivating a culture of transparency, apology and early intervention.

5. Insurance alignment: Ensuring cover matches exposure, taking into account both damages and escalating legal fees.

Practitioners and medical institutions need to assess their limit of indemnity carefully. “An obstetrician can pay up to R1.7 million annually in premiums. This isn’t just a cost, it’s a risk exposure that needs to be planned for.”

What are the highest-risk disciplines and the cost of getting it wrong?

While all medical professionals face some risk, certain specialties are far more vulnerable:

• Obstetrics: Cerebral palsy claims can reach R48 million

• Neurosurgery: Brain and spinal complications

• Orthopaedics: Post-surgical disabilities

• Emergency medicine: Delays or misdiagnosis

Average claim amounts range between R300 000 and R12 million. High-end cases, particularly involving children, can exceed R40 million. This is because claims, involving minors, extend the period of prescription until three years after they reach 18, significantly increasing potential compensation.

Can the right insurance really make a difference?

“Absolutely,” says Naidoo. “Medical malpractice indemnity insurance provides cover for the following: Arbitration costs, court judgement and awards made against the insure, expert legal fees and support, court costs, settlement costs and attorney’s (and mediation) fees.”  

Insurance is not merely a financial product, it’s a strategic partnership. A good insurer doesn’t just pay claims, they help prevent them. At OLEA South Africa, for instance, brokers conduct detailed situational audits of healthcare institutions to assess operational risks.

“As brokers we advise which insurer will be the most effective for that particular institution or medical practitioner. It’s about education, not just insurance,” Naidoo explains. “We want to develop a system and environment where malpractice is unlikely. But, if it does happen, the tools must be available to resolve it constructively.”

Is the media making things worse?

Yes and no.  On the one hand, media coverage of high-profile cases has increased accountability. On the other, it has inflated public expectations. Patients increasingly equate any adverse outcome with negligence, leading to an uptick in opportunistic claims.

Moreover, the rise of “ambulance chasing” has introduced a dangerous incentive structure. In 2024 alone, the SIU flagged over 2 800 suspicious malpractice cases, many driven by legal marketing, rather than genuine harm.

This places additional pressure on doctors, who may resort to defensive medicine, ordering unnecessary tests, referrals or procedures. Not to improve care but to avoid liability.

Most importantly, healthcare institutions must view risk management not simply as a compliance exercise but as a moral imperative.

And final words from OLEA South Africa

• We value our healthcare practitioners immensely. To our doctors and nurses, you carry the weight of life and death every day. But you shouldn’t carry it alone. Equip yourselves with the tools, training and protection you need to do your job with confidence

• To insurers and brokers: Be more than policy providers. Be educators, allies and defenders of dignity

• To patients: Know your rights but also recognise your responsibilities. Healthcare is a partnership, not a transaction

• And to policymakers: Prioritise patient safety, not just with funding but with forward-thinking reforms that streamline resolution, reduce conflict and restore trust

Because, at the heart of it all is one shared goal. Protecting people. And there’s no greater purpose in healthcare than that.