The Common Law Public Healthcare Defence

Since 1991, the number of medical negligence claims in South Africa has been steadily increasing along with the amount of damages claimed and recovered. This has resulted in the public health sector budget coming under severe pressure.

The Department of Health (“DOH) used to settle medical negligence claims with monetary compensation, many of which would range in the millions of rands. They argue that, as a result, the citizens of South Africa, who were reliant on the public healthcare sector, were adversely affected as they were left with a lack of funding and therefore fewer resources in their healthcare system.
To purportedly try and address the problem, the DOH, in its defence to the claims, has been pleading “the common law public healthcare defence” as a form of compensation. Instead of compensating claimants in monetary terms, the defence makes allowance for the claimants, with a need for future medical care, to make use of public healthcare facilities.

In 2017 and in the case of MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) the Constitutional Court paved the way for the acceptance of the common law public healthcare defence. The court stated that it was open to develop the common law to allow for payments in kind or periodic payments for monetary damages in appropriate similar cases. The court further stated that in principle, the actual rendering of these services would fulfil the two-fold purpose of redressing damage and compensating the victim. This method may be even more appropriate where the victim does not intend to put any money that he or she might receive towards medical treatment.

The common law public healthcare defence was successfully raised in the case of MSM obo KBM v Member of the Executive Council for Heal, Gauteng Provincial Government (2020) 2 All SA 177 (G): The court considered that there was a double tragedy inherent in medical negligence matters. The plaintiffs are deeply and irreversibly affected, but so is the public healthcare system. The court further found that the mitigation of healthcare costs defence is consistent with existing common law principles. Thus, no development of the common law was necessary, however, the common law public health care defence may not fall within the existing common law principles. The court was nevertheless persuaded that the matter was an appropriate case to make an order for compensation in kind in respect of the identified services.

The common law public healthcare defence remained a viable defence for the DOH up until the case of Mashinini v Member of the Executive Council for Health and Social Development Gauteng Provincial Government (SCA) (unreported case number: 335/2021, 18/04/2023): In this matter, the MEC conceded liability and the matter proceeded on the quantum of the damages claimed. The common law public healthcare defence was raised and the proposal for future medical treatment at Chris Hani Baragwanath Hospital. Professor Bizos stated in his evidence that the appellant’s case was a complex one and required direct access to a specialist surgeon, which was something the state hospitals were unable to provide. The MEC presented no evidence to counter that of Professor Bizos (which was not contradicted) that State hospitals in general, because of the way they operate, are not capable of rendering medical services to patients such as the appellant with complicated clinical conditions which require direct and immediate access to the specialist surgeons. Nor did she present any evidence of the cost to the appellant of such a service if it had been available.

In conclusion, the Mashinini case does not state that the common law public healthcare defence itself is invalid. The case is more an example of when public healthcare is not appropriate and when the public healthcare defence will fail. The merits of each matter will still be considered separately and the DOH must meet a burden of proof that it will fully undertake the duty to provide future medical services to a reasonable standard to that in the private sector, for it to succeed with the public healthcare defence.