- Eastern Cape recorded the largest contingent liability at R26.35 billion, followed by Gauteng at R17.14 billion.
- Cerebral palsy-type claims account for about half of all medico-legal claims and more than 60% of liabilities in six provinces.
- The liability figures are potential obligations, not amounts already paid, with actual national pay-outs far lower than the contingent exposure.
The Eastern Cape carried the largest contingent liability among the provinces at R26.35 billion in 2022/23, according to the South African Law Reform Commission’s report on medico-legal claims.
The province accounted for 35% of the R75.99 billion in total contingent liabilities recorded nationally that year. Gauteng followed with R17.14 billion, accounting for 22.6% of the total.
The figures reflect potential payment obligations rather than money already paid out. The report distinguishes sharply between contingent liabilities and actual pay-outs, with the latter substantially lower in any given year.
Eastern Cape remains the biggest exposure
In 2022/23, Eastern Cape had a contingent liability of R26.35 billion. Gauteng followed at R17.14 billion, then Limpopo at R8.98 billion, KwaZulu-Natal at R7.34 billion, Mpumalanga at R7.05 billion, Free State at R5.13 billion, North West at R3.39 billion, Northern Cape at R600.61 million and Western Cape at zero.
The Eastern Cape’s position is not new. The report records that it has carried the highest contingent liability of all the provinces every year since 2019/20. It also recorded the highest single-year actual pay-out during the period examined, paying just under R921 million in 2020/21.
Nationally, contingent liabilities reached a peak of more than R112.5 billion in 2021/22, compared with just over R28.6 billion in 2014/15.
Birth injuries account for a major share
The nature of the claims helps explain why some liabilities are so high. The report says about half of all medico-legal claims are cerebral palsy-type claims involving birth asphyxia, neonatal encephalopathy and cerebral palsy. These claims account for more than 60% of liabilities in six of the nine provinces.
A common claim is that a mother was inadequately monitored during labour and that a caesarean section was not performed in time, resulting in a baby suffering brain damage from insufficient oxygen.
The report cautions, however, that cerebral palsy has multiple causes. It notes that only a small percentage of cerebral palsy cases can be attributed solely to acute intrapartum hypoxia and that some cases may have been incorrectly classified as birth asphyxia.
These claims can reach high values because children who suffer serious permanent neurological injuries may require care, rehabilitation, therapy, treatment and assistance for decades.
The claims extend beyond cerebral palsy
The report also identifies birth defects and other serious permanent injuries as major challenges. Examples in the provincial material include a bile duct injury during surgery and a retained K-wire tip following surgery in the Eastern Cape and a birth injury resulting in cerebral palsy in KwaZulu-Natal.
Another birth injury led to cerebral palsy in Gauteng, and the failure to assess or treat a fatal head injury in Mpumalanga. The cases illustrate that medico-legal claims are not confined to one type of injury or medical event.
The report says medico-legal claims against provincial health departments encompass medical negligence and medical malpractice and are the most commonplace type of claim identified in the Auditor-General’s reporting.
Liability is putting pressure on health budgets
The financial exposure is compounded by problems in managing and defending claims. The report records shortages of medico-legal officers in the Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga and Northern Cape, while a lack of medical expertise in the Free State and Mpumalanga contributed to delays in finalising claims.
In the Eastern Cape, inadequate records affected the department’s ability to defend medical negligence and malpractice claims. In Gauteng, funds intended for goods and services were shifted to pay medical negligence and malpractice claims, reducing money available to treat patients.
KwaZulu-Natal was criticised for failing to take adequate steps to prevent medical negligence and malpractice claims. In Limpopo, claims could consume funds earmarked for strategic and service-delivery objectives if they became actual liabilities.
In Mpumalanga, medical negligence claims accounted for most of the provincial health department’s R10.2 billion share of R11.6 billion in legal action against the state during the period examined.
The report also notes that claims can take years to finalise because of sluggish legal processes, full court rolls, unavailable witnesses and difficulties obtaining evidence.
The scale of the figures therefore reflects both the potential cost of medical negligence claims and the prolonged process through which those claims are managed and resolved.
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