The system proposed in Missouri, which allows for an adjustment of the cap depending on the severity of the injury, may represent an attractive option should some form of capping be introduced in South Africa. There is already an existing body of expertise and precedent for assessing the severity of injuries which has sprung up around the “serious injury assessment” required by the Road Accident Fund Act.

The US state of Missouri will shortly reintroduce a cap on medical malpractice lawsuits.

The new scheme intends capping damages for pain and suffering at a maximum of $400 000 whilst in catastrophic cases, such as those which include paralysis, loss of vision or brain injury, the cap will be $700 000.

The capping of medical malpractice claims has recently been on the agenda in South Africa, with rising medical malpractice claims negatively impacting both the public and private healthcare sectors. Payment of claims made against the state takes money away from the budget which would be used to improve primary health and service delivery. Professional indemnity premiums for medical professionals have risen steeply on the back of the litigation storm, particularly for those specialists considered high risk such as obstetricians and spinal surgeons.

There have been several suggestions to deal with the crisis. A no-fault scheme has been proposed, along the lines of how the Compensation for Occupational Injuries and Diseases scheme works. There has been mention of introducing a medical malpractice ombud.

Whilst US states focus on capping damages awarded for pain and suffering, South Africa would likely focus on capping damages for future loss of earnings and future medical expenses. It is these heads of damage which drive up claims in South Africa, rather than damages for pain and suffering which are relatively modest.

Any legislative intervention will have to balance the need to protect the healthcare sector against the rise in medical malpractice claims, with the right of patients who have been harmed by negligence, to be compensated.