Stop Paying for the Same Mistakes: A Call to South Africa's Health System LeadershipOct 2, 2026 · @sipho.kabane@gmail.comSouth Africa's public health system is paying billions every year for harm it
Stop Paying for the Same Mistakes: A Call to South Africa's Health System Leadership
Oct 2, 2026 · @sipho.kabane@gmail.com
South Africa's public health system is paying billions every year for harm it could have prevented. The money goes to lawyers and claimants, not to the wards where the harm began. This article argues that the medico-legal crisis is a patient safety crisis wearing a legal costume, and that leaders who keep responding to it reactively will keep getting the same result. Drawing on Auditor-General findings, WHO evidence and a three-year randomised intervention study in 24 Free State hospitals, it sets out what a proactive, learning-based alternative looks like and what it asks of leadership.
Keywords: patient safety; medico-legal claims; incident reporting; just culture; health system governance; South Africa
Same inputs, same outcomes
There is a well-known saying, usually credited to Einstein, that insanity is repeating the same mistakes and expecting different results. Einstein never said it; the line comes from Narcotics Anonymous literature of the early 1980s (O'Toole, 2017). Whoever first said it, South Africa's medico-legal record proves it: in 2018 government set out to cut medico-legal liability from R70 billion to under R18 billion by 2024, and a year before that deadline it stood at about R75 billion (AGSA, 2024).
The system is not failing to understand the problem; it is failing to change its response to it. On 1 October 2026 the Auditor-General told Parliament's Portfolio Committee on Health that the sector's challenge is not knowing what needs to be fixed, but consistently implementing and sustaining corrective action. The same briefing described a prevailing culture of weak accountability, limited consequence for non-performance and a reactive approach to governance (The Citizen, 2026).
That diagnosis should stop every Head of Department, hospital CEO, clinical executive and MEC in their tracks. For more than a decade the dominant response to medical negligence litigation has been legal: defend harder, settle smarter, investigate fraudulent lawyers, lobby for law reform. Each of these has merit. None of them reduces the number of patients harmed tomorrow.
A claim is the last link in a chain that starts with an unsafe act in an unsafe system. If leaders only manage the last link, the chain keeps producing claims. This article is addressed to those leaders, and its request is simple: change what you invest in or accept that the bill will keep arriving.
The bill keeps arriving
Government set itself a clear target and missed it. The 2019–2024 Medium Term Strategic Framework aimed to cut the medico-legal contingent liability by 80%, from R70 billion in 2018 to under R18 billion by 2024. By 31 March 2023 the figure stood at roughly R75 billion, 7% above the baseline (AGSA, 2024).
Indicator | Value | Period | Source |
Medico-legal claims (AGSA) | R50.2 bn claims; R1.57 bn settled | 2025/26 | |
Active claims, all provinces (NDoH) | 9,567 claims; R91.1 bn (incl. Gauteng dormant files; provincial rows sum to 9,830 and R91.6 bn, so the published total appears to omit Western Cape) | At 31 May 2025 | |
Provincial contingent liabilities | R63.5 bn; R1.5 bn paid in the year | 2023/24 | |
Total medico-legal claims vs MTSF target | ~R75 bn vs target < R18 bn | At 31 Mar 2023 | |
Eastern Cape contingent liability | R3.5 bn (1,910 cases) → R38.6 bn (4,175 claims) | 2013 → 2021 |
The burden is concentrated: the Eastern Cape, Gauteng and KwaZulu-Natal carry about two-thirds of the value, while the Western Cape, which budgets for claims, carries well under 1%.
A caution on the numbers. These figures are not one series. Some count the full value claimed, some the estimated contingent liability, some include dormant files, and departments revalue claims differently. The Auditor-General has itself called for independent, regular review of how claims are valued. The direction is not in doubt; the precise size is.
What matters for leadership is where the money comes from. Only the Western Cape, Limpopo and KwaZulu-Natal made specific budget provision for these claims in 2025/26. Elsewhere, funds meant for goods, services and medical supplies were diverted to settle litigation, and the Eastern Cape incurred R361 million in unauthorised expenditure for this reason (AGSA, 2026). In plain terms: the cost of yesterday's harm is paid out of the medicines and consumables needed to prevent tomorrow’s.
Root causes: six pillars under strain
Medico-legal claims are a lagging indicator of system failure, not a separate problem. The WHO health systems framework identifies six building blocks: service delivery; health workforce; health information; medical products and technologies; financing; and leadership and governance (WHO, 2007). When any one of them weakens, risk reaches the patient. When several weaken at once, as the Auditor-General's latest findings show, harm becomes predictable.
WHO building block | What failure looks like on the ground | How it becomes a claim |
Leadership and governance | Governance structures absent or not functioning in eight provinces; weak consequence management (AGSA, 2026) | No one owns safety; incidents are not escalated, investigated or closed |
Health workforce | Persistent staffing problems at regional, tertiary and central hospitals (AGSA, 2026) | Fatigue, unsupervised juniors and thin night cover in labour wards and theatres |
Medical products and technologies | Weak stock control; persistent hand-hygiene failures (AGSA, 2026) | Delayed or substituted treatment; avoidable infections |
Service delivery | Up to 97% of referrals from 40 audited district hospitals could have been treated locally with a working theatre (AGSA, 2026) | Delays in transfer, especially obstetric emergencies |
Health information | Poor record-keeping and untracked patient files (AGSA, 2023; Parliament, 2024) | Harm cannot be learned from, and claims cannot be defended |
Financing | Claims rarely budgeted; settlements paid from service-delivery votes (AGSA, 2026) | A self-reinforcing loop: payouts starve the services that prevent harm |
The last row is the trap. Every rand paid in settlement weakens the other five blocks, which produces more harm, which produces more claims. Breaking that loop requires spending before harm occurs, which is exactly where investment has been lowest.
One qualification is necessary. Fraudulent and inflated claims are real, and the Minister has referred implicated health workers and lawyers for prosecution (Parliament, 2024). But as Andre Calitz of the Medical Malpractice Lawyers Association put it in recent reporting, litigation of this kind would not exist without underlying negligence (News24, 2026). Fraud explains part of the bill; it does not explain the harm.
The Eastern Cape case: arguing about the payment, not the harm
The national debate this week is almost entirely about how to pay for harm, not how to stop it. Two developments make the point.
First, the Eastern Cape Department of Health is taking its "public healthcare remedy" to the Constitutional Court. It wants courts to allow future care to be provided in state hospitals instead of paying lump sums. The Bhisho High Court agreed in 2023, but in February 2026 the Supreme Court of Appeal overturned that ruling. The SCA found that, on the department's own version, it could not provide services at a reasonable standard or ring-fence funds for the child's care (MedicalBrief, 2026). The remedy failed because of the very service failures that caused the claim.
Second, on 29 September the South African Law Reform Commission released its long-awaited report. It recommends replacing lump sums with structured settlements and proposes two bills: one creating a public health redress commission outside the courts, the other adding pre-trial screening, dedicated provincial medico-legal units and claims databases (TimesLIVE, 2026). To its credit, the Commission said reform must be accompanied by better oversight, record-keeping and quality of care, and that departments should stop defending indefensible claims.
Both initiatives may have merit, and fraud must be confronted: the Special Investigating Unit's probe has saved the state more than R3.1 billion. But as Wits health economist Alex van den Heever observed, changing how compensation is paid removes neither the cost of caring for injured people nor the system failures that generate new claims; the priority should be preventing negligence in the first place (TimesLIVE, 2026).
The Eastern Cape shows what happens when prevention is absent:
The province faces almost a third of the national total of negligence claims, with 4,583 verified cases on its register by mid-2026, and paid out R4.4 billion on finalised claims between 2011 and 2024. Most claims arise from birth injuries resulting in cerebral palsy (MedicalBrief, 2026).
The Auditor-General's findings over the years include failures to report adverse events and inadequate patient records.
In 2022 the Makhanda High Court found a provincial treasury directive prohibiting budgeting for claims had no legal basis. The MEC has since maintained that if treasury says the department cannot budget, it cannot.
Reporting suggests the department has never held a single health worker accountable for the thousands of claims. A just culture is not about punishment, but the absence of any review, disciplinary or learning, means no one is asking what went wrong.
One mother's account, published this week under a pseudonym, shows the chain in miniature. Sent home from Frere Hospital at 2 cm dilated, she waited two weeks to be readmitted, spent two nights on a bench for want of a bed, and passed meconium hours before an emergency Caesarean section was performed. Her son's cerebral palsy was explained to her only when he was 18 months old (MedicalBrief, 2026). Every one of those steps is a reportable incident. In a functioning learning system each would have been reported, reviewed and disclosed long before a lawyer was involved.
Obstetricians disagree sharply about how much cerebral palsy originates during labour rather than before it, and that debate is playing out in court through competing expert witnesses. A credible national incident and outcome database is exactly what would let South Africa settle it with its own evidence.
The evidence that it can be done here
A learning system can work in a resource-constrained South African province; we tested it. Between January 2008 and December 2010, my doctoral study randomised 24 of the Free State's 31 public hospitals into intervention and control groups (Kabane, 2013). The primary intervention was a computerised, call-centre-based incident reporting system. Around it sat a package of management and culture measures: revised incident management structures, dedicated liaison staff, and deliberate work to entrench a reporting and just culture.
The study began from an uncomfortable starting point. Under the old paper-based system, more than a hundred clinical incident cases sat in a disciplinary backlog. More tellingly, the department was regularly surprised by cases that surfaced only through the media or its own legal office, where a patient had died or been permanently disabled, and which had never been reported internally at all. That is the medico-legal crisis in miniature: the first time that leadership learns of serious harm is when a summons arrives.
Finding | Result |
Incidents reported, first 9 months | 706 at intervention sites vs 3 at control sites |
Reporting rate per 100,000 patient-day equivalents | 95–172 (intervention) vs 0–2 (control); statistically significant |
Sustainability | Reporting kept rising at all sites over the following 27 months |
Staff view of the electronic system (394 respondents) | ~86% said it reported incidents more effectively than paper; ~71% found it easier; ~70% would recommend it |
Quality (external accreditation scores, 2007–2010) | Significant improvement across all key performance areas, more marked at intervention hospitals |
Staff felt free to question those with more authority | Only 35% |
Staff received feedback on changes made after reports | Only 40% |
Staff felt senior leadership listened to their concerns | Up to 40% |
Three lessons follow. First, the technology worked: reporting rose from almost nothing to a measurable flow of risk intelligence, and stayed there. Second, the tool alone was not the intervention. The study's hypothesis rested on trained users, dedicated staff, functioning committees, prioritised and resourced corrective action, monitoring, and structures for a just culture; remove those and you have an expensive database. Third, culture moved slowest. Results on safety climate were inconclusive and gains in safety culture were real but selective, while the weakest scores were precisely those that depend on leaders: hierarchy, feedback and listening.
The honest caveat is that a rise in reported incidents measures willingness to report, not a fall in harm. Under-reporting persisted, and the gap between reported and actual events remained a limitation. But a system cannot reduce what it cannot see, and before the new system the Free State could see almost nothing.
Why the reactive model keeps failing
The reactive model fails because it treats each claim as an isolated event to be defended rather than a signal to be learned from. Four patterns keep it in place.
Blame drives silence. When the institutional reflex to harm is a disciplinary hearing, clinicians stop reporting. The international literature reviewed in my thesis is consistent: health professionals often see reporting as unsafe, and under-reporting in some settings has been estimated as high as 96% (Harper et al., cited in Kabane, 2013). Clinicians involved in serious incidents become "second victims", carrying guilt and professional stigma (Wu, 2000). A system that punishes honest error guarantees that its leaders will learn of harm last, from a lawyer.
Policy without implementation. South Africa now has the policy architecture it lacked when my study began. The National Guideline for Patient Safety Incident Reporting and Learning took effect on 1 April 2018 and was revised for implementation from 1 April 2022 (NDoH, 2022). It includes a just-culture decision tree. Yet the Auditor-General still finds non-functioning governance structures and repeat findings year after year. A guideline that is not resourced, trained, monitored and led is a document, not a system.
Records that fail twice. Poor clinical record-keeping has been repeatedly cited by the Auditor-General as a driver of medico-legal losses (Parliament, 2024). Missing notes and lost CTG tracings mean the department cannot learn what went wrong, and cannot defend itself when nothing did.
The wrong scoreboard. Departments track claims, payouts and audit opinions. Few boards or executive committees see a monthly dashboard of reported incidents, serious adverse events, root-cause analyses completed and actions closed. What leadership does not measure, it does not manage.
The global evidence shows the scale of what is at stake. In high-income countries about one in ten hospital patients is harmed, and nearly half of that harm is preventable. In low- and middle-income countries, unsafe hospital care is estimated to cause 134 million adverse events and 2.6 million deaths each year. In OECD countries, 15% of hospital activity and expenditure is a direct result of adverse events (WHO, 2019; WHO, n.d.). South Africa has no reason to believe its own numbers are better, and no national epidemiological study to prove otherwise.
What leadership must do differently
The shift required is from managing claims to managing risk, and it starts at the top. The table contrasts the two postures.
Area | Reactive posture (today) | Proactive posture (required) |
Where money goes | Settlements, legal fees, external law firms | Reporting systems, training, safety staff, equipment upkeep |
Response to harm | Disciplinary inquiry; search for the individual at fault | Just-culture review: system fault, at-risk behaviour or reckless act |
Information | Learn of serious harm from a summons | Learn within 24 hours from a staff report, including near misses |
Records | Paper files lost when needed | Complete, retrievable clinical records, audited routinely |
Disclosure | Silence until litigation | Early, honest disclosure and apology to patients and families |
Oversight | Board sees claims and audit opinions | Board sees incidents, serious events, RCAs completed and actions closed |
Dispute resolution | Default to trial | Early mediation; Gauteng's mandatory mediation directive is a start |
Six actions would change the trajectory:
Ring-fence a patient safety budget. Treat incident management, safety training and safety officers as protected line items, funded before settlements are paid, not from what is left after them.
Make the 2022 National Guideline real. Fund an electronic, user-friendly reporting system in every hospital, with dedicated staff, functioning committees and a published feedback loop to the staff who report.
Adopt and train for a just culture. Separate learning reviews from disciplinary processes. Use the guideline's decision tree so honest error is supported, at-risk behaviour is coached and reckless conduct is sanctioned.
Put safety on the executive and board agenda every month. Track leading indicators, not only lagging ones: reporting rates, serious adverse events, investigations closed on time, repeat incidents.
Target the highest-cost harm first. Obstetric and neonatal cases, cerebral palsy claims in particular, are among the costliest, and obstetricians are among the clinicians most often targeted (Parliament, 2024; News24, 2026). Fetal monitoring, escalation protocols, theatre access and night-time senior cover are where prevention pays fastest.
Fix records and disclose early. Complete records protect patients and the fisc alike. Early disclosure and mediation reduce both anger and award size.
None of this is new. The WHO's Global Patient Safety Action Plan 2021–2030 sets out the same agenda, and World Health Assembly resolution WHA55.18 urged member states to prioritise patient safety as long ago as 2002. What is missing is not knowledge but sustained leadership will.
Conclusion: wake up before the next summons
Every settlement is a receipt for harm that the system saw coming, or would have seen if it had been looking. Health system leaders cannot litigate their way out of a patient safety crisis, and they cannot audit their way out of a culture problem.
The Free State experience showed that, with leadership commitment, a South African province could move from almost no incident reporting to a sustained flow of risk intelligence in under a year. More than fifteen years later, the policy framework exists and the bill has grown. The gap is leadership: the willingness to fund prevention before cure, to replace blame with learning, and to measure safety as seriously as spending.
Whatever the Constitutional Court decides about how victims are compensated, it cannot decide whether the next woman in labour at Frere Hospital is monitored properly. Only leadership can do that.
The question for every HOD, CEO and board is therefore not whether the next claim will arrive. It is whether, when it does, you will have learned anything from the incident that caused it.
Disclosure: I was Deputy Director-General for Clinical Health Services in the Free State Department of Health when the study described here began in 2008, and Head of the Department from 2010. The study was sponsored and resourced by the department. I later served as CEO and Registrar of the Council for Medical Schemes, and currently hold non-executive directorships in health-sector organisations. I have no financial interest in medico-legal litigation.
References
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