The Eastern Cape wants to cut the cost of medical negligence by treating some children injured in public hospitals instead of paying lump sums for their future care. For families, that means trusting the system responsible for the injury to look after their child for life.
That tension sits behind the province’s efforts to contain its medicolegal bill. Former health department head Dr Rolene Wagner says its estimated liability fell from R38bn to just under R19bn over five years. The reduction matters. It does not, on its own, tell patients whether they are safer.
The National Treasury puts provincial medicolegal contingent liabilities at R57.6bn in 2024/2025, down from R62.5bn a year earlier. These are potential obligations, not money already spent. Actual settlements average R1.5bn a year across provinces, drawing money away from frontline services.
A smaller estimate of future payouts may reflect better management of claims. Establishing whether treatment has improved requires evidence of what happens in wards and operating theatres.
Health policy analyst Alex van den Heever argues that the debate has become too concerned with managing the financial consequences of negligence. The failures that produce claims need attention long before lawyers become involved.
For him, responsibility starts with the people running hospitals. Managers must be able to enforce clinical standards and act when care falls short.
“You have to have a captain of the ship,” he says.
Yet political interference, union pressure and leadership changes can undermine that authority, he argues. A manager held responsible for a hospital’s performance needs the power to do something about it. Changing how compensation is paid cannot resolve that problem.
Wagner’s account suggests that the province recognises the need to improve care alongside its handling of litigation. Its programme includes improvements to clinical services and patient records. She says claims involving delayed surgery and orthopaedics are becoming more prominent, prompting efforts to tackle surgical backlogs.
The province has also established several cerebral palsy service centres, according to Wagner, and is developing larger centres of excellence. A centre at Nelson Mandela Academic Hospital in Mthatha is intended to co-ordinate assessment and ongoing care.
There is a practical argument for this: accessible rehabilitation could help rural families who struggle to obtain specialist services. Wagner says dedicated teams need not include the clinicians involved in the original injury.
But an undertaking to provide care is only as useful as the state’s ability to honour it.
On February 11 2026, the Supreme Court of Appeal overturned an Eastern Cape High Court order that substituted public health care and undertakings to pay for lump sum compensation for a child injured through negligence. The province had conceded liability.
The appeal court found that the evidence did not justify confidence that lifelong treatment or future payments would reliably be provided. The arrangement transferred the risk of the department’s failure to the child.
That finding exposes the difficulty with treating compensation chiefly as a budget problem. Families need care they can depend on. Provincial officials must also keep services running for everyone else. Savings achieved by leaving an injured child exposed to another failure cannot resolve that conflict.
Earlier settlements offer another way to reduce costs. Advocate Alan Nelson, whose Mediation in Motion works with the province, argues that prompt acknowledgment and engagement can spare families and the state years of litigation.
If matters were mediated from the start, he says, millions could be released from litigation costs for staff, equipment and infrastructure.
Mediation may reduce the expense of resolving a claim; it cannot undo the injury.
Nor should every cerebral palsy diagnosis be treated as proof of negligence. Dr Ziefred McConney, clinical manager for medicolegal services at Dora Nginza Hospital, points to multiple plausible causes. The province is building a register to improve its understanding of the condition and patients’ needs.
The harder task is to establish which injuries could have been avoided and ensure hospitals act on those findings. That requires the province to explain how much of the fall in estimated liability comes from resolving or reassessing old claims, and what evidence shows fewer avoidable injuries.
Wagner’s departure puts the continuity of its reforms under scrutiny. Her account of better systems needs to be tested against their performance after her exit, including whether rehabilitation services deliver the care promised to families.
Accountability is the theme Van den Heever will take to the South African Medico-Legal Association’s annual conference in Gauteng in October. For him, competent management needs time and institutional support to produce lasting improvements. Otherwise, departments will keep dealing with the consequences of failures they should have prevented.
“The legal process is the consequence of the failure to prevent negligence,” he says.
