The leading causes behind medico-legal claims and the use of mediation as a possible solution

Authors: Larisse Prinsen and Errol Cedric Muller

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Senior Lecturer, Department of Public Law, University of the Free State; B Iuris LLB LLM PhD, Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 34 Issue 3, 2023, p. 387 – 405


Medico-legal claims in the South African health sector have noticeably increased since approximately 2007. This is significant as money spent from the public health budget on these claims is money which ought to have been spent on other healthcare priorities. As such, it becomes vital to understand why these claims have shown such drastic increases and what could be done to stem the rising tide.
This article addresses two main themes: first, it explains the various causes for increased claims related to the medical field and broader possible solutions to this problem; secondly, mediation is proffered as a viable means of negating the negative impact of these claims on the health sector and budget.
The conventional method of resolving medico-legal disputes is through adversarial court litigation. Litigation is expensive, time-consuming, complex and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Conventional civil dispute resolution exhibits little appreciation for, or consideration of, alternative and better-suited dispute resolution techniques and mechanisms. In this article we argue that mediation offers a viable alternative to resolve medico-legal issues. In essence, mediation is third-party (mediator) facilitated dispute resolution through negotiation. The process is less expensive, less time-consuming, uncomplicated, and party-oriented. In addition, it has the potential to enhance access to justice. However, to achieve this will require a change in legal culture.