A new study has shone the spotlight on the corrupt involvement of legal practitioners in illegal and fraudulent acts, and their role in litigation on issues of medical negligence.
The study – Legal Profession and Corruption in Health Care: Some Reflective Realities in South Africa – is co-authored by Research Professor Evangelos Mantzaris of the Faculty of Management Sciences at Mangosuthu University of Technology and Professor Pregala Pillay of Stellenbosch University, and was published in Frontiers in Public Health Journal.
Professor Mantzaris’ study analysed the legal demands, mediators, and negligence in Gauteng’s Department of Health in 2017. The analysis painted a grim picture of a Department faced with 2 317 cases for “medical negligence” with the “contingency liability” of between R18-billion to R21-billion at the end of that financial year. Equally concerning were the study’s findings on how the cases came about.
“In almost all cases, these legal actions against state institutions have been initiated by members of the legal profession who over the years have taken advantages of circumstances to enrich themselves illegally and immorally. In most instances, they collaborate directly or indirectly with medical or nursing staffs who direct them to existing health problems facing patients. There have been cases where lawyers themselves or their ‘representatives’ (medical practitioners, nurses, or ‘mediators’) are ‘searching/haunting’ public hospitals mainly to discover patients with medical problems, usually children with defects. After making their own notes or illegally obtaining copies or originals of medical reports, they file cases against the Health Department,” Professor Mantzaris’ study explains.
In terms of possible collusion between the Office of the State Attorney and private legal practitioners, Professor Mantzaris’ study concluded that legal syndicates that operated in the public health sector did so either separately or in collaboration, occasionally. The study quotes a senior Department of Health administrator who alleged that: “it was known that state attorneys did not file court papers in time, did not attend seriously to litigation matters against the Department, colluded with private lawyers and mediators, and were instrumental in settling out of court, exorbitant financial demands, even when they themselves had defended such cases as their position required.”
Professor Mantzaris’ study also referred to reports of scams defrauding government departments through “state attorneys strategically losing cases or settling out of court and sharing the pay-outs.”
Furthermore, Professor Mantzaris’ study also highlighted examples of fraudulent medical negligence claims lodged by legal practitioners in provincial Health Departments as reported by the Minister after an investigation. Many of these claims were made in the Eastern Cape, Limpopo, and Mpumalanga. The Eastern Cape was singled out for having the highest number of cases where the state attorneys settled out of court and “shared the pay-outs in the form of kickbacks,” Professor Mantzaris’ study found.
Among the key findings of Professor Mantzaris’ study are the roles of collaborators and mediators in enabling fraudulent claims by external legal practitioners.
“There are public servants within the Health Department who help lawyers in state fraud by photocopying documents that are instrumental in the duplication of claims. ‘Spotters’ who are used in hospitals and clinics are those stealing patients’ documents, selling them to lawyers who then institute claims. In a number of cases, the claimants themselves have no knowledge of the claims in their own name,” the study found.
Furthermore, Professor Mantzaris’ study also found that private legal practitioners were resorting to advertising their services in public hospitals by using advertising pamphlets and by using nurses and other medical staff. These legal ‘helpers’ are the private legal practitioners’ contacts with those with medical problems. In some cases, they even go as far as handing patient files to law firms.
According to the study, the Law Society of South Africa’s response to the allegations against legal practitioners in the State Attorney’s Office and private legal practitioners was that it was an effort to tarnish the reputation of the legal profession.
In terms of mitigating against these corrupt activities at a policy level, Professor Mantzaris’ study concluded that comprehensive review of the rules, regulations, legislation, and policy governing the Office of the State Attorney was required. The Procurement Policy and Supply Chain Management systems needed to be strengthened, along with Internal Controls and Internal Audit to effectively play their role of “prevention, deterrence, monitoring, analysing, detecting, investigating, and responding,” the study concludes.