COMMENTS ON THE ROAD ACCIDENT
BY THE SOUTH AFRICAN
The SA Medical Association (SAMA) is the representative body of the medical profession in South Africa.
SAMA notes the proposed amendments, as incorporated in the Road Accident Fund Amendment Bill (hereinafter referred to as the Bill), to the Road Accident Fund Act 56 of OCS (hereinafter referred to as "the Act").
The Association was informed further that the Bill will be fast-tracked and, though the current version of the Bill was only published on the 2nd of October 2003, the public hearings of the parliamentary Portfolio Committee on Transport are scheduled for the 14th and 15th of October 2003.
In view of the above time constraints SAMA was unable to consult with all it's members, Committees, Specialist Groups and Special Interest Groups in order to provide more comprehensive comment. Notwithstanding the above, we wish to comment as follows:
AD AMENDMENT OF SECTION 17 OF ACT 56 OF 1996
SAMA notes and supports the inclusion of affirmative wording relating to the liability of the Road Accident Fund (hereinafter referred to as the Fund") and it's agents in respect of claims for compensation under this section.
The contents of the new paragraph, namely 17(c), in respect of compensation for a claim for future non-patrimonial loss, are also noted.
SAMA trusts that the above will facilitate effective management by the Fund of trust monies. Further, the intention of the Fund not to pay compensation for future losses by way of predetermined cash lump sums, will result in considerable savings to the Fund.
AD INSERTION OF SECTIONS 17A AND IYB IN ACT 56 OF 1996
SAMA notes be insertion of two new sections, namely sections 17A and 17B in the Act.
The Association notes that the liability of the Fund or agent to compensate a third party in terms of the costs incurred which fall within the ambit of section 17(5) of the Act, are limited to the "prescribed medical tariff". We note further that there is no definition for prescribed medical tariff" in the Act or the Bill.
The correct legislation provides, at Section 17(5) of the Act, for the Find to compensate a claimant for all costs in respect of accommodation in a hospital or nursing home or the treatment of or any service rendered or goods supplied. These costs are further subject to the risks of the claimant's claim being repudiated. apportioned or Iimited
The new "prescribed medical tariff"
According to information at our disposal, the "prescribed medical tariff' referred to above, will be that of the Uniform Patient Fee Schedule (UPFS), which was a tariff developed basically to provide a simpler charging mechanism for public sector hospitals.
In view of the objectives of the UPFS, this schedule would certainly be inappropriate and inadequate in relation to the costs of rendering health care services in the private sector.
The UPFS will create major problems for the medical profession as it is not the system which is used nationally by all private practitioners and compelling use of this system, or any other "medical tariff" will lead to utter chaos and disruption.
The UPFS is also not currently utilized by the public facilities in all the provinces, thus implementation of a new "prescribed medical tariff" will cause turmoil in these facilities as well. Imposition of any new medical tariff will also have huge financial implications for the public and private sector in terms of implementation, training, compliance, etc.
Like any other profession, it is also the medical profession's right to remain self regulatory and autonomous and, therefore, the medical tariff for professional services rendered should not be dictated by other organizations or organs of state. Furthermore, a well established and developed private billing system already exists and, if need be, consultations and negotiations should be entered into between the Fund, SAMA and other role-players in this regard. This would also be consistent with the approach adopted in respect of the provisions of the Compensation for Occupational Injuries and Diseases Act, 1993, which relates to the provision for payment of medical expenses.
Foreseeable problems with the new prescribed medical tariff
It is our respectful opinion that in view of the arbitrary reduction of the tariff in respect of compensation to third parties, to a "prescribed medical tariff", third parties (such as medical practitioners and private hospitals) would certainly be reluctant to treat claimants (victims I patients).
This is especially so in view of the apparent shortcoming of the prescribed medical tariff" to defray all expenses reasonably and necessarily disbursed by third parties. A further contributory factor is the unfavorable position whereby payments by the Fund are delayed for extended periods.
In view of the above, third parties would probably opt to refer claimants to public institutions rather than treat them at private institutions, unless it is an emergency. This will undoubtedly have far-reaching cost implications for the already overburdened public facilities and hospitals and also compromise a patients constitutional right of access to medical care and treatment.
We are of the respectful opinion that the private health care industry provides an efficient effective and invaluable service to claimants, and it will not be in the claimant’s interests, for the Fund to terminate such essential benefits without adequate consultation and negotiation.
We wish to point out further that claimants are frequently treated by a third party such as a hospital or medical practitioner in an emergency. The ethical rules of the Health Professions Council of SA (HPCSA) states that "a medical practitioner may not refuse to treat a patient in an emergency". Section 27 of the Constitution of the Republic of South Africa states, further, that "No one may be refused emergency medical treatment".
As you are aware, there is no definition for "emergency treatment" in terms of legislation. or ethical guideline and it is unlikely that it will be defined in the near future, as is evident from the deliberations on the National Health Bill.
In view of the above medical practitioners and/or hospitals will be faced with an
iniquitous list of compromising options in an 'emergency' such as : -
· to treat a patient without any guarantee of recovering actual medical expenses;
· to insist that indemnity is provided by the claimant for payment of private tariffs for treatment, or the continuation thereof;
to prescribe payment of a deposit before treating claimants;
· to recover the difference between the private tariff and the prescribed medical tariff in advance' in order to avoid bad debts, or get involved in subsequent legal battles; and
· to decide whether or not the claimant's condition is an 'actual emergency' which should be treated privately, or could he referred to a public institution rather than be faced with the above financial decisions.
Aversion of obligations by the Fund
SAMA believes that the Fund, as the national public entity, and having as t'5 primary objective to pay compensation for loss or damage(s) wrongfully caused by the negligent driving of motor vehicles, is obliged to meet it's commitment in toto and not determine a minimum benefit that it will pay. It is apparent that the Fund is simply bypassing and avoiding it's national obligations and, instead, making the duties of third parties (medical practitioners and hospitals) more onerous by imposing a "prescribed medical tariff".
The Fund should take into account that the claimant claiming compensation in terms of the Act, does not voluntarily subject him / herself to treatment by third parties but is a victim of circumstances. The Fund should accept full financial responsibility for all expenses emanating from such treatment and not only be liable for compensation in accordance with a prescribed medical tariff". It is our view further that the claimant has a "legitimate to be
re-imbursed for expenses reasonably and necessarily incurred as stipulated in the Act.
Issue of apportionment of claims
A further question which is not addressed is whether a third party’s claim, if submitted
in accordance with the 'prescribed medical tariff" will still be paid pro rata if a
claimant’s claim is apportioned. This would amount to a total scam as the medical
practitioner and/or hospital would, in the first instance, have to reduce his / her / It's fees
substantially when treating claimants, and furthermore, bear the risk of minimal fees
If the above is the case medical practitioners and hospitals will hold claimants personally responsible for payment of their accounts, rather than wait until the claimant's claim for damages in terms of the Act has been paid as per the prescribed medical tariff, or even worse, apportioned.
The inclusion of section 17B is apparently to preclude a complainant from benefiting by way of double compensation'.
However, if the "prescribed medical tariff" alluded to, is that of the UPFS, then compensation to a claimant will be substantially lower that the recommended SAMA benchmark fees.
In view of the above, the patient would have to pay additional expenses personally, over and above the prescribed medical tariff", if a third party's fees are so debited.
SAMA is of the view, therefore, that in the case where a claimant qualifies for benefits from another source, the claimant should be entitled to set-off his/her actual expenses incurred against such additional benefits in the first instance. The Fund, could probably thereafter reduce compensation payable to the claimant under the Act, depending on whether or not there is a residue from the additional benefits
This approach will prohibit the results of double compensation and be more equitable as the patient would be able to recover most expensed actually disbursed.
SAMA notes that the Fund would be saving enormous amounts of trust money from the proposed Bill in view of some of the following : -
· compensation for future losses will not be paid by way of predetermined cash lump sums;
· compensation for prospective loss of income and support will not be paid by way of predetermined cash lump sums;
· payments for general damages will be effectively managed;
· benefits will accrue to the Fund in view of the proposed setting-off of compensation from the Pond, against collateral benefits to claimants;
· the Fund's liability is limited in respect of compensation to non-resident one foreign tourists;
· the Fund's liability is excluded in respect of emotional shock; and
· substantial savings would emanate from reduced legal costs in view of toe implementation of a dispute resolution mechanism.
In view of the above, we firmly belief that the claims of third parties in terms of Section 1 7(5) of the Act should not be readily reduced to a "prescribed medical tariff".
Since the Fund is saving vast amounts of money, surely it will be in a position to meet its primary function and national obligations to pay the total compensation for loss or damage wrongfully caused to a claimant.
We also request that, in view of the adverse impact of the Fill on the medical profession, particularly, and third parties, in general, that the Bill should not be fast-tracked and ample time should be permitted to allow all stakeholders to submit further comment in this regard.
SAMA also wishes to make an oral submission regarding the above and requests permission to do so.
THE HUMAN RIGHTS, LAW & ETHICS UNIT OF SAMA
8 October 2003