Road Accident Fund Amendment Bill, 2004 Comments by the South African Medical Association (SAMA) Presented by: Dr J. Van Zyl

Outline General damages Specific damages National Health Reference Price List (NHRPL) Claims against others Regulations Conclusion

General damages Sec 17 (1) (b): Calculation of R limit Sec 17 (1) (b): Why only payable when a “serious injury” is suffered? Sec 17 (2): Why agreed party to party costs or taxed party and party costs removed? (See subsection (4A)) Capped amount of R should not include legal fees Sec 17 (4) (a): Is it implied that only one service provider will be paid, or can the third party change service providers (E.g. hospitals)

Specific damages Sec 17 (4A) (a) (ii): National Health Reference Price List (NHRPL) –National Health Act 61 of 2003 –Interim measure by Council for Medical Schemes –Legal standing of the NHRPL as it currently stands –Other stipulations of the Medical Schemes Act (e.g. payment within 30 days) –Fundamental questions unanswered

Legislative Framework Health Professions Act No. 56 of 1974 (as amended) Medical Schemes Act No. 131 of 1998 National Health Act No. 61 of 2003

Health Professions Act “To establish the Health Professions Council of South Africa; to provide control over the training, registration and practices of practitioners of health professions; and to provide for matters incidental thereto.”

Health Professions Act (cont.) Section 53 (3) (a): The patient may, within three months after receipt of the account referred to in subsection (2), apply in writing to the professional board to determine the amount which in the opinion of the professional board should have been charged in respect of the services to which the account relates…

Health Professions Act (cont.) Section 53 (3) (d): A professional board may from time to time determine and publish fees used by the professional board as norm for the determination of the amounts contemplated in paragraph (a).

Medical Schemes Act “To consolidate the laws relating to registered medical schemes; to provide for the establishment of the Council for Medical Schemes as a juristic person; to provide for the appointment of the Registrar of Medical Schemes; to make provision for the regulation and control of the certain activities of medical schemes; to protect the interests of members of medical schemes; to provide for measures for the co-ordination of medical schemes; and to provide for incidental matters.”

Medical Schemes Act (Cont) Section 67 (1): The Minister may, after consultation with the Council, make regulations relating to- (g): the prescribed scope and level of minimum benefits to which members and their dependants shall be entitled to under the rules of a medical scheme;

National Health Act “To provide a framework for a structured uniform health system within the Republic, taking into account the obligations imposed by the Constitution and other laws on the national, provincial and local governments with regard to health services; and to provide for matters connected herewith.”

National Health Act (Cont) Section 90 (1): The Minister, after consultation with the National Health Council, may make regulations regarding- (v): the process of determination and publication by the Director- General of one or more reference price lists for services rendered, procedures performed and consumable and disposable items utilised by categories of health establishments, healthcare providers or health workers in the private health sector which may be used- (i) by a medical scheme as a reference to determine its own benefits; and (ii) by health establishments, health care providers or health workers in the private health sector as a reference to determine their own fees, but which are not mandatory;

NHRPL (Cont) Sec 17 (4A) (b): Dichotomy between “reasonable compensation” and “ability of the Fund to provide the compensation” Annual revisions will be required: –Medical inflation (cost of provision of services) –Differences on surgical and other techniques –Technological developments Apportionment of claims?

Specific damages Sec 17 (4B) (b) & (d): Life expectancy can in some instances exceed 65 years Sec 17 (4B) (d) (ii): Dependent child does not necessarily become self-supportive at the age of 21 (Maintenance Act No 99 of 1998 – Preamble & Sec 15 (1)) (Mngadi v Beacon Sweets and Chocolates Provident Fund)

Specific damages (Cont) Sec 17 (5): –Claiming directly by service providers from the Fund supported, but: Billing structure for all service providers to be stipulated Fund will require infrastructure Beware of Compensation Commissioner experience –Definition of “entitlement” to be clarified “No fault” vs “Fault” Emergency treatment vs Non-emergency treatment Dispute process acknowledged and supprted Risk of repudiation of claims

Specific damages (Cont) Sec 17 (7) (b) & (c): “Emergency medical treatment” vs “emergency medical condition”. Latter may require extensive surgical intervention, while only stabilization is provided for. “No fault” approach welcomed Grounds for disputes?

Exclusions and limitations Sec 19 (8) (q): Jurisprudence allows for the acknowledgement of emotional shock (Bester v Commercial Union) Can same principle than the one for general damages not be followed? –Limitation of compensation Is emotional shock for primary victims included in general damages? (Limitation of R )

Claims against others Sec 21: Third party entitled to additional compensation from other liable parties to the extent that the Fund is able to make a partial payment or is unable to pay In reality, costs may exceed “prescribed medical tariff” Claiming by service providers for additional expenses should be allowed.

Regulations Processes for dispute resolutions welcomed Sec 26B (a): Existing standards for submission of claims to be taken into account Sec 26C (a): Scope of practice determined by the Health Professions’ Council of South Africa (HPCSA) “Prescribed Medical Tariff” should be regulated, rather than enacted

Conclusion Fundamental principles supported Major savings should be achieved as a result of the capping of general damages and compensation for future loss of income or support Claiming directly from Fund by service providers is supported, but: –Current standards have to be taken into account –Learn from the Compensation Commissioner experience –Claiming from others –Prescription of claims

Conclusion (Cont) Reference to the NHRPL probably misplaced SAMA is committed to the management of the change process and education of the medical fraternity SAMA would like to partner with the Fund in order to ensure a sustainable future Existing coding structures for medical services are in place and available to the Fund

Thank you Dr Johann Van Zyl Mr Marius Otto SA MEDICAL ASSOCIATION