Road Accident Fund Amendment Bill, 2004

1
Road Accident Fund Amendment Bill, 2004

• Comments by the South African Medical Association
  (SAMA)

Presented by Dr J. Van Zyl
2
Outline

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

3
General damages

• Sec 17 (1) (b) Calculation of R100 000 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 R100 000 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)

4
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

5
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

6
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.

7
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

8
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).

9
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.

10
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

11
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.

12
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

13
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?

14
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)

15
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

16
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?

17
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 R100 000)

18
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.

19
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

20
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

21
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

22
Thank you

• Dr Johann Van Zyl
• Mr Marius Otto
• SA MEDICAL ASSOCIATION
• 012-481 2000
• www.samedical.org