South Africa has relied heavily on litigation to address medical harm, spending billions to defend and settle negligence claims. Provincial health departments face huge liabilities, while professionals practise under mounting legal pressure.

While the debate centres on rising compensation, insurance costs and accusations against doctors and lawyers, there are very few debates about patient safety and measures to improve healthcare. The assumption that litigation is the primary solution warrants deeper scrutiny.

Litigation’s limits

Law and medicine pursue different aims. Law seeks justice by assigning responsibility; medicine seeks safer care by learning from failure. One asks who is accountable; the other asks what can be learnt. Sometimes those objectives align. Often, they do not. Patients often want acknowledgement and change, not just compensation, yet litigation, in many cases, delivers money.

Research by the legal scholar Dr Tamara Relis shows that plaintiffs often seek acknowledgement, honest explanations and reassurance that lessons were learnt, not just compensation. Yet once in court, human experiences are reduced to claims and damages. Emotional harm becomes evidence, broken trust becomes money. Something important is lost in litigation, resulting in narrowing accountability. The courtroom answers “who should pay?” but struggles to answer “why did this happen?” or “what has changed?”

The courtroom was never designed for the complexity of medicine.

Patients approach the courts seeking justice. The legal interpretation of that approach is: who should be held responsible? The law addresses that question with admirable clarity. It examines the facts, applies established principles, determines whether the accepted standard of care was breached, and, if negligence is proven, awards compensation. The process is grounded in logic, certainty and accountability.

Medicine rarely offers such certainty. A patient admitted with a routine illness suddenly deteriorates. A surgical complication, a delayed lab result, miscommunication during handover, overcrowding, faulty equipment and unpredictable patient physiology combine to produce unexpected outcomes. No single decision explains the harm; it emerges from the interaction of people, systems and circumstances beyond individual control. Yet in court, this complexity is compressed into a far simpler narrative: Who was negligent? That question matters. Patients deserve answers. But another question deserves equal attention: is the courtroom the best place to understand why the adverse patient incident occurred?

By the time an alleged negligence case reaches court, harm has already occurred. Relationships have fractured. Trust has broken down. Clinical decisions made months or even years earlier are reconstructed from records and testimony. Courts excel at retrospective analysis, but they are not designed to improve healthcare systems.

Some of the most significant contributors to patient harm rarely feature in court proceedings.

A judgment may compensate a patient or clarify a principle, but it cannot redesign an emergency department, improve communication during a midnight shift, address chronic staff shortages or determine how the next patient might respond to treatment. It cannot create psychological safety that encourages workers to report mistakes, nor can it repair cultures in which silence is rewarded more than openness.

In court, parties strengthen their positions, facts become evidence and every statement is assessed for its legal consequences. Learning becomes secondary to winning. Yet adverse outcomes in medicine are mostly multifactorial. Remove any one factor, and the patient outcome could be different. Litigation inevitably asks a narrower question: did this practitioner fall below the standard of care? The question is essential but incomplete.

Some of the most significant contributors to patient harm, such as poor leadership, fragmented communication, outdated systems and resource constraints, rarely feature in court proceedings. They form the backdrop against which decisions are made, yet they escape scrutiny because they are difficult to isolate or attribute in court. Litigation can therefore create the illusion of resolution: a judgment delivered, damages paid, file closed, while the conditions that allowed harm to persist remain.

Healthcare cannot become safer simply by deciding who was responsible yesterday.

Patients often find that litigation, even when successful, cannot deliver everything they hoped for. Compensation may rebuild lives, but money seldom answers deeper human questions. Families still want to know why the event occurred and whether any change followed. For health practitioners, a negligence claim is not merely a legal dispute; it is a challenge to professional identity. Cases drag on for years, leaving practitioners anxious, burnt out and burdened. Ironically, both patients and clinicians can emerge feeling unheard. Neither experience strengthens trust.

Perhaps the question is not whether courts are inadequate in medical negligence, but whether we have been asking them to solve the wrong problem.

Towards accountability that learns

If litigation alone cannot deliver safer healthcare, where do we go from here? The answer is not fewer lawsuits or weaker accountability. Patients harmed by negligent care deserve access to justice, and courts must remain an essential safeguard. The challenge lies in the narrow understanding of accountability. Healthcare cannot become safer simply by deciding who was responsible yesterday. It becomes safer by understanding how today’s systems can be improved before tomorrow’s patients are harmed.

A broader conception of accountability

Imagine a system in which every serious adverse event triggered not only legal scrutiny but also independent, multidisciplinary learning. Lawyers would examine liability. Clinicians would evaluate decision-making. Human factors specialists would assess communication and workload. Organisational leaders would assess governance and culture. Patients and families would be heard not merely as witnesses but as participants in understanding what happened and how future harm might be prevented. Such an approach would not weaken justice. It would enrich it. Accountability would become an instrument of learning, improvement and public trust.

South Africa is well placed to embrace this evolution. Our Constitution is founded on dignity, equality and accountability. These values invite us to look beyond punishment towards restoration and institutional learning. They remind us that justice is not measured solely by the correctness of judgments, but also by whether those judgments contribute to a society in which fewer people suffer preventable harm. This is particularly true of allegations of medical negligence.

The courtroom will always remain an indispensable guardian of patients’ rights. But it should not bear the burden of improving healthcare alone.

The medico-legal crisis facing South Africa is therefore more than a litigation problem. It is a mirror reflecting deeper questions about how we understand accountability in an increasingly complex healthcare system. If we continue to ask only who is to blame, we will continue to receive only partial answers. If we ask why harm emerged, how organisations contributed, what patients need beyond compensation and what clinicians require to practise safely, our understanding of accountability begins to change.

Justice is more than the resolution of disputes. It is part of preventing future harm. The courtroom will always remain an indispensable guardian of patients’ rights. But it should not bear the burden of improving healthcare alone. That responsibility belongs to all of us: legislators, judges, healthcare professionals, hospital leaders, educators, regulators and patients alike.

The future of accountability for medical adverse events should not force us to choose among justice and learning, patients and professionals, or compassion and responsibility. A mature healthcare system should pursue all these objectives simultaneously. Medicine has evolved dramatically over the past century. Perhaps our understanding of accountability must evolve with it. Because the ultimate measure of justice is not simply whether it compensates those already harmed. It is whether it helps ensure that fewer people are harmed in the first place. DM