Medical Expenses Mess (Part 2)

In the previous article, we discussed the misleading and/or deceptive marketing of medical aid schemes.

In this article, we will discuss the patient’s (consumer’s) rights in terms of the Consumer Protection Act 68 of 2008 (“CPA”) pertaining to medical expenses.

Medical service providers (doctors, pathologists and other medical service providers like clinics, hospitals, etc.) provide a service to consumers in terms of transactions to which the CPA applies.

When you want your roof fixed, you are provided with a quotation by the building contractor, and after considering whether you can afford the services, you can either accept or decline the quote.

The medical industry on the other hand, has been exploiting the “urgency” element attached to their services. This element of urgency causes people to loose rationality to some extent, agreeing to a long list of terms and conditions, and only after the service is performed do they realise the financial implications of their consent to the terms and conditions.

Compared to the medical industry, the CPA is fairly new, and as they say, “you can’t teach an old dog new tricks”. The medical industry appears the same today as it did before the CPA. Several patients get medical treatments and procedures, without any idea of what it would costs.

Medical services have left several patients with huge medical bills afterwards, but since the irreversible service has already been performed and they agreed to be liable for the bill, these patients usually feel discomfited and accept their fate, unaware of their rights.

This article will focus on the medical industry, however, the legal principles contained herein are equally applicable to other industries.

The Legal Requirements

“Price” is defined in the CPA as the total amount paid or payable by a consumer to a supplier as consideration for a transaction.

Section 23 of the CPA places an obligation on suppliers of goods to display the selling prices of goods on display for sale. However, there is no similar obligation placed on Service Providers to display the prices for their services. And to repeat ourselves, medical practitioners are Service Providers.

On a brief reading of the CPA, it appears that, apart from repair and maintenance services on property, Service Providers are not obliged to provide estimates or disclose the price of their services prior to the transaction, unless requested by the consumer.

However, Section 50(2)(b)(ii) of the CPA provides that the terms and conditions of any written agreement between a consumer and a supplier must set out an itemised break-down of the consumer’s financial obligations under the agreement.

It is highly unlikely to receive treatment from a medical practitioner without being provided with written terms and conditions, limiting their liability for negligence, payment terms and an acknowledgement by the patient to pay their bill. However, without an itemised break-down of the consumer’s financial obligations, such terms and conditions would not meet the requirements of Section 50(2)(b)(ii).

Section 50(2)(b)(ii) of the CPA poses significant challenges to medical practitioners. Sometimes the medical practitioner will not even know what treatment and/or procedure is required before the terms and conditions are signed by the patient and the patient is examined. In such cases it would be impossible to provide the patient with an itemised break-down of the consumer’s financial obligations, but an accurate estimate should at least be provided. In other cases, where the medical practitioner can provide the patient with an itemised break-down, such break-down should be provided.

Your Rights

Despite the challenges to comply with the CPA, medical practitioners should not ignore their obligations to disclose their prices, or unreasonably deviate from estimates provided. The patient (consumer) is entitled to disclosure of prices and their financial obligations.

Medical practitioners need to be transparent about their tariffs. The cost of their services needs to be part of the consultation, and not avoided as is the normal practice. The majority of patients and consumers only learn about the cost of medical services and procedures, after the service or procedure has been performed. This is contrary to what the CPA requires from the medical profession.

We are appreciative of the fact that medical expenses are as difficult to estimate as litigation costs, however, for medical practitioners to remain silent about prices, tariffs or costs, is an infringement on your rights, and contrary to what the CPA requires. Medical practitioners should at least make an honest and serious effort to disclose their prices and tariffs, and the total cost of their services and procedures, before such services or procedures are performed. Anything less is sanctionable under the CPA.