JUDGE’S RULING AN INTERFERENCE - SWAZIMED

MBABANE - SwaziMed is appealing the judgment in which it was ordered to pay for its members’ admission to the Intensive Care Unit (ICU) facilities operated by The Clinic Group.

Through its attorney, Mangaliso Magagaula, SwaziMed has filed an appeal in the Supreme Court, where it raised 15 grounds of appeal.

According to the appellant (SwaziMed), the learned judge allegedly erred and misconstrued his powers by deciding an issue that required expert knowledge without the evidence of a relevant expert.

It was further SwaziMed’s submission that the respondent’s (The Clinic Group) Intensive Care Unit was not accredited as an ICU by Council of Health Service Accreditation of Southern Africa (COHSASA) and there was allegedly no memorandum of understanding.

Unwarranted

The appellant contended that the judge’s decision was allegedly an unwarranted interference with the operation of an activity requiring expert knowledge.

“The judge erred in not holding that the requirements of accreditation and having terms and conditions of operating an ICU are necessary standards to protect the consumers  and ensure quality service for the benefit of the appellants’ members,” reads one of the grounds of appeal.

The genesis of the matter is that The Clinic Group (Pty) Ltd took the Swaziland Medical Aid Fund (SwaziMed) to court following its refusal to pay for its members’ admission into the Intensive Care Unit (ICU) facilities operated by the group. 

Judge Nkosinathi Maseko, who heard and determined the matter, ordered and directed SwaziMed to permit The Clinic Group to admit into its ICU and High Care facilities its (SwaziMed) eligible members in accordance with the clinical assessment made by the attending doctor. SwaziMed was further ordered and directed to make payment in accordance with its rules to the applicant (The Clinic Group) of any and all eligible members in respect of any service provided in the ICU and High Care facilities, in accordance with that member’s respective benefit.

In his founding affidavit, Dr Mark Mills, who is the director of The Clinic Group, informed the court that SwaziMed withheld payment of in-patient and out-patient hospital accounts from August to mid November, 2017.  “This was in spite of the fact that SwaziMed had accessed the claims and produced a remittance advice that could be viewed by the applicant (The Clinic Group),” averred Dr Mills in the affidavit.

He went on to submit that SwaziMed sent statements erroneously informing the members that their accounts had been paid.  According to Dr Mills, in an attempt to resolve the impasse, the applicant sought mediation in the matter from the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC), of which both parties are members.

In his judgment, Judge Maseko said: “Despite all the issues raised by the respondent (SwaziMed) about the so-called fraudulent claims submitted by the applicant for payment, I am of the considered view that the respondent’s heavy reliance on these allegations of fraud is not good enough to support its refusal to recognise the applicant’s ICU facility in Manzini.”

The judge highlighted that he said this because he saw numerous email correspondences inter parties, where The Clinic Group itself had self- corrected by making several refunds to SwaziMed for overpayment. 

“This is in my view bona fide actions on the part of the applicant to make the refunds on their own after reconciling their accounts and realising the so-called double payments or overpayments as it were even before these could be discovered by the respondent,” reads part of the judgment.

Persuaded

The court stated that it was, therefore, not persuaded why the issue of the alleged fraudulent account was made such a central issue by SwaziMed in its refusal to recognise the applicant’s ICU facility.

According to Judge Maseko, this issue was rather secondary and certainly could not be treated as a primary reason entitling SwaziMed to deny The Clinic Group the right to use the facility on deserving and qualifying patients, if such facility deserved to be used.

“I am of the view that it is only the skill and equipment available at a given point in time that qualifies a facility to be High Care facility and an ICU facility,” said Judge Maseko.

The Clinic Group was represented by Advocate Patrick Flyn, who had been instructed by senior lawyer John Henwood.

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