An Eastern Cape mother has won her fight in the Supreme Court of Appeal (SCA) to force the provincial health department to pay her lump-sum damages for the Mdantsane’s Cecilia Makiwane Hospital’s (CMH) negligence, which resulted in her son being born with cerebral palsy.
The SCA ruling against Health MEC Ntandokazi Capa is a significant victory for all victims of labour and delivery negligence by healthcare workers, who seek lump-sum damages payouts.
The judgment will stand unless it is overturned on further appeal to the Constitutional Court, or if Parliament passes new laws regulating medico-legal negligence claims.
National Health Minister Aaron Motsoaledi and the eight other provincial health MECs joined Capa’s defence in the SCA as friends of the court to push the government’s strategy to curb payouts for negligence liability for cerebral palsy births, which ostensibly threaten the public health system’s sustainability.
The mother, identified only as TN in court papers, sought up to R23 million in lump-sum damages in the Bhisho High Court for herself and her son, identified as BN, for general and special damages, loss of earnings, and future medical care and services from private providers.
Due to the brain injury he suffered during birth, BN has spastic quadriplegic cerebral palsy, microcephaly (underdeveloped head and brain), intellectual impairment and epilepsy.
He is hearing and visually impaired and cannot speak, has a tube in his stomach for feeding, and is incontinent and will remain so for life. He has poor head control and is unable to sit, roll, crawl, stand or walk. He requires assistance with mobility (a hydraulic hoist, car safety chair and shower chair) and general daily living, such as bathing, dressing, general hygiene, eating and drinking, and he needs full-time caregivers.
Capa conceded in the High Court that the hospital’s healthcare workers had been negligent during TN’s labour.
But, pleading a “public healthcare defence” in lieu of paying lump-sum damages, she committed to treating BN in EC government health facilities, the same system responsible for his condition.
Capa also undertook to pay for medical services or supplies in the private sector if the department was unable to provide those in its own facilities.
In what was regarded as a key test case, the High Court developed the common law to allow Capa’s alternative compensation options, with Judge Rob Griffiths heeding government officials’ concerns that medical negligence compensation would cripple the public health sector, impeding the government’s constitutional obligation to provide basic healthcare services to all citizens who require them.
The SCA has now set aside the “superficially attractive but unsound” order, finding that Griffiths had not considered the underlying reasons for the common law rule. Neither had he considered the wider consequences of a radical development of the law of damages and the creation of new remedies for damages, it found.
South African courts currently adjudicate personal injury claims similarly to other civil claims, under the common law, which relies on legal precedents established in prior court judgments.
This includes the common law rule of “once and for all”, which prohibits a multiplicity of lawsuits and requires a claimant to calculate and submit their damages, including their essential future medical expenses, in a single legal action.
The SCA noted in its judgment on Thursday that the common law practice ensured finality and fairness to both parties by protecting them against multiple, piecemeal actions for damages.
A litigant was neither subjected to “potentially endless, intermittent and indeterminate claims, which are difficult to plan for”, nor required to bring claims every time they sought to obtain part of the relief already granted by a court.
Yet, the SCA said, that was precisely the effect the High Court’s order would have. If implemented, the public healthcare remedy would lead to disputes.
The MEC had been ordered to provide the child for the duration of his life, with all services, consultations, therapies, surgeries, supplies, supplements, medicines, devices and equipment at CMH or Frere hospital, or a public hospital nominated following consultations between the case managers.
“A court will have to resolve on each occasion that a service, treatment, medication, device, or equipment becomes unavailable – for whatever reason – and a dispute arises”.
The court would be called upon to decide whether the injury being treated or the medical supply sought resulted from the initial harm the child suffered; whether the medical service or supply was of a reasonable standard; whether the MEC failed to deliver the required service, medication or equipment; and whether that failure was wilful or negligent.
Similarly, in her undertaking to pay, the MEC was ordered to procure medical services and supplies in the private healthcare sector, to be provided timeously whenever it was required, in relation to daycare and permanent residential facilities, caregivers, washing machines and a private case manager.
“Undoubtedly”, there would be disputes about whether the MEC had acted fairly, lawfully or reasonably, and whether medical services or supplies were required or rendered timeously.
“What all of this shows is that open-ended remedies undermine finality, and repeated disputes increase legal costs. The result is continuous litigation and an increased burden on the parties and the court system. And courts could become long-term administrators of public healthcare, rather than adjudicators.”
The common law rule was “designed precisely to prevent these issues from ever arising”.
The SCA found that the common law rule – “a fundamental principle of the law of damages” – should not be changed by a court, but only by a legislature.
“So drastic a reform, in my view, should not be made by judges,” Judge Ashton Schippers wrote for the five-judge SCA Bench.
The SCA referred the case back to the High Court to determine the revised value of BN’s claim, which the Eastern Cape health department must pay.
BN’s future treatment includes consultations with neurologists, dentists, psychologists, physiotherapists, occupational therapists, orthopaedic specialists, dieticians, and speech therapists. Unsurprisingly, he will be unemployable.
While TN’s fight for justice in the SCA initially was an appeal against the Eastern Cape Health MEC, she found herself ranged against the national Minister of Health and all Health MECs, who had been admitted as friends of the court.
Her East London attorney, Siyabonga Booi, said: “We were against the whole South Africa”.
He added that the judgment had vindicated the work of negligence lawyers throughout the country who faced an uphill battle to assert their clients’ rights after the Bhisho judgment.
Eastern Cape health department head Rolene Wagner said officials had met with senior counsel about the SCA outcome and would issue a statement.
This story will be updated once the statement is received.
- This article was produced with the support of the Henry Nxumalo Foundation.