Medical negligence cases make health departments' budgets sick

17 August 2017 - 17:56 By Katharine Child
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Hospital/Emergency centre. File photo.
Hospital/Emergency centre. File photo.
Image: Gallo Images/iStockphoto

When Dumile Zulu decided to take on the Gauteng health department over the negligence that caused her son’s brain damage‚ she had no idea she would become the centre of a complicated legal battle over whether provincial health departments can afford to pay millions in medical negligence claims.

When she delivered her son in 2009 at the Chris Hani Baragwanath Hospital‚ she needed a Caesarean section but did not get it and her child was born with severe brain damage‚ cerebral palsy and epilepsy.

The high court found the Gauteng health department negligent and eventually it was agreed in 2015 a lump sum of R23-million would be paid. This includes R19-million for life-long medical expenses for the severely disabled child.

Unfortunately for Zulu‚ while her case is no different from hundreds of medical negligence cases‚ hers became one in which the Gauteng Department of Health then asked the High Court‚ then Supreme Court‚ then Constitutional Court to change the law regarding negligence payouts.

The department says it shouldn’t be expected to pay negligence claims in a single lump sum‚ as currently required by law.

Instead it wants to pay out for a child's medical needs as and when they arise and its legal case implied it couldn't afford once-off huge payments.

Until the legal matter is complete‚ Zulu will not receive the R19-million for her now 14-year-old child's medical expenses‚ having received R4-million.

Zulu's lawyer Jacques Coetzer said this legal battle‚ which started in 2013‚ prolonged her distress.

The case‚ while technical‚ has highlighted the difficulties health departments have managing to balance the budget‚ while paying out millions to hundreds of negligence victims injured in their hospitals.

In a 2014 edition of SA Medical Journal doctors warned the health system could collapse as medical negligence lawsuits were driving up the cost of private insurance for doctors‚ making practising certain specialities of medicine too expensive and risky.

So pressing is the issue of medical negligence payouts‚ the Western Cape Health MEC and Eastern Cape Health MEC got involved in the case as friends of the court.

The Eastern Cape Department asked that whatever judgment is made‚ that it would not affect their upcoming cases in the high court in Eastern Cape. It will argue in a different case in November that it cannot afford to pay out millions in medical negligence cases‚ without affecting its constitutional obligations to provide healthcare for all residents.

It will ask the Eastern Cape high court that instead of paying out millions in damages‚ it be allowed to provide care and rehabilitation for injured patients in its hospitals.

Geoff Budlender SC‚ acting for the Western Cape MEC for Health‚ asked whatever decision the court made it would not make their system illegal.

What the Western Cape does is pay out damages in one lump sum to a trust.

"But if the there is a surplus and a child passes away‚ money goes back into the public health system‚" he said. This is instead of going to the family.

It is not easy to predict how long a child with cerebral palsy care will live.

"The Western Cape has tried to resolve these problems‚ by paying more into the trust if the child lives longer‚" Budlender said.

The Gauteng Health department was criticised in court for a lack of evidence to show it could not afford to pay out the money in one go.

Judge Chris Jafta pointed out: "There is nothing on the record that shows that if the MEC has to pay a lump sum‚ she won't be able to discharge her responsibilities to provide health care (to the province)."

Steven Budlender SC‚ acting for Zulu‚ said the Constitutional Court judgments had previously found "budgetary constraints must be shown by evidence". But no evidence had been provided.

"It is conceivable that [the health department] paying R20-million to one family imperils the access to healthcare of many families. It is as conceivable that the plaintiff says if you reduce my lump sum‚ I will not be able to get health care‚ even though my problem has been caused by your negligence. It cuts both ways."

But he said that debate was not for this court case.

Steven Budlender said Parliament had to change the law on lump sum payments if need be.

He asked for "finality" for Zulu.

"What is not in dispute is she placed her faith in the health system. It is not in dispute her child was born with brain damage‚ cerebral palsy and epilepsy.

"He will be forced to endure these for the rest of his life‚" he said.

Zulu’s son needs 24-hour care and as a result she doesn’t work.

The Constitutional Court has reserved judgment in the case.

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