KZN health MEC loses bid to pay back negligence 'in kind' instead of in cash

KwaZulu-Natal health MEC Nomagugu Simelane-Zulu has lost a court bid to render state health services to a child born with cerebral palsy as a result of hospital negligence, rather than pay out millions of rand for private health care.

The legal strategy, referred to as the “public health-care defence”, has been raised in several medical negligence cases in the past years, some of which have been successful. The defence is an attempt to avoid multimillion-rand cash payouts, which are said to be crippling the health-care system.

But Durban high court judge Sidwell Mngadi has questioned the constitutionality of the defence of offering compensation for future medical expenses “in kind” instead of money.

“It is very drastic. It affects the fundamentals of the law of delict ... It is fundamentally unheard of that the wrongdoer decides what an injured party should do, rather than paying the injured party monetary compensation,” he said.

The matter before him was a claim by the mother of a now seven-year-old boy, who was starved of oxygen during birth, leaving him mentally and physically disabled.

The department of health conceded liability in 2018 and the mother is claiming R23m.

Just before the trial to determine what the department must pay, it filed a notice to amend its papers and raised the “public health-care defence”, saying the medical services and supplies the child needs are available in the public health-care sector at no cost or a lesser cost than in the private sector, and at an equal standard.

If private health care was needed, the department would reimburse the mom.

The MEC accepted that this was “inconsistent with the common law”, which states that a damages claim must be sound in money, and the “once-and-for-all rule”, which states that the payment of damages must be in a lump sum.

The MEC contended, however, that common law impacted on the department’s constitutional obligations to provide access to health-care services and “conflicts with the constitutional duty to manage and use public funds in an efficient, economic and effective manner”.

The proposed development of the law would be in the interests of justice, the MEC said.

In his affidavit, director of legal services in the department Stuart Chambers said he had been assured by senior officials that the department had the infrastructure to provide for the child’s needs.

These included a “network of hospitals and facilities”, including King Edward VIII Hospital, the KZN Children’s Hospital, the Phoenix Assessment and Therapy Centre, Mahatma Gandhi Memorial Hospital and Wentworth Hospital.

Chambers said from the financial years 2014/15 to 2018/19, the department had paid out more than R965m in similar negligence claims.

This had a huge affect on others reliant on the public health-care system, he said. The department wished to create a dispensation that allows it to provide appropriate and reasonable compensation and redress to the child, while ensuring that its resources are not drained and its budget “eaten away” by such claims.

The mom, through her legal representative attorney Michael Friedman, said this was just a “ploy” to delay settlement because the belated raising of the issue would stall the finalisation of the damages claim.

“The proposed amendment raises a novel issue which should be the subject of legislation,” her lawyers argued. “A bill with similar provisions was initiated in parliament but later abandoned.”

The judge said while the Constitutional Court had ruled that the defence may be raised “if grounded on stated evidence”, the mom contends that in her matter, it had no prospects of success.

The mom said the raising of the issue at the eleventh hour was a strategy to frustrate her claim which, on the issue of liability, had been decided in terms of a court order which directed the MEC “to pay to her all proved damages”.

Judge Mngadi said her claim, like many others, arose out of negligence of state employees.

“There is no evidence why the increase in cerebral palsy cases is not addressed by improving the quality of care and skill in public health-care facilities.”

The legislature had not proceeded with amendments to the law, he noted. He said  Chambers had not explained the quality of care and skill presently available to cater for the child’s needs.

“The essence of the defence is to put the cerebral palsy claimants, as a result of the negligence of state employees, in the same category as those that could not attribute their injuries to any negligence on the part of employees of the state.

“It may result in the state not taking proper measures to avoid these kinds of injuries in its facilities. It discriminates against those who access state facilities.”

The judge said the proposed amendment to its pleadings had no basis in law, and refused the MEC’s application to amend the papers.

The trial on the issue of the damages claim has yet to be set down for hearing.

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