No winners in R37-million Eastern Cape medical negligence case as judges rescind original order. Photo: Madelene Cronjé
A single mother caring for a severely disabled child has been left high and dry now that a court has overturned a previous order that the MEC for health in the Eastern Cape must pay her R37-million in damages for medical negligence.
The judgment of a full bench of the Eastern Cape high court is littered with evidence of incompetence and maladministration by government officials and the Mthatha state attorney’s office in its handling of the matter, but the judges have said the mother’s medical negligence claim must start afresh.
The case is yet another example of the “collapse of government in the Eastern Cape”, a legal source, who cannot be named, told the Mail & Guardian. “The victim, in this case, is a single mom who is struggling to raise a severely disabled child, one who cannot even get out of bed.”
Another attorney who deals with medical negligence cases said: “No one comes out of this looking good, from the attorneys acting for the mother, the state respondents and the judges who granted orders that they should not have.”
Medical negligence claims in the province stood at more than R3-billion in April last year and were expected to rise to R4.4-billion by year end, health MEC Nomakhosazana Meth has previously said. She blamed unscrupulous lawyers, who colluded with hospital workers, instead of the well-documented appalling state of health care in the province.
Khumbulela Melane’s child has permanent spastic palsy, the result of oxygen deprivation during birth. In such instances, the health MEC becomes liable if it is proved that there was substandard treatment during labour. If that is proved, then the amount of damages to be awarded is determined through expert reports on what the child will need for its future care, including medical treatment and specialised equipment. The life expectancy of the child is also taken into account.
In July 2015, Melane sued the health MEC, seeking R12.2-million in damages. In response, the MEC filed a notice to defend, constituting a “bare denial” of all the allegations.
From thereon, the health MEC’s attorneys did not comply with any rules of court. They failed to file “discovery” — the medical documents in their possession that Melane’s lawyers and experts needed to substantiate the claim.
Because of this, eventually the notice to defend was struck out. Almost three years later, in January 2018, lawyers for Melane gave notice that the claim for damages had been increased to R28.2-million. The hearing to determine if the MEC was liable was set down in May that year.
The MEC was represented by lawyers, but they said they were attending only on a “watching brief”.
The judge, after considering evidence on affidavit, granted an order holding the MEC liable for all proven damages, to be determined at a later date. That date arrived in February 2019. In the interim, lawyers for Melane had upped the claim to just more than R40-million, an amount rarely claimed in South Africa.
By then a consortium of private attorneys — Norton Rose Fulbright and Smith Tabata — had been engaged to assist with medical negligence cases because the Eastern Cape state attorney’s office was “suffering under the load” and could not cope with the “deluge”.
The health MEC applied for an adjournment of the hearing, but it was refused. Again, Meth’s lawyers were present on “watching briefs”.
The court granted judgment in favour of Melane.
The health MEC, in the matter which came before Judge President Selby Mbenenge, Judge Glenn Goosen and Judge Thandi Norman sought to rescind all three orders previously granted.
In an affidavit, senior legal administration officer Zekhya Bastile said all three had “patent deficiencies” and the “startling amount” ultimately awarded was not justified. He said after the appointment of the consortium, it had taken months to piece together a record in the matter and obtain copies of the court orders.
During argument, the MEC’s representatives said they were willing to accept liability and pay R26-million in damages. But the three judges said they had a discretion to rescind or vary an order if it had been sought, or granted, erroneously.
They said there were procedural irregularities with the initial “strike out” application — including that it had been heard on a date prior to the one on the notice of set down and that the accompanying affidavit had not been commissioned. As such, that order and all subsequent orders had to be rescinded.
They ruled that the case must start over, paving the way for the possibility of the health MEC raising the “public health defence” to tender treatment and services in lieu of monetary compensation.
The judges said the litigation had been conducted in “a dilatory and clumsy manner” and, going forward, it would require constant judicial case management.
The Special Investigating Unit, which is probing allegations of maladministration, irregular and improper conduct on the part of the department’s officials and its legal representatives, applied to join the proceedings and sought an interdict preventing the payment of the award to Melane. But the judges said because the case had to start afresh, this was not necessary.
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