Back to where it began: The child in the precedent-setting judgment was born with cerebral palsy following
the negligence of maternity staff at Cecilia Makiwane Hospital. Photo: Lesedi Sikwe
Nearly all of the medical services, products and devices which the Gauteng health department undertook to provide to a cerebral palsy patient in lieu of a lump sum payment for damages in a 2019 negligence case, were either not provided or turned out to be substandard.
In the precedent-setting medico-legal case against the Gauteng member of the executive council (MEC) for health, brought by Ms MSM on behalf of her cerebral palsy child KBM, Judge Raylene Keightley — following guidance from the constitutional court — allowed the department to offer a “public healthcare defence” allowing it to offer services in its own facilities rather than big cash settlements for care to be provided by private providers.
The full names of both mother and child were not used in court to protect the identity of the minor.
Ms MSM is now preparing a further application to the high court to ensure the department pays a cash award to obtain the services and products in the private sector.
Until the Keightley judgment, the common law made it mandatory for a once-for-all-time cash lump sum compensatory payment to be made, to cover damages and future medical expenses of a claimant. The concourt allowed for the development of the common law so that a public health institution could deal differently with a claim for damages due to negligence of its staff.
Most of the damages claims that come before the courts, as Keightley pointed out, “typically involve a substantial quantum of damages — often in excess of R20 million”, based on the provision of care for the severely disabled patient by private sector healthcare providers.
In the Eastern Cape, where the provincial health department had a contingent liability for medico-legal claims of R38.8 billion on its books in March 2021, individual claims have averaged between R25 million and R30m, according to specialist evidence heard in the Bhisho high court.
This week, the Eastern Cape high court followed the concourt’s guidance and Keightley’s precedent in developing the common law for medical negligence cases in that province.
Judge Rob Griffiths, sitting in Bhisho, ruled that the Frere and Cecilia Makiwane government hospitals are able to provide future healthcare services for a cerebral palsy patient, identified just as BN, negating a R35.5 million lump sum claim by the child’s mother for damages and future medical costs.
“The once-for-all rule and the rule that damages must [be paid] in money, are neither the exclusive nor the primary rules for the determination of a just and equitable remedy in a claim arising from harm negligently caused by the public healthcare practitioner, provider or institution,” Griffiths found.
He accepted that the health department had “tendered extensive and valuable evidence” that the two hospitals “working in tandem” could provide the medical services and supplies the child requires “at a reasonable standard or above”.
The child in Griffiths’ judgment was born with cerebral palsy following the negligence of maternity staff at Cecilia Makiwane Hospital, and is now 11 years old.
The child has extremely low cognitive function. He has spastic quadriplegic cerebral palsy, microcephaly, intellectual impairment and epilepsy. He is hearing and visually impaired, and unable to speak, sit, roll, crawl, stand or walk.
The child must rely on someone else for basic living activities like eating, which involves being fed via a tube directly into his stomach, bathing and dressing. He is also incontinent, and will remain so for the rest of his life.
Griffiths accepted what he regarded as the “impressive” evidence of the head of the Eastern Cape health department Dr Roelien Wagner, and other expert witnesses, that the same health system which failed the boy and his mother, is sufficiently resourced to take care of him in future, notwithstanding his complicated set of health conditions.
But the experiences of the family in the Gauteng judgment suggest that Keightley might have too easily accepted the assurances of the Gauteng health department that it could provide all the services required for child KBM’s care through the Charlotte Maxeke Johannesburg Academic Hospital.
A source with knowledge of that matter — who asked to remain anonymous — said KBM’s mother was preparing to return to court to provide evidence of the department’s failings and to seek a lump sum payment to procure services and equipment in the private sector.
Up to 95% of therapy, treatment and equipment which the Gauteng health department was supposed to provide was either not given at all, or was subpar, the source said.
They said while it was easy to determine if the department had provided a proper wheelchair, it was more difficult to show the court that the department was providing substandard therapies and treatments, without allowing private professionals to monitor the department.
While most doctors were qualified and capable, up to 80% of clinicians and those in allied fields in public hospitals were “qualifying or in training”, lacking the experience and expertise to provide the level of therapy and treatment required by a severely injured patient.
This was especially relevant in neuro-developmental therapy to optimise neural pathways and maintain the little function there is within the patient.
The source suggested that the patient had not developed at all from the diagnostic state at the time of Keightley’s judgment — and may have deteriorated because no neurodevelopmental therapy was being provided.
“We are sending cerebral palsy children back to the very institutions which caused their condition in the first place. It is also psychologically damaging for the parents, who don’t understand why they must go back to the same people in the same institution who harmed them,” they said.
The ratios of doctors to patients and nurses to patients were “massive” in the public sector compared to the private sector, not allowing for focused time on each patient, resulting in rushed treatment and “only if it’s necessary”. There was also a total lack of accountability among nursing staff.
Of doctors and other staff who testify on behalf of health departments, the source said:
“Those who testify are not truly objective as they are employed by the department and subject to repercussions if they don’t tow the line as instructed. They are under duress to ensure that everything they say is positive.”
Tshepo Shawa, a spokesperson for the Gauteng health MEC, promised to respond to the Mail & Guardian’s questions on the matter, but had not done so at the time of writing.
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