Medico-legal case before top judges

The Gauteng health department has pleaded poverty before the Constitutional Court, claiming that paying out lump sums for medico-legal cases would financially cripple it, but failed to substantiate this with evidence.

In a landmark case, the department applied to have the court determine if the “once and for all” common law rule prohibited the payment of damages by way of future services.

On Thursday, 11 judges heard argument from the department’s senior counsel, advocate Viwe Notshe, who told the court that lump sum payments hampered the department’s ability to fulfil its constitutional duty to provide healthcare.

State attorney Kgosi Lekabe said the department was facing a double-edged sword that obliged it to pay for negligence victims but also to provide care for the entire population with a limited budget as the health department had no separate budget for medico-legal claims.

The department owed R156.8m in claims as of August 3 and had paid out R128.1m of it.

“We have not laid out the evidence,” said Lekabe, “but to a large extent, the budgetary constraints issues have goaded the department to bring this matter to the Concourt [Constitutional Court] for a determination.”

When pressed by the judges, the applicants’ legal team was unable to present evidence to sway the judges that lump-sum payments affected the ability of departments to function.