Judges grill Gauteng health

The province grasped at straws in a court appeal for relief regarding payouts for medical negligence

Justices of the Constitutional Court on Thursday had many questions about Gauteng’s attempt to institute a pay-asyou-go scheme for the victims of medical negligence at state facilities and seemed singularly unimpressed by the answers they got.

In mid-2014, the province’s department of health agreed to pay nearly R20-million in estimated future medical expenses for the now sevenyear-old Wandile Zulu, who suffered severe brain damage because of medical negligence during his birth at the Chris Hani Baragwanath Hospital in Soweto. According to long-standing law and procedures, such amounts are normally paid in a lump sum into a trust account.

On Thursday, a legal team for the Gauteng MEC for health tried to persuade the court to sign off on the legal underpinnings of a plan that would see Wandile’s medical expenses paid when required and based on quotations. This kind of legal evolution is critical, the province insisted, although it neglected to explain why.

“There is nothing on the record that shows, for instance, if the MEC has to pay the lump sum, she won’t be able to discharge her responsibilities in respect of other people to give them healthcare,” Justice Chris Jafta told Gauteng’s advocate Viwe Notshe during one of several fractious exchanges.

Notshe agreed, the province had never sought to prove to any court that paying R20-million towards Wandile’s care would deprive anyone else of medical care — and so the province was not permitted to argue that point, which is central to the debate about medical negligence, before the court.

Nor did Gauteng seem to be arguing there was anything unlawful about the high court awarding a lump-sum payment, which was later upheld by the Supreme Court of Appeal, both Judges Johan Froneman and Raymond Zondo pointed out.

“Aren’t you asking us to engage in an academic exercise?” asked Zondo. Froneman was ever more blunt. “Why are we here, then?” he demanded.

Ideally, Notshe suggested, the court would declare that rules on civil damages claims should not preclude a pay-as-you-go approach, and refer the Zulu matter back to the high court. Or it could open the door for innovative court orders, such as that the parents of a child left braindamaged by negligence must obtain three quotations for any future care and that the province could pay the lowest amount.

There are ways to deal with such “bolts and nuts” of restitution that would not imperil the health system with huge payouts, he argued.

But Wandile’s family does not care about future cases, or the development of common law, his mother’s advocate Steven Budlender told the court. Although she appreciates that changes may be required, that does not stand in the way of the MEC paying an amount already agreed on, so vindicating Wandile’s rights by providing for his treatment.

The court reserved judgment.