Claims: A tale of three provinces

The Gauteng province wants a child who was left braindamaged because of medical negligence at a state facility to submit quotations for future medical care.

The Eastern Cape wants the same child to draw on state facilities for all possible treatment, and to seek reimbursement for private care when the state cannot provide this.

And the Western Cape has an approach all of its own.

“I’m surprised by the different approaches that are being advanced before us,” Constitutional Court Judge Chris Jafta said on Thursday. “The provinces are all part of the same government,” he pointed out, somewhat sharply.

Both the Eastern Cape and Western Cape appeared as friends of the court.

The Eastern Cape hopes, in November, to argue before a high court that the increasing cost of settling medical negligence actions is hampering healthcare for others, and affecting fundamental rights.

On Thursday the province all but begged the court not to shut the door on it making that argument if it finds against Gauteng’s only vaguely similar legal claim.

The Western Cape also asked the court not to be overly broad should it find against Gauteng, but with an altogether different approach.

“In our case, the primary concern is not actually to save money. “The primary concern is to ensure that substantial amounts of money intended for healthcare services are, in fact, used for healthcare services,” advocate for the Western Cape Geoff Budlender told the court.

In a system the Western Cape says is already showing promise, it deposits a lump sum into a trust set up for future medical care in negligence cases, such as when a baby is brain-damaged during delivery.

Such trusts come with both “top-up” and “claw-back” provisions, by which they are replenished if money runs out but any remaining funds are returned to the state when the injured party dies. —