Judge lambasts health MEC’s ‘slothful’ approach to litigation

Cases characterised by ‘unwarranted, unacceptable delays’ that ‘unnecessarily increase costs’ dramatically

Health MEC Sindiswa Gomba has been sent packing by the Mthatha high court in a R23m medical negligence claim.

Gomba and health superintendent-general Thobile Mbengashe had introduced a convoluted last-minute game plan to derail a court-sanctioned settlement of the case.

And the judge has berated the department’s slothful attention to medico-legal cases before the courts. The 2015 claim by Babalwa Mbokodi over Mthatha general hospital staff’s negligence in the birth of her daughter was already flagged for settlement in 2017.

By October 2019, legal teams for both parties, working closely with six medical specialists — three on each side — agreed that negligence during the birth had been proved and this led directly to the cerebral palsy of Mbokodi’s child.

The high court agreed, making an order to that effect and postponing the matter for a final determination of the amount of damages.

That determination on the overall damages was reached by the lawyers and specialists on March 13 this year — R22.7m for Mbokodi’s child, now 13, and R450,000 for herself.

These agreements were reflected in a March 23 court order as being “a fair and reasonable quantum of damages”.

At that point, the court also ordered Mbengashe to show cause why a final order in favour of Mbokodi should not be granted.

In May, the health department’s lawyers applied for a change to the MEC’s original plea, which had underpinned all the discussions leading to the settlement.

The basis of this reversal appears to reflect government’s preference — expressed in public statements by health officials — to reduce the costs of future medical expenses in medicolegal matters by providing future treatment in state facilities. The MEC’s lawyers argued at a hearing on June 18 that this application was not before the court.

Simultaneously, however, Mbengashe provided an affidavit to the court in which he claimed the department had withdrawn the state attorney’s mandate in the case on February 7 2020.

He provided no documentary evidence in support of the claim. Notice of the termination of the state attorney’s mandate had also not been given to the court at any time, as required by the court rules.

The proposed change in plea and the alleged termination of the state attorney’s mandate appeared to be either an inadvertent or conscious sowing of confusion.

Tellingly, in his affidavit, Mbengashe did not challenge the integrity of a March 19 pretrial conference — where the amount of damages was agreed between the lawyers — on the basis that the state attorney had no mandate at all by this time.

But he stated the department’s lawyers would hold “without prejudice discussions” with Mbokodi’s legal team to settle the claim amounts as “on a closer scrutiny of the plaintiff’s claim”, the “agreed amounts” were inappropriate.

Mthatha judge Richard Brooks has found the “unchallenged facts of the matter” demonstrated the MEC’s legal team “had a full mandate to conduct the litigation” on her behalf, including settling.

Brooks found Mbengashe had had “no particular knowledge” of how the case was conducted by the legal and medical experts in determining the amount of damages to be applied to the negligence.

Drawing on a litany of cases which have come before the Mthatha high court, Brooks had choice words for the manner in which the health department litigates medico-legal cases.

All too frequently, these cases were characterised by a lack of engagement by the MEC, frustrating the court process “in some form or another, creating “unwarranted and unacceptable delays” in finalising cases and “dramatically and unnecessarily” increasing costs of litigation, he said.

In one case, the MEC was found to have “demonstrated sloth and apparent disinterest” at every point.

The proposed change in plea ... appeared to be either an inadvertent or conscious sowing of confusion