Court awards R1.4m in damages after child dies

‘Almost impossible to repair wrong done to mother of cerebral’ palsy baby, says judge

Cerebral palsy child Siphesihle Mmoshi suffered for 10 years without access to proper medical assistance because the Eastern Cape health department denied Zithulele Hospital staff had been negligent at her birth.

The department knew “for a considerable period of time” that the child “was in urgent need of treatment” but admitted liability for the brain damage she suffered at birth only when she died in 2018.

Now the Mthatha high court has awarded damages of R1.4m, although it was “almost impossible to repair the wrong done to the girl’s mother.”

The court heard that if officials had handled the case differently, Siphesihle could have been treated and there was a high probability that she would have survived.

Siphokazi Mmoshi was in labour with her first child when she was admitted to Zithulele Hospital near Coffee Bay on June 30 2008.

Staff failed to provide the correct medical care, resulting in the foetus being deprived of oxygen and causing baby Siphesihle to sustain permanent brain damage and spastic cerebral palsy, which was complicated by epilepsy.

But these admissions were made by the MEC and health officials only after Siphesihle died on August 2 2018, at the age of 10.

She had started choking while being fed two weeks before and was urgently hospitalised, when she was diagnosed with pneumonia and subsequently died.

Up to that point, the department had sought repeated postponements in the high court of the civil claim for damages.

Two months before Siphesihle’s death, the department sought another postponement to obtain medico-legal reports and to finalise both the merits of the case and the quantum of damages.

While the department eventually admitted that it was liable for damages, it disputed the quantum of damages due, except for the past medical expenses for Siphesihle.

The department admitted it knew “for a considerable period of time” since 2014 that “Siphesihle as a cerebral palsy child was in urgent need of treatment”.

The department acknowledged the absence of treatment would negatively impact on the child’s condition and mortality. It also accepted that the failure to finalise the child’s claim meant she would not be able to access proper and necessary care.

The department admitted that Siphesihle required “urgent basic nutrition and treatment to assist with aspiration” which needed to be paid for with the proceeds of the damages claim.

Judge Gerald Bloom, sitting in the Mthatha high court, said the child’s early death may in all probability have been prevented had health officials handled the civil litigation “more responsibly”.

If the MEC had admitted liability at an earlier stage, an application could have been made for an interim payment for required medical treatment in an attempt to save Siphesihle’s life or to make it reasonably comfortable.

During her 10 years of life, Siphesihle was dependent on her mother for all her basic needs.

Siphokazi had endured severe suffering as a result of her daughter’s birth and would “for the rest of her life remember the suffering that Siphesihle endured during her lifetime”.

Since birth, the child experienced at least three epileptic seizures per week despite treatment. All areas of her movement were limited, she was unable to walk and run, and was only able to roll and sit up with support.

She had cortical blindness, had difficulty with swallowing and would often choke. As a result, soft food had to be prepared for her. She also had a hearing impairment, as well as bladder and bowel incontinence.

Bloom said there was no evidence that Siphesihle suffered pain while she was alive.

“It might be that she had pain but could not verbalise it because she could not express herself through words or gestures.

“These circumstances make it almost impossible to repair the wrong done to the Siphesihle or to place a monetary value on her general damages since there is no relationship between what she endured during her lifetime and money.”

Bloom awarded total damages of R1.4m, comprising R450,000 for general damages in respect of Siphesihle, R600,000 for general damages for her mother, R27,290 for Siphesihle’s past medical expenses and R378,000 for future medical expenses for Siphokazi.

He accepted that Siphokazi presented symptoms of posttraumatic stress disorder and she struggled with a complicated grieving process. Two psychologists had agreed that Siphesihle’s traumatic birth, life and ultimate death had a profoundly negative impact on her mother’s cognitive, emotional and social functioning.

It might be that she had pain but could not verbalise it because she could not express herself through words or gestures