Changing the rules on medical malpractice suits

THE High Court has reached a groundbreaking judgment for payment in kind for future medical needs in cases where doctors and other medical staff at state facilities have been found to have caused damage by their negligence.

Previously, if a court found that the MEC for Health, representing the provincial health authorities, was liable for damages suffered by a patient due to the negligence of hospital staff, the claimant could be awarded a lump sum as part of the compensation to them or their family for envisaged future medical expenses.

But Judge Raylene Keightley recently ruled that, rather than this agreement, a court could order that a designated state hospital or facility be instructed to take care of the injured patient’s medical needs in future.

The judge ordered that the common law must be developed to permit a court to consider an order of compensation in kind in appropriate cases. An example was where a child suffered from cerebral palsy as a result of negligence in a public hospital at the time of their birth.

“It is in the wider interest of justice to develop the common law to permit courts, in cases like this, to make orders for payment in kind, as opposed to being restricted to deciding on a monetary award as compensation for future medical expenses,” she said.

The judgment delivered in the Johannesburg High Court was sparked by a multimillion-rand claim instituted by the mother of a child who is now 11 and has cerebral palsy due to the negligence of staff at a state hospital during birth.

The Gauteng MEC for Health admitted liability and the need to pay damages. But the MEC asked for the common law to be developed to allow for alternative compensation – in this case that the Charlotte Maxeke Johannesburg Academic Hospital render all future medical care for the child.

It was argued that this hospital was geared to render these services and on the same level as any private hospital would.

According to the MEC, it would make more sense to substitute the award that the child’s mother would receive for future medical expenses at a private hospital, with the care for the child at this state hospital.

Judge Keightley said the state often faced claims in excess of R20 million, which had to be paid from the public healthcare purse.

The judge said alternative avenues had to be pursued in cases like this, where the state was at fault, while at the same time guarding against a reduction of the state’s coffers.

The child’s mother had opposed the MEC’s application and asked that she be paid a lump sum, as calculated by the experts, to take her child to a private hospital in future.

The MEC, however, said the child would be regarded as a special patient at the hospital and would receive all the therapies and other interventions recommended by the health experts.