Health department guilty of medical neglect, court finds

Payout still to be determined after mother claims R28m for child born with cerebral palsy

The Bhisho high court has ruled that the health department must cough up damages for a child who was born with cerebral palsy as a result of what seems to be horrific medical negligence at a Flagstaff hospital.

This comes as the Supreme Court of Appeal once again slammed the Eastern Cape departments of public works, health and finance for using the courts and public funds to try to dodge a multimillion-rand judgment debt owed to architectural firm Ikamva.

The mother of the child born in February 2022 sued the department for more than R28m alleging that she was forced by nursing staff to mop up her own blood from the floor during a painful and prolonged labour at Holy Cross Hospital.

While the mother must still prove to the court the quantum of her damages — which would include the cost of lifelong specialised care of the child — judge Nyameko Gqamana has ruled that she had established that the hospital’s negligence caused her baby’s condition.

Holy Cross Hospital was one of several rural hospitals identified in 2022 as being problematic for negligence claims.

The woman submitted that the department was liable because of the hospital’s negligence in the management of her labour including sub-standard care by the nursing staff.

Neither the mother nor the child may be identified.

She says in her court papers that in February 2022, she had begun labour and immediately gone to Holy Cross Hospital early in the morning.

She was 41 years old at the time.

Despite being considered a high-risk patient because of her advanced maternal age, she was not treated as such.

The foetal condition was monitored only once on admission and never again.

She bled profusely during 13 hours of labour but the cause of the bleeding and its effect on the foetus was never checked.

When she had complained several times of the intensity of the pain, she was instructed to push even though she had no urge to do so. The foetal heart rate was not checked.

The little boy was born with a significant brain injury.

The department denied it had provided sub-standard care or that it was in any way negligent.

It admitted only that the baby was born with significant brain injury resulting from a lack of oxygen which likely resulted in the cerebral palsy.

The absence of maternity case records from the hospital made it difficult to determine exactly when the brain injury occurred — before or during labour, Gqamana said.

But, he said, the available evidence suggested it had happened intrapartum (during labour).

He found that had the nursing staff properly monitored the mother and her unborn baby they would likely have picked up on the foetal distress in time and taken the necessary steps to address it.

“But because there was neither monitoring of the foetal condition nor an examination of the plaintiff, for a considerable period in excess of eight hours, the nurses missed the opportunity to pick up that the foetus was in distress and to act thereon.”

The woman will now be required to prove the value of her claim.

Health department spokesperson Mkhululi Ndamase said it was important to note that the judgment in favour of the plaintiff had not yet decided on the amount.

“Both parties are still required to provide further reports that will justify the plaintiff’s claim of R28m.”

He said whatever the final amount decided by the court, the department would abide by and implement it.

In the Ikamva legal battle involving the architectural firm and three departments, the state has used litigation to avoid paying the R41m damages award for more than 15 years, losing every case.

Not only has the provincial government clocked up millions of rand in legal bills in its fruitless battles in the Eastern Cape high courts, the SCA and the constitutional court, but it now faces at least a further R110m in interest that has accrued over the years on the initial damages payout of R41m. The interest will continue to accrue until it is paid.

So far, the debt has almost quadrupled since the department was ordered to cough up the damages amount in 2014.

The legal circus has dragged since the provincial departments of public works and health bungled the awarding of the 2003 architectural contract for the upgrade of Frere Hospital. It was first awarded to Ikamva Architects and then, inexplicably, to another firm, leaving Ikamva out in the cold. Ikamva successfully sued the departments for R41m damages, the profit it said it would have made if it had been allowed to proceed with the signed and sealed deal.

The SCA said the departments had done a grave injustice to Ikamva.

“For an exceptionally long period, it has been repeatedly prevented from executing on a valid judgment debt,” SCA judge Nambitha Dambuza said. “Various courts, including this court, have pronounced on the validity of the judgment debt.

“Despite the repeated pronouncements by the courts on the absence of prospects of reversal of the judgment debt, the [departments] persistently used the courts and public funds to frustrate execution.”

The departments were once again ordered to bear the full cost of its “unmeritorious appeal”. But the departments are not done yet.

They are seeking leave to appeal against the Makhanda high court judgment in which that court refused their application to rescind the two judgments that started the ball rolling against them. That matter is to be argued in the Gqeberha high court on Tuesday.

The departments have lost review applications, recission applications, self-review applications, and all the appeals against all the judgments.

In 15 years, they have had more than 20 judgments go against their attempts to avoid paying out the damages claim.

In that time, the courts have criticised what they termed the departments’ serial default, recklessness, repeated failure to comply with court orders and their undermining of the dignity and authority of the courts.

The latest SCA judgment is likely to free up Ikamva to execute against the departments’ bank accounts if they do not cough up.

For a considerable period in excess of eight hours, the nurses missed the opportunity to pick up that the foetus was in distress and to act thereon