Mthatha court dismisses SIU application over medical negligence case

The Special Investigating Unit’s claim that the Eastern Cape health department was guilty of maladministration in how it managed the litigation of a medical negligence case in the Mthatha high court has been dismissed by the court.

The SIU was also saddled with a punitive attorney-andclient costs order, after judge Belinda Hartle said it had neither “superlative powers” nor the legal right to intervene in, and restart, settled litigation proceedings.

In the original court judgment, the mother of a child born with cerebral palsy in Mthatha General Hospital in

September 2015, sued for damages arising from the alleged negligence of healthcare workers at the hospital.

The MEC for health conceded liability for the negligence and, during a trial to determine the amount of damages to be paid, the parties agreed on a settlement of R17.6m, which was made an order of court by deputy judge-president Zamani Nhlangulela.

The SIU subsequently applied to rescind the judgment after it took exception to the alleged failure of legal representatives of the provincial health department to raise a “public healthcare defence” to the amount of cash damages sought by the mother. The defence is government’s legal pushback against huge damages awards by the courts for negligence, by healthcare workers within state hospitals, that results in children being born with cerebral palsy.

It is premised on the provision of a suite of medical services within state institutions for future medical care, rather than cash payouts to secure services in the private sector, and has been sanctioned by the courts — including the Constitutional Court.

Government is required to show that the public health services are “of the same or an acceptably high standard” as private services and can be provided at no cost or for less than the damages claimed by a litigant. But, in a judgment handed down in the Mthatha high court at the end of August, Hartle said the Concourt had not confirmed a “general public healthcare defence” but had held a court could develop the common law in any particular case to allow for payments in kind, or periodic payments instead of a lump sum.

The SIU contended it was able to act on behalf of the health department to seek first the rescission of the judgment and then the unit’s joinder as the second defendant in what Hartle termed “a reprise of the quantum hearing”.

The unit said the burden on the state to make an exorbitant lump sum cash payment for future medical expenses could be ameliorated by provision of services in kind in state institutions.

Hartle ruled the SIU’S attempt to interject itself into the original settled 2019 proceedings was not covered by a 2018 proclamation by President Cyril Ramaphosa for the unit to investigate all branches of the office of the state attorney.

Neither did it obtain a right through the proclamation to litigate on behalf of the health department, in circumstances in which the department itself was not entitled to court relief.

On the SIU claim that, by the department’s mere invoking of the public healthcare defence, the mother and child would have been precluded from the award of cash damages, Hartle said that only the court in the particular case could decide to deviate from the traditional manner of compensating a claimant.

Apart from citing the MEC, the unit “interchangeably attributes” the alleged maladministration to the expert witnesses and legal representatives, none of whom had been cited in the rescission application.

It produced no other evidence of unlawful or improper conduct.

Hartle found the settlement agreement was “reasonably and responsibly reached and the conduct of the legal representatives involved — who included senior and junior counsel — beyond reproach”.

She commented it was ironic that the SIU’S mismanagement claim against the department had “deftly diverted” attention away from the health accounting officer’s financial misconduct in failing to pay over the judgment debt in terms of the 2019 court order.

The mother and child were “innocent victims of this unfortunate saga who have been denied the right to execute on a legitimate order of this court”.