Medical negligence appeal botched due to ‘gross noncompliance’

Mthatha state attorney’s office slammed by Supreme Court of Appeal

It’s game over for the health department after the Mthatha state attorney’s office botched an appeal in a medical negligence case which may see the department having to pay millions of rands in damages to the mother of a child born with cerebral palsy.

The department was given every opportunity by the Supreme Court of Appeal to pursue its appeal against the Mthatha high court’s finding that the department was liable for damages in the case.

The damages involved medical negligence by departmental staff at Sipetu Hospital in Kwabhaca (Mount Frere) of a mother during the delivery of her baby daughter.

As a result, the Mthatha high court found that the child suffered from spastic non-ambulatory cerebral palsy and would require a lifetime of specialist medical and other support.

Similar cases have resulted in the department paying out anything between R10m and R20m in damages — and sometimes more.

The department’s lawyers, via the state attorney’s office in Mthatha, inexplicably overshot by more than a year the opportunity to file their court papers on time after the SCA in October 2020 granted it special leave to appeal the ruling.

The SCA said the department was unable to provide an explanation for its “gross noncompliance” with the court rules and said the way in which the state attorney’s office in Mthatha dealt with the matter was “to be strongly deprecated”.

Health spokesperson Sizwe Kupelo said the department had now put in place systems to curb exactly these issues.

“There are challenges that were experienced in the past — due to collusion, some matters would be brought to court without our knowledge.

“We have since put in place systems to curb these matters, and our efforts are starting to yield measurable improvements.”

He said the department was determined to stop the “haemorrhaging” of funds caused by these failures.

Supported by the legal unit in the office of the premier, the department had embarked on a co-ordinated, tactical legal strategy.

Together with the SIU, it had also embarked on an examination of all medico-legal claims, past and present.

The department was also improving mother and child health at its hospitals to cut back on medical negligence claims in this area.

The SCA rules require that any party pursuing an appeal must, within one month of the date of leave to appeal being granted, file a formal notice of appeal.

Within three months of that it had to lodge the record of proceedings before the Mthatha high court.

The department filed its notice of appeal to the SCA in January 2021.

But, from then on it was a comedy of errors.

It was required to lodge the record by April 2021 or the appeal was deemed to have lapsed.

SCA judge Glenn Goosen said in his judgment that a proper record was finally lodged more than a year late in June 2022.

To reinstate a lapsed appeal, the department was required to seek condonation for its failure to comply with the SCA rules.

But Goosen said the explanation for the “flagrant and substantial noncompliance” was manifestly inadequate, meaning the court should not even consider whether it had any chance of success.

He said the interest of a child born in 2010 with disabilities was at issue.

The courts had yet to decide on the quantum of damages and the family had not yet received any compensation in line with their loss.