Cape Town - Eastern Cape Health MEC Nomakhosazana Meth has welcomed the Bhisho High Court ruling that the provincial health department does not have to make an upfront lump sum payment for future medical expenses in medico-legal claims cases.
The matter involved the mother of a minor child, who had sued the MEC for damages arising from the negligent conduct of medical staff in a public hospital.
Her son’s birth at Cecilia Makiwane Hospital followed a period of prolonged labour and he suffered a brain injury.
He has spastic quadriplegic cerebral palsy (CP), microcephaly, intellectual impairment and epilepsy.
He is also hearing and visually impaired, and has a percutaneous endoscopic gastrostomy (PEG) tube for feeding.
He is incontinent and will remain so for life.
General damages were settled in the amount of R1.8 million.
Loss of earning capacity was settled at R386 146.
It was further agreed that an amount of R650 000 would be paid for an adapted motor vehicle on the basis that the mother would be responsible for ensuring the child’s attendance at various consultations and for other medical or surgical requirements.
Beyond the settlement were issues of future medical expenses.
The department argued the case, pleading adverse fiscal implications for the department.
Lawyers for the mother argued that “the department is the author of its own downfall and its arguments that the financial and other difficulties which it experiences, as being a consequence of the large CP claims and awards which have emerged over the past eight to 10 years, are not correct”.
Ultimately, Judge Robert Griffiths, in terms of future medical claims, found: “The department is struggling financially for the various reasons which have been dealt with. That being so, heaping more ‘once and for all’ claims on the department averaging approximately R30m apiece, can only make the situation worse. This has the result that the department’s ability to carry out its obligation of realising access to health for everyone in terms of section 27(2) is increasingly under pressure.
“When one looks at the tendency of legal practitioners (according to the evidence led in this case) to take 25% of such claims, and sometimes more punches a significant hole in the capacity of the once and for all monetary award to provide fully for the complainant. Indeed, the evidence disclosed that more than 40% in some cases is taken up by lawyers’ fees. If the CP child claimant lives to his or her life expectancy as calculated at the time the award is made, he will, in theory at least, run out of funds to provide the necessary medical services some time before reaching that point. Furthermore, once the funds do indeed run out sometime before the child’s anticipated lifespan is reached, it is almost inevitable that the child’s medical needs will be cast back upon the public health-care service. This, in turn, will place more stress upon the public health-care service despite it having paid out a large lump sum to avoid this very situation. Again, this reduces the capacity of the department to carry out its responsibilities in terms of the Constitution, which is offensive to the Bill of Rights.”
He ruled that the MEC would provide free of charge all medical services including consultations, therapies, surgeries and other procedures and all of the supplies, supplements, medicines, devices and other equipment at a public hospital, depending on where the particular medical service or supply is available at the time that it is required.
Meth said: “We are happy that the court has ruled in favour of the department, because you find that in some cases we pay R20m or R30m to litigants but they then come back to be a burden on the very same department that they had sued. In some cases, unscrupulous lawyers end up taking the lion’s share of the payment and cheat litigants. This is a victory for the people of the Eastern Cape.
“We are not saying where we are guilty of medical negligence we should not pay, but we argued that paying such huge amounts of money to one person seriously compromised the quality of service and care that we offer to the millions of people who rely on the public sector for their health needs,” she said.
Cape Times