Cape Town - Eastern Cape Health MEC Nomakhosazana Meth has lost her court bid to appeal a mother’s plans to sue over her child who has cerebral palsy and for her own emotional shock, five years after the birth at an Eastern Cape hospital.
This after Supreme Court of Appeal Acting Judge Mahendra Chetty ruled that the Bisho High Court correctly concluded that the mother’s personal claim for damages had not prescribed at the time when the summons was served.
“The appeal is dismissed,” Chetty said.
The mother of the child born at the St Barnabas Hospital in Libode, Eastern Cape in May 2012 had instituted a claim for damages on behalf of her child for an amount of R29 106 761. The claim was for damages – allegedly as a result of negligence of the hospital staff her child now suffers from cerebral palsy.
Included in the amount was the respondent’s claim, in her personal capacity of R500 000 for emotional shock, trauma, pain and suffering.
On receipt of the summons, the MEC filed a special plea contending that the mother’s claim, in her personal capacity, was too late and had prescribed. Meth contended she should have instituted her action within six months of May 18, 2012.
The high court in Bisho had initially dismissed the plea of prescription, finding that the mother could not have had knowledge of the necessary facts at the time to have instituted a claim against health authorities, thus interrupting the running of prescription.
“Neither the medical or nursing staff at the hospital informed the respondent of any problems associated with the delivery of her child. She left the hospital after a week, without any knowledge that her child was born with cerebral palsy. It was only five years later, in January 2018, when she met another woman who similarly gave birth to a child with cerebral palsy, (that) the respondent (sought) legal advice,” court papers read.
In agreement with the high court, Judge Chetty found: “The interpretation contended for by the appellant (the MEC) would require us to hold that a party with no knowledge of medicine, no access to her hospital records, limited schooling and resident in a rural area of the country, would be expected to have knowledge of sufficient facts to institute an action for damages within the prescribed periods. Only after consulting with her attorney did she become aware of the basis for a potential claim.”
Approached for comment, MEC spokesperson Mkhululi Ndamase said: “The MEC will first have to study the judgment and apply her mind before commenting.”
Cape Times