Landmark ruling gets MEC Masuku off the hook

Despite having accepted the blame for the botched delivery of a now seven-year-old girl who developed cerebral palsy as a result, the MEC for health in Gauteng, Bandile Masuku, has escaped having to pay for the child to receive private healthcare.

Instead, in a judgment which paves the way for the courts to order “compensation in kind” instead of monetary reparations in cases of this nature, of which there have been several in recent years, the Johannesburg High Court has tasked the MEC with ensuring the child’s medical needs are, in the main, accommodated at the Charlotte Maxeke Johannesburg Academic Hospital.

The girl, identified as K, is capable of only “very limited independent mobility” and suffers from “profound intellectual disability”, as well as a range of physical ailments.

The MEC in 2017 conceded liability for the damages suffered by the girl. But the case came before Judge Raylene Keightley in 2018 and late last year for issues around quantum to be decided upon, chief among them, if the court could develop a common law rule that delictual damages must be compensated in money and make an order for damages that was not entirely monetary, but included compensation in kind.

“In essence, the MEC’s case is that some of the future medical requirements of the minor child, K, can be provided to her by the Charlotte Maxeke Johannesburg Academic Hospital, and that the level of service she will receive there will be equal to that she would otherwise receive in the private healthcare sector,” Keightley said.

“The MEC contends that he should not be ordered to pay damages based on the costs of these services in the private healthcare sector. Instead of a damages award, the court should order that the hospital provides the services to K”.

The girl’s mother had opposed an order that would, in effect, return the child to the same government department responsible for her disabilities.

But, said Keightley, there were “wider interests of justice at play”.

“It is difficult to ignore the link between the state’s liability to pay out increasingly large damages awards in medical negligence cases and the inevitable reduction in resources available to meet its constitutional obligation progressively to realise the right to healthcare services for the populace,” the judge said.

She ordered that in the case before her, only services which were unavailable at the Charlotte Maxeke hospital be compensated for in cash and awarded the girl’s mother an additional R4,783,317 for loss of future earnings, general damages for pain and suffering, as well as the cost of a trust to be established.

R3 million of this has already been paid and the remainder is due by mid-February.

Advocate Paul Hoffman, of the Institute of Accountability in Southern Africa, said that when it came to children who developed cerebral palsy as a consequence of medical negligence, the legislature had not yet come up with a formula to address their damages claims.

– news@citizen.co.za

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