Our law does not recognise a claim for constitutional damages for loss of a parent’s right to rear a child who was stillborn as a result of medical negligence.

In Mbhele v MEC Health for the Gauteng Province, an expectant mother was admitted to Chris Hani Baragwanath Hospital with signs of foetal distress – an emergency medical condition. When she arrived, she was not treated as an emergency case but only seen to by a doctor an hour later. The doctor requested a scan which was also delayed. Despite the scan results confirming signs of foetal distress, the attending doctor was not informed of the scan results by the maternity staff. Ms Mbhele was left alone to progress in labour without any supervision. Sadly, she delivered a stillborn child.

Thereafter, Ms Mbhele was taken to the maternity ward where she watched new mothers feeding their newborn babies, lulling them to sleep or holding them, all while she stared at the empty cot. Ms Mbhele requested a transfer to a different ward but was ignored for several hours. Later, she was compelled to identify the body of her stillborn infant in the mortuary.

A stillborn child does not have a legal right to recover damages for pre-natal injuries.

Ms Mbhele sued the MEC for Health for constitutional damages based on the loss of her right to rear her child, as well as damages for emotional shock due to her ordeal. The appeal court confirmed that a stillborn child does not have a legal right to recover damages for pre-natal injuries. An unborn child, if subsequently born alive, is deemed to have all the rights of a born child whenever this is to its advantage and to sue for damages for pre-natal injuries. However, this is only applicable if the child is subsequently born alive. Unfortunately in this case the child was stillborn and no right to sue accrued to the mother.

Despite the finding that she could not sue for constitutional damages for the loss of the right to rear a child, Ms Mbhele was awarded R100 000 as damages for emotional shock. The court was satisfied that Ms Mbhele had suffered an identifiable psychological lesion directly related to the trauma she suffered during the delivery of her child and in hospital thereafter.

The appeal court decision demonstrates that for a claim for constitutional damages to succeed it will need to be based on a recognised constitutional right. The claim must be properly pleaded and backed up by sufficient evidence to make out a case for recognising a legal action in those circumstances. In this instance, the court found that no such foundation was laid.

The fact that emotional shock damages were awarded in the amount of R100 000 also demonstrates that this is the appropriate remedy in these and similar circumstances which may involve a range of psychological infringements or emotional injuries, provided these are proven on a balance of probabilities.