In this February 2023 judgment, the MEC for Health in the Eastern Cape successfully obtained an order by which the quantum of damages to be paid to a claimant in a medical negligence claim was reduced by the medical services and equipment which the Department of Health could provide to the claimant without charge.

The claimant bought an action in her representative capacity on behalf of her minor child for damages arising from the negligent conduct of medical staff in a public hospital falling under the control of the defendant which caused serious injuries to the child at birth leading to cerebral palsy.

The court noted that “In the normal course, based on the common law as it presently stands, such remedy would subsist in the payment of a lump sum duly assessed in accordance with the common law rules relating to the various claimed heads of damage.” However, the court noted that this matter would be different in that the defendant had pleaded a novel combination of remedies not falling within the common law rules, which require an assessment of such damages in monetary terms on a once-and-for-all basis. These remedies are what the court referred to as the “public healthcare remedy” and the “undertaking to pay remedy”.

The MEC led several factual witnesses (namely, the staff of the state-owned hospitals at which medical treatment and equipment was available to this specific claimant, several external medical professionals who prepared reports which compared the services in the specific hospital to that which ought to be provided to the specific claimant, and the Head of the Department of Health in the Eastern Cape) who gave evidence regarding the medical treatment and equipment which the claimant was able to obtain from the state at a public hospital which was in close proximity to the claimant.

The claimant argued that the evidence of the factual witnesses should not be admitted because they had not been established as experts. The court admitted the evidence, and held that in the circumstances, it was the defendant’s obligation to place before the court as much evidence as possible relating to the defences which it had raised. By its very nature, this evidence required these witnesses to testify as to the expected future performance of the hospitals which would provide treatment to the minor by virtue of their position and experience.

The court also held that no prejudice was suffered by the claimant through the admission of the evidence of the factual witnesses. This finding was based on the premise that the purpose of Rule 36(9) is to give the other party sufficient information about expert evidence so as to remove the element of surprise and allow the other party an opportunity to consider the evidence and to obtain evidence in rebuttal.

The court held that the standard against which the court must assess the future medical services available in the public sector is a “reasonable standard” of healthcare. Based on the factual evidence which was led by the MEC, the defendant had established that the hospitals concerned are able to provide these services and supplies at the required standard.

The court dealt with the constitutional obligations of the Department of Health, and the severe financial strain faced by the Department. It was held that payment of lump-sum medical negligence claims would only hamper the Department’s ability to act in accordance with its constitutional objectives.

The court stated that: “…it seems that all the witnesses ultimately accepted that 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 R30 million 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. Dr Wagner and Mr Donaldson emphasized that the stress (and further potential for stress) on the department’s finances has the result that 80 to 90% of the population of the Eastern Cape (the balance being serviced by private healthcare as they are insured) are not receiving the healthcare that they ought to be. As the situation is worsening year by year, in my view, this is offensive to the Bill of Rights.”

According to the judgment, the payment of large lump-sum amounts in the circumstances of this case therefore “…represents a further assault…on the constitutional rights of such individual cerebral palsy claimants and thus further offends the Bill of Rights, and the constitutional obligation imposed on the state under section 27(2) to “take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of [healthcare services]”.”

Accordingly, the court held that the limited and incremental development sought in this case is therefore justified in terms of section 39(2) of the Constitution. Further, the court noted that Section 173 of the Constitution also empowers the superior courts to develop the common law, taking into account the interests of justice. Further, it was held that it is also in the interests of justice that the common law be developed so as to provide courts which adjudicate medical negligence claims with a broader remedial framework, including the remedies pleaded in this case.