16 August 2019
The Supreme Court of Appeal delivered an unusual but important judgment on Thursday.
Medical negligence cases, particularly those involving babies born with cerebral palsy, were far too prevalent, Acting Judge Trevor Gorven wrote in a majority judgment which criticised Eastern Cape Health officials.
“Far too often this court is confronted with serious and serial negligence in hospitals falling under the respondent [the Eastern Cape MEC for health].”
But, the judges said, little seemed to be done about it.
What made the judges remarks unusual was that in the matter before them, they had found against a mother who had attempted to sue the department for damages after her baby boy was born with brain damage in All Saints Hospital in October 2013. The mother is not named in the judgment.
The judges said while it was common cause that hospital staff had not properly monitored her labour, the damage was caused in the second phase of labour, which lasted 45 minutes, because of a sudden, total, persistent lack of supply of blood to the brain, though cord compression.
“The only option in this case would have been a vacuum extraction. A caesarian section takes about 45 minutes to perform and the baby was born within that time period.
“It was not proved [by the mother] that there was sufficient time to deliver the baby so as to avoid damage,” they ruled, finding there was no causation, and dismissing the appeal.
But they had more to say.
“Whether or not the negligence can be said to have caused harm in the delictual sense, it is clear that studied neglect of standards has become pervasive in many such hospitals.
“Those reliant upon their services are receiving substandard care.”
This had been raised during the appeal hearing. The counsel for the MEC had conceded that it was a “sad state of affairs” and the need for urgent remedial intervention had been brought to the attention of the relevant authorities.
“Despite this, such conduct does not appear to have abated significantly, if at all. The situation is to be deprecated,” the judges said.
They said even though the MEC had been successful in the matter, the court would not grant a cost order “as a mark of displeasure”.
“It is directed that this judgment be forwarded to the respondent [the MEC] and the National Minister under whom health services fall, in the hope that this situation will be urgently addressed.”
In South African law it isn’t easy to win this kind of case. The judges found that the hospital’s behaviour was wrong and negligent. But this wasn’t enough to find in favour of the mother. The judges explained that not only did she have to prove “wrongfulness” but also that the “wrongful conduct must cause the wronged person to suffer loss”.
The onus was on the applicant to prove the “wrongful conduct of the staff caused the baby to suffer brain damage”. Showing cause and effect is often extremely hard for litigants in medical negligence cases to do.
“Wrongfulness should not be conflated with factual causation,” the majority wrote.
Interestingly Judge Mahube Molemela dissented and did find for the mom. She found that on “balance of probabilities” the mom had proven both negligence and causation.
It will be interesting to see what actions the National Department of Health under Minister Zweli Mkhize takes to address the concerns raised in the judgment.