Gauteng wants to pay medical negligence victims in kind, not cash
The provincial health department wants to be able to withhold most of a R23m award to pay for the child's future medical expenses, in a case that has reached the Constitutional Court
The Gauteng health department will move to pay victims of state negligence with future medical services if its Constitutional Court application is successful.
The department will appear in the Constitutional Court on Thursday in the continuing legal battle with Dumile Judith Zulu, who claimed damages on behalf of her child, on the grounds that staff at Chris Hani Baragwanath Hospital were negligent during her birth.
Zulu’s daughter suffered brain damage.
Zulu was awarded R23.2m in compensation by the High Court in Johannesburg in 2015.
The department appealed, and the Supreme Court of Appeal dismissed its appeal in November 2016.
The department then approached the Constitutional Court, asking that it pay only R4m of the R23.2m and for the rest to be reserved for the child’s future medical expenses.
The provincial government argued, and failed, in the Supreme Court of Appeal in Bloemfontein that it would effectively pay twice for the child’s medical treatment if the determined amount ran out and the child had to return to the public health system.
If the department’s application succeeds, injured persons will not have immediate access to a large portion of the total amount owed to them.
Chris Hani Baragwanath hospital — the province’s largest hospital — has one of the highest rates of negligence cases that end up in court, resulting in huge payouts.
Since 2015, about R514m has been paid to 44 claimants.
In its heads of argument to the Constitutional Court, the department asked the court to determine whether there was a common-law rule that prohibited the payment of damages for future medical expenses as and when required.
"There is no common-law rule prohibiting the compensation of medical expenses in the form of services," the department contended.
It asked the court to determine whether the common law principle of "once and for all" prohibited or allowed for an order of payment of services as and when required.
The department said in a statement that the application before the court was intended to keep a balance between the department’s constitutional obligations and its obligations to compensate injured persons.
"The relief sought by the department will be able to assist the injured person to receive medical care without the effect of medical inflation."
The DA’s health spokesman, Jack Bloom, said that in one case at Baragwanath, R36.8m was paid for the lifetime costs of a baby with cerebral palsy caused by negligence.
To put the brakes on negligent health personnel, who have cost the Gauteng health department billions and thousands of children a normal life, the department said it had created a system to monitor incidents, and a patient safety and medico-legal advisory panel.