The parents of a now six-year-old child, who were claiming damages from a Free State gynaecologist they accused of failing to perform a sterilisation procedure, have lost their case.
The couple was seeking R5m from the doctor based on patrimonial loss arising from their duty to support their child. They argued that the child, born in May 2018, was the result of the doctor’s failure to perform the sterilisation, reports The Star.
Their claim was based on an alleged breach of contract or, alternatively, delict. Meanwhile, the doctor filed a special plea, arguing that the claim had lapsed – that the parents had three years to institute it, after which it would fall outside the legal time frame.
The key issue before the Free State High Court (Bloemfontein) was whether the parents issued summons against the doctor outside this three-year period.
The court’s focus was on determining when the claim should have been filed – whether it was at the time the mother fell pregnant or only after the birth. The parents contended they were correct in filing their summons only after the birth of their child. Conversely, the doctor maintained the mother should have initiated her claim once she learned she was pregnant.
The parents claimed the R5m in respect of what they believe it would cost to raise their child, stating this constituted "pure economic loss arising from the first plaintiff’s (the mother’s) alleged wrongful pregnancy”.
They asserted that she was meant to be sterilised by the doctor in January 2022 – more than two years before the birth – and they hold the doctor responsible for breach of agreement, as well as an alleged breach of duty of care.
The doctor argued that the parents’ debt became due on the date of the alleged breach of contract (January 2016) or on the date the child was conceived.
Furthermore, he contended that their debt became due on the date they incurred expenses related to the pregnancy. In January 2018, four months before the birth, the parents confronted the doctor, claiming he failed to perform the sterilisation procedure.
The doctor argued that they should have issued their summons at that point, as they had already incurred expenses for the conceived child.
However, the parents only served their summons in April 2021, more than three years after the debt had arisen.
According to the parents, before the birth, the doctor had no legal obligation to cover any child-raising expenses, as the child was still a foetus. Their stance is that their duty to maintain the child only arose from the date of birth.
Judge President Johannes Daffue, however, ruled in favour of the doctor, stating that the claim had lapsed. He noted that the parents were fully aware of the facts since January 2018, and should have instituted their damages action within three years from that date.
As a result of this technicality, the parents cannot proceed with their claim.
See more from MedicalBrief archives:
Claim against gynaecologist for tubal ligation billed but not performed
Court rules for PMB obstetrician over R14m claim for non-sterilisation
Contemporaneous notes once again to the rescue