Eastern Cape Health MEC lambasted for ‘slothful’ approach to litigation

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Eastern Cape Health MEC Sindiswa Gomba has been sent packing by Eastern Cape High Court (Mthatha) Judge Richard Brooks in a R23m medical negligence claim. A Daily Dispatch report says Gomba and health superintendent-general Thobile Mbengashe had introduced a convoluted last-minute game plan to derail a court-sanctioned settlement of the case.

And Brooks has berated the department’s “slothful” attention to medico-legal cases before the courts. The 2015 claim by Babalwa Mbokodi over Mthatha general hospital staff’s negligence in the birth of her daughter was already flagged for settlement in 2017. By October 2019, legal teams for both parties, working closely with six medical specialists, agreed that negligence during the birth had been proved and this led directly to the cerebral palsy of Mbokodi’s child.

The High Court agreed, making an order to that effect and postponing the matter for a final determination of the amount of damages. However, in May, the EC Health Department’s lawyers applied for a change to the MEC’s original plea, which had underpinned all the discussions leading to the settlement.

The Daily Dispatch report says the basis of this reversal appears to reflect government’s preference – expressed in public statements by health officials – to reduce the costs of future medical expenses in medico-legal matters by providing future treatment in state facilities. The MEC’s lawyers argued at a hearing in June that this application was not before the court.

Simultaneously, however, Mbengashe provided an affidavit to the court in which he claimed the department had withdrawn the State Attorney’s mandate in the case in February this year. He provided no documentary evidence in support of the claim. Notice of the termination of the State Attorney’s mandate had also not been given to the court at any time, as required by the court rules.

Brooks found the “unchallenged facts of the matter” demonstrated the MEC’s legal team “had a full mandate to conduct the litigation” on her behalf, including settling. He found Mbengashe had had ‘no particular knowledge’ of how the case was conducted by the legal and medical experts in determining the amount of damages to be applied to the negligence.

Full Daily Dispatch report (subscription needed)

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