Punitive damages order over ‘wholly unnecessary’ trial

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KwaZulu-Natal Health has had a punitive costs order handed down against it for “wholly unnecessary judicial proceedings” in contesting a case in which a mother sued for medical negligence after her son was born with cerebral palsy. It must also pay damages, the final amount of which is yet to be determined.

According to a Sunday Times report, her son is paralysed, blind and possibly deaf, but the department of health refused to accept blame.

The 27-year-old mother, who may not be named to protect the identity of her child, had to hire lawyers, obtain expert reports and wait two years for a court date. But when the trial began before judge Graham Lopes, the battle quickly fizzled out. Lawyers for the department only posed one question each to the two expert witnesses and then closed their case without calling any of their own.

The report says Lopes called the trial, which ran for only one of the allocated three days, “wholly unnecessary” and a waste of the experts’ and court’s time. He said the mother had to “jump through hoops” and, as a mark of his displeasure, he made the punitive costs order for three advocates, seven experts and an MRI scan against the department. The department must also pay the mother damages for proven costs, arising from the medical negligence, of more than R15m. The R15m is for some medical costs she has already paid, but mostly for projected costs to cover living, medical and associated costs.

“The minister was provided with the expert reports and consulted their own experts. It was suggested that it was difficult to obtain instructions to settle the matter. That may be so but it is no excuse to cause the holding of wholly unnecessary judicial proceedings simply because its employees are reluctant to make a decision,” Lopes said.

The report says evidence before Lopes was that the mother, who had previously had a caesarean section, arrived by ambulance at Stanger Provincial Hospital at 4am on 19 February, 2014. She was seen by nurses only two-and-a-half hours later and then by a doctor about two hours after that. She had told them of her previous caesarean and asked for another. Almost three hours later, in spite of the doctor agreeing to her request, her membranes ruptured, accelerating the birth.

It was only then that cardiotocography tracing was started, which recorded that the unborn child had an abnormal heart rate. At 12.20pm the mom began to bleed heavily and eventually the caesarean section was performed just after 1pm.

The report says paediatrician Dr Yatish Kara testified that this was a “worst-case” cerebral palsy. “He will never be able to walk or even crawl. There is nothing which medical science can do to repair the damage,” Kara said. He was confident the injury had occurred during the labour process because of brain damage that occurs when an infant’s brain doesn’t receive enough oxygen and blood.

Professor Eckhart Buchmann, a specialist obstetrician and gynaecologist, is quoted in the report as saying because of her previous caesarean section, the mom should have been classified as “at risk” because she would have had a scar on her uterus. He said the delays in examining her were unwarranted. She had not been properly monitored and this was why the problems during labour had not been detected.

In his ruling, Lopes said neither of the experts had been challenged. “Only one question was asked of the two of them. That related to whether a previous urinary tract infection could have caused the brain injury, which was answered in the negative.”

The judge ruled that the department was liable for 100% of the mom’s proven costs, which are estimated to be R15.5m but which have yet to be finally determined.

The report quotes the mother’s attorney, Bhavna Quarsingh, as saying she had been asking the state attorney (acting for the MEC) to finalise investigations into liability since February last year. “Summons was issued in June 2017. The defendant had almost two years to finalise its investigations. It decided to run a trial without a defence and without expert reports,” Quarsingh said.

KwaZulu-Natal Health spokesperson Ncumisa Mafunda said the matter was a legal one “and, as a matter of principle, the department does not ventilate on such matters in public”.

Sunday Times report

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