Despite a split decision dismissing an appeal regarding damages for a baby who suffered brain damage during birth, in an unusual move, five judges of the Supreme Court of Appeal have asked Health Minister Dr Zweli Mkhize to intervene and urgently address the dire situation in the Eastern Cape’s public hospitals. As a mark of the SCA’s displeasure, Eastern Cape Health will have to pay its own legal costs.
In a minority judgment, one of the judges argued for the success of the appeal.
The court also asked for their remarks to be brought to the attention of Eastern Cape Health MEC Sindiswa Gomba. In a hard-hitting judgment, the court said patients using public health facilities in the province were receiving sub-standard care. Acting Judge Trevor Gorven added to his majority judgment in a negligence case that they also wanted to comment on the prevalence of negligence cases against the Eastern Cape Department of Health, and to urge the authorities to fix the health system.
“It is appropriate to say something about the prevalence of matters such as these. Far too often this court is confronted with serious and serial negligence in hospitals falling under the Eastern Cape MEC of Health. Whether or not the negligence can be said to have caused harm in the delictual sense, it is clear studied neglect of standards has become pervasive in many such hospitals. Those reliant upon their services are receiving sub-standard care,” Gorven said.
Gorven said in the light of their concerns over the situation in public health in the Eastern Cape, they had decided to make the department pay its own legal costs.
News24 reports that the SCA ordered that the judgment be forwarded to national Health Minister Zweli Mkhize and Eastern Cape Health MEC Sindiswa Gomba “in the hope that this situation will be urgently addressed”. “The situation is to be deprecated,” the court stated.
The report says the SCA indicated that during the hearing, it had put the dire situation at provincial hospitals to the legal team for the Health Department. “The response was that this sad state of affairs and the need for urgent remedial intervention had pertinently been brought to the attention of the relevant authorities. Despite this, such conduct does not appear to have abated significantly, if at all.”
Mark Heywood writing in the Daily Maverick, says this case involves a mother and her soon to be six-year-old child. He writes that in the judgment handed down by the Supreme Court of Appeal, they were known only as AN and EN.
But he writes, “let me tell you a little of their story”:
On 2 October 2013 AN arrived at All Saints Hospital in Engcobo to give birth to her first child. Fortunately, her pregnancy had been an uneventful and healthy one. The delivery was expected to be uncomplicated. But her good fortune had run out. AN was admitted to hospital and then left in labour for 12 hours. During the night, nurses ignored her cries for help. The standard guidelines on delivery were ignored.
Heywood writes that EN suffered severe brain damage during birth, described as an acute profound hypoxic-ischaemic insult. Today she lives with cerebral palsy. In the following years, AN tried to sue Eastern Cape Health for the damages she and her baby had suffered. Painful though it must have been, she even gave evidence in court herself. But last week was the end of the line. She lost her appeal before the SCA.
Heywood writes that the judges said they sympathised with her. Eastern Cape Health did not dispute that the nurses had been grossly negligent. But they dismissed her appeal. Four out of five of them ruled against her claim on a matter of legal interpretation – they said they were unable to overcome what is known in law as the “but-for” principle. Put simply, they could not say with absolute certainty whether medical negligence was the cause of EN’s brain injury.
Heywood writes that unlike political parties and the public protector, it seems unlikely that AN has the financial resources – or the emotional energy – to take the matter to the Constitutional Court. Sadly, the ladder of law does have a top and a bottom. So, he says, today, EN is one of many thousands of children who live with debilitating cerebral palsy. Poor healthcare has robbed them of autonomy, independence and frequently of dignity.
Heywood writes that in the midst of the heated NHI debate, EN’s story is a tale about the human costs of the failing health systems that Health Minister Dr Zweli Mkhize says he agrees must be fixed. He says: “I doubt whether it has been forwarded to him. These cases are dime a dozen in his department. And he’s a busy man. So, I tell it here to prevent it from being lost in law reports.”
Mkhize’s spokesperson, Dr Lwazi Mandzi, is quoted in a report in The Herald as saying they “will revert soon”.