The Eastern Cape Department of Health is taking its fight against lump-sum payments for medico-legal claims to the Constitutional Court, punting alternative measures instead as part of a wider drive by government for law change to address the claims burden.
Despite these systemic failures identified by the Auditor-General, the department continues to blame lawyers’ “greed” rather than attempt to fix the standard of care which has been blamed for the high rate of medico-legal claims.
News24 reports that Eastern Cape woman Zoe*, 33, had deliberately put off motherhood until her late 20s, and when she found out she was pregnant, had immediately started looking after herself.
“I didn’t drink or smoke. I attended clinics for check-ups.”
In 2022, shortly after the expected date of birth, she presented to Frere Hospital in KuGompo (formerly East London). She was admitted, but – with her cervix dilated by only 2cm – was sent home the next day.
For two weeks, hospital staff stalled re-admitting her, Zoe said.
Finally hospitalised again, she walked around and sat on a bench in a waiting room for two nights because no bed was available. She spent three more days in the ward, in severe pain. Nurses gave her cold water – a remedy often believed to quicken delivery, but one without any scientific basis.
“My baby had been very active during the pregnancy, but now he was not kicking,” Zoe recalled.
Early one morning, she noticed a thick, sticky, dark green discharge. This should have galvanised staff to initiate an urgent delivery to protect the baby. The substance was meconium, a critical indicator of foetal distress, often cited in cases of medical negligence brought against hospital staff overseeing deliveries.
But an emergency Caesarean section was only done in the late afternoon. Zoe’s boy weighed 4.1kg. He was taken away to receive oxygen.
During post-natal hospital visits, Zoe repeatedly asked staff about what she had suspected were lags in her son’s development during the first months. She was only told when he was 18 months old that he had cerebral palsy.
She is now considering filing her own medical negligence claim against Frere Hospital staff and the Eastern Cape Department of Health.
How the government seeks to curb claims
Her story is not unique. Hundreds of Eastern Cape women and their babies have similar experiences annually, with almost a third of the national total of medical negligence claims being levelled against the department.
In September 2023, the Auditor-General of South Africa (AGSA) reported to Parliament’s Select Committee on Appropriations that 15 158 medico-legal claims were lodged against provincial health departments in the 2021/22 financial year.
Head of the Eastern Cape Health Department Dr Rolene Wagner said in an emailed response to our query that by the middle of the 2026 financial year, there were 4 583 “verified” negligence cases on the “eLiability register”.
An August 2024 Special Investigating Unit statement showed that most claims were from families suing for alleged negligence in the birthing process, which they believed caused their babies’ cerebral palsy.
Such claims generally include a projected cost of future medical treatment, typically priced at private healthcare rates. A child with cerebral palsy often requires lifelong treatment by a multidisciplinary team of doctors, therapists and caregivers, as well as mobility aids and costly adaptations to their homes.
In 2013, the department’s “contingent liability” – meaning the total cash damages it must pay out if all claims against it are successful – was R3.5bn for 1 910 cases. By 2021, that figure had risen to well over the department’s entire budget for that year: R38.6bn, for 4 175 claims.
From 2011 to 2024, the department paid out R4.4bn for finalised claims, according to its August 2024 reporting to the Eastern Cape legislature’s portfolio committee on health.
Such amounts place significant strain on provincial health budgets, especially in the Eastern Cape, the country’s poorest province and home to one of the most historically embattled public health services.
But according to an SA Law Reform Commission (SALRC) discussion paper examining such claims, only one of the nine provinces (the Western Cape) effectively budgeted for the costs of paying out medical negligence claims.
Instead, as the AGSA noted, most provincial Health Departments paid for such claims from “funds earmarked for service delivery, affecting departments’ financial sustainability and their ability to meet their service delivery commitments”.
The AGSA has made this point repeatedly.
Some provincial governments go so far as to expressly prohibit budgeting for the significant costs associated with these claims.
In 2022, the Eastern Cape High Court (Makhanda) ruled that an Eastern Cape treasury directive prohibiting budgeting for claims was without legal basis.
The court asked the National Prosecuting Authority to consider prosecuting Eastern Cape Health Department officials under the Public Finance Management Act for failing to budget.
But the case has since stalled.
Despite the court’s order, the Health MEC, Ntandokazi Capa, has doubled down. “If (provincial treasury) says we can’t budget, we can’t budget.”
In light of the massive costs associated with these claims, the department and the national government are now pursuing two legal strategies which critics say seek to deprive victims of medical negligence of the payouts owed to them.
ConCourt appeal seeks to replace payments with ‘public healthcare remedy’
The first strategy is through the courts, where judgment in certain landmark cases can inform the “common law”, which determines how future cases are interpreted and judged.
In a case before the Eastern Cape High Court (Bhisho) in 2023, the Eastern Cape Health Department challenged a R23m medical negligence claim brought by the mother of a baby, identified only as BN, born with cerebral palsy at Mdantsane’s Cecilia Makiwane Hospital in December 2011.
The department had already conceded liability in 2018, so the dispute was not about whether its staff had been negligent during the birth. Instead, it centred on how BN’s future medical and care costs should be provided for.
The Health Department put forward what has become known as the “public healthcare remedy”. It argued that, rather than paying the family a lump sum to cover BN’s future care, the court should order that his treatment, therapy and other medical needs be provided through the public health system.
The High Court ruled in the department’s favour. But in February 2026, the Supreme Court of Appeal (SCA) overturned that judgment, delivering a stinging rebuke of what it regarded as an attempt to fundamentally alter the way successful medical negligence claims are settled.
The SCA ruled the High Court’s order “ironically” violated BN’s best interests because, “on the department’s own version”, the Eastern Cape department could not provide medical services and supplies “at a reasonable standard”, nor could it ring-fence funds specifically for his care.
“The remedies create uncertainty and expose the child, who is vulnerable and has suffered a catastrophic injury, to systemic failure by the department,” the SCA found.
The department has nevertheless taken the case on appeal to the Constitutional Court, turning it into a legal test of the department’s proposed approach to medical negligence payouts.
In her 2026 policy speech, Capa said the appeal was intended “to seek clarity on key constitutional principles”.
But retired attorney Gary Austin, whose practice largely focused on medical negligence and malpractice matters, said if the department succeeded, “every cerebral palsy child” would be failed.
“The system can’t handle basic obstetrics at the moment; how are they going to now accommodate these patients?” he asked.
A government official, with expert knowledge of the public health system and medical negligence claims, agreed: “There are no real services – the kinds of services that they testified about at court are not available. Where did they come with occupational and speech therapy, with specialised this and specialised that? It’s just not there.”
Outside the courtroom, the government still seeks a law change
Answering questions in the National Council of Provinces this year, Health Minister Aaron Motsoaledi brushed off the SCA judgment as being “short-lived”.
His confidence may be rooted as much in the Eastern Cape health department’s appeal to the Constitutional Court as in the fact that a second prong of the government’s strategy is under way.
After almost a decade of investigation, the SALRC completed a report, including draft legislation, aimed at overhauling the entire system for dealing with medical negligence claims.
Both Professor Karthy Govender, the SALRC commissioner who led the investigation into medico-legal claims, and lead researcher Advocate Ronel van Zyl, said the completed report was submitted to Justice Minister Mmamoloko Kubayi.
It is understood that the report has been on Kubayi’s desk since mid-2025. The minister’s spokesperson, Palesa Rammitlwa, did not respond to queries requesting confirmation and an update.
Still, a close reading of the SALRC’s discussion paper provides pointers to what the draft legislation might contain.
First, many disputes may be moved out of the courts altogether. Instead of going straight to court, claims would probably be screened and certified. A compulsory mediation process may follow. Smaller claims were likely to be settled administratively, and larger ones could be handled by a specialist tribunal instead of the courts.
Compensation, too, would be a major area of upheaval. Under the proposed changes, it might be more standardised and even capped. In this scenario, some awards would see structured payment plans, perhaps augmented with public healthcare, replace large lump-sum awards.
How negligence actually drives cerebral palsy in the Eastern Cape
Noticeably absent from most government plans to reduce medical-negligence claims are interventions aimed at preventing the very negligence that gives rise to these claims in the first place.
Labour and birthing processes, even when there are no complications, are stressful for a pregnant woman and the foetus. A mother’s medical condition directly affects that of the foetus. Difficult, abnormal, or prolonged labour will exacerbate foetal stress. If the baby does not get enough oxygen-rich blood and this is not treated urgently, it can cause brain damage.
That damage is what often causes cerebral palsy.
While not all cerebral palsy births are entirely avoidable, many such births in public hospitals in the Eastern Cape arise from staff’s failure to monitor women in labour and their unborn babies, and to act quickly if risk factors such as oxygen deprivation arise.
But it would be a misnomer to view the high number of cerebral palsy cases in the Eastern Cape as attributable solely to the individual failures of healthcare workers. Various reports have pointed to deeper systemic problems, including weak leadership, corruption, poor training and shortages of staff, equipment and medicines.
Over the years, the AGSA has identified a long list of failures within the department, including poorly maintained facilities, delays in hospital upgrades, weak financial controls, rising staff costs, poor performance management, unimplemented policies, inadequate patient records, and failures to report adverse events and to manage negligence claims.
Often turning a blind eye to such findings, the Eastern Cape Health Department has been quick to frame the high number of negligence claims as driven by the “sheer greed” of lawyers representing patients.
At the same time, it appears that the department has never disciplined or held any healthcare worker accountable for the thousands of negligence claims that have cost it billions in payouts over the years.
“No, no! I tell you, it’s not happened,” said Andre Calitz, the chief operating officer of the Medical Malpractice Lawyers Association, when asked if he knew of any such case.
While he acknowledged that corruption implicated both healthcare workers and lawyers, medical-legal litigation would not exist if negligence did not occur.
“The standard of healthcare in the public healthcare system is woefully inadequate – very, very serious things go wrong daily.”
But Dr Ben Gaunt, a former clinician for the Eastern Cape Health Department at Zithulele Hospital on the Wild Coast, offered a more cautious response, warning against making “the last person in the chain, the scapegoat … in a massively constrained system”.
Standard of care
The national Health Department’s Integrated Maternal and Perinatal Care Guideline highlights how healthcare workers may “provide better service” to a pregnant woman and the foetus; mothers and their newborn babies.
What causes cerebral palsy?
Obstetricians do not agree on what causes cerebral palsy, and there are sharp differences within the global and local medical fraternity on what causes this in newborn babies.
Part of the Eastern Cape health department’s reluctance to look inward is its reliance on some obstetricians whose expert evidence in damages claims negates allegations that it is responsible for cases of cerebral palsy births.
One of the foremost voices in this camp is Professor Ismail Bhorat, a foetal medicine subspecialist at the University of KwaZulu-Natal with dual public and private clinical practices. He is also the president of the SA Society of Obstetricians and Gynaecologists.
Bhorat and some colleagues attribute cerebral palsy mainly to one or more chronic causes such as genetic makeup, environmental issues linked to maternal lifestyle and health, and even mild, ongoing but invisible antenatal injury – none of which ought to be blamed on healthcare, they assert.
In this way, they distinguish the majority of cerebral palsy cases from the short-term, acute and preventable foetal injury which may occur because of health worker negligence.
But a Bhorat-led group’s “position statement” on causes of intrapartum brain injury faced robust pushback by another group led by the retired head of Groote Schuur Hospital’s maternal and foetal medicine unit, Dr John Anthony. These doctors characterised the statement as “designed for litigation defence, [buttressed] with literature that unfortunately does not support their premise”.
Bhorat denied this charge in an interview.
He said he believed negligence claims for cerebral palsy births were “all about eloquent legal argument at the end of the day”.
“The law doesn’t actually recognise that pregnancy is nine months; it’s not 15 hours of the intrapartum [labour and delivery] process. For most of the babies, the ship has already sailed before they come to the intrapartum process.”
While Bhorat believed that healthcare workers should face consequences in cases of “clear-cut” negligence, he nonetheless said the debilitating problems for foetuses, which may impact their risk of cerebral palsy, developed well before labour in most cases.
For example, conditions such as maternal hypertension or diabetes, or problems with the foetus’s umbilical cord or nutrition, can create a compromised environment in the womb that leaves the foetus less able to withstand further complications during labour, such as a delay in initiating a Caesarean delivery, increasing the risk of cerebral palsy.
In one article, Bhorat and five colleagues warned against oversimplifying cerebral palsy, given numerous risk factors, complex genetic makeup, environmental and lifestyle causes, even “possible priming [sensitising] of the foetal brain” in which mild and undetected antenatal injuries make it more vulnerable to a “final straw” stress.
* Zoe agreed to be interviewed only on the condition that her real name not be used.
See more from MedicalBrief archives:
Another negligence claim – R6.4m – pummels Eastern Cape Health
Eastern Cape Health to fork out R12m in negligence case
Eastern Cape Health slammed over negligence claims
Lifetime cost of care in cerebral palsy medical negligence claims
Eastern Cape MEC hit with another negligence claim