KZN High Court rejects 'payment in kind' for medical negligence

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The High Court (Durban) has rejected a KZN Health bid to substitute future state healthcare services to a victim of hospital negligence, instead of a financial pay-out, writes MedicalBrief. Judge Sidwell Mngadi questioned the constitutionality of the defence, which has succeeded in some provinces. The province revealed in papers before the court that in the financial years 2014/15 to 2018/29, it had been forced to pay out more than R1.3bn in similar claims.

In his judgment, Mngadi said of the so-called public healthcare defence: “It is very drastic. It affects the fundamentals of the law of delict … It is fundamentally unheard of that the wrongdoer decides what an injured party should do, rather than paying the injured party monetary compensation.”

The KZN ruling runs contrary to a controversial Gauteng High Court (Johannesburg) ruling that future medical needs for Gauteng Health victims of poor treatment could be covered by “payment in kind”. Although the ruling applied only to future cases in Gauteng, there was concern among victims of medical negligence that this model for compensation for damages suffered at state facilities could spread to other provinces.

In a 2017 judgment, the SA Appeal Court ruled that the state cannot substitute free future medical treatment in lieu of paying monetary damages upfront, unless the law was changed. TimesLIVE reports that matter related to a claim by the mother of a now seven-year-old boy, who was starved of oxygen during birth, leaving him mentally and physically disabled.

The KZN Health Department conceded liability in 2018 and the mother is claiming R23m. Just before the trial to determine what the department had to pay, it filed a notice to amend its papers and raised the “public healthcare defence”, saying the medical services and supplies the child needs are available in the public healthcare sector at no cost or a lesser cost than in the private sector, and at an equal standard.

In an affidavit before the court, Stuart Chambers, the KZN Health's director of legal services, stated that "the public healthcare defence in essence provides that if the MEC for Health of any particular province is able to provide the care required … at the level equivalent or better  to that available in the private sector, then the court may order the MEC to do so rather than … compensate monetarily".

The MEC accepted that this was “inconsistent with the common law”, but argued that common law impacted on the department’s constitutional obligations to provide access to healthcare services and “conflicts with the constitutional duty to manage and use public funds in an efficient, economic and effective manner”. The proposed development of the law would be in the interests of justice, the MEC said.

The mother, through her attorney Michael Friedman, argued that this was just a “ploy” to delay settlement because the belated raising of the issue would stall the finalisation of the damages claim. “The proposed amendment raises a novel issue which should be the subject of legislation,” her lawyers argued. “A Bill with similar provisions was initiated in Parliament but later abandoned.”

The judge noted her claim, like many others, arose out of negligence of state employees, adding: “There is no evidence why the increase in cerebral palsy cases is not addressed by improving the quality of care and skill in public healthcare facilities. If the state is under pressure to address the situation, the question is then why the legislation intended to address the situation is not being proceeded with.” Mngadi said: “The essence of the defence is to put the cerebral palsy claimants, as a result of the negligence of state employees, in the same category as those that could not attribute their injuries to any negligence on the part of employees of the state. It may result in the state not taking proper measures to avoid these kinds of injuries in its facilities. It discriminates against those who access state facilities.”

The judge said the proposed amendment to its pleadings had no basis in law, and refused the MEC’s application to amend the papers, reports TimesLive.

Friedman commented afterwards: “Hopefully this will put to bed the KZN Department of Health’s view that they can offer services which are equivalent to, or better than that available in the private sector. We have put up numerous experts reports showing that it cannot. The MEC has already failed to abide by Court orders requiring her to put up her expert reports to prove her case. The only inference can be is that the Department of Health has no objective evidence to prove their stance.”


Full KZN judgment


Full TimesLIVE report


Full The Mercury report on Gauteng judgment


Full Gauteng judgment


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