‘Payment in kind’ ruling will now head to SCA

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The Gauteng High Court (Johannesburg) has granted leave to appeal to the Supreme Court of Appeal over the "public healthcare defence", which mandates ongoing care in a state facility in lieu of cash damages, writes MedicalBrief.

The background is a botched operation on Nelly Mashinini, who subsequently received more than R2m from the Gauteng Health authorities in damages for medical negligence. But instead of granting her R879,314 for future medical procedures, Judge Leicester Adams, in a ground-breaking judgment, ordered that the Charlotte Maxeke Johannesburg Academic Hospital provided her with these services. The reasoning was that this hospital was just as well geared to render the follow-up procedures necessary as was any private hospital.

In her High Court appeal, Mashinini argued that she should be awarded the R879,314 which it is said it would cost her for further treatment, instead of being told to use the public health system. She maintained that the public healthcare services were unsuitable for her purposes.

Judge Adams wrote: "The plaintiff submits, I had disregarded the … evidence that was tendered by a Professor Bizos that the public healthcare services rendered by the defendant are unsuitable, impractical and/or insufficient for the needs of the plaintiff, as well as other testimony which mitigates against the said defence. The judgment and the order of the court a quo in respect of the public healthcare defence, so it was furthermore submitted on behalf of the plaintiff, is factually and legally unfounded and misdirected and, in any event, is at variance with a previous order of this court in terms of which the defendant was held ‘liable to pay’ plaintiff’s damages.

"The plaintiff also contends that I misdirected myself in the application of the principles enunciated in MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government 2020 (2) (SA567) (GJ). I should not have elevated, so the argument goes, MSM to a precedent that the common law rule that delictual damages be paid in money has been developed to order compensation in kind where the defendant establishes that medical services of the same or higher standard will be available to the plaintiff in future in the public healthcare system at no or lesser costs than in the private medical care as claimed."

"As far as the order relating to the Public Healthcare Defence goes, I am persuaded that the issues raised by the plaintiff in her application for leave to appeal are issues in respect of which another court is likely to reach conclusions different to those reached by me. I am therefore of the view that there are reasonable prospects of another court coming to a different conclusion to the ones reached by me. The appeal against that portion of my judgment does, in my view, have a reasonable prospect of success and should therefore succeed."

However, Mashinini's application for leave to appeal against that portion of the earlier judgment relating to "the quantification of general damages", that being that the plaintiff be paid R450,000 in respect of her claim for general damages, was dismissed with costs.



See also MedicalBrief archives:

KZN Health welcomes controversial Gauteng ‘payment in kind’ ruling

KZN High Court rejects ‘payment in kind’ for medical negligence

CMS’ precedent setting ruling against Discovery’s ‘irrational decision-making’

State medical negligence claims and payouts almost quadruple over four years

State cannot offer free medical treatment in lieu of payment for damages

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