A Supreme Court of Appeal (SCA) ruling ordering the Gauteng Health Department to pay R800 000 to a woman harmed during gallbladder surgery to cover her future treatment in the private sector, is a blow to government efforts to slash amounts in medical negligence claims.
Fuelling Treasury’s anxiety about the scale of medico-legal claims against the state and the risk to public finances, provinces reported contingent liabilities (the cost if all claims were successful) of R120.3bn in 2021/22.
While only a fraction of claims might be upheld, payouts are not budgeted for and reduce funds available for personnel and medical supplies, reports Business Day.
In 2021, the Constitutional Court established the principle that the government could apply a “public health remedy” to successful medical negligence claimants and provide their future care in public hospitals. It left it to lower courts to develop common law to accommodate this approach.
But the SCA judgment suggests providing medical negligence victims with a public health remedy is not necessarily a foregone conclusion.
In the ruling on 18 April, the SCA said Gauteng’s Health & Social Development MEC presented no evidence to counter that of expert witness Damon Bizos, a gastrointestinal surgeon who testified for the injured patient, Nomgqibelo Mashinini. He said state hospitals were generally incapable of providing services to patients with complicated conditions such as hers, which required specialist surgeons.
Mashinini sued the MEC in the High Court in 2017, claiming damages for medical negligence arising from botched gallbladder surgery. While there was no dispute about her claim of medical negligence, the High Court upheld the MEC’s argument that the common law should be developed and she should receive future medical treatment at a public hospital instead of financial compensation.
The court directed the provincial Health Department to provide for her needs at Charlotte Maxeke Johannesburg Academic Hospital, pay her a lump sum of R2m and cover the costs of her counsel and expert witnesses. She appealed against the part of the order about treatment at Charlotte Maxeke.
Without detailed evidence from the Gauteng Health Department to show it could provide the level of care required by Mashinini, the SCA ordered it to pay her R879 314 to cover her future medical treatment costs in the private sector.
See more from MedicalBrief archives:
Eastern Cape ruling could change how medico-legal claims are settled
State medical negligence claims and payouts almost quadruple over four years
ConCourt confirms alternative compensation remedy for negligence