Tuesday, 30 November, 2021
HomeMedico-Legal‘Untenable precedent’ over brain-damaged baby on appeal to ConCourt

‘Untenable precedent’ over brain-damaged baby on appeal to ConCourt

A Gauteng High Court ruling that found no causal link between the Tembisa Hospital’s neglect of a mother in labour and her new-born’s brain damage is being challenged in the Constitutional Court.

Counsel for Vivian Modianang, whose son was born brain damaged in 2009, have said in court papers that the High Court ruling had the potential to deny compensation to children harmed at hospitals during birth.

The Star reports that Modianang took Gauteng Health  to the High Court in 2017 on grounds that hospital staff had caused her son to be born brain damaged. The negligence in this matter, which the department conceded, was that the nurses and midwives had failed to monitor the foetus while Modianang was admitted.

Expert evidence that Modianang deposed in the High Court secured her victory in the first round. The department then appealed the case and it was found that while it was proven that the Tembisa Hospital staff had neglected Modianang, it could not be concluded that the negligence caused her baby’s brain damage. Steven Budlender SC and Emma Webber, Modianang’s counsel, have now submitted in the heads of argument filed in the apex court that the High Court ruling set an untenable precedent.

“If the restrictive, binding rule imposed … is adopted, a number of mothers and children will be denied compensation for the harm … suffered as a result of receiving substandard care before and during birth,” they said.

Budlender and Webber said the full Bench erred in finding that factual causation was not established. However, notes The Star, the department stood its ground that there was no causal link between the negligence and the boy’s brain damage. The matter will be heard on 17 August.


Judgment PDFs available here:






The Star article – Mom blaming Tembisa Hospital for her baby’s brain damage takes matter to Concourt (Open access)


See more in MedicalBrief archives:


Serious Adverse Events on the rise in Gauteng's worst hospitals


Despite dire state of facilities, Gauteng Health fails to spend R504m


Christmas Day staffing failure costs Gauteng Health R17m

Join the Medical Brief community

We'd appeciate as much information as possible, however only an email address is required.