A case of negligence will see the department of health forking out more than R12m to pay an Eastern Cape mother whose child suffered a brain injury with ensuing cerebral palsy.
Issuing the order in the Bhisho High Court recently, Judge Belinda Hartle said she was satisfied that the claimant had established her entitlement to all the agreed and proven damages payable in a lump sum monetary award.
Hartle gave the MEC of health, Ntandokazi Capa, until November 10 to pay more than R12.1m to the child, for loss of earnings, accommodation, mobility, interim case manager’s fee, caregivers, and costs of administration of trust at 7.5% of the total monetary award.
In the event that the defendant fails to pay the amount within 30 calendar days of the order, the defendant shall be liable to pay interest thereon at the prescribed rate of interest.
The child, now 19, born at the Dora Nginza Hospital in Gqeberha, was assisted by Advocate Sandla Mlalandle as the curator in the proceedings.
The child’s mother originally sued in her personal and representative capacity as the mother and guardian of the second plaintiff, who attained majority in 2024.
Given the child’s serious physical and cognitive disabilities, a curator was appointed to represent her in the pursuit of the recovery of her own damages.
During proceedings, the court heard the child is severely disabled, immobile, with numerous contractures and scoliosis, suffers epilepsy and is incontinent.
She weighs 40kg.
On Friday, health spokesperson Siyanda Manana said: “We are studying the judgment and will decide on a way forward.”
Expert nurse Sue Anderson testified during proceedings and recommended the use of two day caregivers because of the child’s weight.
She opined that the child cannot be safely managed and cared for by a single-day caregiver, but must be assisted by a second caregiver during the day to assist with the heavy lifting.
She testified that the child would further require a night caregiver to turn her while she sleeps, change her nappies, and provide care as may be required during the night shift.
Hartle said the MEC did not lead any evidence to support her expert’s recommendation.
“Indeed the defendant closed her case without leading any evidence at all.
“Pursuant to this election, Mr McKelvey, acting on behalf of the curator, urged upon this court to find that this amounted to her abandoning her reliance on the public healthcare defence in the respects sought to be relied upon concerning the few heads of damages presently under consideration.
“The tenor of the defendant’s plea is that the department can, as a first premise, provide all the medical treatments, modalities, equipment and services required by the second plaintiff free of charge and at an appropriate standard in hospitals under its control.
“The defendant contends however that inasmuch as the department cannot provide such services, it should be the master of procuring such services as the second defendant needs but which are not available in the public healthcare sector.
“As a further alternative, the defendant seeks to be permitted, instead of paying any lumpsum payments to the second plaintiff in lieu of a lumpsum award, to provide an undertaking to pay for services that she may require as a result of her injuries only as and when the need or eventuality arises, or to reimburse her…in respect of the expenses incurred on her behalf in the private healthcare sector, upon conditions to be determined by this court.
“Absent any evidence on the suitability of the proposed standalone remedy, there is no reason to depart from the common law approach regarding the proof of the second plaintiff’s claim.
“It is not known where the money will come from and if there will be money in future to pay for these expenses. There is simply no evidence before the court that the undertaking sought by the defendant suits the needs of the second plaintiff, or that demonstrates that a lump sum payment upfront is unreasonable and inappropriate, or that provides an assurance that the undertakings will promptly be reimbursed.
“In short, there is no evidence before the court which displaces the prime facie evidence of the second plaintiff for compensation of her agreed mobility costs and caregiving services…to be paid in a monetary award upfront," Hartle said.
She said the failure of the defendant to lead any evidence in support of its defences precluded this court from entertaining any aspect of the MEC’s pleaded defences.
“I am satisfied that the second plaintiff has established that she is entitled to all the agreed and proven damages set out above, payable in a lump sum monetary award,” she said.
She ordered Capa to pay the child’s costs.
The issue of the plaintiffs’ remaining claims for future medical expenses is postponed sine die.
Daily Dispatch
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