The Eastern Cape health department has been told to pay a patient R5m just a month after it was ordered by the Bhisho High Court to pay out R12m to a mother whose child suffered brain injury at birth, which caused cerebral palsy.
The same court is now making the department fork out R5m in damages for future hospital and medical care for a 19-year-old who was also left with cerebral palsy.
In his judgment, judge Justin Laing ordered the department to pay R5.2m for future hospital and medical-related expenses, and more than R390,000 for the costs of a trustee to manage the teenager’s funds.
This is to be kept in the attorneys’ trust account pending the establishment of a trust.
Health MEC Ntandokazi Capa was also ordered to pay the claimant’s high court legal costs.
Early in October, the department was ordered to pay more than R12m.
In that matter, judge Belinda Hartle gave Capa until November 10 to pay more than R12.1m to a child, for loss of earnings, accommodation, mobility, interim case manager’s fee, caregivers, and costs of administration of a trust at 7.5% of the total monetary award.
In the event that the department failed to pay the amount within 30 calendar days of the order, the defendant would be liable to pay interest.
The plaintiff, now 19, born at Dora Nginza Hospital in Gqeberha, was assisted by advocate Sandla Mlalandle as the curator in the proceedings.
The mother originally sued in her personal capacity as the mother and guardian of the plaintiff, who attained majority in 2024.
Given the teenager’s serious physical and cognitive disabilities, a curator was appointed to represent her in the pursuit of the recovery of her own damages.
On Monday, health department spokesperson Siyanda Manana referred questions to advocate Lwazi Kubukeli, a legal adviser at the office of the premier.
“I have noted your query. Whereas I’m aware of the ... judgments, I am not authorised to address the media on department-related queries,” Kubukeli said.
In the latest case, the mother of the teenager claimed damages resulting from the alleged negligence of doctors and nurses at All Saints Hospital in Ngcobo.
As a result, there were complications during the birth of the child in September 2006, resulting in cerebral palsy.
The mother had also claimed for loss of personal income, but the court had ruled that the claim be dealt with in a separate hearing.
Laing said both parties agreed at trial that R5.2m was a reasonable amount for future medical expenses.
The teen lives in the Western Cape.
During the case, the provincial health department called the chief director of clinical support services, Kidwell Matshotyana, who said he was part of a team set up by the department to manage the implementation of public health care and undertaking-to-pay remedies.
Matshotyana acknowledged there was no co-operation agreement between the various provinces for the implementation of the remedies pleaded, and therefore the department was unable to offer medical services required by the teenager at a facility in the Western Cape.
The department undertook to pay for the teenager’s needs.
It would ensure stability in the preparation and administration of [the Eastern Cape’s health budget]
— Sean Frachet, chief director for management accounting and integrated budget planning,
Under cross-examination, Matshotyana said it was likely the teen would depend on private healthcare services and he also accepted that an order could not be enforced against the Western Cape public health authorities.
Sean Frachet, chief director for management accounting and integrated budget planning, testified that the provision of medical supplies and services to the teen would be between a private case manager, appointed by the mother, and a public case manager, appointed by the department but based in the Western Cape.
Frachet said orders against the department for lump-sum payments created budgetary instability.
He said no budgetary provision had been made for lump-sum payments; an order to that effect meant that funds had to be redirected, depleting available resources that were intended for other healthcare priorities.
Laing said Frachet presented compelling evidence for why the implementation of the undertaking-to-pay remedy was warranted from a financial management perspective.
“It would ensure stability in the preparation and administration of [the Eastern Cape’s health budget].”
He said funds allocated to the medico-legal compensatory service sub-programme would prevent problems relating to lump sum payment orders, which inevitably entailed shifting funds allocated to other needs.
He said what was missing from the provincial health department’s evidence were “practical details of precisely how the remedy [to prevent problems with lump sum payments] would be implemented …”
The judge pointed out the order was enforceable only against the Eastern Cape health department, and not the Western Cape health department, as there was no co-operation agreement between the two provinces.
The evidence presented by the [department] in relation to the feasibility of the undertaking-to-pay remedy was beset by too many unknowns to be sufficient for purposes of the present matter.
“The potential success of its implementation remains far from clear, let alone fair and equitable.”
The judge said the only remaining issue was the mother’s claim for loss of her earnings, adding that it “would be in the interests of justice for the issue merely to be separated from the rest of the matter, for determination in due course”.
Daily Dispatch
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