The Pretoria High Court handed down a decision in February 2021 which has the possible impact of lending liability to the Gauteng Health Department even in cases where there has been the death of a child in medical negligence cases. Courts did not award damages in these cases as there was seemingly no case which could be made out for pain and suffering and no loss of earnings could be calculated either as the patient was not a breadwinner. However in the case of  H[….] v MEC for Health, Gauteng Province (57301/15) [2021] ZAGPPHC 208, this notion has been turned on its head.

Health officials in the matter maintained their innocence and denied liability for the death of the two year old girl, but they did admit to liability for burn marks the child had gotten as a result of being placed too close to a heater while in hospital care after her birth. Apart from claiming that her child’s brain condition wasn’t diagnosed in time, the mother of the deceased child also claimed that there was a stent inserted into the child’s brain which became blocked and was never replaced.

The child was born prematurely as part of a set of twins, and had to be resuscitated at birth. Three months later she was diagnosed with suffering from a bulging fontanel and had to be admitted to hospital and a stent was inserted in her brain, after which the mother alleged that her child became blind and had to be attended to by doctors once again to remedy the condition. The stent became displaced and it was later discovered by doctors that it had become blocked and the child had extensive fluid in the brain and had to be referred to Chris Baragwanath Hospital for this issue to be corrected, however it was never rectified before her passing.

It was concluded by the Acting Judge Brad Wanless that the Natalspruit and Chris Baragwanath Hospitals had acted  negligently by failing to speedily diagnose the child’s condition of hydrocephalus(where fluid accumulates on the brain) and thus failed to treat the condition in time. In the judgement the mother in her personal capacity was awarded  R 536 000.00 (being R 400 000.00 for general damages and R 136 000 for special damages). For general damages as executor of the estate of the deceased child, the mother was awarded R 600 000 (of that amount R 100 000.00 came from general damages for the burn marks the child had suffered as a result of the negligence of the hospital staff).  

Full article available at: https://www.iol.co.za/pretoria-news/news/r11m-in-damages-to-mother-of-girl-2-who-died-after-complications-at-public-hospital-cbbf5e09-a92f-47b6-bae7-c94ab415a9f7

(article available at https://www.bizcommunity.com/Article/196/871/215476.html )

A research paper published in the South African Medical Journal called “Cerebral palsy and criteria implicating intrapartum hypoxia in neonatal encephalopathy – an obstetric perspective for the South African setting,” may have impact on the current scope of medico-legal cases as it suggests that cerebral palsy may not necessarily be majorly attributed to doctors negligence during the events of childbirth but rather as a result of the events of childbirth in conjunction with other processes during pregnancy which may lead to brain injury and ultimately to the development of cerebral palsy. The paper is newly published but its authors are suggesting that the current medico-legal approach in these cases lacks the understanding and depth necessary to truly determine the factors which lead to a child being born with cerebral palsy as the use of MRI and CTG scans as primary determinants of causation and liability are inadequate when they are used in isolation. The authors of the research paper suggest a more holistic approach in determining the cause of cerebral palsy and even suggest various criteria which could be used to assist in using a more scientific approach to determine the reason why a child was born with cerebral palsy instead of the current legal approach.