• A new court ruling has overturned the common practice of paying out large lump sums for medical negligence cases against the state.
• Instead of awarding a single lump sum, the court ordered that state hospitals provide care for a young patient with cerebral palsy.
• The Eastern Cape Health Department says the ruling will help shield the public from "unscrupulous lawyers" who "cheat litigants".
Matter between TN obo BN and The Member of the Executive Council for Health Eastern Cape
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Officials warn of “collapse†of health service but court says they are to blame
Please click on this article link with the short version of the judgement
https://www.groundup.org.za/article/eastern-cape-health-officials-warn-of-possible-total-collapse-of-health-services-high-court-judges-tell-them-they-are-to-blame/
Summary of findings
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1. The Master of the High Court requested guidance on certain identified issues involving the Master’s supervisory powers over trustees and curators bonis in matters where damages have been awarded by courts.
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Summary: Delict – medical negligence – damages – liability in respect of a minor born with brain damage who now suffers from cerebral palsy – whether hospital staff negligent – if so, whether such negligence caused the damage – negligence and causation established – MEC liable.
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Summary: Medical negligence – cerebral palsy – circumstances of brain injury – adequacy of evidence of negligence.
Trial – conduct – obligation of parties to define the issues – sequence of witnesses – joint minutes of experts – agreement on facts contrasted with agreement on opinion – approach to agreements on matters of opinion
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The financial status of the RAF in April 2021 and the implications thereof. The RAF has secured an extraordinary court order stopping successful claimants and their attorneys from laying claim to its money and assets. The find is in danger of imploding due to mismanagement and corruption. If the fund collapses, drivers will be open to being sued, while claimants will struggle to get compensation. The Fund is currently under investigation and new management is trying to recue its finances.
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Prescription
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The court terms for 2021-2027 for Superior Courts
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The court found that, if the child had suffered foetal distress, the MRI scan would have revealed a partial prolonged hypoxic ischemic injury and not an acute profound injury. The court rejected Ms Shange’s experts’ theory of a sub-threshold hypoxia. Experts must avoid giving evidence outside of their fields of expertise in order to advance one party’s case at the expense of the expert’s duty to the courts to advise impartially.
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The landmark Judgement used internationally to guide expert witness requirements
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Crucial South African case including core issue in expert witness requirements
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The importance of this judgment is that It deals in a very clear manner the application of negligence and causation to the facts found to have been proved.
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A landmark judgment handed down in December 2019: The Johannesburg High Court held that it is in the wider interest of justice to develop the common law to allow courts to make orders for compensation in kind as opposed to monetary compensation for future medical expenses in appropriate cases. The judgment is related to a cerebral palsy claim where the MEC for Health was liable for the negligent conduct of public healthcare staff resulting in injury during or at birth.
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AMENDMENT OF THE RULES REGULATING THE CONDUCT OF THE
PROCEEDINGS OF THE SEVERAL PROVINCIAL AND LOCAL DIVISIONS OF THE
HIGH COURT OF SOUTH AFRICA
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High court judgment in CP matter, limited to the issues of liability. Plaintiff succeeded on the both sub-issues of negligence and causation. Quantum adjourned sine die. Radiological evidence on partial prolonged-, acute profound- and mixed patterns of HIE (hypoxic ischaemic injury) to the brain.
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Interesting and important appeal court judgment in a CP case.
Negligence was established, but the appeal failed on causation.
This highlights the crucial role of causation in clinical negligence matters.
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Once-and-for-all-rule and future medical costs in Cerebral Palsy cases
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This is an important SCA judgment for members practicing in the areas of medical negligence and personal injury claims. It deals with two contentious issues, (a) once and for all rule, and (b) contingency fee agreements.
The summary of the judgment reads “Delictual damages – ‘once and for all’ common law rule – future medical expenses – lump sum award – section 39(2) of the Constitution – development of common law – payment of future medical expenses as and when required â€
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Commentary by Judge Claassen:
This an excellent case to demonstrate:
1. The independent role of expert witnesses in court;
2. The logic that must form the basis of an expert's opinion;
3. The effect on the value of an expert's testimony who is unwilling to make any concessions in the face of counter facts or arguments;
4. The appreciation that generally held views by experts need not necessarily be regarded as correct.
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SCA judgment dealing with retrospective determination, after death, of whether deceased had testamentary capacity to execute a will. Also evaluating expert evidence – court must be satisfied with the reasoning which led to conclusion by expert witness.
Read the full judgement…
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Test case in which the Western Cape Government was exploring the Constitutionality of "claw back" and "top-up" provisions in trust deeds in medical malpractice matters. This issue is of particular interest to personal injury practitioners and advisors to the Provincial and National Government.
See paragraphs 1 to 81; 21 to 649; and most importantly 62 to 69.
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Medical Negligence: Undertakings issue
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Medical Negligence case: retinopathy of prematurity
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In an action in the High Court against the medical practitioners who attended upon his wife during her pregnancy with their minor son, the appellant claimed damages in delict on behalf of his son consequent upon the fact that he was born with severe congenial defects,
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The appellant was a 41-year-old diabetic suffering from ischaemic heart disease, cerebro-vascular disease and irreversible chronic renal failure.
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The first and second plaintiffs, a husband and wife, instituted action in the High Court in which they claimed, first, their damages flowing from the birth of their child with Down's syndrome and, second,
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Maitin, an obstetrician, delivered Sibisi's daughter, Yandiswa, and in the course of delivery the nerves in Yandiswa's right shoulder were injured
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A baby girl was born to the Plaintiff by caesarean section.
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The applicants in this matter were three HIV-positive women who claimed that the respondents had violated their rights to privacy and dignity by publishing their names and HIV status.
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A significant issue in this matter was the conduct of the MEC for Health, Gauteng (defendant), and instructing attorney in the conduct of the trial regarding quantum of damages for medical negligence.
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Held, that, although the concerns raised on behalf of the appellants were relevant to the ability of government to make a 'full package' available throughout the public health sector,
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The appellants, the parents of a 17-year-old boy who had suffered a cardiac arrest and lapsed into a coma during a surgical operation, had sued the first respondent, the owner of the clinic where the operation was performed, and the second respondent, the anaesthetist, in a Local Division.
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Vermeulen was admitted to Medi-Clinic's hospital for treatment for malaria.
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The plaintiff was successful in the High Court in his action for damages for the negligent performance upon him of a surgical procedure by the defendant.
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This case concerns the merits of a damages claim on behalf of a minor for a brain injury he sustained during his birth at a provincial hospital.
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A boy with Down's syndrome — who was represented by his mother — sued the Fetal Assessment Centre for his damages flowing from its alleged failure to warn his pregnant mother that there was a high risk of him being born with the syndrome.
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The respondents had been evicted from their informal homes situated on private land earmarked for formal low-cost housing.
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A surgical swab was left in Ms Goliath's abdomen during a hysterectomy performed at a provincial hospital falling under the MEC.
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An agreement between a pregnant woman and a doctor that he would advise her whether there was a greater risk than normal that she might have a potentially abnormal or disabled child so that she might make an informed decision on whether or not to terminate the pregnancy is not contra bonos mores but sensible,
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The Deputy Judge President constituted a court to consider an application in terms of s 295 of the Children's Act 38 of 2005 for the confirmation of a surrogacy application by a same sex couple, and to determine and provide guidelines on how similar applications should in future be dealt with
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Mere consent to undergo X-ray treatment, in the belief that it is harmless or being unaware of the risks it carries, cannot amount to effective consent to undergo the risks or the consequent harm.
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When a hospital accepts a patient its staff owes him a duty to attend to and treat him with due and proper care and skill.
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In deciding whether a medical practitioner has incurred liability for negligence..
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The applicant's husband ('the patient') had suffered a cardiac arrest in 1988 and had since then been in a persistent and irreversible vegetative state and was fed artificially by means of a naso-gastric tube.
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Appellant’s action for damages as a consequence of paralysis of the left side of the face caused by alleged negligent conduct.
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Appellant sustained fractures of the right radius and ulna (bone in right forearm).
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Is an exemption clause that indemnifies a hospital's nursing staff against liability for negligence valid and enforceable?
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The Premier of the Western Cape Province v Loots NO
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