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Child born with cerebral palsy due to medical negligence: Can you still sue for pain and suffering?

06 September 2016Sylvia Maila, Associate, LindsayKeller

This article looks at how the courts have decided upon the issues of liability and quantum in cases of medical malpractice and / or medical negligence. A specific focus will be placed on the reasons as to why one should not succeed in a claim for general damages (pain, suffering, trauma, shock, loss of amenities of life, disability, etc.) in the event of having been born with cerebral palsy due to the negligence of hospital staff.

Liability and Quantum

At a seminar hosted by the Law Society of Northern Provinces on 23 June 2016, it was indicated that the process of litigation and the assessment of liability and quantum in medical negligence/malpractice claims is different from personal injury claims in three main respects:

  1.      The principle of res ipse loquitor(“the facts speak for themselves”), does not apply in cases of medical negligence. This position was established in the matter of Van Wyk v Lewis 1924 AD 438,wherein the court ruled that a medical negligence claim is always a matter of evidence.
  2.       The amounts claimed in compensation for pecuniary and non-pecuniary damages are often much higher in the medical negligence field than in personal injury claims. This is due to an obvious increase in the cost of medical services, equipment and supplies.
  3.      The legal test that ought to be applied in medical negligence claims is one of “the reasonable expert” as opposed to “the reasonable man.” 

General damages

In the matter of Hlatswayo Agnes N.O obo Gugu Promise Hlatwayo v The MEC for Health for the Gauteng Provincial Government,which was heard on 21 May 2015at the Gauteng Local Division in Johannesburg, the Plaintiff sued in her representative capacity as mother of her minor daughter, Gugu Promise Hlatswayo (“the minor child”). The Plaintiff was alleging that the minor child’s medical condition (cerebral palsy) was due to medical negligence.

It was alleged that the negligence arose during the course of her delivery at the Phillip Moyo Memorial Clinic (“the clinic”) in Daveyton on the afternoon of the 18th February 2007. The Plaintiff was therefore suing for loss of earnings, future medical expenses and general damages on behalf of the minor child. In a well-reasoned judgement, Adams AJ concluded that the Defendant’s nursing staff failed in their duty to monitor the mother and foetus, either properly or at all. As such, the Defendant was liable to pay 100% of the agreed or proven damages of the Plaintiff as a result of the brain damage.

In respect of general damages, the Plaintiff was claiming an amount of R3000 000.00 on behalf of the minor. In support of this position, the Plaintiff’s attorneys referred to the matter of Bonesse v Road Accident Fund, C & B A3 – 1 [Vol VII], a matter in which an amount of R2 500 000.00 was awarded to a 13 year-old girl, who suffered severe traumatic brain injury, coupled with serious orthopaedic injuries and an injury to the spinal cord causing paraplegia. It was therefore argued on behalf of the Plaintiff that the injuries sustained by the 13- year -old girl were similar to the condition of Gugu (the minor child).

The Defendant’s attorneys however contended that the minor child has very little if any insight into her condition, and that in those circumstances there should not be any award in respect of general damages. In this regard, Adams AJ was referred to the unreported judgement of Mayat J in the matter of Masimong v MEC for Health of the Gauteng Provincial Government, GLD Case no: 2010/43472. In the Masimong matter it was concluded that the minor child, who also suffered an injury during birth which resulted in spastic cerebral palsy, is not entitled to general damages.

Adams AJ made reference to the matter of Collins v Administrator Cape, 1995 (4) SA 73 (CPD).In the Collins matter, the minor (Lee-Ann) suffered severe cerebral hypoxia by the negligent displacement of a tracheostomy tube, which she was dependant on for ventilation when she was 16 weeks old. As a result, Lee-Ann had severe brain damage and was described as being in a “permanent vegetative state”.Adams AJ therefore held the view that in light of theCollinscase, any award to the minor child will be of no consequence to her, in the sense that she will never know and appreciate the benefits of such award.Adams AJ therefore ordered the Defendant pay an amount of R7, 497,804.48 for loss of earnings and future medical expenses to the Plaintiff and nil was given to the Plaintiff in respect of general damages.

Conclusion

It should therefore be evident that the three main differences between medical negligence and/or a negligence claim and personal injury claim must always be borne in mind, should one wish to be successful in a claim for compensation based on medical negligence. Furthermore, it ought to be borne in mind that there is no legal justification to compensate someone for general damages if they will never live to comprehend and/or enjoy the fruits of the award. 

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