“Unwarranted”, “unacceptable” and “irresponsible” were just some of the adjectives used by judges of the Makhanda High Court about the way the province’s Department of Health handled the cases — in one of which a 10-year-old girl,  Siphesihle Mmoshi, choked to death before she could get specialist medical help.

The total contingent liabilities against the department in respect of medico-legal claims is R29-billion, close to R3-billion more than its entire 2020/21 budget allocation.

 Siphesihle’s case was heard by Judge Gerald Bloem, who, in his ruling last month, condemned the department for having drawn out the litigation for six years, first issuing blank denials and only agreeing to pay after the blind, paralysed cerebral palsy child had died.

In an angry judgment, Bloem wrote: “The Department of Health admits that the child required, on an urgent basis, nutrition and treatment to assist with inter alia aspiration, and in respect of a number of other conditions which would need to have been paid for with the proceeds of the current matter …

“Her early death may, in all probability, have been prevented had the department litigated more responsibly.”

He said that by insisting on defending the matter for six years the department had prevented the child’s mother, Siphokazi Mmoshi, from accessing an interim payment that could have been used to pay for medical assistance “to save Siphesihle’s life or to make it reasonably comfortable”.

“[Her mother] will, for the rest of her life, remember the suffering that Siphesihle endured during her lifetime. That suffering might have been different had the [department] litigated differently.”

Siphokazi’s lawyers first sued the department on 28 February 2014 after Siphesihle was born with severe cerebral palsy. Six years later, in February this year, the department conceded that it was liable for the damages suffered by Siphesihle at birth, admitting that negligence led to the baby’s brain being starved of oxygen, which led to spastic cerebral palsy and epilepsy.

But by the time they made this damning concession, Siphesihle had been dead for 18 months.

Siphokazi had her baby when she was 19 and in Grade 11. She finished matric in 2014, but has not managed to find a job.

Bloem said it was only after the department employed private counsel that it  “made the startling admissions” that it had known since either 2014 or 2016 that Siphesihle was in urgent need of treatment, and that she could not get the care she needed until the claim was finalised.

Bloem ordered the department to pay Siphokazi R1.4-million in damages for her and her daughter’s suffering, which included R377,950 for future medical expenses to assist her to cope with the death of Siphesihle.

In the second case, Judge Richard Brooks awarded an Eastern Cape woman, Babalwa Mbokodi, R22-million in damages in June after her child was born with a severe birth injury.  Summons in this case was issued on 13 July 2015.

“It is evident that members of the medical staff at the hospital were negligent,” Brooks said in his judgment.

Maternity ward staff had failed to make arrangements for Mbokodi to have a Caesarean section when there were complications. She had to give birth naturally, and this resulted in the baby suffering a serious brain injury after being starved of oxygen.

In this matter too the department first insisted that mother and baby “received all the medical care and treatment necessitated by her condition”. Any negligence on the part of the medical staff was denied.

It was only two years later that the department said it was no longer defending the claim and agreed to pay damages by November 2017.

After unsuccessful settlement attempts that lasted more than two years, Brooks has now issued that R22-million be paid into a trust for the child and that Mbokodi be paid damages as well. This was after Dr. Thobile Mbengashe, who was superintendent-general of the department at the time, filed an affidavit asking for the settlement to be reconsidered.

Brooks said the department had offered two settlement amounts, the second, “remarkably”, being less than the first. “Both were substantially less than the recommendations of the defendant’s experts and legal team… The department appears to have adopted an arbitrary, inexplicable and apparently cavalier attitude towards its own experts’ advice,” he said.

Brooks called the department’s delays in settling the litigation “unwarranted and unacceptable”, and said they led to “dramatic and unnecessary” cost escalations.

“What has resulted is a litany of judgments which reflect the court’s disapproval of the obvious failure on the part of the [department] to litigate with public funds in a responsible and honourable manner,” Brooks said.  DM168