“We are not floundering,” the head of the Eastern Cape Health Department, Dr Rolene Wagner, said as she discussed the latest ruling in the department’s ongoing fight against a mounting number of legal claims. “We have a strategy, and we are doing the work. This is a big win for us.

“I cried when this was handed down,” she said, referring to the Bhisho High Court’s latest ruling on the issue.

In the judgment, Judge Robert Griffiths allowed for the common law to be developed to enable the state to offer rehabilitation and other care services for children with cerebral palsy instead of paying the private sector.

If the ruling stands, it will free up a significant amount of cash in the department that had to pay close to R1-billion in damages awards in the most recent financial year.

Future medical expenses for treatment in the private sector often makes up the bulk of most medico-legal claims for damages instituted for babies who suffered birth injuries in state hospitals.

Last year the department lost a significant court case when it sought an order that would allow it to pay off damages awards in instalments.

Last week it did a small victory lap for a battle won. Griffiths found that the department should be allowed to put up a public health defence asking for a court order that instead of paying future medical expenses of patients harmed through negligence in the public health system as a lump sum, it can offer treatment at state hospitals. 

It was a leap for the province and built on the baby step taken by the Constitutional Court when it ruled that it could be done, but not in the case that was before that court.

Congratulatory WhatsApp messages were the order of the day when the ruling came down. “We saw it as impossible,” one addressed to Wagner reads, “but your positive attitude motivated everyone and moved with it.”

“This is a great victory not only for the department but for the Eastern Cape as a whole … Bravo,” another adds.

“This touched my heart,” Wagner said.

Angry Zithulele residents hold placards during their demonstrations outside Zithulele Hospital calling for the MEC of Health to intervene in the alleged Zithulele Hospital healthcare crisis in Mqanduli, Eastern Cape, on 8 February 2023. (Photo: Hoseya Jubase)

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But she could not stop thinking of the boy in court: An 11-year-old who suffered such devastating birth injuries during his mother’s prolonged labour that he has been classified as “most disabled” and not expected to improve.

“Despite all this, he remains a child that deserves to play and learn,” Griffiths said in his judgment.

And now the wait begins. In three weeks, the time for appeals will be over. 

“This is a major step,” Wagner said. “It is part of an integrated legal strategy.”

The other leg of the strategy involves strengthening the quality of services so there will be cause for fewer lawsuits. The department also set up a special litigation unit. It has started to address a slew of cases brought for access to medical records in terms of the Promotion of Access to Information Act.

There is also a plan to work on reducing high-risk pregnancies involving the community.

This case is part of a strategy to build centres of excellence in the province where children with cerebral palsy can access treatment. 

Griffiths ruled that the common law must be developed to alter how damages are paid instead of paying millions of rands in lump sum payments.

“The common law is developed so as to accommodate the public healthcare and undertaking to pay remedies provided for in this order; so that the once-and-for-all rule (where millions are paid out for future medical expenses) and the rule that damages must sound in money are neither the exclusive nor the primary rules for the determination of a just and equitable remedy…” he wrote in his judgment.

He ruled that the health department had to prove that they could provide a reasonable standard of care to the children harmed during birth. 

But Wagner said to bolster the department’s strategy, Parliament needs to attend to draft legislation that will cap medico-legal claims. 

She added that she believed the province is ready to provide care, especially to babies with cerebral palsy due to birthing injuries, as these are the highest monetary claims for future medical expenses faced by the department. 

The aim is to establish 43 clinics to treat cerebral palsy children in the province. “We have competent teams and trained 72 therapists,” she said. 

“But we must keep our eye on the ball.”

Wagner said in her evidence before the court that the department was struggling financially and that the once-and-for-all claims were making the situation worse and hampered the department’s ability to provide access to healthcare for between 80% and 90% of the province. 

Griffiths agreed.

“As the situation is worsening year by year, in my view, this is offensive to the Bill of Rights,” he said.

“When dealing with cerebral palsy cases, a huge component of the damages award is represented by future medical expenses. This can account for up to R20-million or more of the claim. In the once-and-for-all situation, this amount is carefully determined by actuaries … Still, lawyers take 25% [for fees],” he explained.

This, Griffiths said, will “punch a significant hole in the capacity of the once-and-for-all monetary award to provide in full for the complainant”.

He said an argument that lawyers will be less willing to take medico-legal cases on contingency if the department is allowed to offer services instead of cash was not a valid argument.

“I am humbled that the judge recognised that we can do this. I don’t want us to lose sight of this. We will do the best we can for the children. But we also need to do this for everyone who depends on the state health services,” Wagner said in response to the ruling. 

She said the other parts of their strategy were to strengthen their case management and improve the administration of claims within the department. DM/MC