When an innocent victim of negligence is injured, they are entitled, in terms of the common law, to recover their full damages. To be an innocent victim usually means that one is harmed or injured through no fault of one’s own. Classic examples include innocent victims of police brutality, a patient harmed through negligent treatment at a state hospital (or other state care facility) or a pedestrian injured on a poorly maintained pavement.

The harm which befalls one can take any form and may result from actively negligent conduct (cue memories of the horrific harms that resulted from the grossly negligent treatment of Life Esidimeni patients); alternatively, from a negligent failure to prevent the harm (the case of the poorly maintained pavement).

In these cases, acknowledging and then proving the various aspects of harm, as well as quantifying the damage is vital. Damages claims generally include: (i) past medical expenses incurred as a result of the harm; (ii) compensation for past as well as future income loss as a result of the harm; (iii) damages for pain and suffering and loss of amenities of life — for instance, if one is no longer able to participate in the sports one would normally have participated in prior to having suffered the harm, enjoying one’s (grand)children in the way one used to or living with ongoing pain and discomfort as a result of the harm; and (iv) compensation for future medical and hospital expenses in respect of treatment for the injuries suffered but which expenses are yet to be incurred.

In two recent matters before the Gauteng high court (Mashinini v The Member of the Executive Council for Health and Social Development, Gauteng Provincial Government and Others, 2021; and MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government, 2020) the state has successfully argued that the plaintiff should not be awarded monetary compensation for future medical and hospital expenses, but rather be given a “golden ticket”. This, the state argued, and the high court agreed, will allow holders to jump state hospital queues and obtain whatever treatment is deemed reasonable on a priority and ongoing basis.

While, at first glance, these “golden ticket” high court orders may seem protective of limited state funds as well as of innocent victims of negligent acts from which harm results (as the cost of future treatment is not paid out by the state ahead of actually being incurred, yet innocent victims are theoretically assured of ongoing and preferential medical and hospital treatment), not only are there conditions attached to these awards but also foreseeable barriers to accessing the very healthcare the orders seek to ensure. Barriers that may well render the court orders wholly meaningless in the hands of the vulnerable, and often disempowered, who seek to enforce these at public healthcare facilities  

So, what are the conditions attached to the “golden tickets”?

1. The state is to provide the treatment; and
2. Treatment should be provided at no or lesser cost than that which the care would cost through private medical care.

But specialist surgeons and specialist treatment of the kinds required are not always available through the public healthcare system, and, even when they are, there are often long waiting periods – even for those the “golden ticket” allows to jump the queues.

Life Esidimeni is a horrific example of what happens when healthcare institutions and oversight fail.

And what of state bureaucracy? And the bureaucracy one faces at (public) healthcare facilities specifically? Imagine a human being in pain and in need of (often specialist) treatment presenting themselves at a public healthcare facility, “golden ticket” in hand. The “golden ticket” may, or may not, be written in a language they are able to read or understand, yet they will need to wave it and explain its import while seeking medical or hospital treatment. First to the admissions desk staff, then, most likely, to various levels of administrative office staff, possibly scattered across various departments within the facility; as well as whomever else they may be referred to prior to receiving the care to which the “golden ticket” says they are entitled to on a preferential basis.

And what if being forced to return to public healthcare facilities is (re)traumatising for the human being in question? In the case of patients who suffer harm due to the negligence of healthcare providers, should they really be forced to return to the very same, or similar, place at which the harm was initially suffered, or worse yet, the very same healthcare professionals who caused the harm, when reasonable alternatives exist?   

In accepting that this is an equitable way of dispensing with payment of the value of the future medical care costs, the high court reasoned that the common law should be developed so that compensation under this head of damages can be provided in kind, as opposed to payment of the actuarially calculated value of the costs in instances where (i) it is the state (or MEC) which is held liable for the negligent conduct; and (ii) the state (or the MEC) can establish that medical services of the same or higher standard would be available through the public healthcare system and at no lesser cost to the plaintiff as the cost at which the private medical care is claimed.

Premised on an acceptance that the state is actually able to provide healthcare of acceptable quality in these cases, and to do so timeously or at all, the rationality and relief-providing potential of these high court orders becomes questionable as the reality of public healthcare service provision, and its bureaucracy will likely fail to meet individual “golden ticket” holders’ treatment needs.

Notwithstanding possession of a “golden ticket”, if the state fails to provide services timeously or at all, what is a vulnerable person in need of treatment to do? After trying unsuccessfully to access the very treatment the “golden ticket” was meant to ensure, is an indigent plaintiff meant to return to a high court to bring an application to compel same? As it stands, even simple applications which are unopposed may take three to six months to resolve, by which time treatment may be too late and the trauma suffered too great.

Given the above, what effect does the “golden ticket” have in the hands of a plaintiff, if any at all? Both the decisions of the Gauteng High Court are being taken on appeal where it will be submitted that the decisions do not comply with sections 39 (1)(a) and (2) of the Constitution and infringe the plaintiff’s constitutional rights to equality, human dignity, life and freedom to bodily and psychological integrity — which includes the right of control over one’s own body and to choose the healthcare providers and facilities that one deems fit to render the required service at a level of quality which is acceptable to one.

The way to tackle medical negligence and harm caused at state institutions is not to try to restrict a plaintiff’s rights to access to justice or compensation, but rather to ensure that the quality of service that is provided at public facilities protects patients who, in many instances, cannot elect private care and are often voiceless within society.

Similarly, if the MEC or the state wants to preserve funds, the way to do so is not to prevent compensation being paid to plaintiffs in these types of cases, but rather to ensure suitably qualified nurses and doctors are employed and that there is adequate control over state healthcare facilities — precisely to avoid claims such as these arising in the first place.

Life Esidimeni is a horrific example of what happens when healthcare institutions and oversight fail. The more recent case of Lethole Shonisani, who was not fed for about 107 hours while under the care of a doctor and nursing staff in a state institution, is another tragic example of what happens when those to whom we entrust our loved ones for care, fail and turn a blind eye. 

The state should not be allowed by the judiciary to do the same. DM