'No expenses have been spared on a medical legal claim that the department does not have much success in winning ...'
THE CASH-STRAPPED Department of Health has paid a private law firm from Johannesburg to settle its lawsuits. This firm apparently does not specialise in medical legal claims.
The office of the state attorney advised the department to reach an out of court settlement in a R17 million negligence case, where the matter was set for trial in the Northern Cape High Court in June 2015.
The lawsuit arose due to a birth defect where a baby was born with spastic cerebral palsy as a result of the alleged lack of proper care and management during labour.
The child, who is now five years old, can not talk, is mentally disabled, a quadriplegic and will be dependent on caregivers for the rest of his life.
A claim for future medical and related costs amounted to R11 million, loss of earnings valued at R4,8 million while general damages amounted to R1, 2 million.
In court documents, Advocate Nazreen Bawa from Cape Town, who was consulted by the state attorney’s office, had indicated that experts had advised that the baby should have been delivered earlier.
Bawa stated that the mother started going into labour on July 10 2012, where it appeared as if she was left unattended to for some time, during which complications could have arisen.
She was examined at the Galeshewe Day Hospital and clinical notes stated that the baby could be in distress.
The baby was delivered the following day, with the use of forceps and it was indicated that the baby was starved of oxygen for a prolonged period.
The doctor who delivered the baby was the only doctor on duty that evening while the labour ward was short-staffed and cardiotocography scans could not be done on all patients to record the fetal heartbeat and contractions as the ward was packed to capacity.
Due to the “incredibly short life expectancy”, Bawa recommended that an out of court settlement of R8 million should be paid into a trust account for the sole benefit of the minor child.
Contrary to the advice of the state attorney’s office, the matter was referred to a private firm from Johannesburg.
Health officials warned that it would have cost implications, along with the inexperience of the firm in the expertise of medical legal claims.
Consequently R287 012,76 was paid to the private law firm while the department was also billed for advocate fees for an amount of R25 300 for the “perusal of documents”.
The law firm had proposed a postponement of the case in 2015 as it stated that the department was not adequately prepared to conduct a trial and present its defence.
A similar negligence case was referred to the same private law firm where an amount of R32 250 is being claimed from the Department of Health after a baby was also born with cerebral palsy at the Kimberley Hospital in 2012.
Legal services advised against employing the services of the private law firm, in light of the previous negligence case as well as the “serious financial implications” it held for the department.
However, instructions were given that the matter should not be referred to the state attorney.
The legal services director had expressed his lack of faith in the capabilities of the law firm to the former MEC for Health, Mac Jack.
Chairperson of the Northern Cape Civics Organisation and its legal unit, Ross Henderson questioned why the department had disregarded the legal opinion of the state attorney’s office, which was offered free of charge, in favour of hiring a private law firm.
“We want to know if there is any link with any family members of this firm and officials at the department. Are there no capable law firms based in Kimberley that can deal with the matter?”
He questioned why the appointment of a locally-based law firm was not considered.
“The private law firm from Johannesburg will nonetheless have to the hire the services of a correspondent attorney in Kimberley to file court papers. The double payments are simply not justified.
“Officials are milking a bankrupt department. Inflated prices were also charged for travelling expenses where two advocates were flown from Johannesburg to Kimberley to consult with the department.”
He pointed out that due to the numerous delays in settling the legal claim, costs would have since escalated with accumulated interest.
“No expenses have been spared on a medical legal claim that the department does not have much success of winning, based on the well-researched advice of the advocate that was appointed by the state attorney’s office. No reasons were provided as to why the advice of the advocate was dismissed.
“I do not doubt that many more payments have since been made to the private law firm’s account. This is only the tip of the iceberg.”
Henderson added that the department was wrongly billed for advocate fees to the value of R25 300, for an unrelated to the case, involving the Gauteng Department of Health.
Spokesperson for the MEC for Health, Lebogang Majaha, said the MEC would brief the media early next year to give an update regarding the current state of healthcare and outline plans to address those challenges in the Province.