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Mother sues MEC for R40 million

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Poor medical treatment at Kimberley Hospital

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IN A R40 million negligence claim, the mother of a five-year-old Greenpoint boy has blamed the condition of her son, who suffers from spastic cerebral palsy, on the poor medical treatment received at Kimberley Hospital.

The claim against the MEC for Health was increased from R17 million to R40 million with the mother stating that her child’s condition was due to the lack of proper care that was offered by the state.

The matter has been postponed in the Northern Cape High Court for a date to be arranged.

The mother was transferred from Galeshewe Day Hospital to Kimberley Hospital when she experienced complications when she went into labour in 2012. The baby was deprived of oxygen and suffered brain damage as a result.

She indicated in court papers that she wished to avoid the use of the services of Kimberley Hospital “at all cost in the future”.

“The treatment received there changed our lives for the worst. To force my son to submit to this institution, which caused his disability, for his future hospital, medical and related treatment, must be resisted at all costs.”

At the last court date, the provincial Department of Health was ordered to pay the legal as well as the “wasted trial costs” of the trial.

The department was also ordered to pay the costs of five medical reports that were compiled, the fees of the medical experts as well as the travelling and accommodation expenses incurred by the legal representatives.

The child, who turns six years old on Wednesday, has been diagnosed with dyskinetic cerebral palsy and he is not able to talk, suffers from mental disabilities, lacks motor skills and will require specialised medical care for the rest of his life.

The boy’s mother pointed out that she had only sought medical treatment at Kimberley Hospital for her child because she was not able to afford treatment and services elsewhere.

She disputed the claim that public hospitals provided the same quality of service and care as private institutions and stated that it was “highly improbable” that this situation would improve in the foreseeable future.

“My son has the right to utilise private health care services whenever he requires such services, regardless whether caused by or related to the permanent disability caused by the MEC for Health’s servants. My son’s permanent disability was caused by the state not rendering to him and myself a reasonable standard of health care services prior to and at his birth.”

She believed that the commitment to provide her son with treatment and services at a public hospital did not amount to compensation, as it fell within their normal scope of duties.

“The effect of confining my son to receive health care services at Kimberley Hospital for the rest of his natural life is unfair, unjust and unlawful and an unconstitutional infringement of his right to compensation.”

According to a physiotherapist Hester Venter, who conducted an assessment in 2016, the child had to be carried by his mother on her back as they did not have a wheelchair, while she had to bath him in a plastic container on the floor.

She advised that the child have access to a bathroom with a bath, as it will become more difficult to bath him as he becomes older and bigger.

She added that it would be necessary for him to have a special hospital bed to limit strain on the caregiver’s back as well as a special mattress to prevent bed sores.

Venter indicated that at the age of three years and nine months, the child was still wearing diapers while his teeth were in a bad condition and he hardly had any front teeth.

She stated that he is prone to choking when drinking fluids as he struggles to swallow liquids and constantly suffers from tonsillitis and chest problems.

“His mother holds him while she feeds him. She is also unable to work as he requires constant care.”

She added that there were no financial means to appoint a caregiver, while the boy’s father did not contribute towards his son’s wellbeing.

A nutritionist added that the child was underweight and malnourished and advised that he be fed through a feeding tube.

Venter added that the child shared a double bed with his mother, who had to turn him over during the night.
In an amended plea, the Department of Health refused to pay the claim but undertook to pay the hospital costs, or a nursing home or an appropriate facility as well as to treat, render services and supply goods arising out of the injuries allegedly sustained at birth.

“Should the allegations be proven, the MEC for Health will accommodate the minor child, supply the goods and or render the medical services claimed in respect of the minor child’s future hospital, medical and related expenses at Kimberley Hospital, where the child is currently being treated and is receiving similar medical services of the same standard and quality available in the private sector.”

It also made a commitment to pay over any damages that it would be ordered to pay into a trust account over a period of three years.

It added that should the damages awarded in respect of the future hospital, medical and related expenses be exhausted, the MEC for Health would supplement funds into the trust for the remainder of the child’s life.
The legal representative for the MEC for Health, Chawro Kgotlagomang, stated that the treatment offered at Kimberley Hospital was “proper and adequate”.

“The child is doing well by all accounts. Since commencing treatment at Kimberley Hospital, he has improved.

“Notably, despite the lapse of some 30 plus months since the merits were resolved, no attempt has been made to secure private treatment for him.”

He indicated that he had threatened to terminate his services as the correspondent attorney for Mncedesi Ndlovu and Sedumedi Attorneys from Johannesburg in January, as no trial preparation was done.

He said the attorneys were appointed after the former Head of Department had rejected a recommendation from the state attorney to settle the matter out of court in 2015.

“Upon inspection of the court file, the MEC for Health discovered that she was completely misled by MNS Attorneys. MNS Attorneys only filed one report on behalf of the department. MNS Attorneys had not done preparation for the trial whatsoever. The mandate of MNS Attorneys was terminated with immediate effect and Towell and Groenewaldt were appointed as its new attorneys on record.”

He pointed out that MNS Attorneys had failed to “prepare adequately or at all” for the trial.

“Apart from appointing one expert they failed to appoint any further experts and misrepresented to the MEC for Health that they had filed expert notices and reports on her behalf and that the matter was ready to proceed in February this year. This was clearly not done. 

“The MEC for Health had been requesting a report of the progress of the matter from MNS Attorneys since August 2017 and was assured that matters were under control. It was only on January 31, 2018 that the MEC discovered that this was, in fact, not the case and that no trial preparation had been done.”