The need for legal reform in medical negligence cases concerning cerebral palsy in South Africa

Abstract

South Africa is facing a medico-legal storm that is threatening to paralyse its healthcare system, particularly the delivery of essential healthcare services that include maternal and foetal health. There is a rapid increase in cerebral palsy (CP) negligence litigation, accompanied by the burgeoning value of related claims. CP cases have thus become one of the main factors depleting a province’s health budget. There also seems to be no consistency in litigation of alleged negligence giving rise to a child suffering from CP. Each court deals with the merits in its own way, as there are no specific guidelines for determining whether CP resulted from negligence or not. As there is currently no legislation in South Africa regulating medical negligence litigation, cases of alleged medical negligence are dealt with according to the requirements of the law of delict, which includes that damages ought to be settled “once and for all” in monetary value. The Constitutional Court case of MEC, Health and Social Development, Gauteng v DZ [2017] ZACC 37 opened a proverbial ‘door’ for the development of the common law (in the absence of legislation) to deviate from the “once and for all” rule and the payment of a lumpsum for damages. Although it is the duty of Parliament to change laws, the DZ case did open a ‘door’ provided that each case concerning CP should still be evaluated on the merits of the specific case. A few selected cases are discussed in this research, highlighting when the open ‘door’ was used or not. Some judges specifically investigated whether the state could provide the services in lieu of a “once and for all” payment. The DZ case thus forms the background to the analyses of the different selected cases. The disbursement of a lump sum can also, when necessary, be converted into incremental payments. While some judges adhere to the Constitutional Court’s guidance, others take different approaches, leading to inconsistencies in how CP cases are handled. Due to this lack of uniformity, it is argued in this research that it is essential to adopt alternative adjudication methods. This research suggests alternative approaches to handling CP cases, such as mediation (taking note of the fact that mediation has been an alternative dispute resolution for years, but it is not yet compulsory in CP cases); formal parliamentary development of the common law; using assessors instead of expert witnesses in court cases concerning CP; the possible capping of claims in CP instances; the involvement of the Department of Health in all CP cases as well as the accountability of the staff involved in CP cases. In conclusion it seems that not one of the proposed recommendations is a perfect fit and further research or deliberations are necessary.