On 27 September 2024, the High Court in Pretoria held the MEC for Health of the Mpumalanga Provincial Government ("the Defendant") liable for the injuries a minor child sustained during his birth on 19 December 2010. In particular, the Court found that the hypoxic-ischemic encephalopathic brain injury sustained by the minor was caused as a result the negligence of the Defendant's staff who, among other things, failed to adequately monitor the patient's ("the Plaintiff") labour and failed to timeously perform a caesarean section when it became clear that same was necessary for the safety of the unborn child.
One of the defences raised by the Defendant was that, on the
weekend in question, there was only one theatre and one
anaesthetist available to service all the departments of the
hospital, including the casualty department. It was their case that
there were two patients who needed to go for surgery before the
Plaintiff, and that, for this reason, there was a delay of over
five hours between the indication of a caesarean section and its
performance. Ultimately, Judge Millar found that the Defendant did
not adduce any evidence to prove this allegation (of patients ahead
of the Plaintiff). However, if the Defendant had been able to prove
this allegation, can it be said that failure to adequately staff
state hospitals is a defence for medical malpractice?
According to the South African Medical Association Trade Union,
over 800 qualified doctors are unemployed in South Africa. At the
same time, state-owned hospitals are grappling with a critical
shortage of medical professionals. The reason given by the
government for not employing more doctors is budget constraints.
Does this circumstance not create a self-sustaining problem? If the
government properly staffed its hospitals, would there be less
instances of medical malpractice? If the government had to pay
lower legal fees and fewer claim payouts, perhaps there would be
more budget to adequately staff hospitals.
TB obo SN v MEC for Health of the Mpumalanga Provincial Government
In summary, on 18 December 2010, the Plaintiff was admitted to Themba Hospital in labour. After 16 hours, and at 09h00 on 19 December 2010, she was administered Pitocin, which is a synthetic hormone used to increase the strength and frequency of contractions to assist in achieving labour in the setting of poor labour progress. On the strength of expert evidence, the court found that the Plaintiff was administered an excessively high dose of Pitocin. At 12h00, it became clear that the Plaintiff's labour had not progressed and that a caesarean section was indicated "for obstructed labour". Despite the risk created by the high dose of Pitocin, the foetal condition was not monitored or noted from 13h10 until 17h15, when the baby was delivered. As such, no intra-uterine resuscitation was done to improve oxygen delivery to the probably distressed foetus in order to reverse hypoxia and acidosis.
The child sustained a brain injury caused by hypoxia (which is
oxygen deprivation). The hypoxia most likely occurred during the
course of labour, because of the prolonged nature of the advanced
stages of labour.
Due to his brain injury, the minor has since been diagnosed with
severe mixed-type cerebral palsy. He is completely dependent on
others for activities of daily functioning and will likely require
care for the remainder of his life.
By virtue of Judge Millar's judgment, the state is liable for
the minor's and Plaintiff's provable damages. The quantum
of these damages will be determined at a later hearing. In a
similar case, being N Mngomeni obo EN Zangwe v MEC for Health,
Eastern Cape Province 2018, the court awarded the Plaintiff a total
amount of R21 483 183. It is therefore possible that the medical
negligence in the Plaintiff's case could cost the taxpayer
upwards of R20 million.
High instance of cerebral palsy medical negligence cases in South Africa
According to Dr Thembi Katangwe, a Paediatric Neurologist and PhD Candidate at Stellenbosch University's Department of Paediatrics and Child Health, 10 out of every 1000 babies born in Soth Africa will be diagnosed with cerebral palsy. This is in comparison with global instance rate of 1 – 4 instances for every 1000 babies.
Based on data from provincial departments of health up to the 2018/2019 financial year, The Clinton Health Access Initiative Health financing teams found that about "50% of all claims are cerebral palsy-type claims (birth asphyxia, neonatal encephalopathy, cerebral palsy), making up more than 60% of the liabilities in six out of the nine provinces".
Between 2014 and 2021, South Africa's provincial health departments paid almost R10 Billion in medical negligence claims.
Dr Katangwe asserts that the causes of cerebral palsy can be prevented, both through antenatal and labour observation and care. However, in an overburdened and understaffed public health care system such as South Africa's, this becomes a challenge, as is clear from the Plaintiff's case.
Frequently, in medical malpractice cases against the state, the
State will often aver that the care provided was what was available
at the time, considering the resources at its disposal. However, it
is not reasonable to expect people who have to rely on public
health to accept substandard care. This state of affairs leaves
underprivileged women, and their unborn children, more vulnerable
to medical malpractice, versus women who can afford private care.
Women who can afford private healthcare are more likely to receive
more attentive pre-natal and labour care, whilst public hospitals
are overburdened with the number of patients they are responsible
for, and are chronically under resourced.
There is no lack of skilled medical practitioners in South Africa.
There is, however, a lack of jobs for those practitioners.
Underfunding of our state hospitals leads to understaffing of them.
This means that doctors in state-owned hospitals end up caring for
more patients at one time than is reasonable and safe. The data
clearly shows that this is leading to poorer health outcomes for
underprivileged women and children, and a higher instance of
medical malpractice. The billions of rands paid out for medical
malpractice claims could have rather gone to properly resourcing
the hospital in the first place, and the malpractice might have
been avoided.
The National Health Insurance Act and how it intends to address this problem
On 15 May 2024, President Ramaphosa signed the National Health Insurance ("the NHI") Act 20 of 2023 into law. The Act intends to, among other things, "achieve universal access to quality health care services in the Republic in accordance with section 27 of the Constitution" and "to create mechanisms for the equitable, effective and efficient utilisation of the resources of the Fund to meet the health needs of the population."
In summary, under the NHI, the government will establish a fund,
which it will use to buy healthcare services for people from both
public and private sectors. The idea is that any South African
citizen, permanent resident, or refugee will be able to walk into
their nearest hospital, clinic, or GP's office that has a
contract with the NHI fund and get treated for free. In this way,
the NHI intends to create access for underprivileged people to
healthcare practitioners and facilities they would normally would
not have under the current system.
The NHI is well intentioned. However, fears have been raised that
implementation of the Fund will simply transfer the problem of over
burden from the public sector to the private sector. The problem is
not addressed, it is just shifted somewhere else. It would, perhaps
have been better for government to instead have focused on staffing
and resourcing hospitals already under its jurisdiction.
That being said, it is unclear, at this stage, how effective the NHI will be at addressing the inequalities of access to healthcare in South Africa and in providing adequate services to all. The NHI will be enacted through a series of regulations and other acts, which have yet to be passed. Any critique at this stage is therefore only theoretical.
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