Court reduces damages award in KZN Health Department’s negligence case

THE Pietermaritzburg High Court is likely to save the KwaZulu-Natal Health Department millions of rands after a judge earlier awarded the mother of a child more than R28.8 million in damages, but three judges on appeal found this amount to be overly generous.

The KZN Health Department had turned to court to appeal against the amount of damages it was ordered to pay.

The child – who was 9 when the application started – was left with cerebral palsy due to the negligence of the doctors at the state hospital where she was born. The mother sued the Health Department for damages, claiming that the doctors were negligent in treating her during the final phase of her labour and during the birthing process.

The department did not deny this nor that the mother was entitled to compensation. It said, however, that an amount of about R13.7 million was reasonable, as opposed to the R28.8m which a judge earlier ordered the department to pay.

Included in the damages amount was an amount of R21.2m which the judge had allocated to the mother for the future medical expenses of the child. This amount, the department said, was inflated and it proposed an amount of slightly more than R9m.

Included in the R21.2m the judge had awarded for medical expenses was R4.8m for a drug known as Vitalstim. This was proposed by one of the medical experts to assist the child with swallowing.

The court was told that children suffering from cerebral palsy often have difficulty in swallowing. This creates problems when eating and can also lead to a child aspirating its own saliva, which, in turn, can lead to infections in the lungs.

The appeal court said payment for this drug should never have been awarded. The problem is that this drug is, according to the Health Professions Council of South Africa, still in an experimental phase.

The department also objected to amounts awarded for medical products and equipment, including nappies, as it said these amounts were inflated.

The appeal court ruled that the experts had to reconsider the items awarded and adjust their calculations accordingly. The new calculations had to be presented to the court, which would then make a new order regarding the compensation to be paid to the mother.