Turnaround time for negligence cases with child births 'could take years'- lawyers

2017-06-08 16:33
KwaZulu-Natal Health MEC Sibongiseni Dhlomo (File, The Witness)

KwaZulu-Natal Health MEC Sibongiseni Dhlomo (File, The Witness)

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Durban - Since her son was born with severe brain damage almost five years ago, Nobuhle Ntini, of Folweni near Durban, has survived on a disability grant.

She cannot work because she has no money to pay for anyone else to look after him.

He cannot do anything for himself and requires round-the-clock care.

And yet this week, after waiting three years for a trial date for her medical negligence case against MEC for Health Dr Sibongiseni Dhlomo - in which she is claiming about R20 million - the matter was adjourned at the 11th hour.

Legal representatives for the MEC said they were not ready to proceed and still needed to consult their experts.

Ntini’s plight is not unique.

Lawyers who act against the MEC in a burgeoning number of medical negligence cases involving births in KwaZulu-Natal say the turn-around time is anything from three to five years - and that’s if they are handled properly.

Until the minister either concedes or is found to be liable, parents get no money apart from the R1 600 disability grant to help them care for their severely disabled children.

Ntini’s case was one of eight which came before Pietermaritzburg High Court Judge Peter Olsen in August last year.

Obligations

The judge said it was clear the Health MEC had not complied with his obligations.

“The Children’s Act deals with general principles governing the approach of all of us when dealing with matters affecting children….the child’s best interests is of paramount importance.

“Further the Act also deals with children with disabilities...it provides that due consideration must be given to ensure their dignity, to promote self reliance and to facilitate active participation in the community,” Judge Olsen said.

“It is significant that the legislature thought it necessary to mention some rights in the Act which are already clearly stated in the Bill of Rights."

Olsen laid down strict rules governing how the matters should proceed.

Ntini’s matter was set down for trial from June 5 to 9 and after following the case management process and rules of the court. In December Judge Isaac Madondo certified the case was ready for trial.

Ntini’s attorney Andrew Eastes said in May he received a letter from the State Attorney requesting that the matter be adjourned because their advocate could not attend to the trial.

This request was refused. He was then informed that the State Attorney’s services had been terminated and private lawyers had been instructed to handle the matter.

The matter has now been adjourned until November - but then only for the consideration of liability, not quantum, which could take more years.

Prejudicial 

“What makes the way this matter was dealt with so prejudicial to our client is not that they may have a defence to our claim of R20 million, but that it took them until three days before trial to realise that when this case has been under their control for three years.”

Responding to widely publicised criticism of attorneys handling these matters by the MEC, Eastes said, “This case is the exact reason why the MEC should not be pointing fingers at attorneys.

“We are not trying to push cases through that cannot be won. If the MEC has a valid defence and it is timeously set out in their plea, then the case can be debated by experts and withdrawn if the plaintiff has no prospects of success.

“This would be common-sense and a cost effective approach,” he said.

“All I see is a concerted effort to delay these matters while severely disabled children suffer in total contradiction to what our Constitution and Bill of Rights espouses and despite the opinion of high court judges.”

Attorney Michael Friedman agreed.

'Don't care attitude'

“The State Attorney says they cannot cope, they are overwhelmed by the numbers. But I believe there is a 'don’t care' attitude to cerebral palsy litigation. 

“They are acting contrary to the Children’s Act.”

Friedman said there were always delays in obtaining hospital records, requests were ignored and court applications had to be made and these too were ignored.

“They don’t deliver their expert reports and use this to delay the matter. The state will say they are not ready at the last minute - one in three cases gets adjourned on the day of the trial.”

In two matters which came before the Durban high court this week, the MEC was accused of being in contempt of court.

He was given until next month to explain why he should not go to jail after his department failed to respond to two high courts orders to hand over medical records in two negligence cases.

Claims of up to R10 billion

The lawyer involved with the matters, Justice Ramsamy, said in his affidavit: “We need these records in order to investigate whether or not there was negligence, to properly assess, quantify and prosecute the claims.” 

The MEC’s spokesperson, Sam Mkhwanazi, declined to comment because the matters are before court

It was reported last year that the department was facing claims of up to R10 billion.

Dhlomo, in his budget speech this year urged people to deal with the department, not “unscrupulous lawyers".

He said the department was gearing up to establish an in-house litigation unit, made up of medical practitioners and legal experts, to deal with medical claims.
 

Read more on:    sibongiseni dhlomo  |  pietermaritzburg  |  durban  |  health

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