Health MEC to appeal HIV ruling

2010-05-18 00:00

THE KZN Health MEC has been granted leave to appeal to the Supreme Court of Appeals against the finding of Judge Chiman Patel in January this year that the province is liable to pay damages to a Gauteng woman who claimed she was infected with HIV due to negligence by paramedics who treated her after an accident in 2000.

In a reserved judgment handed down on January 19, Patel ruled that it was probable that the pedestrian who was hit by the woman, Crophet Mandla Mthalane (36) of Bruntville (who died in the crash) was infected with HIV and that a paramedic transferred the virus to the woman during her treatment at the scene of the accident.

In her testimony the woman, in her forties, said she had been married for 20 years and was monogamous throughout.

She said she tested negative for HIV immediately after the crash, but two months later after she became ill inexplicably, she tested positive.

The grounds of appeal filed on behalf of the Health MEC allege that there is a reasonable prospect the SCA will find there was not sufficient proof that the pedestrian was infected with HIV nor that the paramedics were negligent, or that the woman was infected as a result of contact between Mthalane’s blood and her blood.

It will be argued the trial court was wrong to infer from the fact that Mthalane carried Aids helpline numbers in his diary, that this meant he was infected with HIV.

Instead it will be argued that the presence of these numbers in his diary could mean he was an Aids counsellor or had an interest in the subject.

It is alleged on the MEC’s behalf that the inference drawn by the judge that the inscriptions in the diary were enough to conclude Mthalane was HIV positive is a “dangerous, unfair and unsafe inference to be drawn”.

“From the evidence relating to the statistics available at the time, there is a reasonable prospect that the Appeal Court will find that such a finding presupposes that all black males in the age group of the deceased were infected with the HI virus at the time and accordingly this amounts to an unfair and biased finding,” the grounds of appeal state.

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