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Medico-legal: Cerebral palsy claim fails 'constitutional issue' test

The Constitutional Court has dismissed a Johannesburg mother's application against the Gauteng Health and Social Development MEC, in which she alleged that Charlotte Maxeke Johannesburg Academic Hospital staff was to blame for her son's cerebral palsy. A News24 report says according to the Constitutional Court judgment, penned by Justice Steven Mathopo, the child was diagnosed with cerebral palsy as a result of the hypoxic-ischemic injury during birth. As reported in Legalbrief's Case Law Briefs, it was the mother's case that if a Caesarean section had been performed on her, her son might not have had cerebral palsy today. But the Constitutional Court found that the matter did ‘not raise a constitutional issue’. ‘Therefore, leave to appeal must be refused.’ It said another difficulty facing the mother ‘is the inconclusive and divergent expert evidence which is further compounded by the insufficient evidence and inadequate pleading of the down times. No effort was made to plead or lead evidence regarding the activities of the hospital staff during these times. Importantly, the majority, in line with what this court has held on to numerous occasions, found that the application of factual causation to the facts of a case does not raise a constitutional matter.’


Mathopo said the mother was erroneously inviting the Constitutional Court to discuss factual issues, says the News24 report. ‘These are factual issues which Ms. TM is inviting us to grapple with, and we should decline the invitation. Whether the hospital staff administered the tocolytic medication is a factual issue. Whether the hospital staff reached out to other hospitals about their availability and whether they could assist Ms. TM, are also questions of fact. Whether the injury occurred in the first hour or much later, is unfortunately, another question of fact. These questions do not require the interpretation of sections in the Bill of Rights. Importantly, it is accepted that there was a duty to treat Ms. TM reasonably. Thus, the court must refuse to entertain an appeal that seeks to challenge only factual findings. I cannot overstate that a challenge to a decision of the SCA on the basis only that it is wrong on the facts does not raise a constitutional matter.’

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