Medico-legal: Legal incompetence blow for mother of disabled child

A single mother caring for a severely disabled child has been left high and dry after a court overturned a previous order that the MEC for Health in the Eastern Cape must pay her R37m in damages for medical negligence. The judgment of a full Bench of the Eastern Cape High Court is littered with evidence of incompetence and maladministration by government officials and the Mthatha State Attorney’s Office in its handling of the matter. However, the judges have said the mother’s medical negligence claim must start afresh. Khumbulela Melane’s child has permanent spastic palsy, the result of oxygen deprivation during birth, reports the Mail & Guardian. In July 2015, Melane sued the Health MEC Nomakhosazana Meth, seeking R12.2m in damages. In response, the MEC filed a notice to defend, constituting a ‘bare denial’ of all the allegations. From thereon, the Health MEC’s attorneys did not comply with any rules of court and Melane's lawyers eventually upped the claim to R40m. Medical negligence claims in the province stood at more than R3bn in April last year and were expected to rise to R4.4bn by year end, Meth has previously said.

The MEC sought to rescind all three orders previously granted. During argument, the MEC’s representatives said they were willing to accept liability and pay R26m in damages. But the three judges said they had a discretion to rescind or vary an order if it had been sought, or granted, erroneously. They said there were procedural irregularities with the initial ‘strike out’ application, including that it had been heard on a date prior to the one on the notice of set down and that the accompanying affidavit had not been commissioned. As such, that order and all subsequent orders had to be rescinded. The judges said the litigation had been conducted in 'a dilatory and clumsy manner' and, going forward, it would require constant judicial case management. The SIU, which is probing allegations of maladministration, irregular and improper conduct on the part of the department’s officials and its legal representatives, applied to join the proceedings and sought an interdict preventing the payment of the award to Melane. But the judges said because the case had to start afresh, this was not necessary, reports M&G.

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