MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government (4314/15)  ZAGPJHC 504 (18 December 2019)
This is a matter where a child suffered from cerebral palsy as a result of medical negligence in a public hospital
- The topic of discussion was whether the common Law should be developed to permit compensation in what is referred to as “kind” compensation as well as compensation by means of periodic payments
- The MEC asked the Court to develop the Common Law so that the damages sought does not only include money but also services referred to as “kind”: this being services rendered by a public hospital instead of payment of a lump sum of money, and also that monetary rewards be payable in periodic payments and not only by way of one lump sum.
- In the Constitutional Court matter of MEC of Health and Social Development, Gauteng vs DZ obo WZ 2018 (1) SA, 335 (CC) the MEC was ordered to pay a lump sum of money for the future medical expenses of a child as a result of medical negligence. Both the High Court and Supreme Court of Appeal had rejected the MEC’s defence that, in terms of the Common law, it is not a requirement that payment be solely of monetary value with regards to future medical expenses as the common law makes provision for compensation by means of compensation in “kind” – This being specified services rendered by a public hospital if necessary. The SCA held that this was contrary to the common law principle of the “once and for all rule”. The Constitutional Court then addressed a form of award referred to as a “ring-fenced trust” which would be subject to a “top-up” and “claw-back” scheme.
- This means that the awarded compensation for future medical expenses will be kept in trust for the child and should the child pass away before the funds are depleted same would revert back to the state. If the funds become depleted then the State will have to “top up” the funds.
The Court rejected the MEC’s argument that compensation in terms of the common law includes non-monetary compensation.
The Court accepted that the medical expenses must be based on private hospital services, but that the onus will be on the Plaintiff to prove that these costs are fair/reasonable.
- The matter of MEC of Health and Social Development, Gauteng vs DZ obo WZ was applied to this matter and the Court held that the wider interests of justice require that the Common Law be developed to permit compensation in kind in APPROPRAITE SIMILAR cases: in this matter however there was insufficient evidence to found a case to permit periodic payments and the Court ordered that the MEC must render certain medical services to the complainant at a specified public hospital (This being referred to as compensation in kind)
- The Court further held that the MEC was to be held liable for the negligent conduct of the Healthcare staff
- It was further decided that The services “in kind” will be rendered at the Charlotte Maxeke Johannesburg Academic Hospital (Public Hospital) should same be of the same or higher standard than that of a Private Hospital
- Lastly, that a Ring fenced scheme, as discussed above, will be established and the residue, upon the child’s death will revert back to the state.