A recent judgment involving Gauteng Health opens the door "a bit further" to the compensation ordered in medical malpractice claims to be in the form of services and/or periodic payments, write Donald Dinnie and Aneesa Bodiat.
Dinnie, consultant to Natmed Medical Defence and Aneesa Bodiat, its head of legal, write:
The door to the opportunity to provide compensation by way of the provision of services and/or periodic payments in medical malpractice claims has been opened a bit further in the High Court judgment of N P obo N E v Member for the Executive Council for Health of the Gauteng Provincial Government  ZAGPJHC 24.
The patient brought a claim in her representative capacity as the mother and guardian of a minor child, who suffered harm during birth due to the negligence of staff at a public health institution, which resulted in the child suffering from cerebral palsy.
The patient’s claim was successful on the merits, but the quantum of damages still had to be determined. The court had to consider whether compensation had to be made as a monetary payment or whether medical services could be provided.
The lower court had already decided on the facts that the minor child’s cerebral palsy was caused by the negligence of the medical staff at the relevant hospital. The court ordered the defendant “to pay to the plaintiff 100%” of the plaintiff’s agreed or proven damages.
The hospital argued that “pay” implied compensation generally and did not necessarily mean that only monetary compensation was appropriate.
Therefore, the first question raised was whether, having regard to the judgement of the lower court (on the merits), it was open for the court deciding on quantum to order that the defendant renders services and provides medical and related items instead of paying the plaintiff an amount in money.
The other issue to be decided was whether the Public Finance Management Act or its regulations precluded the court from ordering that the State renders services and medical and related items in the future, or pays the claim in instalments in the future, as pleaded by the defendant.
The court allowed a separation of these issues (so that they could be decided first, and separately, before the question of quantum is decided).
The court found that the defendant can argue for compensation by way of providing medical services. Therefore, the defendant may not necessarily in all cases have to provide compensation in monetary form. The court also said that payment in instalments is not prohibited by the Public Finance Management Act. Therefore the court allowed the defendant to proceed with arguments to make periodic payments and also to argue for the provision of medical services as compensation – however, even though the door is open for such arguments to be made, the court will still have to decide, based on the arguments, what the appropriate quantum award will be (because this case just dealt with the separated principle issues, and not the quantum award).
The judgment does not decide on the substantive issues but opens the door for future arguments that the defendant can make.
The defendant can argue for compensation by way of services instead of payment in money. However, the court does not decide in this case whether it is appropriate to compensate by way of services or not. That will still have to be argued and proved. There is also a reference to services by one of the defendant's facilities, so determining which of the defendant’s hospitals is suitable, if any, is also left open.
If compensation is ordered in the form of providing medical services, there will likely be much debate about the principle of forcing a patient to go back to the same facility or another facility that they do not trust. No doubt much will also be made of the point that a patient cannot be compelled to go to a facility, which, for example, has not met the required standard of the Ombud for Health Standards Compliance. There are very few public facilities which have met that standard.
With regard to periodic payments, the order simply dealt with whether the regulations of the PFMA prohibited an argument regarding periodic payment (it was held that it does not). However, the judgment does not deal with the actual development of our common law to allow for periodic argument which would still be open for argument.
Defendants can argue to provide compensation by way of the provision of services, even if the judgment uses words such as “pay”. However, the wording of each judgment will have to be considered, to determine whether a specific order to pay money is envisioned or not.
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