Pretoria - The Gauteng Health Department has lost its legal bid to develop the common law to pave the way for a defence in a case where it opted to provide future medical care to a patient who was claiming damages.
A nurse claimed damages from the MEC for Health and Social Development in Gauteng following a botched gallbladder operation.
While the MEC admitted negligence earlier and the nurse, Nellie Mashinini, awarded damages, the department disputed that it had an obligation to pay for the future operations she was due to undergo as a result of the botched operation.
The department argued before the Gauteng High Court, Johannesburg, that instead of further depleting the state’s coffers by compensating her in monetary terms, Mashinini could undergo the operations free of charge at a state facility.
It was argued that the state facility could render equally good care to her as a private facility, if not better.
Mashinini, on the other hand, argued that she wanted the compensation in monetary terms – R1 765 000–- for her future medical care expenses.
She said her condition was complex, and she needed further care to be given to her at a private hospital, which she would pay for from the money she received from the department as part of her claim.
The high court agreed with the department, and while Mashinini received damages for the suffering she had to endure due to the botched operation, the court refused the claim for future medical expenses.
It found the medical services to be provided by specialist surgeons are and will be available to her in future in the public health-care system at no or lesser cost than the cost of the private medical care claimed by her.
Mashinini subsequently turned to the Supreme Court of Appeal, which, this week, ruled in her favour.
It was argued by a medical expert that this case was a complex one and required direct access to a specified surgeon. The Supreme Court was told a typical general surgeon or physician would not have sufficient insight to deal with the nuances of this case.
Mashinini, a nurse, sustained a major bile duct and hepatic artery injury when she had her gallbladder removed years ago, for which she had to undergo further surgery.
While the high court ordered that the department had to pay her R2 084 250.40 in damages, it upheld the department’s argument regarding Mashinini’s medical care at a state hospital, but said this should be provided by the Charlotte Maxeke Johannesburg Academic Hospital.
It found “the medical services to be provided by specialist surgeons are and will be available to her in future in the public health-care system”.
On appeal, Justice Dumisani Zondi said the high court was wrong in its findings, and this was not a case in which the common law regarding the public health care defence should be developed. The Supreme Court found there was no evidence that medical services of the same, or an acceptably high, standard would be available at no cost or for less than that claimed. In fact, the only evidence before it, unchallenged by the MEC, was to the contrary, the court said.
The Supreme Court ordered the MEC to pay Mashinini R879 314 for future surgical and medical expenses.