By Annelize Hefer

In a recent judgement in the matter of MSM obo KBM v The MEC for Health (Gauteng Provincial Government) (“the MEC”) handed down by the Gauteng Local Division of the High Court in Johannesburg, the presiding Judge developed the common law to permit compensation in kind in relation to a claim for future medical treatment, but only in relation to appropriate matters with similar facts as that which were before the Court. As a consequence, the Court ordered the MEC to render certain medical services to the complainant at one of its public hospitals (the Charlotte Maxeke Johannesburg Academic Hospital (“CMJAH”)) in lieu of a lump sum monetary award.

The plaintiff sued the MEC in her representative capacity for damages flowing from the neurological injury sustained by her child (referred to in the judgement as “K”) during her birth in 2012 in a public hospital due to negligence by the medical staff, resulting in severe cerebral palsy. The merits were settled with the MEC conceding liability for K’s proven or agreed damages. The issue before the Court thus related to quantification of the claim.

Majority of the future medical services (including equipment) required by K and the cost thereof (at least insofar as the cost in the private healthcare sector is concerned) were agreed between the respective experts for the plaintiff and the MEC. The MEC conceded that certain future medical services and equipment required by K were not available at the CMJAH and that monetary compensation in relation to same was appropriate. This also applied to K’s claim for general damages and loss of future income.  It appears from the judgement that the monetary award was to be paid into a trust with K as beneficiary, with a claw-back provision to return any remaining funds in the trust (with the exception of the general damages and loss of future income) to the State at K’s death. 

The issue in dispute between the parties involved the request by the MEC to develop the common law to permit an award for compensation in kind (as opposed to a monetary award) in relation to certain identified medical services (“the identified services”) capable of being rendered to K at the CMJAH (referred to in the judgement as “the public healthcare defence”).  [The MEC also requested that the Court develop the common law to allow periodic payments, however, as the MEC led no evidence in this regard, the Court did not consider this argument].

The Court referred extensively to the legal principles laid down in the Constitutional Court judgement of MEC for Health and Social  Development, Gauteng v DZ obo WZ 2018 (1) SA (335) (CC), including in relation to the framework for the development of the common law in appropriate cases where a court is presented with the necessary evidence to do so.  It inter alia stressed that development of the common law must take place with reference to the factual matrix before the Court; it cannot take place in a factual vacuum:

Factual evidence to substantiate a carefully pleaded argument for the development of the common law must be properly adduced for assessment”. 

In this regard, the MEC led the evidence of two witnesses involved in the management of public health, including the CEO of the CMJAH, as well as evidence by a range of specialist medical practitioners employed at the said hospital, who would be responsible to take care of K’s treatment. Furthermore, the Court and legal representatives of the litigants attended an on-site visit to the CMJAH. The presiding Judge was most impressed with the level of services capable of being rendered at the CMJAH and held that the MEC had adduced sufficient cogent evidence to establish that the medical care that K would receive at said hospital would be at least as good as what she would receive in the private sector.

Furthermore, the MEC requested development of the common law with regard to section 173 of the Constitution, i.e. that its development is in the interest of justice.  Having established that K would receive the identified services at the same standard than in the private sector, the Court had to decide whether the wider interests of justice necessitated extending the common law to permit judgements in kind. The MEC argued his case within the context of the socio-economic, constitutional duty imposed on the State to take reasonable measures within its available resources to achieve the progressive realisation of healthcare services. The Court considered the relation between the State’s liability to pay out increasingly larger damages awards in medical negligence cases, resulting in the inevitable reduction in resources available to meet its constitutional obligations to realise the provision of health services for the population. The Court commented that there is consequently a clear constitutional imperative for the State to consider and pursue alternative means of making reparations in cases of medical negligence:

If reparation in kind achieves the purpose of making good the harm that has been inflicted, while at the same time acting as a measure to guard against a reduction in the State’s resources, and hence its ability to meet its obligations under section 27 (2), this would seem to me to be a reasonable and compelling basis on which to consider developing the common law”.

The Constitutional Court’s guidelines on the development of the common law in the DZ-judgement included giving consideration to the wider consequences of doing so.  In this regard, the Court emphasized that the context within which it is requested to develop the common law is not to permit alternatives to monetary compensation in all delictual matters, but it is limited to the particular facts before it, i.e. a case of a child suffering cerebral palsy occasioned by medical negligence at a public hospital. Therefore, the development of the common law would have a limited application;  each court faced with a similar defence would have to consider it on the evidence before it.

The Court consequently held that it is necessary and in the wider interests of justice to develop the common law to permit courts, in cases like the one before it, to make orders for compensation in kind as opposed to being restricted to making orders for monetary compensation for future medical expenses. It held that the alternative to developing the common law in this respect would have the inevitable result of a continued drain on the financial resources of the State required for it to meet its constitutional obligations to provide healthcare services:

Where the resources to render the medical services required already exists in the public healthcare system, and where there will be no detriment to the plaintiff in receiving those services in that system, it would be contrary to the broader interest of justice for courts to continue to be bound to ignore this as a factor, and to continue to be limited in having no choice other than to order the state to pay for the cost of those services in the private sector”.

The judgement in the MSM-matter is of importance at least in two respects.  Firstly, although the Court emphasized that the development by it of the common law to permit compensation in kind applies only in the context of cases similar to the one before it and does not apply to all medical negligence cases in the public or in the private sector, the Judge commented that whether the development of the common law should be extended to those instances as well, remained open to consideration in appropriate cases. 

A defendant healthcare provider in the private sector could thus (at least in theory) request a court to consider developing the common law to allow an award for compensation in kind based on the particular facts of its case.  This could, for instance, entail rendering the future medical services him-/ herself or at its own facilities.  Such defendant would, however, inter alia have to provide evidence that it is in the interest of justice (in accordance with section 173 of the Constitution) for the court to develop the common law to allow an order for compensation in kind based on the facts of its particular case.  This may be somewhat difficult bearing in mind that it would probably not have similar arguments to proffer based on socio-economic realities as what the State had available in the matter under discussion.

An alternative would be what was termed by the presiding Judge as the “mitigation of healthcare costs defence”.  In this regard, the plaintiff generally bears the onus of proving that the damages claimed are reasonable.  Adducing evidence of the cost of healthcare services in the private sector generally discharges this onus.  However, a defendant could adduce evidence that damages claimed based on the cost of private healthcare are not reasonable, because the plaintiff is more likely to use public healthcare, which is as good as (and cheaper) as private healthcare.  The Court in the MSM-judgement referred in this regard to the matter of Ngubane v South African Transport Services 1991 (1) SA 756 (A) and concluded that the latter judgement is authority:

for allowing the defendant to produce evidence that medical services of the same or higher standard, at no or lesser cost than private medical care will be available to the plaintiff in future. If that evidence is of a sufficiently cogent nature to disturb the presumption that private future healthcare is reasonable, the plaintiff will not succeed in the claim for the higher future medical expenses”.

Contrary to a compensation in kind award, the mitigation of healthcare costs defence requires no development of the common law.  The evidentiary burden may thus be easier to discharge, the defendant only having to adduce evidence that the future medical services required by the plaintiff is available at the same or a higher standard from a public sector source at no or less cost to the plaintiff.  The defendant would not have to adduce evidence that it is in the interest of justice to develop the common law.

It would be interesting to see if, and how, the legal developments in the public healthcare sector will spill over into the private healthcare sector.