- High Court in Johannesburg rejects Gauteng Health’s attempt to use prescription as a defence against the mother’s personal claim.
- Specialist medical evidence was crucial before the mother could know whether hospital negligence caused her child’s injuries.
- Court allows both the mother’s personal claim and the child’s claim to go ahead despite defects in statutory notice
A mother’s fight for justice after her child was diagnosed with cerebral palsy will continue, after the High Court in Johannesburg dismissed Gauteng Health’s attempt to shut down her claim on a technicality.
Judge N Strathern found that the mother could not have known whether negligence was involved until she received specialist medical evidence. The court also found that defects in the statutory notice should not prevent her from seeking justice for herself or for her child.
The ruling means both the mother’s personal claim and the claim on behalf of her child can go ahead. The court noted that the key moment came only when a specialist explained in October 2019 that the child’s condition was linked to a birth injury. Arguments by the Gauteng health authorities that the mother’s claim had prescribed before she sued were rejected.
Child diagnosed with birth asphyxia and permanent brain damage
The child was born at Tembisa Hospital on 18 April 2013. About a week later, doctors told the mother that her child had suffered birth asphyxia and permanent brain damage. The court heard that she knew her baby had been harmed, but did not know what caused the asphyxia or whether hospital staff were at fault.
In September 2014, while at a neuro-clinic with the child, someone suggested that the condition could have been caused by poor care during delivery. The mother then consulted attorneys, who got the hospital records and began investigating whether there was a possible claim for medical negligence.
The attorneys asked gynaecologist Dr Pierre Davis for his opinion. In May 2016, Davis said the clinical picture suggested hypoxia during labour, but he was not able to say that the hospital staff had been negligent.
Judge Strathern later found that it was reasonable for the mother to think that there was not yet a reliable factual basis for a negligence claim.
Protective notice did not mean mother knew of negligence
A notice of intended legal action was served on the department on 23 August 2017. The notice alleged negligent care, poor fetal monitoring, and injury. The mother argued that this was a protective and early step, taken while the medical investigation was still ongoing and before specialist evidence had provided a clear explanation for her child’s injuries.
The court accepted that characterisation. Judge Strathern said the notice was precautionary and meant to protect a possible claim. It did not prove that the mother herself knew the facts needed to show negligence or causation.
The court stressed that a claimant must have enough facts to reasonably suspect fault and seek further advice. Here, the court found that specialist evidence was needed to determine the medical cause of the injury and whether professionals were at fault.
MRI and paediatric evidence changed the case
An MRI was done in June 2018, and Professor Savvas Andronikou reported on it in September 2018. The turning point came on 11 July 2019, when paediatrician Dr Humphrey Lewis examined the child and found that the child’s cerebral palsy was the result of a birth-related hypoxic-ischaemic condition, neonatal encephalopathy, and seizures. The report was only made available and explained to the mother on 25 October 2019.
Judge Strathern held that this was when the mother got the key facts needed under both the Prescription Act and the Institution of Legal Proceedings Against Certain Organs of State Act.
The judge explained that before this, the mother only knew about the harm, not whether the asphyxia was unavoidable, genetic, infective, antenatal, neonatal, or due to how the birth was managed.
Court found this was a Links-type medical negligence case
The judgment explained the difference between cases where a patient can reasonably suspect negligence from their own experience, and those where only specialist evidence can reveal the medical cause of injury.
Judge Strathern said this case is like the one in Links v MEC for Health, Northern Cape, where expert evidence is needed to prove what caused the injury and whether there was professional fault. The judge contrasted this with Loni v MEC for Health, Eastern Cape, where the patient’s own experience of ongoing infection and poor treatment made it clear that care was substandard. This matter falls into the Links category, the judge said.
Medical negligence could not be inferred from outcome alone
The court emphasised that medical negligence is not proven just because a child has a serious outcome like cerebral palsy. Judge Strathern said these cases need expert evidence to explain the medical cause of the injury, rule out other causes, identify the right professional standard, and decide if the healthcare professionals fell short of that standard.
The judgment noted that even the MEC brought in six experts from fields like obstetrics, paediatrics, neurology, neonatology, genetics, and radiology, showing how technically complex the case is.
The court also found that the hospital records were incomplete. CTG traces were missing, the Apgar scoring chart and resuscitation documents were not there, some parts of the partogram and clinical notes were illegible, and some lab information was incomplete.
Judge Strathern found that neither the mother nor her lawyers could have found the facts to support a claim of negligent medical treatment without getting and considering specialist evidence.
Later reports identified alleged negligent management
The court noted that Professor Andronikou’s MRI report showed a global hypoxic-ischaemic injury in a full-term baby’s brain and found no signs of congenital infection or malformation.
The judgment also recorded that a later report by Stevens listed the alleged failures in care, such as not recognising and prioritising a high-risk labour, poor fetal monitoring, inadequate management of prolonged labour, poor record-keeping, and delays in detecting or delivering a distressed baby.
Judge Strathern stressed that these expert opinions showed why the alleged negligence was about complex obstetric issues, not facts that would have been obvious to a layperson.
MEC failed to prove earlier knowledge
The MEC argued that the mother knew enough to sue years earlier because she was told her child had birth asphyxia, someone suggested delivery care might be to blame, she consulted lawyers, got hospital records, and received Davis’s 2016 opinion suggesting hypoxia during labour.
The court disagreed with this argument. Judge Strathern said the MEC did not show that the mother actually knew or was deemed to know the key facts any earlier. The judgment said that the suggestion made in 2014 and the legal consultation did not mean the mother knew about negligence. The August 2017 notice also did not show that she personally knew the facts about fault and causation.
The judge found that the MEC had not shown the mother had enough facts before 25 October 2019 to reasonably believe that negligent medical care caused her child’s disability. Since the MEC had to prove prescription, not being able to show earlier knowledge meant the prescription defence failed.
Good cause and no prejudice
The court also considered whether to excuse the failure to meet the statutory notice requirements. Judge Strathern found that there was good reason, because the mother acted on the information she received, got the hospital records, sought expert opinions, and kept investigating the claim. The first specialist she saw could not say there had been negligence.
The judge also said that the mother’s expert evidence showed there was a real claim to be made, while the MEC’s opposing evidence meant there was a dispute that needed to be settled at trial.
There was no proof of unreasonable prejudice to the department. The MEC had detailed notice of the claim, access to the hospital records, filed a plea, and got multiple expert reports.
The court also dealt with a problem in how the notice was served, as it was sent to the MEC instead of the Head of Department. Judge Strathern said this could be excused because the department had actually investigated the claim, responded to it, and obtained expert evidence.
Supplementary notice ordered
The court excused non-compliance with Sections 3(1), 3(2), and 4(1) of the Institution of Legal Proceedings Against Certain Organs of State Act for both the mother’s personal claim and the claim for the child.
Judge Strathern ordered the mother to serve, within 20 days, the 2017 notice, a copy of the judgment and order, and a short supplementary notice. This must set out the alleged birth-related hypoxic-ischaemic injury, failures in fetal monitoring, labour management, and timely delivery, and include the available reports from Andronikou, Lewis, and Stevens, on behalf of the Head of Department of the Gauteng Department of Health.
The MEC may change the plea within 30 days after receiving these documents. The court gave the mother permission to continue with her case and said the costs of this application would be part of the main action.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
