- Hospital staff admitted negligence in swapping two deceased infants and breaching their duty of care, but negligence alone was insufficient for damages.
- The court held that grief and emotional shock, without expert psychiatric evidence, do not meet the legal threshold for compensation.
- Acting Judge JT Maodi dismissed the R500 000 claim with costs, reinforcing that a detectable psychiatric injury must be proven.
The pain of burying the wrong child was not enough to ground a damages award in the High Court in the North West, which has dismissed a R500 000 claim brought by the mother whose stillborn baby was swapped at Lehurutshe Hospital.
Acting Judge JT Maodi found that hospital staff were negligent in allowing two babies to be swapped in the mortuary. However, he held that the mother failed to prove that she suffered a legally recognisable psychiatric injury, which is a necessary requirement for damages in emotional shock claims.
Background
The mother was admitted to Lehurutshe Hospital on 26 September 2020 for maternity care. In the early hours of 27 September 2020, she gave birth to a stillborn baby. She was told by the nursing staff that the baby had been born tired and had passed away. She was not shown the child. The defendants in the matter were Lehurutshe Hospital and the MEC for Health, North West.
She was discharged the following day. A funeral undertaker collected what the family believed were the remains of her baby from the hospital mortuary. The child was buried inside her mother’s bedroom in accordance with family custom.
The following day, hospital officials contacted the family with devastating news. The baby they had buried did not belong to them. They had been given the remains of another infant, whose family was also grieving.
The incorrect remains had to be urgently exhumed. The mother testified that hospital and government officials later arrived with police and funeral personnel. The grave inside the bedroom was dug up, the remains removed, and another baby reburied. She told the court that there are now two graves in her bedroom.
She described recurring headaches and deep emotional distress. She testified that she still does not know with certainty whether the child ultimately reburied is hers, as she was never shown the body and, according to her culture, she is not permitted to enter the room where the child is buried.
The hospital’s version
Dr Samuel Itumeleng Mosimane, who was Acting Clinical Manager at the time, testified that he was informed on 30 September 2020 that two babies had been swapped in the mortuary. By that stage, the burial had already taken place.
He organised management to visit the family and explain what had happened. The exhumation required authorisations and took nine days. He confirmed that the Department of Health covered the funeral expenses and arranged psychological support through a social worker.
Under cross-examination, he conceded that the mortuary attendant had neglected her duties. He accepted that “because the procedure was not followed to the core, there was a bit of negligence.”
Mortuary attendant Itumeleng Josephine Kanye testified that she was working alone during the COVID pandemic and that the mortuary was extremely busy. While assisting the mother’s family, she was interrupted by a quarrel with another family over COVID wrapping procedures. She left the mother’s family and the hearse personnel to identify the body themselves, explaining that they should use identification tags to distinguish between the two babies.
She admitted that it was her responsibility to ensure that the correct body was handed over. She conceded that she was negligent, explaining that she left the process unattended and did not personally verify that the correct infant had been removed.
Negligence established
Judge Maodi found that the evidence clearly established negligence and breach of duty of care on the part of the defendants. The mortuary attendant left grieving relatives, who had never seen the baby, to identify a stillborn infant in a fridge without proper supervision.
The court questioned how the family could reasonably be expected to identify a newborn they had never seen, particularly when the mother herself had not been shown the child after birth.
The judge found that no proper handover or identification process had been conducted. The hospital bore the responsibility to ensure that the correct baby was handed to the correct family. However, the finding of negligence did not end the matter.
The legal threshold
The court emphasised that in claims of this nature, negligence alone is insufficient. A plaintiff must also prove that she suffered a detectable psychiatric injury.
Relying on Road Accident Fund v Sauls and R K v Minister of Basic Education, the court reiterated that compensation is not awarded for mere grief or emotional distress. There must be medically recognised psychiatric harm supported by expert evidence.
Judge Maodi was explicit about the evidentiary gap in the mother’s case. He stated, “I do not know if the mother has or is suffering Post Traumatic Stress Disorder (PTSD), Depression, medically diagnosed migraines or anxiety.” He continued, “I do not know how often the headaches occur, the severity of the headaches… I do not know whether the prognosis is good or poor, and if this is permanent or temporary. No evidence to such effect has been tendered.”
Although counsel for the mother indicated at the start of proceedings that a medical report existed, no expert was called, and no psychiatric evidence was placed before the court. The hospital and the MEC for Health also did not call medical experts.
The court stressed that grief and bereavement, even in tragic circumstances, are not automatically compensable in law. A recognised psychiatric lesion must be proven. Without expert diagnosis, the mother had not crossed the threshold required for delictual damages.
The judge warned that allowing claims based purely on subjective allegations of shock or headaches, without medical substantiation, would “lead to chaos and open floodgates for undeserving matters.”
Order
The mother’s claim for R500 000 in general damages was dismissed with costs.
The court ordered that the mother’s claim be dismissed with costs.
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