- The KwaZulu-Natal High Court has allowed a mother to reopen her case and call additional expert witnesses
- Judge Robin George Mossop finds that recently surfaced blood test results and clinical records could be decisive evidence
- The provincial health department remains the defendant, and the costs of the application will be decided at trial
A mother has secured the right to reopen her case in a protracted medical negligence trial after her child was born with cerebral palsy at East Griqualand and Usher Memorial Hospital in Kokstad.
She alleges that inadequate care during labour resulted in her son’s injury. The defendant is the MMC for the Department of Health in KwaZulu-Natal.
Judge Robin George Mossop emphasised that failing to consider the new evidence could leave the crucial question of when the injury occurred unresolved. He said, “This is not a game but a quest for fairness and the elusive concept of justice.”
New evidence prompts fresh hearing
The trial had been on hold for nearly two years after the last expert, Professor Eckhart Buchmann, was cross-examined. During the pause, critical blood test results and clinical records from the child’s first day of life were discovered.
These records, which were not available when the mother closed her case, are seen as vital to determining whether the injury that caused cerebral palsy happened before hospital admission or during labour. This distinction is essential for establishing liability.
Initially, the court granted limited permission to reopen the case to address these new records. The mother then sought broader permission to call two further experts, Professor J Anthony, an obstetrician-gynaecologist, and Professor J Smith, a neonatologist. The provincial health department opposed this, arguing that new evidence at this stage could prolong the trial and require witnesses to be recalled.
Judge says all relevant evidence must be heard
Judge Mossop found the proposed expert evidence material and likely to be weighty in clarifying when the injury took place. “If the further expert evidence shows that the injury occurred during labour, it would greatly help resolve the issue the court needs to answer,” he said. He noted that excluding the evidence would prejudice the mother more than it would the health department.
The judge also acknowledged the trial’s slow progress and several changes in legal representation, but concluded that reopening the case was necessary for fairness. “The issues remain the same and have not changed, nor will they change, by introducing the evidence of the two professors,” he stated.
Costs and next steps
Judge Mossop ruled that the costs of the application would be determined as part of the case, reflecting that the mother was seeking judicial indulgence and not punishment. The trial will now resume, with the mother and two new experts expected to testify. The defendant retains the right to call or recall witnesses as needed.
Whether the new evidence will definitively establish when the injury occurred remains uncertain, but the court will now have all available information to make its determination.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
