Pretoria - The issue of whether there is an obligation on the MEC for health to use available medical resources efficiently while these are scarce at public hospitals came under the spotlight yesterday in the Constitutional Court.
In this matter, a mother whose child is suffering from cerebral palsy, allegedly due to complications shortly before birth, is blaming the Gauteng health authorities for her misfortunes.
The mother, only identified as TM to safeguard her child’s identity, said had hospital staff promptly performed a Caesarean section, things might have turned out differently.
But at the time things went wrong for her and she urgently had to go to the theatre, the operating theatre was occupied as there was a backlog with what doctors said were more pressing matters. Several other mothers were giving birth that afternoon by way of Caesarean section, one after the other.
The mother, however, said there were times when the only operating theatre at the Charlotte Maxeke Johannesburg Academic Hospital was not in use earlier that day and that some of the other mothers could have been accommodated then.
She was admitted to the hospital on August 28, 2010 shortly before 1pm. Although she was in labour, there were no complications at the time.
Another pregnant woman who was expecting twins was scheduled for a Caesarean section earlier that morning, but it had to be postponed as the theatre had run out of sterilised theatre gowns. The situation was resolved earlier that morning, but the mother who was expecting the twins was only admitted to the theatre nine hours after her scheduled time.
TM was eventually admitted to the theatre early that evening – 155 minutes after it was decided that she needed an emergency C-section.
In her damages claim against the MEC earlier before the Johannesburg High Court, she also said that her medical emergency which occurred later that afternoon, should have been prioritised.
The high court agreed with the mother and ordered that the medical staff were negligent and the MEC was liable to pay her damages.
The judge said it was common cause that there were other hospitals near the Charlotte Maxeke Johannesburg Academic Hospital, one being Chris Hani Baragwanath Hospital.
The MEC subsequently took the matter to the Supreme Court of Appeal, where the appeal was upheld by three of the five judges, and the mother lost out on her claim.
In the minority judgment, written by Judge Aubrey Ledwaba, it was felt that the medical staff should have prioritised the more serious cases as there was only one operating theatre.
In turning to the Constitutional Court, it was argued on behalf of the mother that the hospital failed to properly manage its resources, and that she should thus be compensated, even if it may not be possible to establish that her child’s condition is as a result of the negligent conduct of the staff.
Advocate Steven Budlender argued that while State hospitals do have scare resources, the resources that they have should be used efficiently, especially in a life or death situation.
Counsel for the MEC in turn argued that this case did not raise Constitutional issues and that the court should not entertain it.
The court was told that given the dire financial state of health care facilities, a finding of medical negligence will not be in the public interest. Judgment was reserved.
The mother gave birth to her daughter, now nearly 11, in August 2010 by Caesarean section. The child suffered permanent brain injury.
The two judges who found in favour of the mother said a doctor should also have constantly monitored her condition.
However, three Supreme Court judges said that while all agreed the C-section should have been done earlier, none of the medical experts could say for certain when the brain damage to the child had occurred.
Pretoria News