Gauteng’s MEC for Health, Qedani Mahlangu, facing a High Court claim over a botched operation carried out at a state hospital, launched a subsequently withdrawn defence described as ‘bizarre’ by leading legal commentator Carmel Rickard, notes Legalbrief. The State Attorney, in a written plea filed on behalf of the MEC, denied that (the MEC) owes a duty of care to the patient. The attorney noted there was no law in SA that ‘guarantees proper, sufficient and reasonable health services to citizens’.

Both the Constitution and other laws provided for health services ‘in an equitable manner and subject to availability of resources’. But no law obliged the state to provide ‘proper, sufficient and reasonable health services to members of the public,’ said the State Attorney, adding: ‘No health professional owes a duty of care to render medical care as defined in the Act with skill, care and diligence. No statute requires professionals to give advice with skill, care and diligence.’

Paying compensation to individual claimants ‘depletes the funds for health in favour of individual victims and undermines the principle of solidarity and equitability’ as well as undermining the state’s ability to build a sustainable health system able to provide health care to all, especially the poor.

The MEC’s defence reads at times like a draft note, with spelling mistakes, paragraphs repeated several times one below the other, incomplete sentences and a hard to follow argument, reports Rickard. She notes the ‘bizarre’ argument has subsequently been withdrawn, but when asked whether the initial plea was a ‘mistake’ that slipped through by accident, Gauteng’s State Attorney Kgosi Lekabe denied this was so.

A case would be heard by the SCA next month, he said, where the state would raise issues such as those highlighted in this matter. Rickard writes: It’s difficult to imagine any court effectively overturning all past law on medical negligence claims, and it seems likely the argument was concocted in response to concerns of Health Minister Aaron Motsoaledi about escalating medical negligence cases reaching levels that could bankrupt the health system. Much of this he blames on lawyers, urging that something be done to stop the trend.

Full Carmel Rickard report

Pather v MEC