There is a worrying trend of systematic medical negligence in our hospitals. In AN v MEC for Health, Eastern Cape, the SCA recently remarked that ‘far too often this court is confronted with serious and serial negligence’ in hospitals … it is clear that studied neglect of standards has become pervasive in many such hospitals. 'Those reliant upon their services are receiving substandard care’.

Section27’s Motheo Brodie says the case involves the fairness of strictly applying the legal test for causation.

‘Applying the current test too strictly, makes it virtually impossible for the court to find in the favour of an aggrieved applicant.’

In his analysis on the Daily Maverick site, Brodie notes that in this case, there was a blatant failure by the staff to provide the mother with the appropriate care and medical attention during the birth of her child.

‘The Department of Health’s own guidelines require that the heart rate of a foetus should be monitored between every second contraction. The hospital staff failed to do this.’

As a result, the baby developed cerebral palsy.

Having failed in her application in the Eastern Cape High Court (Mthatha), the case went to the SCA, where she also lost – despite there being no real disagreement about the facts.

The matter is now heading to the Constitutional Court where the mother has applied for leave to appeal.

Brodie notes that our law of delict requires an aggrieved applicant to prove four elements in order to be successful in seeking compensation: there was an act or a failure to act (omission); the act or failure to act was wrongful; the harm was as a result of either the defendants’ intention or negligence; and the harm that the plaintiff suffered was factually and legally caused by the respondent (causation).

In order to prove that the harm suffered was indeed caused by the negligence of the state, the applicant would need to prove that without the negligent acts/omissions of the hospital staff, the harm would not have befallen the foetus – the ‘but-for’ test.

Brodie says in the 2013 Constitutional Court case of Lee v Minister of Correctional Services, the Treatment Action Campaign (TAC) argued there was a need for flexibility in the test for causation.

Justice Bess Nkabinde’s majority judgment approached the question by asking ‘whether the factual conditions of Lee’s incarceration were a more probable cause of his TB, than that which would have been the case had he not been incarcerated in those conditions’.

However, Brodie notes that since then our courts have been reluctant to apply this flexibility test.

‘There is a need for clarity on when the flexible test should be applied and how the test should be applied.’

The TAC – represented by Section27 – has made an application in the Constitutional Court to be admitted as friends of the court in this latest case. Brodie says the TAC seeks to make submissions on when a flexible test should be applied by the courts, what the content of that test should be and where the onus of proof should lie in such cases.

‘If admitted, the TAC will make the argument that in instances where there is causal indeterminacy because of the negligence of the state and that negligence increased the risk of harm or contributed to the harm in a way that was foreseeable, the burden of proof should shift from the plaintiff having to prove that the harm was caused by the state to the state which would have to prove that the harm suffered by the plaintiff was in fact not caused by the state.’

Brodie adds: ‘Public healthcare users, when seeking justice, should not be further burdened with the ‘but-for’ causation test, especially when the state’s dysfunctionality and negligence make satisfying this test impossible.’

Full analysis on the Daily Maverick site

AN v MEC for Health, Eastern Cape

Lee v Minister of Correctional Services