A High Court ruling that found that there was no causal link between the Tembisa Hospital’s neglect of a mother in labour and her new-born’s brain damage is being challenged in the Constitutional Court.

Counsel for Vivian Modianang, whose son was born brain-damaged in 2009, has said in court papers that the High Court ruling had the potential to deny compensation to children harmed at hospitals during birth.

The Star reports Modianang took the Gauteng Health Department to the Gauteng High Court (Johannesburg) in 2017 on grounds that staff at the hospital had caused her son to be born brain-damaged. The negligence in this matter, which the department conceded, was that the nurses and midwives had failed to monitor the foetus while Modianang was admitted.

Expert evidence that Modianang deposed in the High Court secured her victory in the first round.

The department then appealed the case before a full Bench of the same court. It found that while it was proven that the Tembisa Hospital staff had neglected Modianang, it could not be concluded that the negligence caused her baby’s brain damage.

Steven Budlender SC and Emma Webber, Modianang’s counsel, have now submitted in the heads of argument filed in the apex court that the High Court ruling set an untenable precedent.

‘If the restrictive, binding rule imposed by the full Bench is adopted, a number of mothers and children will be denied compensation for the harm that they have suffered as a result of receiving substandard care before and during birth,’ they said.

Budlender and Webber maintained that the full Bench erred in finding that factual causation was not established.

However, the department stood its ground that there was no causal link between the negligence and the boy’s brain damage.

The matter will be heard on 17 August.

Full report in The Star