Bernadette Wicks
Senior court reporter
2 minute read
19 Jul 2021
5:05 am

ConCourt to hear negligence case after boy developed cerebral palsy

Bernadette Wicks

Mom claims foetal heart rate monitoring would have protected her son or limited the damage.

Picture: File

A Johannesburg mother whose son developed cerebral palsy as a result – she claims – of medical negligence at the hands of the Tembisa Hospital staff who delivered him has taken her fight for justice to the Constitutional Court.

The woman went into active labour at the hospital early on 4 April 2009. Foetal heart rate monitoring was conducted every hour for the first three hours but then inexplicably stopped for 1½ hours in the final stages. When the baby’s heart rate was next checked, he was in distress.

He was born with hypoxic-ischaemic encephalopathy, which developed into cerebral palsy. In 2017, the High Court in Johannesburg held the Gauteng health department, under which the hospital falls, was liable for damages in the case but two years later, this was overturned on appeal to a full bench. The woman tried petitioning the Supreme Court of Appeal but leave to appeal was refused.

Her legal team will appear before the Constitutional Court justices next month to try and persuade them to reverse the ruling. Her counsel said the full bench had imposed a “restrictive, binding” rule, which, if adopted, would have the effect of denying mothers and children compensation for harm suffered as a result of sub-standard care.“

The unchallenged expert evidence before the trial court states that had proper monitoring been conducted … the harm to [the baby] would likely have been avoided or mitigated.”But the department’s counsel said while the hospital staff may, indeed, have been negligent, that’s not what caused the injuries sustained by the child.“

The only reasonable measure available could not be performed in time to prevent brain damage; no constitutional right has been infringed; there is no arguable point of law of public interest; there are no interest of justice considerations that demand re-visiting the full bench judgment, and there are no reasonable prospects of success on appeal,” they said. –