Pretoria - The Mpumalanga mother of a girl who suffered oxygen deprivation during birth more than nine years ago, and as a result, is suffering from cerebral palsy, got the green light from the court to sue the health authorities for damages.
The mother, who was not identified in the court judgment to safeguard the child’s identity, struggled for about three years to obtain her hospital records in a bid for her lawyers to institute a claim on her behalf.
The Mpumalanga Health Department, when it eventually received the summons from the mother’s lawyers, asked for the matter to be dismissed on the grounds that the mother was too late with her claim.
In terms of the law, legal proceedings against an organ of state to recover a debt must be instituted by written notice within six months from the date that the debt became due (in this case, the birth of the child in October 2012).
The mother at first turned to the Mpumalanga High Court, sitting in Mbombela, to ask permission to go ahead with her claim. She explained her struggle over the years to obtain the hospital records.
A judge of that court, however, dismissed her application and found that her prospects to succeed with her claim against the province, were in any event, slim.
She, however, took the matter on appeal to the Supreme Court of Appeal, where five judges held a different view.
Judge Wendy Hughes, who wrote the judgment delivered last week, said while the mother was clearly late in suing the health department, it was not her fault.
The judge said given the fact that this matter involved a child and looking at the facts which led to the child’s brain damage, it appeared, at this stage, that the mother could possibly make out a case for negligence.
Judge Hughes said the high court erred in not giving the mother permission to continue with her claim and to find her chances of success were slim.
The woman was admitted to the Piet Retief Hospital when she was 38 weeks pregnant and experienced labour pains. She only managed to give birth by means of natural delivery two days later.
The baby girl was alive but delivered with the cord loose around her neck. The child was not crying and was tired, and the neonatal diagnosis was “aspiration pneumonia”.
The mother and child remained in hospital for a month. The mother said that on discharge, she was told by hospital staff that her child would take some time to develop and that her child had cerebral palsy.
A year later, her family had discussions with her pertaining to the medical condition of her child, and it was decided that she should consult a lawyer. She was, however, told that the law firm needed her hospital records to establish whether the medical staff could be held responsible for the child’s condition.
This was the start of her three-year-long search for the medical file. She was told on each occasion to come back as her file was missing, the court was told.
The mother said she eventually gave up all hope as her lawyer also struggled to obtain the file. She told the court that she then accepted that there was nothing to be done about her situation.
She decided to focus her attention on the well-being of her child. However, for good measure, around August 2015, she enquired again from her attorneys if there had been any response from the hospital. Unsurprisingly, nothing was forthcoming from the hospital.
The mother decided in 2016 to go back for one last time to the hospital to try to obtain her file.
Out of the blue, a good Samaritan who was on duty told her that her file was kept in a storeroom, which was only accessed by the superintendent of the hospital. This staff member, however, searched for the file and found it.
Armed with the file, her attorneys eventually issued a summons against the health authorities.