I am hugely disturbed by Gauteng Health MEC Qedani Mahlangu’s attempt in a medical negligence case to deny that there is a legal duty to provide quality health care.
Legal writer Carmel Rickard has highlighted this issue in an article in the Financial Mail concerning the MEC’s initial legal plea against the claim by Ramatharee Pather after an alleged botched operation in a state hospital.
Pather’s lawyers have contended that the MEC had a legal duty to ensure that medical care would be given to Pather “with such skill, care and diligence” as are expected of medical personnel.
But in the written plea filed in court on behalf of the MEC the state attorney said: “It is denied that [the MEC] owes such a duty of care to [Pather].”
Gauteng State Attorney
Other arguments by the state attorney included the following:
- There was no law in SA that “guarantees proper, sufficient and reasonable health services to citizens”.
- The constitution and other laws provided for health services “in an equitable manner and subject to the availability of resources”. But no law obliged the state to provide “proper, sufficient and reasonable health services to members of the public “.
- “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.
This plea has now been withdrawn, but according to Rickard, Gauteng’s state attorney Kgosi Lekabe has denied that the initial plea was a “mistake” that slipped through by accident.
Bad Medical Treatment
He said that a case would be heard by the supreme court of appeal next month, where the state would raise issues such as those highlighted in the Pather matter.
It is very sinister that MEC Mahlangu went along with a poor legal argument that ignores all past law on medical negligence claims.
Her department is expected to pay out about R1 billion this year in settlement of medical negligence cases.
She should reduce the avalanche of claims by improving the quality of treatment rather than undermining the legal right to redress for patients hurt by bad medical treatment.
Mahlangu’s callous handling of negligence cases is yet another reason for her to be fired as Health MEC following the deaths of 37 psychiatric patients who were previously at Life Healthcare Esidimeni.
Jack Bloom MPL
DA Gauteng Shadow MEC for Health
082 333 4222
Dr Neil Campbell
DA Gauteng Spokesperson for Health
082 387 2540