FRANCISTOWN: A couple, Onkemetse Connie Motlhaping and Kabelo Chatanga, have successfully sued the Ministry of Health and Wellness for P400,000, as compensation for medical negligence that led to the death of their child.
Justice Michael Leburu of the Lobatse High Court presided over the matter before referring it to the Assistant Registrar and Master Dumisani Basupi for assessment of damages.
The plaintiffs initially instituted action against the ministry who was represented by the Attorney General (AG) claiming payment in the amount of P5,000,000 for the gross medical negligence at the hands of staff at Thebephatshwa Clinic and Scottish Livingstone Hospital.
The plaintiffs also sought payment in the sum of P500,000 for the medical expenses incurred for hiring other medical personnel, payment of P1,500,000 for pain and suffering, 10% collection commission on the capital debt and costs of suit at attorney and own client scale.
According to the facts of the case, which appear in the plaintiffs’ declaration and paints an unfortunate picture resulting in the death of the their child after delivery. The baby sustained peri-natal asphyxia, which rendered him a dystonic spastic palsy quadriplegic and had renal failure. The child, the ruling added, was admitted at the hospital for a period of three weeks.
“Subsequent to the birth, the child was born in a vegetative state (alive, but comatose and without apparent brain activity or responsiveness) such that the child was unable to take care of its own basic needs and as such needed the constant and regular support of its parents to make it,” read the ruling.
The ruling added: “The plaintiffs have had to personally and through the hiring of other personnel take care of their incapacitated infant incurring huge costs and lost opportunities whilst taking care of the child in the process. Amongst others, they were not able to pursue further studies due to financial and time factors of taking care of the child… As a result of these (facts), the plaintiffs have sought damages in the amount of P7,000,000.” In terms of Order 20 Rule 15 of the Rules of the High Court, a party suing for special damages shall set them out in such a manner as will enable a defendant to reasonably assess the quantum thereof, said the ruling.
“I must state that the plaintiffs have done this in their declaration.
However, I must admit that in their papers, the plaintiffs did not disclose any receipts or proof of how much they spent to attend to the child. I must also state that it has been proven that the child only lived for three years. What is of greatest concern in this matter is what the plaintiffs’ claim to be the cause of death of their minor child,” the ruling noted.
“According to their papers, the child died from having sustained peri-natal asphyxia. According to the medical dictionary, it is said to be a medical condition resulting from deprivation of oxygen to a newborn infant that lasts long enough during birth process to cause physical harm, usually to the brain. Some of the causes of birth asphyxia include too little oxygen in the mother’s blood before or during birth amongst other reasons.” It must be noted that from the papers and arguments from both sides, the ruling went on, none of them talked about or presented a post mortem report.
“This is crucial evidence, which in my view the plaintiffs have failed to present. As such I am only bound by what the parties have presented so far particularly that the defendants have already admitted
In short, these important features that are expected in the plaintiffs’ claim as a requirement in terms of Order 24 of the Rule of the High Court have not been explicitly explained, said Basupi in his ruling.
“I beg not to be misjudged to be stating that labour pains cannot be emotional, but I am to confirm that such pains are pains expected from everyone everywhere at that particular moment.
These in totality lock my mind to look at areas of expectation in a matter like this one. However, losing a child generally speaking is expected to cause emotional pains to his/her parents. But the law is law and must be procedurally followed,” Basupi clarified. He continued: “A closer understanding of the causes of the condition the child developed during and after birth show that there are varying factors that contribute to same. If I am told of a serious infection either from the mother or the baby, I must confess, I become convinced that this could have been a condition all along and can safely be placed away from the defendants’ liability. However, the expert could have clarified this piece of evidence. Without the expert’s assistance, all of us shall remain guessing. And, as we know, guessing leads to uncertainty and ambiguity…”
“Throughout the judicial action, the defendants were of the view that the plaintiffs’ claims were high. They, however, proposed that the claim for past and future medical costs of P500,000 could only be met upon production of the receipts. As for general damages of pain and suffering, the defendants proposed any amount between P1,000 and P90,000 as opposed to the P1,500,000. In short, the defendants are of the view that the amount of P2,000,000 is sufficient to be awarded as damages in total,” Basupi said. Damages, Basupi explained, are within the discretion of the court.
“As stated, they must be pleaded and proved in the case. There has been no evidence, on the claim relating to past and future medical expenses. Rightly argued by the defendants, no future expenses can be expected as the child has died or is now no more. From the papers presented before me, I cannot say more than to find that the plaintiffs failed in this claim and I shall award nothing to it.”
He went on: “It is trite law that the object of an award of damages is to compensate. Put differently, an award of damages is intended to put the claimant in as a good financial position as he would have been prior to the wrongful act occasioning the damage. The onus to prove such damage lies with the claimant. In short, damages to be awarded should be fair and reasonable, depending on the particular circumstances of each case.”
Basupi said: “I shall therefore confine myself to assessing the plaintiffs’ claim on the basis of what they have put forward. In view of the aforegoing, I therefore assess the damages in the following; P200, 000 for gross medical negligence, P150,000 for pain and suffering and P50,000 for medical expenses. I find that P400,000 is reasonable in the circumstances of this case. The costs of the suit should be on a party to party scale looking at the fact that the defendants were successful at certain portions in resisting what the plaintiffs were claiming.”