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Common law development: State can compensate a Plaintiff for future medical expenses in kind in lieu of paying damages

31 January 2020
– 4 Minute Read


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The Gauteng High Court waited until most of us were on leave before handing down what must be one of the most important judgments in recent times dealing with the ongoing medical malpractice crisis.

If you are involved with medical malpractice litigation in any capacity, the entire judgment is well worth consideration.  This article focuses purely on how the law has been developed.

The judgment concerns damages claimed for medical negligence at a public hospital, which resulted in the plaintiff suffering severe cerebral palsy. These matters involve what the court described as a double tragedy.  Not only is the disabled child and her family deeply and irreversibly affected, but so is the public health care system.  This is because these rather excessive claims typically involve substantial quantum of damages, which, if proven, are paid from the public health care purse, thus depleting badly needed resources that would otherwise be available for the health care needs of the public.

For the first time, it is now permissible to allow, in appropriate cases, the granting of an order for compensation in kind as opposed to being restricted to making orders for monetary compensation for future medical expenses.  In practice, this would mean that the State would designate a particular state facility (or facilities) where the plaintiff would receive future care at no charge. As such, the State, provided it leads sufficient evidence to establish that it can provide a standard equal to or better than the private sector, can attend to future medical interventions by offering the medical services and procuring such medications and devices through its own procurement processes as and when they arise.

The court found that the wider interests of justice required the development of the law to permit compensation in kind in appropriate, similar cases, but that there was insufficient evidence to indicate that the law should, at this stage, be developed to permit periodic payments.

Only available in appropriate cases

The judge was keen to emphasize that an order for compensation in kind would only be granted in appropriate cases similar to the present case.  If the State wishes to obtain such an order in a case in future, it would have to establish that the particular future interventions envisaged in the particular case, are capable of being fulfilled by the State to a standard equal to that of a private facility.  In this case, the MEC for Gauteng led the evidence of various practitioners operating at the Charlotte Maxeke Johannesburg Academic Hospital as well as the hospital’s CEO to establish its capability to assist the plaintiff in future on an ongoing basis.

When calculating future medical expenses, plaintiffs generally base their calculation on the cost of the relevant services in the private health care sector.  That being said, a plaintiff bears the onus of proving that damages claimed are reasonable.  A defendant is at liberty to counter the method and measure of a damages claim on the basis that the amounts are not reasonable because the plaintiff is more likely to use public health care, which is as good as, and cheaper, than private health care.  This will be a matter of evidence.

What about the private sector

The so-called double tragedy arises in the context of claims against private practitioners and private hospitals too.  An uninsured private hospital, faced with a massive damages award, will likely take a significant hit to its ability to provide health services in future.  An uninsured individual practitioner would likely have to close his or her doors. 

Most private providers purchase indemnity in one form or another, but these indemnity costs have risen and continue to rise markedly on the back of significant medical malpractice claims such as these cerebral palsy cases. 

Although the judgment focuses on the state health sector, it potentially provides a basis upon which to seek further development of the common law to alleviate the detrimental effects on health service delivery in the country, both private and public, whilst at the same time, continuing to provide compensation to deserving patients.