awarding treatment in lieu of compensation

A 2023 ruling by an Eastern Cape court awarded treatment in lieu of financial compensation to a victim of medical malpractice.

Instead of receiving financial compensation for future medical expenses, the victim – a profoundly disabled child – is to be granted free treatment at state hospitals. The child has cerebral palsy as a direct result of medical negligence.

This is the second ruling of its type. In 2019, a Gauteng judge made a similar award of free treatment in lieu of a lump-sum payout for a child with cerebral palsy.

DSC Attorneys is concerned with the precedent that these rulings set for a number of reasons.

Proven inability to deliver adequate care

The 2019 ruling has already proven disastrous for the affected child and his family.

According to the Mail & Guardian, the bulk of the promised medical services and devices “…has not been provided or turned out to be substandard”.

The family is now preparing to return to the courts to seek redress.

It doesn’t make sense to force victims of medical malpractice back to the same under-resourced and visibly maladministered state facilities that failed them in the first place.

Traumatic for medical malpractice victims and their families

Experiencing injuries (or having your new baby or a close family member seriously harmed) as a result of medical negligence is extremely traumatic.

It’s unfair and inhumane to force those affected to return to the state facilities where they were mistreated.

As an anonymous source quoted in the Mail & Guardian article notes, “We are sending cerebral palsy children back to the very institutions which caused their condition in the first place. It is also psychologically damaging for the parents, who don’t understand why they must go back to the same people in the same institution who harmed them.”

Denying severely injured victims access to the best available medical care

In South Africa, the private healthcare sector offers far more extensive access to specialists, equipment and advanced treatments than public hospitals.

Awarding state hospital treatment instead of financial compensation denies victims of medical malpractice access to these resources.

For people with serious injuries or disorders (like children with cerebral palsy), this could make a profound difference to both quality and length of life.

Implications for victims who can’t afford legal fees

The majority of South Africans who suffer the consequences of negligent state medical care can’t afford legal fees.

The legal professionals who represent their interests typically get paid for their services in accordance with contingency agreements. They work on a “no win, no fee” basis and get paid only when the claimants get lump-sum compensation for their injuries.

In effect, awarding state hospital treatment instead of lump-sum compensation deprives those injured of professional legal representation.

The urgent need to find a real solution to medical negligence in SA’s hospitals

Last but not least, there is an unacceptably high incidence of gross medical negligence in South African hospitals.

The precedent set by the 2019 and 2023 rulings suggests that those responsible shouldn’t even have to pay compensation for the harm they’ve inflicted.

This is not in the best interests of South African patients, who deserve healthcare that won’t leave them with serious injuries (or worse).

Awarding treatment in lieu of financial compensation removes accountability, and that’s not the way to drive improvement.


How DSC Attorneys can help

At DSC Attorneys, we have extensive experience in handling medical malpractice claims. If you may have a claim, contact us for the very best legal support and representation.

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