Cerebral Palsy in Babies: Is South Africa Facing a Medical Malpractice Crisis?

What is cerebral palsy?

Cerebral palsy is a group of disorders that affects motor control, including a person’s ability to control their muscles, movement and coordination. It may also impact the ability to speak.

It results from abnormal brain development or damage to the developing brain.

Cerebral palsy can occur during pregnancy (prenatal), during childbirth (perinatal) or in the first months of a baby’s life (postnatal).

Cerebral palsy is not always caused by negligence. A range of risk factors can be involved – from genetics or premature birth to oxygen deprivation or infection.

Negligence occurs whenpreventable harm occurs due to substandard care.

Cerebral palsy crisis in South Africa

At five times the global average, South Africa’s cerebral palsy rate is at crisis level.

Researchers and advocacy organisations have identified shortcomings in maternal and neonatal healthcare as a significant contributor to South Africa’s high cerebral palsy rate.

The global average for the prevalence of cerebral palsy at birth is 2 per 1,000 births.

In South Africa, as many as 10 in 1,000 children are diagnosed with cerebral palsy.

This is according to a report on children with disabilities by the Uhambo Foundation, as well as a study in KwaZulu-Natal.

Multiple reports point to the lack of resources and inadequate training for nursing staff in state hospitals as significant root causes for cerebral palsy in babies.

Many of these cases could have been avoided with timely and appropriate medical intervention.

A significant share of malpractice cases against the state

A study by the Actuarial Society of South Africa found that nearly 40% of all successful medical malpractice claims against provincial health departments were for medical negligence that resulted in cerebral palsy.

In 2023, Health Minister Joe Phaahla confirmed that the majority of medical malpractice cases in Gauteng – totalling a whopping R20 billion – involve cerebral palsy.

He admitted that these matters could, “be resolved by intervention from clinical services through intensive training of the clinicians dealing with patients at the healthcare facilities.”

The Citizen reports that in the 2024/25 financial year, the Department of Health in Limpopo paid out more than R12.6 billion in medico-legal claims.

According to department spokesperson, Neil Shikwambane, “the biggest contributors to cases are cerebral palsy and obstetrics and gynaecology.”

Nationally, claims totalling R23.6 billion were funded by taxpayers. Many involved allegations of medical negligence, misdiagnosis and avoidable birth injuries.

Lindy Wilson, DA provincial leader said “the root causes of litigation are critical staff shortages in high-risk areas.”

Poor quality healthcare, clinical errors and failure to conduct basic investigations were also raised as areas of concern.

Examples of payouts in cerebral palsy malpractice claims

The compensation awarded for a successful medical malpractice claim will vary significantly, based on the nature of the case.

The Actuarial Society of South Africa has estimated the average payout for claims involving cerebral palsy as R5.5 million. However, payouts may be significantly higher (or lower) than this amount.

In 2021, for example, the courts awarded R10,959,546 to the mother of a child born with cerebral palsy due to malpractice. This amount included compensation determined for future medical costs, caregiving, loss of earnings and general damages.

In another case, the Supreme Court of Appeal ordered a gynaecologist and the KwaZulu-Natal hospital where he worked to pay R20 million for failing to act timeously to deliver a baby, resulting in cerebral palsy. This case took a decade to be resolved.

In 2023, the High Court in Gauteng ordered the MEC of Health to pay R4,783,317 in damages to a severely disabled child with cerebral palsy. Negligent conduct by medical staff resulted in a brain injury at birth. All future medical services are to be rendered, at no cost, over the child’s lifetime.

In the North West, R3,923,536 was paid out to a child in respect of general damages and loss of earning capacity. Due to staff negligence, the plaintiff suffered hypoxia at birth and was diagnosed with neonatal encephalopathy manifesting in severe spastic quadriplegic cerebral palsy. Compensation for past and future medical expenses is still to be determined.  

In 2024, the courts found that the failure of nursing staff to adhere to best practice guidelines delayed the decision to perform of Caesarean Section on a Benoni woman. The delay resulted in the foetus suffering a hypoxic-ischaemic injury, subsequent brain damage and cerebral palsy. R11 million was paid in final settlement of the claim.

What is needed to support a claim of medical malpractice

Claiming and proving medical malpractice can take time. Partly, this is because causation between the cerebral palsy diagnosis and negligence must first be established.

Even matters that appear simple can take years to resolve. For more complex cases, the legal process takes even longer.

The following steps are vital for helping ensure the success of a claim.

Put in a claim as soon as possible

It’s advisable to seek legal advice and to proceed with initiating a claim as soon as possible.

A specific legal process must then be followed. A competent attorney will ensure that the right steps are taken within prescribed deadlines.

Where a claim is against a state hospital or state healthcare providers, certain special requirements apply. For details, see our article about personal injury claims against the state.

Obtain expert medical evidence

The success of a medical malpractice claim depends on sufficient, clear evidence of medical malpractice.

As a starting point, this typically includes medical records; substantiated testimony from medical specialists; and, if possible, witness statements indicating medical mismanagement.

Evidence that healthcare providers acted negligently can include:

• failure to detect infection or abnormalities prior to birth
• failure to act appropriately when the umbilical cord is wrapped around the baby’s neck
• failure to deliver by Caesarean section, when required
• failure to detect signs of foetal distress
• delays in inducing labour, where necessary
• failure to manage a breech birth
• use of excessive force when delivering a baby with forceps.

Compensation in cases involving cerebral palsy

Establishing the appropriate financial compensation for a claim involving cerebral palsy in a baby should take into account the severity of the brain damage and the estimated costs arising from this, over the life of the child.

For example, costs arising from cerebral palsy due to medical negligence include expenses associated with:

• required lifelong support, including internment at a care facility, nursing care, necessary adaptations to the home, needed equipment, assistive devices and so on
• past and future medical care, including the costs of treatment and medical supplies
• special educational needs.

These costs can easily run into millions of rand.

Successful malpractice claims involving cerebral palsy in babies can help cover these costs, improving quality of life for those affected.

Frequently asked questions

Can cerebral palsy be caused by medical negligence?

In some cases, yes. Cerebral palsy may result from avoidable complications during pregnancy, labour or delivery, including failures to respond appropriately to foetal distress or oxygen deprivation.

How long do I have to claim for cerebral palsy caused by negligence?

Time limits depend on the circumstances of the case and whether the claim is against a state institution or a private healthcare provider. Legal advice should be obtained as soon as possible.

What compensation can be claimed?

Compensation may include past and future medical expenses, nursing care, assistive devices, specialised education, accommodation adaptations, loss of earning capacity and general damages where applicable.