Health and Wellness

The Western Cape Department of Health and Wellness (WCDHW) considers very carefully which medico-legal matters should proceed to court. Decisions are based on integrated clinical, legal, and expert assessments undertaken by the WCDHW medico-legal unit, with support from the State Attorney and senior legal counsel. In most matters, settlement is achieved before trial. Matters are taken on appeal only after senior legal opinion confirms a reasonable prospect of success, and where the ruling may create an unintended legal precedent or carry significant fiscal and clinical implications for the provincial health system.

With regards to the case referenced, the WCDHW has informed me that:

(1) The plaintiff, Mr Sampson, sought compensation following the loss of a kidney after sustaining a gunshot wound to the abdomen in January 2020. It was alleged that WCDHW staff were negligent in their management of the traumatic injury. The defendant denied negligence and causation, and these arguments were presented before the Western Cape High Court.

The Acting Judge found against the defendant and held that the WCDHW’s actions caused the loss of the kidney. The Acting Judge denied further leave to appeal. After obtaining an additional independent senior legal opinion, which confirmed a reasonable prospect of success, an application was made to the Supreme Court of Appeal. Leave to appeal has been granted. If the ruling stands without challenge, it would imply that the primary traumatic injury caused by a gunshot wound could not have been responsible for the eventual loss of the kidney, which would create a concerning precedent for future trauma cases.

(2)(a) Total litigation costs to date amount to R750 382.50 in legal fees, with miscellaneous costs bring the total to R750 436.00. An additional R44 000 was spent on expert costs.

(2)(b) The current quantum of damages is R1 300 000.00. This figure may increase if the merits are ultimately confirmed to be indefensible.

(2)(c) Costs for the application for leave to appeal to the Supreme Court of Appeal are approximately R280 000.00 at this stage.

(3)(a) In the past three years, WCDHW has appealed one other similar matter, known as the Zakade case.

(3)(b) In Zakade, the plaintiff claimed compensation for injuries, including shoulder dystocia-related nerve damage and alleged brain injury, which were said to have arisen from mismanagement of labour at a WCDHW obstetric facility in 2010. The initial claim was R42 million. The defendant argued, supported by both the attending midwife and elements of the plaintiff’s own expert testimony, that the labour was managed appropriately under difficult and unanticipated clinical circumstances. The Acting Judge ruled against the defendant. Leave to appeal in the High Court was denied. Senior counsel advised that an appeal to the Supreme Court of Appeal had reasonable prospects and leave to appeal has since been granted. The matter is still to be heard.

(3)(c) The reasons for appeal relate to the need to challenge a ruling that does not align with the evidence presented, particularly where a high-value claim and legally important clinical precedents are at stake. WCDHW maintains that an adverse clinical outcome does not, by itself, constitute negligence.

(3)(d) These two matters have not yet been heard by the Supreme Court of Appeal.

(3)(e) Total expenditure related to these appeals is approximately R1 150 000.00, comprising R870 000.00 for Zakade and R280 000.00 for Sampson.

(4) Since 1 April 2024, the WCDHW has incurred R19 067 626.00 in legal fees and R3 860 802.00 in expert fees for the management of 430 medico-legal malpractice matters. Some of these matters date back to 2012 or earlier and remain unresolved.

Each matter is at a different point in its procedural lifecycle, requiring varying actions such as the drafting of pleadings, consultations with experts, or settlement negotiations, depending on its stage of progression.