City’s R100m hospital lawsuits

Estelle Ellis

NELSON Mandela Bay state hospitals are facing negligence lawsuits to the tune of more than R100-million – mostly from parents whose babies had died or were severely disabled following allegedly flawed birthing operations at Dora Nginza Hospital.

These cases are generally settled for between R60000 and R80000. But legal analysts say claims that make it to court are just the tip of the iceberg, as it is becoming increasingly impossible for victims of malpractice to take legal action due to the prohibitive costs.

This leaves residents of impoverished areas – who have no option but to use government medical facilities – with no recourse when things go wrong.

Together with claims accruing since the 2005/06 financial year, the department is potentially liable for R447-million in negligence claims.

One such case before the Port Elizabeth High Court involves Greenbushes resident Heidi Vena, who in 2006 miscarried a twin at 16 weeks.

With the dead foetus still attached, she was transported to Dora Nginza Hospital where she allegedly waited for six hours to be helped.

According to court papers, nurses only came to assist her after her partner threatened to call the police. This was after she fell from a stretcher twice and was told none of the nurses could help her as they were “on a tea break”.

Her pending claim, totalling just more than R227000, includes the cost of therapy for post-traumatic stress disorder. In her papers, Vena tells how it was only when she eventually received assistance that nurses discovered the second twin was also dead.

Although the death of her babies was not due to negligence, she is suing the department for the pain and suffering inflicted on her by “uncaring nurses”.

According to court papers, the department had very few notes and no nurses’ notes of the incident.

In another shocking case, which highlights the general lack of care by personnel at Nelson Mandela Bay clinics, the Port Elizabeth High Court ordered in November that the damages trial of a Motherwell couple go ahead after the magistrate’s court threw the case out.

According to papers, clinic staff failed to properly diagnose that Brian Qamba’s three- year-old son had suffered a fracture to his index finger after he fell and injured his hand in November 2007.

Despite three visits to the Motherwell Health Centre, the fracture remained undiagnosed. During the first visit the only nurse on duty was on the phone most of the time and only paid attention to the boy after his mother threatened her.

Later the mother noticed the boy was not using the finger and a specialist diagnosed an unhealed fracture. The couple sued for the cost of the corrective surgeries, which came to R28236, and R50000 for pain and suffering.

The Health Department, however, contended their personnel saw no clinical signs of a finger fracture and could therefore not motivate sending the child for an X-ray. No new date for the trial has been set.

In another case, Lorraine resident Rodney Carshagen, 60, is suing the department after he was left an invalid following surgery at Provincial Hospital.

In October 2003, Carshagen was admitted to the Provincial for coronary surgery. While recovering, he contracted an antibiotic-resistant infection in his chest wound and was then in hospital for 14 months – five of which were in intensive care.

He was treated for severe sepsis and infections. Because he was immobilised for so long, he developed drop-feet (permanent tendon damage) and lost the ability to fully use his hand.

He is no longer able to work or to look after himself and has been admitted to a frail care centre. He has sued the Department of Health for R4.8-million, of which R2.1-million is to pay for his future stay in the centre.

The Health Department, however, says his claim was lodged more than six months after the incident, and is therefore invalid.

They claim they can no longer find hospital records and witnesses can no longer remember what happened. They have denied liability for the infection, saying they did all they could to help him.

After five years of legal wrangling, a Port Elizabeth mother has finally won R2.1-million in damages from the department after treatments for burns her child sustained to her hand. The child was two when the accident happened. She is now eight.

A settlement was reached on the eve of the trial at the beginning of last month, with the department agreeing to pay the woman – who has asked not to be named – the full amount.

In papers before court, experts said the child’s burn wounds were not treated correctly. Her fingers were incorrectly positioned, she received inappropriate skin grafts and her hand should not have been covered with plaster of Paris, but with something lighter. There was also a lack of follow-up and regular monitoring of the child’s hand, and she also did not receive any physio or occupational therapy.

The Health Department denied negligence, claiming the mother took almost seven hours to bring the child to hospital and refused to honour follow-up consultations for therapy.

They also alleged the mother did not look after the child well in the months following the injury.

The child was treated at all the hospitals of the Port Elizabeth Hospital Complex, with the bulk of her surgery and treatment at Livingstone Hospital.

Health researchers say the problem is not confined to the city, but rather endemic of the entire provincial department.

Lobby group Section27 health researcher Daygan Eagar said the Eastern Cape Health Department, along with Gauteng’s, was the worst performing in the country – even when compared to other developing nations like Brazil and Cuba “which do better with less (funding)”.

Experienced malpractice attorney Francois Swanepoel from Van Rhyn Minnaar Swanepoel said if an attorney did not agree to take a case on a contingency basis, it was impossible for ordinary working class citizens to sue the Health Department – it was simply too expensive.

“Preliminary reports to establish if a case exists cost between R2500 and R5000 – and that is just the start,” he said.

Dave McGlue from the Port Elizabeth Justice Centre said they also did not have the capacity to pursue most medical negligence cases. “We also prefer to get involved in impact litigation that will effect a change to the health system and can be beneficial to society as a whole.”

The Health Department was not compelled to disclose what the potential value of negligence cases against them was, Jay Kruuse from the Public Service Accountability Monitor said.

He said all the law required was that the department disclose what amount they might be required to pay out each year should claims against them be successful. These, including claims arising from breach of contract or tender, stood at R247-million at the end of the last financial year.

Although most of the lawsuits were instituted by Dora Nginza maternity ward patients, Health spokesman Sizwe Kupelo stressed this was because the hospital dealt with high-risk birth cases and as such there was an increased possibility of complications which could result in claims.

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