Appeal court finds Health MEC liable for negligence

Eastern Cape Health MEC Dr Phumza Dyantyi Picture: Gillian McAinsh
Eastern Cape Health MEC Dr Phumza Dyantyi
Picture: Gillian McAinsh

The Supreme Court of Appeal said on Friday that Eastern Cape health MEC Phumza Dyantyi was liable for damages caused by the negligence of medical staff who failed to adequately treat a woman injured in a vehicle accident.

Ongezwa Mkhitha‚ who is now in a wheelchair‚ sued the Road Accident Fund and the health MEC for damages amounting to R5-million. She was injured when two vehicles collided in Ngcobo on January 23 2011.

Her claim against the fund was that the driver of the second vehicle drove negligently and caused the collision.

Mkhitha’s claim against the health MEC was based on negligence on the part of medical practitioners at Bedford Orthopaedic Hospital where she was treated after the collision.

The fund conceded that the insured driver was negligent and agreed that this caused the collision.

However‚ the health MEC raised a special plea: she claimed the fund was obliged to compensate Mkhitha for any loss or damage suffered as a result of any bodily injury arising from the driving of a motor vehicle‚ if the injury is a result of the negligence of the driver.

Mkhitha responded by saying the negligence of the MEC’s employees was an unforeseeable intervening act that caused her to suffer harm‚ independent of the negligence of the insured driver.

The high court dismissed the MEC’s special plea with costs.

Undeterred‚ the MEC approached the Supreme Court of Appeal‚ which dismissed her application.

The appeal court said evidence presented in the high court by an orthopaedic surgeon revealed‚ among other factors‚ that the fracture in her thigh bone was not properly repaired. The surgeon also said there was hope that after reconstructive surgery‚ Mkhitha would be able to walk albeit with the aid of a walking stick or crutch‚ but there is a certain degree of impairment that is permanent.

Acting Judge Ashton Schippers said the uncontradicted evidence was that the medical staff at the hospital were negligent and caused the plaintiff to suffer harm.

“The special plea was plainly unmeritorious. Leave to appeal should have been refused.”

He said scarce public resources were expended – a hopeless appeal was prosecuted at the expense of the Eastern Cape Department of Health and ultimately‚ taxpayers‚ and valuable court time and resources were taken up in the hearing of the appeal.

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