Mbola obo M v Member Of The Executive Council For Health, Eastern Cape (4521/18) [2018] ZAECMHC 67 (6 December 2018)

Mbola obo M v Member Of The Executive Council For Health, Eastern Cape (4521/18) [2018] ZAECMHC 67 (6 December 2018)

The court found, on a balance of probabilities, that the plaintiff and her child attended St Lucy's Hospital on 3 February 2010 and subsequent dates, and that substandard care was provided by the medical and nursing staff. The absence or incompleteness of hospital records was attributed to poor record-keeping and emergency circumstances, not non-attendance. The plaintiff's evidence was credible and corroborated in material respects. The defendant failed to adduce evidence that the injuries had already occurred by 16 February 2010. The court concluded that causal negligence was established and the defendant is liable for the damages suffered by the plaintiff's child.

Citation
[2018] ZAECMHC 67
Parties
Plaintiff: Neliswa Mbola obo A M; Defendant: Member Of The Executive Council For Health, Eastern Cape
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
6 December 2018
Case Number
4521/18
Procedural Posture
Delictual Claim / Liability Determination
Outcome
Plaintiff succeeds; defendant found liable for 100% of proven or agreed damages and costs.
Judges
S Mbenenge
Legal Topics
Medical Negligence, Vicarious Liability, Hospital Record Keeping, Cerebral Palsy, Burden of Proof, Expert Evidence
Delict Civil Procedure Family and Children Medical Negligence Vicarious Liability Hospital Record Keeping Cerebral Palsy Burden of Proof +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Neliswa Mbola obo A M

Plaintiff

Member Of The Executive Council For Health, Eastern Cape

Defendant

Procedural Posture

Delictual Claim / Liability Determination

Legal Issues

  1. 1 Whether the plaintiff and her child attended and were treated at St Lucy's Hospital on 3 February 2010 and/or subsequent dates.
  2. 2 Whether the medical and nursing staff at St Lucy's Hospital provided substandard care resulting in the child's cerebral palsy.
  3. 3 Whether the absence or incompleteness of hospital records affects the determination of liability.

Ratio Decidendi

The court found, on a balance of probabilities, that the plaintiff and her child attended St Lucy's Hospital on 3 February 2010 and subsequent dates, and that substandard care was provided by the medical and nursing staff. The absence or incompleteness of hospital records was attributed to poor record-keeping and emergency circumstances, not non-attendance. The plaintiff's evidence was credible and corroborated in material respects. The defendant failed to adduce evidence that the injuries had already occurred by 16 February 2010. The court concluded that causal negligence was established and the defendant is liable for the damages suffered by the plaintiff's child.

Court Disposition

Plaintiff succeeds; defendant found liable for 100% of proven or agreed damages and costs.

Orders

  • The defendant shall pay 100% of proven or agreed damages to the plaintiff, in her representative capacity, for and on behalf of her minor child, A M, as a result of the negligence of the staff of the St Lucy’s Hospital and/or Clinic, resulting in the minor child suffering from cerebral palsy.
  • The defendant shall pay the plaintiff’s taxed or agreed party and party costs of suit, incurred to date, on the High Court scale, including costs attendant upon obtaining expert reports and/or addendum reports by Prof. Savvas Andronikou, Dr Kali, and Prof Van Toorn; qualifying and preparation fees for joint minute...