When Ramatharee Pather and her lawyers launched a claim against Gauteng’s MEC for health, Qedani Mahlangu, the last thing they would have expected was an answer from the state rewriting legal history.
Pather’s action relates to what she alleges was a botched operation carried out at a state hospital. Her attorney has confirmed that the matter would be heard in the high court later this month but declined to give any other details of her claim, saying it might prejudice the matter.
In essence her claim was straightforward and, one would have thought, uncontentious: the MEC had a legal duty to ensure that medical care would be given to Pather "with such skill, care and diligence" as are expected of medical personnel.
Not so, said the state attorney in the written plea filed in court on behalf of the MEC. "It is denied that [the MEC] owes such a duty of care to [Pather]."
To this extraordinary denial the MEC then added another astounding assertion: there was no law in SA that "guarantees proper, sufficient and reasonable health services to citizens".
The constitution and other laws provided for health services "in an equitable manner and subject to the availability of resources". But no law obliged the state to provide "proper, sufficient and reasonable health services to members of the public ", said the state attorney.
"No health professional owes a duty of care to render medical care as defined in the act with skill, care and diligence.
"No statute requires professionals to give advice with skill, care and diligence."
Paying compensation to individual claimants "depletes the funds for health in favour of individual victims and undermines the principle of solidarity and equitability" as well as undermining the state’s ability to build a sustainable health system able to provide health care to all, especially the poor.
The MEC’s defence to Pather’s claim reads at times like a draft note, with spelling mistakes, paragraphs repeated several times one below the other, incomplete sentences and a hard-to-follow argument.
For example, the MEC says the concept of progressive realisation of the right to health care means "making state medical institutions accessible to all without regard to their status. The state [doctors and nurses] suddenly have higher doctor-to-patient ratio because the number and nurses of doctors is not increased; Although more doctors and nurses are being trained, the ratio of untrained nurse/doctor to experienced doctor/nurse gets worse. [C]onsequently, more patients will be attended to by unexperienced personnel; Trained and unexperienced personnel will for some time be available for the patients.
"This is a phenomenon of the third world," says the MEC, adding: "This is better than the pre-constitutional situation when these facilities were not accessible at all to the poor."
The bizarre argument filed in defence of Pather’s claim has subsequently been withdrawn, but when I asked Gauteng’s state attorney Kgosi Lekabe whether the initial plea was a "mistake" that slipped through by accident, he denied this was so. A case would be heard by the supreme court of appeal next month, he said, where the state would raise issues such as those highlighted in the Pather matter.
It’s difficult to imagine any court effectively overturning all past law on medical negligence claims, and it seems likely the argument in Pather’s case was put together in response to concerns of health minister Aaron Motsoaledi about escalating medical negligence cases reaching levels that could bankrupt the health system.
Much of this he blames on lawyers, urging that something be done to stop the trend.
You have to wonder whether the initial plea filed in the Pather case gives some idea of how the state attorney believes Motsoaledi could resolve the problem.