Image
Icon

Directory

IconAssociations and Institutes
IconBBBEE Consulting and Verification Agencies
IconCompare Medical Scheme Benefits
IconConsumer Protection
IconCorporate Governance
IconCredit Bureaus
IconEmergency Medical Rescue
IconExpatriate Cover
IconHealthcare Consultants
IconMedical Aid Brokers
IconMedical Aid Schemes
IconMedical Schemes Trustees Liability Insurance
IconMedical Service Providers
IconOmbud
IconOnline Quotes
IconPublications
IconRegulatory Authorities
IconWellness Programs
Image
  Subscribe To »

Loss of the right to rear a child does not give rise to constitutional damages

Published

2017

Wed

22

Mar

 

By Justin Malherbe and Rukshana Parker
Norton Rose Fulbright South Africa Inc.

Our law does not recognise a claim for constitutional damages for loss of a parent’s right to rear a child who was stillborn as a result of medical negligence.

In Mbhele v MEC Health for the Gauteng Province, an expectant mother was admitted to Chris Hani Baragwanath Hospital with signs of foetal distress – an emergency medical condition. When she arrived, she was not treated as an emergency case but only seen to by a doctor an hour later. The doctor requested a scan which was also delayed. Despite the scan results confirming signs of foetal distress, the attending doctor was not informed of the scan results by the maternity staff. Ms Mbhele was left alone to progress in labour without any supervision. Sadly, she delivered a stillborn child.

Thereafter, Ms Mbhele was taken to the maternity ward where she watched new mothers feeding their newborn babies, lulling them to sleep or holding them, all while she stared at the empty cot. Ms Mbhele requested a transfer to a different ward but was ignored for several hours. Later, she was compelled to identify the body of her stillborn infant in the mortuary.

"A stillborn child does not have a legal right to recover damages for pre-natal injuries.

Ms Mbhele sued the MEC for Health for constitutional damages based on the loss of her right to rear her child, as well as damages for emotional shock due to her ordeal. The appeal court confirmed that a stillborn child does not have a legal right to recover damages for pre-natal injuries. An unborn child, if subsequently born alive, is deemed to have all the rights of a born child whenever this is to its advantage and to sue for damages for pre-natal injuries. However, this is only applicable if the child is subsequently born alive. Unfortunately in this case the child was stillborn and no right to sue accrued to the mother.

Despite the finding that she could not sue for constitutional damages for the loss of the right to rear a child, Ms Mbhele was awarded R100 000 as damages for emotional shock. The court was satisfied that Ms Mbhele had suffered an identifiable psychological lesion directly related to the trauma she suffered during the delivery of her child and in hospital thereafter.

The appeal court decision demonstrates that for a claim for constitutional damages to succeed it will need to be based on a recognised constitutional right. The claim must be properly pleaded and backed up by sufficient evidence to make out a case for recognising a legal action in those circumstances. In this instance, the court found that no such foundation was laid.

The fact that emotional shock damages were awarded in the amount of R100 000 also demonstrates that this is the appropriate remedy in these and similar circumstances which may involve a range of psychological infringements or emotional injuries, provided these are proven on a balance of probabilities.

 
Source: Norton Rose Fulbright South Africa Inc.
 
« Back to previous page Print this page » |
 

Breaking News »

GTC Medical Aid Survey 2017

Results reveal that small medical aids also offer good value, and highlights that consumers may be unaware of their own medical aid plans and the benefits contained therein. Smaller medical schemes perform well ...
Read More »

  

Diabetes is the most potentially devastating – and fastest-growing – health crisis of our time

There may be as many as 4. 6 million people in South Africa living with diabetes, and possibly the same number at risk of developing type 2 diabetes. Those diagnosed face the risk of life-changing and life-limiting ...
Read More »

  

Youth urged to lead the Long Walk to Prevention

Pretoria: South Africa’s current youth need to make history and take up the HIV and Aids prevention revolution, like those of 1976. “The Long Walk to Prevention calls for the energy, vibrancy and infinite ...
Read More »

  

Enlarged prostate a debilitating medical condition for many older men

New treatment for severely enlarged prostate achieving excellent outcomes in SA    While many older men suffer from symptoms due to enlarged prostate, or benign prostatic hyperplasia (BPH), as it ...
Read More »

 

More News »

Image

Investment »

Image

Life »

Image

Retirement »

Image

Short-term »

Advertise Here
Image
Advertise Here

From The Glossary »

Icon

Irrevocable Beneficiary:

A beneficiary for whom another may not be substituted.
More Definitions »

 
 
By using this website you agree to the Terms of Use.
Copyright © Stoker Risk & ICT (Pty) Ltd 2004 - 2017.
All Rights Reserved.
Icon

Advertise

  Icon

eZine

  Icon

Contact IG

Icon

Media Pack

  Icon

RSS Feeds