According to the Gauteng Department of Health, cerebral palsy medical negligence cases are the most common complaints levered against them by patients in the province. This has cost the department millions in court case fees, and payout to families, as previously it was believed that going to court is the only solution to cerebral palsy medical neglect cases.

But, in an effort to curb the department’s medico-legal fees and still provide adequate and just compensation to families and children affected by cerebral palsy, a team of independent and voluntary mediators are brought in to resolve cases of medical negligence of cerebral palsy patients.

This pilot project, spearheaded by the South African Medico-Legal Association (SMLA), has successfully mediated six cases, out of a potential 13, since October 2019. The mediators are led by retired Judge Neels Classen. According to Mediators in Motion, a not-for-profit organisation, the process of mediation is more than “assisted negotiations” — mediation helps create a safe and comfortable space for both parties involved in a dispute to air their views, and mediators with specialised skills craft solutions that are often not available in court, or during litigation.

Difficulty in the courts

Dr Herman Edeling, a neurosurgeon part of the mediation team, says that cerebral palsy cases are the “single pathological condition which costs departments of health in all provinces the most money.” 

“The reason for that is because children with cerebral palsy are severely disabled, so they will have no future earnings. Other than that, the care of a child living with cerebral palsy is expensive. Of the huge amounts of money that have been awarded by the courts for cerebral palsy matters, the vast majority of that money is for future care,” he explains.

Dealing with cerebral palsy cases in court comes with various issues that are challenging — both for the parents and patients involved, and the local Department of Health. Edeling says that due to the condition shortening a patient’s lifespan, in previous legal cases the department spent “huge amounts of money” determining future cost compensation. 

“One of the big problems in cerebral palsy litigation is that in court you get your recourse but once that is done, you can’t come back to court on the same matter. The court has to determine what the future costs are and what the costs of treatment for the rest of the person’s life are. Because children with cerebral palsy have a shortened life expectancy, it becomes a huge part of the fight in litigation. Huge amounts of money have been spent in the South African medico-legal system by conducting those findings,” says Edeling.

Majority of cerebral palsy cases ‘naturally occuring’

He also adds that proving that a case of cerebral palsy had been as a result of negligence had been another reason why the cases took longer to resolve through the court process, thus contributing to high costs. 

“The majority of cases of cerebral palsy are naturally occurring. They do not occur as a result of anybody’s negligence. It turns out that about 10% or less, of cerebral palsy cases are actually the result of clinical negligence. This means that if claimants and attorneys representing them lay claims against the state for cerebral palsy of all cases they can find, only one out of ten of them should succeed.”

According to the Mayo Clinic, some of the causes of the condition are infant and maternal infections, gene mutations and fetal stroke. However, in many cases, the cause isn’t known. 

Parents find closure 

Through the introduction of the mediation process, the Gauteng health department has saved an estimated amount of R10-Million. Hlengiwe Goba, head of legal services at the department, says that this amount is due to the minimised costs involved in an arbitration process, saving on legal fees. 

“Had these matters followed the normal litigation process, instead of mediation, experts would have to be paid, the senior and junior legal team would have to be paid. With mediation, they come directly to us, so it’s cost-effective,” Goba told OurHealth.

Gauteng health MEC, Bandile Masuku, believes the mediation process has gone a long way in restoring the department’s reputation, and offers a space for parents to voice their struggles in caring for children with cerebral palsy. 

“The department’s reputation is being restored as the complainants’ — even though some were still grieving — felt valued by the mediation team and process. The complainants’ further expressed that they trusted the mediation process, the mediators’ independence in attending to both sides and that they found closure,” Masuku says.- Health-e News