The Eastern Cape division of the High Court has developed the common law to allow courts to apply broader remedies in claims for negligence against public healthcare providers and institutions.
In a landmark judgment, TN obo BN v Member of the Executive Council for Health, Eastern Cape (36/2017)  ZAECBHC 3, handed down by the Eastern Cape Division of the High Court (Bhisho) on 7 February 2023, the Court developed the common law of damages relating to claims for negligence against public healthcare providers and institutions.
This ruling allows public healthcare administrators that are successfully sued by plaintiffs for having negligently caused harm to patients to render future medical services required by the victims at public healthcare institutions at no or reduced cost. Alternatively, they may undertake to pay for services available in the private sector as the need arises, either directly or in reimbursement of plaintiffs' direct expenses. In both instances, this is subject to a Court order as part of a just and equitable remedy.
Traditionally, the common law once-and-for-all rule of damages requires, firstly, that all present and future damages claimed by an injured victim should be claimed in a single action. Secondly, it requires that these damages are claimed (and ultimately awarded) as a lump sum in money.
In the present case of TN, the plaintiff acted in her representative capacity as a mother of a minor child. She sued the Eastern Cape Department of Health for damages arising from the negligent conduct of its medical staff in a public hospital under the control of the Department. She alleged that this negligent conduct caused her child to sustain severe birth-related injuries resulting in cerebral palsy. Merits were conceded and the Court was called upon to determine the appropriate remedy on the issue of damages only (for which the total claim was ZAR 35 million).
At the trial, the Department raised two defences on the strength of the Constitutional Court's passing statements in Member of the Executive Counsel for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC). In that case, the Constitutional Court left the door open for the development of the common law to include the 'payment in kind' or 'public healthcare' defence and the 'undertaking to pay' defence, provided that factual evidence be adduced and accepted in favour of such a development.
In TN, the Department presented detailed evidence showing that the large lump sums usually awarded to plaintiffs in similar cases dramatically reduced the capacity of the Department to carry out its constitutional obligation to take steps to achieve the progressive realisation of healthcare services for all. The Department was also able to show to the satisfaction of the Court that future medical services available in the public sector would be of a reasonable standard and could meet the needs of injured victims in particular cases.
Based on the evidence, the Court held that it was in the interests of justice that the common law be developed to provide courts which adjudicate medical negligence claims with a broader remedial framework, including the remedies sought by the Department. The result is a dramatic departure from the prevailing common law rules relating to the assessment and adjudication of damages claims for medical negligence – but only against public healthcare practitioners, providers and institutions.