THE Pietermaritzburg High Court is likely to save the KwaZulu Natal health department millions of rands after a judge earlier awarded the mother of a child more than R28,8 million in damages, but three judges on appeal found this amount to be overly generous.

The KZN health department turned to court to appeal the amount of damages it was ordered to pay, after the child - who was nine when the application started - was left with cerebral palsy due to the negligence of the doctors at the State hospital where she was born.

The mother sued the health department for damages and the latter accepted liability. The mother’s claim followed her accusations that the doctors were negligent in treating her during the final phase of her labour and during the birthing process.

The department did not deny this nor that the mother was entitled to compensation. It, however, said that an amount in the region of R13,7 million was reasonable, as opposed to the R28,846 million which a judge earlier ordered the department to pay.

Included in the damages amount was an amount of R21,2 million which the judge had allocated to the mother for the future medical expenses of the child. This amount, the department said, was totally inflated and it proposed an amount of slightly more than R9 million in this regard.

Included in the R21,2 million the judge had awarded for medical expenses, was R4,8 million for a drug known as Vitalstim. This was proposed by one of the medical experts to assist the child with swallowing.

The court was told that children suffering from cerebral palsy often have difficulty in swallowing. This creates problems when eating and can also lead to a child aspirating its own saliva, which, in turn, can lead to infections in the lungs.

The trial judge did award more than R4 million for this drug, but the appeal court now said this should never have been awarded. The problem is that this drug is, according to the Health Professions Council of South Africa, still in an experimental phase and has a number of side effects.

The department also objected to various other monetary amounts awarded for medical products and equipment, including nappies, which it said the amounts awarded for these by the trial court were inflated.

The appeal court ruled that the experts once again had to look at the items awarded and they had to adjust their calculations accordingly. The new calculations had to be presented to the court, which would then make a new order regarding the compensation to be paid to the mother.

But the court during arguments pointed out a judgment delivered 80 years ago, in which a judge said “‘... it must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money...there are no scales by which pain and suffering can be measured.”

However, the appeal court in this matter said a temptation to be overly generous to a plaintiff when an uncertain future is assessed, must be guarded against.