Money cannot compensate IDT, says judge

Cape Town - The damages claim of a seven-year-old boy who developed cerebral palsy after state medical staff failed to diagnose that he had jaundice at birth, is set to be finalised.

After several years, the end is in sight after the Western Cape High Court handed down a judgment in which it determined the boy’s life expectancy and found his expected age of death was 55.

The matter dates back to January 2009 when the boy was born at Mowbray Maternity Hospital. He has been identified only as IDT because he is still a minor.

He and his mother were discharged shortly after his birth and, at the time, he showed signs of jaundice. Days later they were forced to return because his condition had worsened. However, it was too late.

IDT had suffered brain damage which led to cerebral palsy.

The next year his parents instituted a damages action against the Western Cape Health MEC and, less than two years after that, the MEC admitted liability.

However, the case returned to court for the amount of damages to be decided.

By the time that part of the case started the claims amounted to R2.01-million for the parents in their personal capacities, R32.9m for IDT and more than R3m for the cost of protecting and administering the damages award.

The parties’ lawyers and the Centre for Child Law spent 45 days thrashing out the issues before Judge Owen Rogers.

The claims include medical expenses, home modifications, a care-giver, a case manager and other claims to help him cope with his condition.

Judge Rogers pointed out in his judgment: “Money cannot compensate IDT for everything he has lost. It does, however, have the power to enable those caring for him to try things which may alleviate his pain and suffering and to provide him with some pleasures in substitution for those which are now closed to him. These might include certain of the treatments which I have not felt able to allow as quantifiable future medical costs.”

Evidence before the court showed that “virtually all daily activities, such as dressing, eating and washing, are an effort”.

In addition, his impaired motor functioning will cause him to fall more often and injure himself.

IDT will also have an increased risk of arthritis and epilepsy. He is practically deaf and he will probably never have expressive speech.

IDT will never be able to run or partake in sport, will have difficulty developing friendships, will not be able to marry or have children and will have difficulty travelling for holidays.

The judge said: “IDT’s life will become lonelier as he enters adulthood. He may survive one or both of his parents. He will find it difficult to develop and maintain friendships with his peers. He will not be able to marry or have intimate relations. He will not have the pleasure and satisfaction which gainful employment can bring.”

He also pointed out that evidence before him indicated that IDT was likely to have an increased risk of depression and anxiety disorders.

Judge Rogers ordered the MEC to pay general damages of R1.8m.

He also gave the parties a month to file a document setting out the agreed or disputed actuarial calculations of lump sums for IDT’s future medical and related expenses and loss of earnings.

The judge ordered that any amounts paid to IDT be paid to a trust.

Weekend Argus