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Have we changed: Is no life better than life with disability?

Have we changed: Is no life better than life with disability?

12th December 2014

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It should be noted from the outset that the Constitutional Court did not actually answer this question when it handed down judgment in the matter of H v Fetal Assessment Centre CCT 74/2014 this morning, 11 December 2014.

That’s according to Stephanie Esterhuyse, Partner at pan-African corporate law firm Bowman Gilfillan, who represented the Medical Protection Society (MPS) in the case. She commented:

In this case the mother of a child instituted an action for damages, on behalf of her son, against the Fetal Assessment Centre for having failed to inform her prior to the birth of her son that he could be born with Down syndrome. The mother alleges that, had she known of the possibility that her son could be borne with Down syndrome then she would have terminated her pregnancy and as a result of the Centre’s alleged negligence her child was born and now suffers. The mother did not institute an action for damages against the Centre in her personal capacity which claim is recognised in our law. The mother chose instead to institute a claim on behalf of the child, in her representative capacity.

The Constitutional Court granted the mother leave to appeal directly to the Constitutional Court against a judgment of the Western Cape Division of the High Court, in which the High Court held that the child’s claim against the Centre was bad in law as such a claim had been expressly rejected by the Supreme Court of Appeal in 2008. The Constitutional Court then granted the mother on behalf of her child leave to amend the claim, that is, to properly formulate the claim.

The Constitutional Court went to great lengths to explain that a claim for damages against a negligent medical practitioner may potentially be found to exist in our law in favour of a child born with disabilities which should have been detected and notified to the child’s mother. Evidence will have to be led and the High Court will have to determine whether this remedy exists in our law or whether our law of delict should be developed to recognise such a claim in the hands of H.

In the course of its judgment the Constitutional Court dealt with how this remedy “could” or “may” exist but pointed out that “policy considerations may then still prevent establishing legal causation, but that this is also an issue that can only properly be determined when all the facts are established at a trial”.

This caveat by the Constitutional Court is essential to the issue of whether or not our law should recognise such a remedy. The High Court will be required to determine whether our society is ready to blame and hold a doctor liable for damages suffered by a child when at the heart of the claim lies the complaint that the doctor’s conduct resulted in the birth of the child with a disability? It is trite that the doctor’s conduct did not cause the congenital defect (Down syndrome) and nothing the doctor could have done would have resulted in the child being born without Down syndrome.

It remains to be determined whether our society is ready to blame a doctor for negligence that resulted in life, albeit with a disability.

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