Health department ordered to resume lump-sum negligence payouts

The Eastern Cape department of healthwill in future have to resume paying the massive “once-and-for-all” lump sums it incurs as a result ofmedical negligenceafter the Supreme Court of Appeal on Wednesday ruled it must do so. At the centre of this particular case is a child born with spastic quadriplegiccerebral palsyas a direct result of medical negligence during labour and his birth atCecilia Makiwane Hospital in Mdantsane. The health department conceded liability but argued that the provincial hospitals could take care of the child’s future medical needs and that there was no need for it to pay out an exorbitant price for this in a “one-off” payment.

The claim for future cost of care is usually by far the biggest cost-driver in negligenceclaims. The mother had claimed R23m from the department including special and general damages in her personal capacity (R1m); general damages (R5m); future hospital care, medical and related expenses for the child (R7m); and loss of earning capacity (R10m). It was also argued that manycrooked lawyers unlawfully took huge chunks of these claims as legal fees, meaning those that should benefit from the money did not.

The Bhisho High Court in 2025 found there was a compelling case to develop the common law in terms of lump-sum payment obligations. It found that if the state had established it was able to provide future medical treatment at a standard equivalent to, or better than that of the private sector, it need not pay out a lump sum for future medical treatment. The court ordered the department to provide all the services, consultations, therapies, surgeries and other procedures necessary for the child for the duration of his life at its various hospitals instead of paying out a lump sum.

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Ironically, this included treatment at Cecilia Makiwane, the hospital whose negligence caused his disability in the first place. It stated that the common law was to be developed in line with this finding. But the SCA disagreed. It ruled that the legislature and not the courts was the major engine for law reform.

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