The Member of the Executive Council for Health & Social Development, Gauteng Provincial Government v TM obo MM

The respondent, TM, sued the Gauteng MEC for Health on behalf of her minor child, MM, who was born by caesarean section at Charlotte Maxeke Johannesburg Academic Hospital on 28 August 2010. During labour, foetal distress was detected at about 15h45, and a decision to perform a caesarean section was taken at approximately 16h00. Due to theatre availability and other scheduled caesarean sections, the procedure was only performed around 18h15, with delivery completed at about 19h20. MM was born with low Apgar scores and later diagnosed with cerebral palsy caused by acute profound hypoxic ischaemia intrapartum. TM alleged that hospital staff were negligent in failing to perform the caesarean section promptly, in not having a second operational theatre, in mismanaging theatre use, in failing to refer her to another hospital, and in failing to apply intrauterine resuscitation. The High Court found the MEC liable. The MEC appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Gauteng Division of the High Court was set aside and replaced with an order dismissing the plaintiff’s claim.

This case reaffirms the principles governing medical negligence claims against public health authorities in South Africa, particularly the requirement that plaintiffs must prove both negligence and causation. It underscores that deviation from clinical guidelines does not automatically amount to negligence, and that courts must consider the realities of resource constraints in public healthcare. The judgment also illustrates the high evidentiary burden in establishing that an earlier intervention would probably have prevented the harm suffered.