NVM obo VKM v Tembisa Hospital and Another

The case arose from the birth of VKM at Tembisa Hospital in April 2009. During labour, foetal heart rate monitoring was not conducted for a critical period of approximately 90 minutes, which the hospital staff conceded was negligent. VKM was born with very low Apgar scores and suffered an acute profound hypoxic ischaemic encephalopathy, later developing cerebral palsy and epilepsy. VKM’s mother, NVM, sued the hospital and the Gauteng MEC for Health for damages on behalf of the child and herself. The High Court found that the negligent failure to monitor foetal heart rate caused the brain injury. On appeal, the Full Court overturned this finding, holding that factual causation had not been proved. The applicant then sought leave to appeal to the Constitutional Court.

Leave to appeal was refused.

The case clarifies the limits of the Constitutional Court’s jurisdiction in medical negligence matters, confirming that disputes turning solely on factual causation do not engage constitutional jurisdiction merely because the defendant is an organ of state or because constitutional rights are invoked. It reinforces the distinction between factual disputes and genuine constitutional or legal questions of general public importance.