A R500,000 lawsuit brought by a grieving mother after a 2020 baby-swap blunder at Lehurutshe Hospital has been dismissed by the North West High Court in Mahikeng.
While acting judge JT Maodi acknowledged the hospital’s negligence in the mix-up, the Friday ruling found the mother did not provide sufficient evidence of a legally compensable psychiatric injury.
The plaintiff cannot simply allege shock. It must be substantiated by expert psychiatric evidence.
— Judge JT Maodi, North West High Court acting judge
The woman was admitted to Lehurutshe Hospital on September 26 2020, for maternity purposes. She gave birth to a stillborn baby the next day. The baby died of natural causes.
She was discharged on September 28 and informed that a registered funeral undertaker had been sourced to remove the remains of her baby.
Family members went with the undertaker to fetch the remains and found the baby in a coffin. The remains were buried at her home on the same day.
However, on September 29, the hospital personnel came to her house and informed her that the child they had buried was not hers.
After three weeks, the hospital and government personnel came to exhume the remains. She was told the remains of the child exhumed were older, as the child had come to the hospital due to an illness, while hers was stillborn.
In her claim for damages, the woman alleged the hospital acted negligently by failing to verify that the remains handed over to her the first time were those of her baby.
The hospital and the North West health MEC denied that the woman suffered compensable psychiatric injury. They said the woman was provided with the remains of her stillborn baby.
Maodi said for the woman to succeed in a claim of this nature, she must prove that there was negligence on the part of the hospital that led to a breach of the duty of care, and as a result thereof, she has suffered a detectable psychiatric injury.
“Mere nervous shock or trauma is not sufficient.”
Maodi said the woman had to do more and establish a detectable psychiatric injury.
“A detectable psychiatric injury is a recognised mental illness or psychological condition (such as post-traumatic stress disorder, major depression or anxiety disorder) that is diagnosed by a professional and proven through evidence rather than a simple, temporary emotional distress of grief.”
Maodi said the mortuary attendant testified that she left the woman’s family to go into the room where the child’s remains were on their own.
“She was busy with other people, as it was Covid and too busy. She informed the hearse personnel what to do but did not ensure that it was done. She informed the family to enter but did not state what she told them to look for. She left them there to fend for themselves.”
Maodi said no evidence has been placed that the undertakers also understood what they were looking for or knew how to identify the baby.
“She came back from attending to the other family with management, asked the family if they identified their child, to which there is no evidence of their response.
Maodi said she did not go inside the room where the fridge was to check and ensure that the correct baby was taken.
“She knocked off, went home and waited until the following day when another family complained to realise that the wrong body of a baby was taken.”
The acting judge said based on the version of witnesses for the health department, it was the duty of the mortuary attendant and ultimately that of the hospital to ensure that the correct baby was given to the correct family.
“However, is this sufficient for the plaintiff to succeed in her claim?”
Maodi said the woman claims to have recurring headaches, but no professionally diagnosed medical condition or evidence was tendered in respect of that.
“The plaintiff cannot simply allege shock. It must be substantiated by expert psychiatric evidence. I do not know if the plaintiff has or is suffering [from] PTSD, depression, medically diagnosed migraines or anxiety.”
Maodi said at the beginning of the case, counsel for the woman indicated they had a report by a medical expert. However, they elected not to use it or call the medical expert who authored it.
He said to find in favour of a claimant who, subjectively and without expert medical diagnosis, in cases of this nature, claimed headaches or psychiatric injury would lead to chaos and open floodgates for undeserving matters.
“The need for medical psychiatric intervention and evidence will assist the court, as both plaintiff and defendant can have experts to prepare joint minutes which will assist in the evaluation of the psychiatric injury.”
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