Few experiences are as devastating for a family as a child injured during birth. Some birth injuries are unavoidable. Others happen because warning signs were missed, monitoring was inadequate or help was called too late. Where an injury was caused by negligent care, the law allows the child, through their parents or guardian, to claim compensation.
These claims are among the largest and most complex personal injury matters in South Africa. A child with a serious brain injury, such as cerebral palsy, may need care, therapy, equipment and accommodation for life. The compensation is meant to pay for that care, so getting the claim right matters.
The area is also changing. In February 2026 the Supreme Court of Appeal confirmed that damages in these claims must be paid as a lump sum, and in late September 2026 the South African Law Reform Commission released a report recommending a different system for claims against the state. This article explains how birth injury claims work and what families should know now.
What makes a birth injury claim
A claim for medical negligence requires proof, on a balance of probabilities, that:
- the healthcare provider owed the mother and child a duty of care;
- the care fell below the standard of a reasonably competent practitioner in that field, in the circumstances;
- the negligent conduct caused the injury; and
- the child or family suffered damage as a result.
Causation is often the hardest element. Many birth injury claims concern brain injury caused by a lack of oxygen during labour. The question is usually whether the injury happened during labour and delivery, and whether timely action, such as proper foetal monitoring or an earlier caesarean section, would probably have prevented it. Medical records, CTG tracings and MRI scans are central evidence.
Common causes of negligent birth injuries
- failure to monitor the baby’s heart rate properly, or to act on abnormal readings;
- delay in performing an assisted delivery or caesarean section;
- failure to identify and manage high-risk pregnancies or complications such as pre-eclampsia;
- improper use of instruments during delivery;
- failure to resuscitate the baby properly after birth; and
- poor record-keeping, staffing or referral processes.
Who is liable?
In public hospitals, claims are brought against the Member of the Executive Council (MEC) for Health in the relevant province. In the private sector, the hospital may be liable for the conduct of its nursing and midwifery staff, while doctors such as obstetricians and paediatricians are usually independent practitioners who must be sued separately. Identifying the correct defendants early is important.
Time limits
Prescription. Claims generally prescribe after three years under the Prescription Act 68 of 1969. Where the claimant is a minor, prescription is delayed: the claim cannot prescribe before one year after the child turns 18. A parent’s own claim, for example for medical expenses they paid, is subject to the ordinary three-year period.
Notice to the state. For claims against provincial health departments, the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 requires written notice to the state within six months of the debt becoming due. A court may condone late notice in certain circumstances, but families should not rely on this.
The lump sum debate
South African law has traditionally applied the “once and for all” rule: all past and future damages are claimed and awarded in a single action, usually as a lump sum. Provincial health departments, facing large contingent liabilities, have argued that future medical needs should instead be provided through public hospitals or paid over time.
In a judgment delivered on 11 February 2026 ([2026] ZASCA 14), the SCA set aside a High Court order that would have required a child injured at birth to receive future care through state facilities instead of a lump sum. The SCA held that such a drastic change to an established legal principle is for Parliament, not the courts, and found that the evidence did not show that the state hospitals could reliably provide the care needed. It referred the matter back for the lump sum to be determined and for a trust to be set up to manage the funds. The Eastern Cape health department has indicated that it intends to approach the Constitutional Court.
Separately, the South African Law Reform Commission’s report on medico-legal claims, released in late September 2026, recommends replacing lump-sum payouts against the state with a mix of services, a lump sum for some heads of damages, and periodic payments for future losses. It proposes two new bills. These are recommendations only, and they would not apply to private healthcare. Families with existing or new claims should take advice on how these developments may affect them.
Protecting the award
Because the compensation is meant to fund a child’s lifetime care, courts usually require large awards to minors to be protected, often in a trust administered by a professional trustee. The trust deed should give the trustees enough flexibility to meet the child’s needs while protecting the capital. The cost of administering the fund is often included in the claim.
Steps for families considering a claim
- Request the records. Ask for the complete maternity and neonatal records, including CTG tracings and notes. You are entitled to request them under the Promotion of Access to Information Act 2 of 2000 if necessary.
- Keep your own record. Write down what happened during labour and delivery, with times and names where possible, while it is fresh.
- Diarise time limits. Note the six-month notice period for claims against the state and the prescription periods.
- Get expert input early. Claims typically need reports from obstetricians, midwives, neonatologists, paediatric neurologists and radiologists, as well as experts on care costs and loss of earnings.
- Keep proof of expenses. Save receipts for therapy, equipment, transport and care.
- Understand fee arrangements. If your attorney acts on a contingency basis, the agreement must comply with the Contingency Fees Act 66 of 1997. Ask for it in writing and make sure you understand it.
- Plan for the award. Consider early how the compensation will be protected and administered for your child.
How O’Reilly Law can help
We advise families on medical negligence claims arising from labour and delivery, against both provincial health departments and private hospitals and practitioners. We assist with obtaining records, briefing medical and actuarial experts, giving notice to the state, litigation and settlement, and with structuring trusts to protect awards for injured children.
Contact us to discuss a possible birth injury claim in confidence.
Related reading: Medical negligence and personal injury claims in South Africa · Prescription: when your claim or debt expires
This article is general information and not legal or medical advice. Correct as at November 2026.