Litigation: Mother, Medihelp battle over payment for son's treatment

Gauteng mother Michaney de Wet made a last-minute dash to the Gauteng High Court (Pretoria) late in December to compel the family’s medical scheme to continue to pay for an expensive treatment for her son (3) who has a rare, debilitating disease. A Sunday Times report says she won the order she was seeking – but the medical aid, Medihelp, immediately lodged an appeal application and refused to resume the payments. The company said the treatment – weekly intravenous administration of the enzyme replacement therapy Elaprase – is not within the family’s prescribed minimum benefits.

De Wet’s son Zachary has the genetic disorder Hunter syndrome, an incurable condition in which the body is incapable of breaking down sugar. The resulting damage leads to impaired mental and physical development. Elaprase, the only registered treatment for Hunter syndrome in SA, can slow progression of the condition – but the weekly infusions cost about R250 000 a time. It is one of the most expensive medicines in the world. Prices are generally determined by the cost of developing a drug and length of the trials. Zachary was diagnosed when he was about two.

De Wet, assisted by Kelly du Plessis, founder of the non-profit Rare Diseases SA, first approached the court in August last year after Medihelp refused to pay for Elaprase, which had been recommended by specialists as Zachary’s heart valves were becoming damaged and his liver was enlarging. According to the Sunday Times report, Judge Anthony Millar granted an interim order that Medihelp must pay for the treatment pending a ruling on the dispute by the Council for Medical Schemes (CMS). That ruling came in December, when the CMS backed Medihelp’s argument that the enzyme treatment did not constitute a ‘prescribed minimum benefit’. The medical aid company immediately stopped funding the treatment, saying the issue had been resolved and the order granted by Millar was now void. But De Wet lodged an appeal with the CMS against its ruling, and her lawyers argued that this meant Millar’s interim order was still valid and funding for the weekly infusions had to continue.

The matter was argued before Judge Mashudu Munzhelele who ruled in De Wet’s favour in late December. Munzhehele agreed that because an appeal was pending with the CMS, Millar’s order still stood. However, Medihelp immediately lodged an application for leave to appeal against Munzhehele’s decision, either to a full Bench of the Gauteng division or to the SCA. It claims Munzhelele misinterpreted Millar’s order and placed ‘undue emphasis’ on the fact that the case involved a child; the judge’s sympathy ‘eclipsed the rules of interpretation’ as set out in case law. The application for leave to appeal has yet to be set down for hearing. It is expected that De Wet’s lawyers will ask that if leave is granted, Millar’s order should remain in force.