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[2015] ZAGPJHC 13
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Lushaba v MEC for Health, Gauteng (17077/2012) [2015] ZAGPJHC 13 (2 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 17077/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
VUYUSILE
EUNICE LUSHABA
Plaintiff
and
THE
MEC FOR HEALTH, GAUTENG
Defendant
JUDGMENT
ROBINSON AJ
1
This is an application for leave to appeal against
the finding made by this court on the merits of this matter on 16
October 2014
as well as the order on costs made on 26 November 2014.
I shall assume in favour of Messrs Macheke and Matlou and Dr Cele
that
they are represented in this application.
THE APPLICATION ON THE
MERITS
2
Mr Khoza SC, who now appears with Mr Latib for the
defendant, argued that the evidence of the expert witnesses, Drs van
den Heever
and Mashamba should be ignored. This is a rather
startling submission, considering:
2.1
the joint expert notice, which left no
relevant disputes between the parties;
2.2
the absence of any meaningful challenge to the
evidence of the plaintiff’s witness, Dr Van den Heever;
2.3
the defendant’s consistent stance up till
now that it was entitled to defend the matter because of the views
expressed by
Dr Mashamba;
2.4
the absence of any basis, suggested by Mr Khoza or
otherwise, upon which this court should reject the evidence of Dr van
den Heever,
which evidence it accepted in its entirety.
3
Mr Khoza attempted to avoid the logic of the joint
minute by arguing that a duty only arose on the defendant to perform
the caesarean
once a diagnosis of abruptio placentae had been made.
This was not the case of the defendant during the trial, nor was this
ever
put to Dr van den Heever. In any event, I fail to comprehend how
the defendant could render that which is urgent not urgent by failing
to identify the urgency as such. The argument appears to me to ignore
the consideration that the plaintiff presented at a hospital
and
that, as such, she was entitled to treatment that would avoid the
tragedy that did result. The tragedy was avoidable. This
is clear
from the uncontested evidence of Dr van den Heever on the effect of
the heartbeat. In the absence of an explanation from
the defendant
for the failure to act expeditiously, it must be assumed that it had
no explanation.
4
In
these circumstances there is nothing to detract from the general rule
that if a person goes to a hospital the hospital authorities
are then
under a duty of care in their treatment of her
.
[1]
As
was stated by Lord Denning:
Whenever they accept a
patient for treatment they must use reasonable care and skill to cure
him of his ailment. The hospital
authorities cannot, of course,
do it by themselves. They have no ears to listen through the
stethoscope, and no hands to
hold the knife. They must do it by the
staff which they employ, and, if their staff are negligent in giving
the treatment, they
are just as liable for that negligence as is
anyone else who employs others to do his duties for him.
5
The
decision in
Ntsele
v MEC for Health, Gauteng Provincial Government
[2]
is
to the same effect.
6
It is further of significance that none of the
hospital’s employees came to testify, apart from Dr Jeebodh,
but it has never
been the plaintiff’s case that Dr Jeebodh was
negligent. A judge
…
should
not be diverted away from the inference of negligence dictated by the
plaintiff’s evidence by mere theoretical possibilities
of how
that outcome might have occurred without negligence : the defendants’
hypothesis must have the ring of plausibility
about it ...
[3]
7
At the close of the plaintiff’s case, after
Dr van den Heever had testified, there was
…
sufficient
evidence which gave rise to an inference of negligence on the part of
one or more of the medical staff in the employ
of the MEC who
attended on her. In that regard it is important to bear in mind
that in a civil case it is not necessary for
a plaintiff to prove
that the inference that she asks the court was the only reasonable
inference, it suffices for her to convince
the court that the
inference that she advocates is the most readily apparent and
acceptable inference from a number of inferences
... That being so,
the MEC, in failing to adduce any evidence whatsoever, accordingly
took the risk of a judgment being given against
him. After all,
it was open to the MEC to adduce evidence to show that whilst Ms
Goliath was undergoing surgery, reasonable
care had indeed been
exercised by his employees. That he did not do. Nor, for that matter,
was so much as a version put during
cross-examination to either Ms
Goliath or Dr Muller on behalf of the MEC. Moreover, no explanation
was advanced as to why the medical
staff who attended on Ms Goliath
were not called as witnesses. It may well be that in these
circumstances an inference may
be justified that the MEC feared that
if one or more of them were to enter the witness-box, such person’s
evidence would
expose facts unfavourable to his case.
Accordingly, as the matter had been fully explored in the evidence,
at the conclusion
of the trial the task of the court was to decide
whether, on all of the evidence and the probabilities and the
inferences, Ms Goliath
had discharged the onus of proof resting upon
her on a preponderance of probability.
[4]
8
In this case, whilst the defendant called two
witnesses, namely Dr Mashamba and Dr Jeebodh, it called no witness to
deal with the
period during which the plaintiff claimed the
defendant’s employees were negligent. Thus no witnesses
were called to
testify about the period between 12h00 and 13h45 and
to explain why the emergency caesarean was not performed during that
time
and why the defendant’s employees at the hospital failed
to react to the presenting complications such as the irregular heart
rate, which was indicative of foetal distress with the reasonable
possibility of permanent damage to Menzi. There was also
a
complete failure of evidence to explain why the defendant’s
employees failed to take cognisance of the plaintiff’s
complaints of discomfort and pain which indicated potential
complications and possible damage to Menzi.
9
In circumstances where the agreement between the
experts is that the plaintiff’s symptoms of lower abdominal
pain, lower blood
pressure and dizziness were indicative of abruptio
placenta until proven otherwise and that the caesarean should have
been done
as soon as possible after 12 o’clock most likely with
a better outcome, it is not possible to conceive that another court
may arrive at a different conclusion on the merits. That the
defendant now submits that the expert evidence should be disregarded
is perhaps supportive of the view that there is no such possibility.
The defendant relied greatly upon the view of Dr Mashamba
that the
fact that the plaintiff first presented at the MOU excluded the
obligation for an emergency caesarean to be performed.
If
however it is accepted that the defendant in law has a duty to ensure
that the hospital employees at the hospital where the
plaintiff
presented herself treated herewith reasonable skill, then it must
also be accepted that, when she presents as an emergency,
she is
entitled to reasonably skilled emergency treatment. That she
only got 1 hour and 45 minutes after presenting herself
and by then
it was too late.
10
No defence is pleaded by the defendant, apart from
a bare denial which even includes a denial that it has a duty of care
towards
the plaintiff. No defence was revealed in the expert report
of Dr Mashamba. The joint expert minute disclosed no relevant
disagreement between the experts and no basis for a denial of
negligence. The plaintiff was entitled to present her evidence on
the
basis of this factual matrix. Had the defendant decided to change
course, it was incumbent upon it to make clear to dr van
den Heever
in cross examination that the agreement evident in the joint minute
was withdrawn because of the MOU issue.
11
Dr Mashamba had no personal knowledge of the MOU
and did not know whether it employed a doctor or not. No reason
was advanced
why the MOU should be exempt from the general duty on
the hospital to treat an emergency as such. Indeed, it appears
that
the MOU did realise that something serious was remiss as it
referred the plaintiff to the labour ward. Dr van den Heever’s
evidence that the plaintiff’s extremely low blood pressure
meant that she had to be wheeled from the MOU to the labour ward
was
not challenged. That means that between 12h00 and 13h00 the
defendant’s employees did nothing to attend to the emergency
situation presented by the plaintiff.
12
There
is nothing really to contest the evidence of Dr van den Heever that,
with a low blood pressure the plaintiff presented at
the MOU, the
plaintiff should immediately have been transferred to the labour
ward. His evidence in this regard was that,
with the clinical
signs the plaintiff presented, she should
“
wherever
she was initially seen at 12h00 she must have been transferred as an
emergency within minutes to the labour ward. There
is no excuse for
an hour delay even if the MOU is some distance from the labour ward.
They could have put her on a trolley and
wheeled her. I do not
know what the setup in the Johannesburg Hospital is, we do not have
any notes between 12h00 and 13h00.”
[5]
13
The defendant further ignores entirely the
experts’ agreement that was unacceptable that nothing happened
between 12h00 and
13h00. As Dr van den Heever testified, there
are no notes between 12h00 and 13h00 apart from the initial
observations at
12h00. No action was taken to look for the
cause for the low blood pressure and the patient’s symptoms and
complaints.
It was only at 13h00 that a provisional diagnosis
was made and then again at 13h45.
14
It is evident from the evidence of Dr van den
Heever that it was never put to him that it could not be expected of
midwives to appreciate
the importance of a heavily pregnant woman
with such an extreme low blood pressure. To the contrary, his
undisputed and unchallenged
evidence was that the plaintiff should
immediately upon the recordal of the low blood pressure, have been
transferred to the labour
unit.
15
In these circumstances, the application for leave
to appeal on the merits is dismissed with costs.
THE APPLICATION FOR LEAVE
TO APPEAL ON THE COSTS ORDERS
16
On 20 February 2013, Mr Masheke, the legal advisor
of the defendant, went on oath to say that the defendant has no
relevant documents
in his possession. At that stage the summary
of the opinion of Dr Van den Heever and liability bundle had not yet
been filed
and delivered to the defendant. That was done only
in August 2013. Accordingly, and when Mr Masheke testified that
he had in his possession pleadings and notices, such notices could
not have included the medical records pertaining to the antenatal
and
delivery records. The submission made by Mr Khoza that those
notices did include these records must, accordingly, be
rejected.
17
Mr
Masheke went on oath in his rule
nisi
affidavits
to claim that the head of the institution where the alleged damage
occurred is “
requested
to provide copies of the claimant’s medical records related to
the instance”
.
[6]
He
also states that copies of the medical record are forwarded to the
State Attorney once received from the institution.
[7]
18
In
this case, Mr Masheke says that he and Dr Cele, the medico legal
advisor at the department, consulted with the employees involved
in
this matter at the Charlotte Maxeke Johannesburg Academic
Hospital.
[8]
Mr
Macheke does not state when he requested the hospital to provide the
records, he does not identify the records he would have
received, he
does not attach a copy of the relevant letter, he does not identify
the employees he and Dr Cele consulted with and
he does not state
when he would have forwarded the antenatal and delivery records to Mr
Matlou.
19
Mr Macheke admits that Dr Mashamba’s report
was forwarded to him. That report very clearly states that the
antenatal
records had not been provided to Dr Mashamba. Dr
Mashamba’s report is entirely devoid of any indication of
defence
on the merits. Therefore, when Mr Masheke and Dr Cele
say that they fully considered the merits based upon the medical
opinion
that clearly supported a reasonable defence, they cannot be
said to have acted reasonably and rationally. No defence is
exhibited
and no defence has been pointed to. No defence could have
been determined in the absence of the relevant records.
20
A determinative issue here is that these records,
whether they were in possession of Messrs Macheke, Matla and Dr Cele,
or not,
were not forwarded to Dr Mashamba. All of these
witnesses say that they relied totally on the opinion of Dr Mashamba
about
whether they should proceed with the defence or otherwise.
Clearly, it was their duty to obtain the medical records and form a
view as to the merits of the case. This is evident from their own
evidence and the submission that the responsibility for the decision
to proceed rested squarely with counsel is contradicted by the
evidence of these witnesses.
21
The medico legal advisor, Mr Macheke, the legal
advisor and Mr Matlou, the State Attorney attending to the matter,
were content
to rely on the opinion of an expert which (1) revealed
no defence and (2) was made without the assistance of the vital
medical
records.
22
In these circumstances I am of the view that there
is no reasonable prospect that another court may come to a different
conclusion
on the costs and, insofar as this aspect of the
application for leave to appeal is concerned, leave is likewise
refused.
CONCLUSION
23
In the circumstances I make the following order:
Leave to appeal the
orders of 16 October 2014 and of 26 November 2014 is refused, with
costs, such costs to include the costs of
two counsel on the part of
the plaintiff.
R
M Robinson AJ
04
February 2015
Date
of Hearing: 02 December 2014
Date
of Judgment: 02 February 2015
Appearances:
For
Plaintiff:
Adv.
Pillay SC
For
Respondent:
Adv.
Khoza SC
[1]
Lord
Denning in
Cassidy
v Ministry of Health (Fahrni, third party)
[1951]
1 All ER 574
at pp 584-585
and see p588
[2]
[2013] 2 All SA 356 (GSJ)
[3]
Ratcliffe
v Plymouth & Torquay Health Authority
at
[48] as referred to in
Goliath
v the Member of the Executive Council for Health in the Province of
the Eastern Cape.
Case
no 85/2014 Supreme Court of Appeal
[4]
Goliath
v MEC for Health in the Province of the Eastern Cape,
supra
at [19]
[5]
Record p53
[6]
[8] p 41
[7]
[10] p42
[8]
[19] p44