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[2010] ZAGPJHC 110
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Harmse NO obo Jacobus v Mec for Health: Gauteng Province (11194/08) [2010] ZAGPJHC 110 (16 November 2010)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 11194/08
DATE: 16/11/2010
In the matter between:
ANNE CHARMAINE HARMSE
N.O.
..........................................................
Plaintiff
obo SNYMAN JOSEPHUS JACOBUS
and
THE MEC FOR HEALTH: GAUTENG
PROVINCE
...............................
Defendant
_______________________________________________________________
JUDGMENT
_______________________________________________________________
MATHOPO J:
[1]
This
is an action for damages arising out of the alleged negligence of the
doctors and staff at Yusuf Dadoo Hospital which led to
an above knee
amputation of the left leg of the original Plaintiff Mr Jacobus
Josephus Snyman (now deceased).
[2]
Ms
Ann Charmain Harms was appointed as executrix to the deceased estate.
This action is proceeded by her in representative capacity.
[3] By agreement between the parties
the case proceeded on both merits and quantum.
[4]
The
quantum of the claim was limited to special damages for past losses
(funeral expenses, past medical expenses, past loss of
earnings and
general damages for pain and suffering), it being common cause
between the parties that since
litis
contestatio
was reached, such a claim was still available to be pursued
notwithstanding the death of the plaintiff.
[
5] It
is common cause that the deceased was seen at the casualty department
of the Yusuf Dadoo hospital in Krugersdorp, at approximately
12H16 on
the 18
th
of June 2005. He was thereafter admitted to the ward with a
complaint of a sudden onset of acute pain in his left leg. His leg
was elevated and he was given analgesics. At 11H40 on the 18
th
of June 2005, he was attended to by a doctor or nurse who made the
observation that the deceased suffered numbness in his leg.
At 12H16
on the 18
th
of June 2005, the deceased was seen by a doctor in casualty who noted
tenderness and weakness of the leg, but no swelling. He
recorded a
full range of movement of the leg and intact neurovascular
parameters. On the following day, being the 19
th
of June 2005 the deceased was seen by one Dr Nquanda at approximately
19h00. On the 20
th
October 2005, the deceased was found to have numbness in his legs,
cyanosis (blue from lack of blood supply) and an absence of
pedal
pulses. On the 21
st
of June 2005, the deceased was diagnosed with a “dead limb”
which was required to be amputated.
[6]
The
plaintiff’s case is that the doctors at Yusuf Dadoo hospital
failed to diagnose an occluded femoral artery on the deceased’s
leg or to take timeous effective action to deal with the occlusion
appropriately when the provisional diagnose has been made.
The
plaintiff further avers that the doctors and nurses failed to notice
or consider the fact that the deceased had an underlying
vascular
condition and that he had previous surgery to his right femoral
artery for the vascular problem. Had they done so, plaintiff
avers
the deceased would not have suffered the amputation of his leg.
ISSUES
[7]
The
issues that the court has to determine are:
7.1
Whether
the defendant’s employees were negligent in that they failed to
reasonably diagnose and treat the plaintiff’s
acute arterial
occlusion of his left leg which led to the left leg being amputated.
7.2
Whether
Mr Snyman (the deceased) contributed to this injury (the amputation)
by
7.3.1
Not
informing the defendant’s employees (doctors and nurses) that
he had a previous femoral-femoral bypass graft surgery
to his right
leg as a result of arterial disease of the right leg; and
7.3.2
Continuing
to smoke despite this previous surgery
[8] The plaintiff
called Dr M de Kock, a vascular and general surgeon on the merits, he
did not examine or consult with the deceased
but gave evidence on the
basis of the clinical notes and the executrix and family friend of
the deceased, Ms Ann Harms on the aspects
pertaining to the quantum.
The defendant called Sister Liza Jansen, a registered nurse and unit
manager of ward 1 of Yusuf Dadoo
Hospital where the deceased was
admitted for treatment which led to his amputation.
[9] Dr de Kock
relying on the interpretation of the clinical notes testified that
the deceased attended the casualty department
of Yusuf Dadoo Hospital
in Krugersdorp on the 18
th
June 2005 with a complaint of the sudden onset of acute pain in his
left leg.
[10] At 11H40 on
the 18
th
of June 2005, he was attended to by a doctor or nurse who made the
observation that the deceased suffered numbness in his leg.
At
12H16 on the 18
th
of June 2005, the deceased was seen by a doctor in casualty who noted
tenderness and weakness of the leg, but no swelling. He
recorded a
full range of movement of the leg and intact neurovascular
parameters. Dr de Kock expressed the opinion that it was
not correct
to say that the deceased intact from a neurovascular point of view.
[11] During cross
examination he conceded that neurovascular compromise may be a
subjective diagnosis and dependant on the degree
to which it is
present, but also testified that findings of “weakness”
and “numbness” were not really compatible
with a
diagnosis of being intact from a neurovascular point of view.
[
12] He
testified that following the initial examination in casualty the
deceased was taken from casualty at 13H55 and immediately
admitted to
a ward. It was suspected that he had a deep vein thrombosis (“DVT”).
This evidence was not contested.
[1
3] He
further testified that because the deceased had an underlying
vascular condition and previous surgery to his right femoral
artery
it was necessary and important for an admission doctor to do a proper
physical examination to elicit a proper history.
According to his
evidence, had the doctors at the casualty done so or any doctor who
treated or examined the deceased thereafter,
they would have noticed
the surgical scars in the deceased left and right groins and asked
the question “What happened here?”.
According to him
this would have assisted the treating doctor to make a proper or
appropriate diagnosis.
[
14] It
was his evidence further that on the 19
th
June 2005 there was no note made by the doctor in the hospital
records thus indicating poor examination especially because on that
day according to Sister Jansen, the deceased was complaining of
extreme pain in his leg and a doctor was called. The notes indicate
that instead of examining the deceased, the doctor prescribed strong
pain killers in the form of pethidine and valium. Dr de Kock
further
gave evidence that on the 20
th
June 2005 after being seen by a doctor who performed a proper
examination diagnosed him to be having an occluded femoral artery
and
recommended that the deceased be transferred to a better equipped
hospital for a Doppler study of his arteries and urgent opinion.
According to his evidence once the artery is occluded action must be
taken within six (6) to eight (8) hours to ensure that the
damage to
the tissue does not occur. Sadly for the deceased, he was
transferred to Charlotte Maxeke Hospital in Johannesburg on
the 21
June 2005 i.e some twenty four hours (24hrs) late. His undisputed
evidence supported by clinical records is that it was
not possible to
salvage the deceased’s leg at that time and he was then
transferred back to Yusuf Dadoo hospital and subsequently
amputated
on the 23
rd
June 2005 at Leratong Hospital. The defendant did not adduce any
evidence why there was an unreasonable delay in referring the
deceased to Charlotte Maxeke Hospital. The evidence of Mr de Kock
stand unchallenged.
[15] It was put to
Dr de Kock during cross examination that the deceased was
contributory negligent because he failed to disclose
to the treating
doctors and nurses his previous surgery. He responded by saying that
if the doctors had properly examined him,
physically, they would have
noticed the surgical scars on the right femoral leg and also the fact
that some of his right toes on
the right foot were amputated. The
failure to notice this aspect is further evidence that no proper
examination was done by the
defendant’s medical staff. He
further opined that in the absence of medical evidence, no person
could ever say whether and
to what extent, if any, the deceased
smoking in the previous five years had contributed to the occlusion
in his left femoral artery.
Again the defendant did not call any
witnesses to assert their defence that the deceased was warned about
the effects of smoking
and continued regardless.
[16
] As
regard quantum Dr de Kock testified further that very little bleeding
was noted at operation from the ischaemic muscles as
a result of the
amputation being performed at a too low a level, as a result this led
or contributed to the prolonged post operation
course of recurrent
wound infection, purulent discharges resulting from further muscles
necrosis. This necessitated a further
amputation in the form of
stump revision prior to the fitting of a prosthesis. He testified
further that the deceased suffered
further necrosis, multiple abscess
formation in the stump, discharges and poor or delayed healing.
According to him during this
period the deceased endured severe pain
and delayed his use of a prosthetic limb until the stump had
stabilised. He reiterated
that during this period the pain suffered
by the deceased would have been very severe more particularly because
of the second amputation
and the delay in fitting the prosthesis.
[17
] Mrs
Harms, who is the executrix of the deceased estate and who was a
friend of the deceased testified that she had visited the
deceased in
hospital, on a day which she could not recall before the deceased was
transferred for the tests mentioned above. On
that day, Mrs Harms
testified that she saw the deceased’s leg and that it was
already a terrible colour and to have to pushed
by a fellow patient
using a wheel chair to go outside and smoke.
[18
] She
also testified that she organised and paid for the funeral of the
deceased which costs R4 500.00 and bought a prosthesis limb
for the
deceased which costs her R15 000.00. Mrs Harms also testified that
the deceased was unemployed at the time he was admitted
to hospital,
but that he worked on cars for a bit of money and had a job lined up
at Oryx Tanning (where he had worked previously).
She testified
further that her husband had informed her that the deceased was going
to earn a salary of between R6 000,00 and
R7 000,00 per month. The
defendant objected to this latter evidence on the basis that it was
hearsay. Ms Munro for the plaintiff
argued that this part of
evidence was one of the exceptions under Section 3(1) of the Law of
Evidence Amendment Act 45 of 1998.
I will deal with this aspect
later in my judgment.
[19
] Sister
Jansen a witness for the defendant testified that she saw the
deceased walking in and out of the ward to smoke and disputed
the
evidence of Mrs Harms that the deceased could not walk and had to be
pushed by a fellow patient whenever he wanted to go outside
to smoke.
According to Mrs Jansen, there were no wheelchairs in the ward. She
also gave evidence that when the deceased was seen
by a doctor at
19H05 on the 18
th
June 2005 she had called him but could not elaborate on other days
especially since the clinical notes were not of assistance.
[20]
This
is the conspectus of the evidence which I must evaluate. The test to
be applied in an action for damages alleged to have been
caused by
the defendants negligence has been stated in two decided cases of the
Supreme Court of Appeals in
Groenewald
v Groenewald 1998 (2) SA at 1112G-J
the court said the following:
“In delictual claims of the
nature involved in the present case two separate questions arise:
Was the defendant at fault?
For what consequences caused to
the plaintiff in consequence of the defendant’s conduct is the
defendant liable in damages
to the plaintiff?
For the purpose
of answering the first question the defendant would be held to be at
fault as long as he intended to cause harm
to the plaintiff, even if
did not intend that the consequences of such conduct would be to
cause the kind of harm actually suffered
by the plaintiff or harm of
that general nature. He would also be held to be at fault if a
reasonable person in the position of
the defendant would have
realised that harm to the plaintiff might be caused by such conduct
even if he would not have realised
that the consequences of that
conduct would be to cause the plaintiff the very harm he actually
suffered or harm of that general
nature”.
In Sea Harvest Corporation (Pty)
Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000(1) SA 827 (SCA) at
838I-839C, Scott JA writing for
the majority of the court said the
following:
A formula for determining
negligence which has been quoted with approval and applied by this
Court time without measure is that
enunciated by Holmes JA in Kruger
v Cotzee
1966 SA 428(a)
at 430E-F it reads:
“For the purpose of
liability culpa arises if-
a diligent paterfamilias in the
position of the defendant-
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take
such steps.”
[21] In the light
of the above approaches and having regard to the present matter, two
main questions need to be considered
2
1.1 whether
there was negligence on the part of the medical staff at the Yusuf
Dadoo Hospital who treated the plaintiff injury to
his left leg;
2
1.2 whether
such negligence caused or contributed to the loss of the left leg
(i.e. amputation).
[22] The
plaintiff’s action as formulated in the particulars of claim is
based on contract, it being a term of the agreement
between the
parties that the defendant’s medical staff would treat and
render such care, skill and expertise to the plaintiff,
as could
reasonably be expected from medical staff in the circumstances. The
plaintiff contends that it was a term of the agreement
that the
defendant’s medical staff would not act negligently in their
treatment and management of the plaintiff. The defendant
did not
seriously dispute the negligence of its medical staff or call any
witnesses to support its case and sought to rely on the
alleged
contributory negligence of the deceased.
[23] Ms Munro for
the plaintiff on the merits submitted that the defendant through its
agents or servants were negligent because
following the evidence of
Dr de Kock, the deceased was not properly examined by the medical
staff on admission at the casualty
and that there were delays in the
diagnosis and treatment of the occluded femoral artery. She further
argued that according to
the clinical notes, no proper examination
was done on the 18
th
and 19
th
June 2005. Again even after the doctor had performed a proper
examination on the 20
th
June 2005, the defendant’s agents took a further 24hours before
the deceased was transferred to an appropriate hospital for
a Doppler
ultrasound examination and at the time it was too late to save the
deceased’s leg and this led to his amputation
on the 23
rd
June 2005.
[24] She further
submitted that following the evidence of Dr de Kock once the artery
is occluded, action must be taken within the
golden six to eight
hours to ensure that the damage to the tissue does not occur. The
defendant’s agents/servants having
failed to act properly,
their conduct shows lack of proper care and skill and amounts to
negligence.
[25]
Regarding
the defence of contributory negligence it was rightly submitted on
behalf of the plaintiff that absent evidence that
the deceased was
asked and he refused to inform the doctors and staff about his
previous medical history, the defendant’s
defence must fail.
The second alternative ground that the deceased continued smoking
despite his medical condition must also fail
due to lack of evidence
on the part of the defendant.
[26] In view of the evidence by Sister
Jansen that the deceased was able to walk and did walk outside to
smoke frequently. Mr de
Kock conceded that the deceased did not have
a totally occluded femoral artery on admission and stated that given
the aforegoing
factors, the doctors would have had a period longer
than six to eight hours to examine the plaintiff and operate him and
save
the leg. In my view their failure to examine the deceased
properly and timeously from the
18
th
June 2005
until
approximately 10h00 on the morning of
20
th
June 2005
when the clinical
notes indicate that he had to be helped to the toilet indicates that
at that time the artery had totally occluded.
The unreasonable delay
in properly examining him and attending him constitutes negligence.
[27] Again after the proper diagnosis
was made on the 20
th
June 2005 the deceased was only transferred some twenty four hours
(24hrs) later on the 21
st
June 2005 to the Charlotte Maxeke Hospital. At that time nothing
could be done to save his already “dead leg” hence
he was
transferred back to Yusuf Dadoo hospital with diagnosis of non-viable
limb and with a recommendation of amputation which
was done on the
23
rd
June 2005 at Leratong Hospital. I fail to understand why the
defendant’s agents took so long before referring the deceased
to an appropriate hospital. The conduct of the defendant’s
agent is totally unacceptable and this lack of appreciation of
the
urgency of the matter constitutes negligence. I must also add that
the defendant’s counsel on the issue of the delay
did not
contend otherwise. I consider the concession to have been properly
made.
[28]
It
is trite law that a patient in a hospital is entitled to be treated
with due and proper care and skill. The degree of care and
skill
that is required is that which a reasonable practitioner would
ordinarily have exercised in South Africa under similar
circumstances.
[29
] The
standard of care, skill and diligence exhibited by a medical
practitioner must be in accordance with the test of reasonableness
which has clearly been set out in two important decisions of the
Supreme Court of Appeal,
Mitchell
v Dixon
and
Van
Wyk v Lewis.
In
this regard Chief Justice Innes set out the legal principle relating
to the standard of care, skill and diligence exhibited by
a medical
practitioner as follows in
Van
Wyk Lewis:
“
It was
pointed out by this court, in
MITCHELL
v DIXON
(1914
AD at 525)
that
‘a medical practitioner is not expected to bring to bear upon
the case entrusted to him the highest possible degree of
professional
skill, but he is bound to employ reasonable skill and care’ And
in deciding what is reasonable the court will
have regard to the
general level of skill and diligence possessed and exercised at the
time by the members of the branch of the
profession to which the
practitioner belongs.
The
evidence of qualified surgeons or physicians is of the greatest
assistance in estimating that general level.”
[30] I accept as reliable and correct
the evidence of Dr de Kock that the conduct of the doctors fell below
the standard expected
and that if the proper and timeous diagnoses
were made the deceased leg would have been saved and amputation
avoided. The inexplicable
delay in referring him to Charlotte
Maxeke Hospital is unconscionable and this delay led to the leg been
non-viable and ultimate
amputation. Every member of society has a
constitutional right to expect the doctors and medical staff to treat
him/her promptly
with respect and dignity. The defendant’s
agents failed the deceased in this matter.
[31] I now turn to deal with the
defendant’s allegation of contributory negligence. Its case
was based on the fact that the
deceased ought to have informed the
doctors and nurses of his previous surgery and also that he continued
smoking after the previous
surgery. This argument is ill-conceived.
In seeking to support it Mr Latib submitted that the deceased should
have told the doctors
about his previous history and that his failure
to disclose it amounts to the concealment of the facts constituting
contributory
negligence. That is not so, no evidence was led by the
defendant that the deceased did not in fact inform the doctors and
medical
staff of his previous surgery neither was evidence elicited
by the defendant that the deceased was in fact asked about his
previous
medical history and elected to conceal it. The defendant’s
argument is unsustainable because the fact that the doctors were
unaware of the deceased previous history and surgical scars is
indicative of their failure to properly and physically examine him.
In my view members of the society expects that once they are admitted
at the hospital the doctors would treat them with the necessary
skill
and care that is required of a reasonable practitioner.
[
32]
I therefore conclude on the merits that the plaintiff has succeeded
in proving on a balance of probabilities that the defendant’s
doctors were negligent and as a result of that negligence the
deceased’s leg was amputated on the 23
rd
June 2005.
[3
3] I
now turn to deal with the quantum of the plaintiff’s claim.
Past loss of Income
[34] The deceased
was unemployed at the time of his death and he worked on cars to make
a little money. Mrs Harms testified that
she was told by her
husband who was not called as a witness that he had a job lined up at
Oryx Tanning where he had previously
worked. She testified that her
husband told her that the deceased was going to earn a salary of
between
R6 000,00 and R7
000,00. Mrs Harms stated that her husband was in Cape Town and did
not furnish or gave us reason why he was not
called to give evidence
on this aspect. This is clearly hearsay evidence. Ms Munro urged
upon me to consider this head of damages
on the basis of being one of
the exceptions to the hearsay rule and that I should admit this
evidence in the interest of justice
in terms of Section 31(c) of the
Law of Evidence Amendment Act 45 of 1998.
[35
] The
defendant rightly objected to the admission of this evidence on the
basis that Ms Harms testified that the deceased was retrenched
from
his previous job at Oryx Tanning on the basis that he could no longer
cope due to the injury to his right foot and according
to the
certificate of service from Oryx Tanning the deceased’s
employment was terminated on the 22
nd
October 2001 and the reason was stated as retrenchment. Mr Latib
submitted correctly in my view that the failure by the plaintiff
to
provide a letter of employment or intention to rehire the deceased by
his previous company militates against the admission of
his evidence,
this is especially so because it is the same company that retrenched
him years ago on account of disability. I agree.
Another plausible
submission by Mr Latib is that the Oryx Tanning had seized trading
according to the plaintiff and no evidence
was submitted when it
seized trading.
[36
] I
am therefore not persuaded that a proper case has been made for the
admission of the hearsay evidence. In my view I fail to
understand
why the plaintiff elected not to call the husband of Mrs Harms,
obtained the relevant information from the company.
The deceased had
been unemployed since October 2001. His prospects of securing
another job at age 52 years in 2005 were bleak
primarily because of
his advanced age and disabilities. I agree with the defendant that
the probabilities are that he could have
remained unemployed until
his death.
[37
] Regarding
the claims for funeral expenses and past medical expenses, the
defendant did not adduce any contrary evidence save contending
that
these amounts appear unreasonable. I accept as unchallenged the
evidence of Ms Harms the executrix that these expenses were
incurred
and proved by the plaintiff.
General Damages
[38] On the
evidence of Sister Jansen, the deceased was able to walk and did walk
in and out of the ward to go and smoke. This
clearly shows that he
presented to the hospital with a partially occluded artery which got
worse after admission. He also had
a previous arterial by pass to
his right leg thus a chronic arterial
disease
and also was a chronic smoker.
[39] The deceased
leg was first amputated at too low a level and wound infection and
purulent discharges ensued resulting in further
muscle necrosis with
the result that there was a necessity for a further amputation in the
form of a stump revision prior to the
fitting of a prosthesis.
According to Dr de Kock the deceased suffered further necrosis
(tissue death) multiple abscess formation
in the stump, further
purulent discharges, painful dressing changes and this delayed the
wound to heal. During this period so
the evidence goes, the deceased
would have been in severe pain particularly with regard to the
sequelae post-operatively. He could
not move without the aid of
crutches. According to Ms Harms, during this period, he was
depressed and lost his will to live.
This disability lasted a period
of four years and 2 months until his death. There is no doubt that
he must have suffered severe
pain, discomfort and loss of amenities
of life.
[40] Ms Munro for
the plaintiff submitted that taking into account all the
complications and sequelae, the correct value for general
damages is
R450 000.00. She relied on the judgment of this court in
Van
Deventer v Premier of Gauteng
2005 JOL 16070
(T)
where the plaintiff, a 49 year old female, healthy, extremely active
and independent who was engaged in dancing, walking, like
playing
pool and darts and loved socialising was awarded R300 000,00 because
the injury caused her to be withdrawn and avoided
socialising due to
her disabled appearance. Mr Latib for the defendant argued that the
Van Deventer case was clearly distinguishable
from the present matter
and submitted that because the deceased died just over four years
after amputation the amount should be
reduced. He urged upon me to
award the sum of R130 000.00 as a fair and reasonable amount for
general damages.
[41] It is trite
that in considering general damages a trial court has a wide
discretion to award what it considers to be fair and
adequate
compensation to the injured party. Previous awards serve as guiding
parameters. In the matter of
Wright
v Multilateral Vehicle Accident Fund 1997
decision
of the Natal Provincial Division – Corbett and Honey The
Quantum of Damages in Fatal and Bodily injury Cases vol
4 at E3-E4,
it was held by Broome DJP:
“I
consider that when having regard to previous awards one must
recognize that there is a tendency for awards now to be higher
than
they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of greater individual
freedom
and opportunity, rising standard of living and the recognition that
our awards in the past have been significantly lower
than those in
most other countries”.
[42] Taking into
account all the pain which the deceased endured after the first
operation especially when the wou
nd
delayed to heal. In my view he must have suffered severe discomfort
disability and loss of amenities of life. During the period
of four
years his pain must have been unbearable. I say this because Ms
Harms uncontested evidence is that he was depressed and
appeared to
have lost the will to live. I however accept that the injuries which
he suffered are clearly distinguishable from
the one in the Van
Deventer’s case. Having regard to the aforesaid it is my view
that the correct value of general damages
should be the sum of R180
000.00
I therefore make
the order in the following terms:
The defendant is ordered to pay to
plaintiff, in her capacity as executrix of the deceased estate the
following sums in respect
of the claims for damages:
1.1 F
uneral
expenses R 4 500,00
1.2 Cost of the
prosthetic limb R 15 000,00
I
n
respect of general damages R250 000,00
for pain and suffering, and the loss
of amenities of life.
____________
R26
9
500,00
____________
The defendant is ordered to pay to
plaintiff, in her capacity as executrix of the deceased’s
estate, costs on the party
and party scale, such costs to include
2.1 The reasonable costs of Dr de Kock
in respect of his preparation and qualify fees and in respect of his
attendance at trial
Interest on the
said amount of R269 500.00 at a rate of 15,5 percent per annum,
calculated from date 14 days hereof to date
of payment.
_________________________
R
MATHOPO J
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant : Adv. Munro
Instructed by : Malcom Lyons &
Brivik Inc
For the Respondent : Adv. Latib
Instructed by : The State Attorney
Date of hearing : 18 October 2010
Date of Judgment : 16 November 2010