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[2017] ZAGPJHC 397
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M v Vallabh (44326/13) [2017] ZAGPJHC 397 (24 November 2017)
SAFLII
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Certain
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 44326/13
DATE: 26 OCTOBER 2017
Not reportable
Not of interest to other judges
Revised.
In
the matter between:
M,
M
Plaintiff
And
DR
S VALLABH
Defendant
JUDGMENT
Ramapuputla
AJ:
INTRODUCTION
[1] The plaintiff claims
damages from the defendant consequent upon an agreement concluded
with the defendant for the rendering
of medical services, which
included the performance of a hysterectomy on the plaintiff.
[2] The plaintiff was
born on […] April 1959 and therefore 53 years of age when the
hysterectomy was performed on her on
15 August 2012 at the Lenmed
Private Hospital (Lenmed Hospital).
[3] After the plaintiff’s
discharge from the Lenmed Hospital on 18 August 2012 she developed
sepsis (in the surgery wound)
which subsequently became necrotic and
required extensive surgical debridement, which was performed by Dr
Chasumba, a specialist
surgeon, at the Brenthurst Clinic on 10 and 13
September 2012.
COMMON
CAUSE FACTS
[4] There is no dispute
regarding pre-operation procedure and conduct.
[5] The hysterectomy
procedure performed on the plaintiff is a major procedure. The
plaintiff’s diabetes, obesity and hypertension
rendered her a
high-risk patient. The plaintiff’s diabetes and obesity
aforesaid potentially jeopardised the plaintiff’s
wound healing
post-surgery and increased her prospects of wound infection.
[6] The plaintiff and
defendant were cognisant of the fact that wound infection and delayed
wound healing are frequent complications
after the performance of a
hysterectomy.
[7] It is common cause
that the defendant did not prescribe antibiotics on 23 August 2012
(when the plaintiff’s wound was
found to be indurated) and that
he did not clean the plaintiff’s wound on 27 August 2012 or
prescribe antibiotics (when he
found the wound to be open and
septic).
CHRONOLOGY
[8] On 18 August 2012 the
plaintiff was discharged from the Lenmed Hospital with antibiotics
(Augmentin).
[9] She was directed to
return for the removal of her sutures on 23 August 2012.
[10]
On 23 August 2012
the
plaintiff returned to the defendant’s rooms, the defendant
examined the plaintiff’s wound and found that it was
indurated
(hardened tissue).
[11]
The induration of the plaintiff’s wound on 23 August 2012 was
caused by an underlying infection.
[12]
The defendant assumed that the plaintiff completed her course of
antibiotics. The defendant directed the plaintiff to return
to his
rooms on 27 August 2012 for the removal of the sutures.
[13] On 27 August 2012
the plaintiff returned to the defendant’s rooms and the
defendant’s assistant removed the plaintiff’s
sutures.
Upon examination the defendant found the plaintiff’s wound to
be open and septic and contacted Sister Beverley telephonically
in
the plaintiff’s presence. The defendant thereafter referred the
plaintiff to Sister Beverley for wound care treatment.
The
defendant did not give the plaintiff any other directions, her file
or clinical records.
[14]
On the same date, the plaintiff immediately thereafter attended
Sister Beverley’s rooms (also in the Lenmed Hospital).
Sister
Beverley examined the plaintiff’s wound and took two
photographs of the wound with her mobile phone for later transmission
to her laptop for filing.
[15]
The plaintiff informed Sister Beverley that she could not afford her
treatment. She provided the plaintiff, on a Lenmed Hospital
letterhead, with a handwritten list of wound care treatment items to
purchase. The plaintiff did not return to her for wound care
treatment. Sister Beverley had a longstanding professional
arrangement with the defendant for patient referral.
[16]
Sister Beverley did not inform the defendant that the plaintiff did
not return for wound treatment. The defendant did not contact
Sister
Beverley to enquire about the plaintiff’s condition or
progress.
[17]
Sister Beverley is no longer in possession of her diaries in which
she recorded the information relating to the plaintiff and
her other
patients (for the years 2012, 2013 and 2014) because she left those
at her previous place when she moved premises. She
also does not have
the pictures of the plaintiff’s wound because those were
accidentally deleted by another nursing Sister
who was working with
her the other day. She lost her cell-phone in a robbery.
[18]
The plaintiff returned to the defendant’s rooms after Sister
Beverley treated her wound (still on 27 August 2012) and
found a lady
she described as the defendant’s wife at the reception desk
(she identified her in Court on 26 October 2012).
[19]
She explained to the defendant’s wife that she could not afford
the treatment by Sister Beverley and enquired whether
the defendant
could not re-admit her to hospital for the required treatment. The
defendant’s wife walked towards the defendant’s
rooms and
returned after a while stating to the plaintiff: ‘Your husband
must pay’.
[20]
The plaintiff thereafter attended her general practitioner’s
rooms, Dr Moosajee, for advice and/or assistance. Dr Moosajee
is the
one who referred the plaintiff to the defendant after the latter
suspected pre-cancer. Dr Moosajee denied the plaintiff’s
testimony that she spoke to him on the telephone from his reception
desk on 27 August 2012 and that he gave her advice about the
continued treatment of her wound.
[21]
The plaintiff’s condition worsened and on 4 September 2012 she
contacted Dr Moosajee telephonically. Dr Moosajee’s
made a
note. He concluded, from the information gained from the plaintiff,
that the plaintiff’s wound was septic (‘oozing’)
and prescribed antibiotics.
[22]
By 8 September 2012 the plaintiff’s wound and condition
worsened further in consequence of which she was seen by Dr
Moosajee’s locum, Dr Shaboodien, at Dr Moosajee’s rooms.
Dr Shaboodien contacted the defendant telephonically and informed
him
that the plaintiff had ‘bad wound sepsis’
.
[23]
The defendant prescribed 4 grams of Augmentin to the plaintiff over
the telephone and instructed Dr Shaboodien to advise the
plaintiff to
see him (the defendant) on Monday 10 September 2012.
[24]
The same evening the plaintiff went to the Brenthurst Clinic where
she was admitted. [25] Dr Maisto compiled and signed a preliminary
report dated 8 September 2012. From the records after his
examination it is evident that the plaintiff had increased blood
pressure, severe wound infection and breakdown, severe foul adherent
exudate and cellulitis. Dr Maisto also recorded that there
was a
complete breakdown of repair.
[26]
Dr Chasumba examined the plaintiff on 9 September 2012 during his
ward rounds (usually conducted between 08h00 and 10h00) and
found the
wound to be necrotic (‘vrot’). He immediately
concluded that extensive debridement surgery will be
necessary and
informed the plaintiff accordingly.
[27]
On 10 September 2012 Dr Chasumba performed extensive debridement
surgery on the plaintiff in theatre. Before he commenced
with
the surgery he personally took the photograph which depicts a
severely necrotic wound with extensive slough.
[28]
On 13 September 2012 Dr Chasumba performed further debridement
surgery on the plaintiff.
[29]
The plaintiff did not attend to the defendant’s rooms on 10
September 2012, and the defendant did not contact her on
that date or
enquire about her non-attendance on this occasion or about her
condition.
THE
PLAINTIFF’S CASE
[30] The plaintiff’s
case essentially revolves around the plaintiff’s post-operative
care. The grounds in respect of
which the plaintiff contends that the
defendant breached his duty of care towards her are based on the lack
of a post-operative
management plan.
[31] The plaintiff
submits that the defendant omitted to prescribe antibiotics to the
plaintiff on 23 August 2012 when he found
her wound to be indurated.
[32] The plaintiff
further submits that the defendant’s conduct between the period
27 August 2012 until 10 September 2012
amounted to a total
abandonment of his own patient.
THE
DEFENDANT’S CASE
[33]
The defendant’s defense is that the plaintiff had unilaterally,
for whatever reason, elected not to continue with the
post-operative
wound care management plan instituted by him.
[34]
That the plaintiff failed to inform the defendant that she was not
going to continue with the management plan recommended by
him and
that she had decided not to go back to him under any circumstances
because she perceived that ‘he did not accept
her’.
[35]
The plaintiff conceded that the defendant had never refused to treat
her. Further, that she had not informed him of her intention
not to
return to Sister Beverley.
[36]
The plaintiff and defendant signed a consent form on 14 August 2012.
Her claim against the defendant in contract is regulated
by the
aforesaid consent form. The consent form specifically advised the
plaintiff of the following risks, severe infection, return
to
theatre, bruising, delayed wound healing and keloid formation. The
plaintiff was therefore informed of the risks and consented
to the
risks set out in the consent form.
ISSUES
TO BE DECIDED BY THE COURT
[37]
The parties are agreed that at this stage the court is to determine
only whether there was negligence. If so whether it was
a cause of or
contributed to plaintiff’s condition. The issue of quantum has
been separated for later determination should
this court find in the
plaintiff’s favour on the merits. The issues for determination
are:
(a) Whether the alleged omission by
the defendant caused or contributed to the aggravation of the sepsis
and ultimately led to the
total breakdown of the plaintiff’s
post-operative wound.
(b) Whether the conduct of the
defendant amounted to negligence which attracts legal liability.
(c) Whether
the plaintiff contributed to the negligence attributed to the
defendant. In particular, her unqualified daughter
cleaning the
wound, her failure to go back to Sister Beverley and the defendant.
EXPERT WITNESSES
[38]
Dr Davis
Dr
Pierre Davis is a gynecologist who started practice on 1 December
1978 and retired 9 years ago. In order to keep himself up to
date he
goes to congresses regularly. He testified that Sister Beverley’s
prescription of dressing packs, Jelonet and Transpore
appear to be a
recommendation for self-treatment. He confirmed that the plaintiff
had a raised BMI (body mass index) and that she
was obese. With obese
patients upon whom hysterectomies are performed there is a greater
chance of wound infection. An indurated
wound is a wound that becomes
hard. His evidence was that if he was told on 8 September 2012 that a
patient of his had ‘bad
wound sepsis’ he would have seen
the patient immediately. His evidence was that the prescription of
Augmentin by Dr Vallabh
was totally inappropriate. Dr Davis was of
the view that Dr Vallabh ought to have treated the plaintiff’s
wound until it
had healed. Dr Davis indicated that in his view Dr
Vallabh ought to have done a pus swab on 27 August 2012. Dr Davis’
evidence
was that had the wound been cared for properly, a much
smaller intervention would have been required. He stated that whilst
Dr
Vallabh had not refused treatment on 8 September 2012, advising
the plaintiff to come back to see him on the Monday was unacceptable.
He ought to have followed up with the patient when she did not arrive
on the Monday, 10 September 2012. When there is a complete
breakdown
of the wound there is no place for conservative management.
[39]
Dr Swart
He
is still in practice. He does not agree with Dr Davis that Dr Vallabh
had abandoned the patient. He considered the referral to
Sister
Beverley to have been an appropriate referral. It is not reasonable
to expect of Dr Vallabh to call the plaintiff or Sister
Beverley. The
usual practice is that a patient is requested, post-operatively, to
contact the doctor 6 weeks post-operatively or,
if there is a
problem. His evidence is that the plaintiff had unilaterally decided
not to continue with her wound care treatment.
Although in her mind
it was ‘for good reason’, she had not informed Dr
Vallabh. There was no bilateral decision between
doctor and patient
that the plaintiff could discontinue the treatment plan. Accordingly,
Dr Vallabh was under the impression that
the treatment plan which he
had put in place was being followed. He does not agree that a pus
culture ought to have been taken
on 27 August 2012. Dr Swart
testified that Dr Vallabh’s conservative management of the
plaintiff on 27 August 2012 was appropriate.
On being informed of the
septic wound on 8 September 2012, Dr Vallabh was entitled to rely on
the description given to him of the
patient by Dr Shaboodien. Given
that there was not systemic infection, the fact that Dr Chasumba said
the patient was not in distress,
it was reasonable for Dr Vallabh to
say that the patient should see him on Monday and to prescribe
Augmentin. The patient’s
autonomy to decide not to return to Dr
Vallabh had to be respected. He testified that if a patient refuses
to continue with treatment,
it would be that patient’s right.
PLAINTIFF
[40]
The plaintiff’s testimony is flowing and the contradictions she
made are of minor consequence. She was not shaken during
cross-examination and she expressed her emotion when she recalled the
way she was treated by the defendant. Her recollection of
the
treatment by the defendant was that of an unwanted person.
SISTER BEVERLEY
[41]
I find Sister Beverley to be the most dishonest, evasive and a very
deceiving witness. On her evidence she demanded a payment
of R 500-
from the plaintiff which amount she reduced to R 300- because the
plaintiff could not afford treatment. This conduct
by her is very
questionable because the defendant’s expert, Dr Swart,
voluntarily gave information that Discovery Medical
Aid does not
charge for wound cleaning. The plaintiff’s husband is a member
of Discovery Medical Aid
.
Dr Swart added that Discovery
Medical Aid has nurses who go to patient’s houses and clean the
wounds for no charge. Whether
Dr Vallabh knew about the no charge
wound cleaning by Discovery Medical Aid and still referred the
plaintiff to Sister Beverley
with whom he has a long-standing working
relationship is something of great concern. Whether Sister Beverley
called Discovery Medical
Aid to check whether they can send their no
charge wound cleaning nursing Sister is not established. It is
probable that Sister
Beverley knew about this but did not inform the
illiterate plaintiff.
The
loss of photographs and the plaintiff’s file (in a form of a
diary) also confirms the dishonesty and deception she displayed
throughout her testimony.
In
the case of
Khoza
v Member of the Executive Council for Health and Social Development
of the Gauteng Provincial Government
[1]
2015
(3) SA 266
(GJ) it was held that
aside
from the ordinary obligations of medical practitioners to maintain
their patient’s records the
National
Health Act 61 of 2003
expressly
legislates
for it. The policy considerations that underlie the legislation are
self-evident.
Prima
facie
it
would appear not to be in the interests of justice to condone,
without an acceptable explanation, a failure on the part of a
state
institution (this includes health practitioners) to comply with a
positive obligation imposed by statute, and enforced by
significant
penalties, to ensure that records are preserved, are not
tampered and that proper access controls are
put in place.
DR MOSAJEE
[42] Dr Mosajee did not want to see
Plaintiff when she came to his rooms on 27 August 2012, instead he
spoke to her through his
reception telephone. He did not allow her
through to his consulting room. Dr Mosajee threatened that he will
not answer the plaintiff’s
Counsel’s questions.
DR VALLABH
[43] This witness was very arrogant
(he persisted in telling Counsel for the plaintiff ‘what did
you expect me to do?’).
He was very condescending. He
contemptuously read that the plaintiff had a demeaning infection.
This is one of the few times he
faced the Bench. He leaned against
the witness box, he sometimes walked out of the witness box, he
constantly apologised for not
facing the bench, he was very rude to
plaintiff’s Counsel. He bragged about the more than two
thousand patients he has and
has no time to be phoning and making a
follow-up on the plaintiff. He just did not have time. He does not
appreciate the seriousness
of the claim against him and is the
epitome of nonchalance.
REASONS
FOR JUDGMENT
[44]
A patient who consults with a doctor in private practice enters into
a contractual relationship with the doctor. It is an implied
term of
the contract that the doctor owes the patient the duty of care. The
doctor undertakes to render professional services and
the patient
undertakes (normally) to pay for services. This contract between a
doctor and patient takes the form of an implied
agreement that the
doctor will diagnose the patient’s complaint and treat the
patient for it in the usual manner. Doctors
do not guarantee that the
patient will be cured unless they specifically say so.
[2]
[45]
Doctors in private practice may accept or refuse patients provided
that they do not refuse to treat the patient on unconstitutional
grounds or where a person requires emergency medical treatment.
The following questions need to be
asked:
WAS THERE POST OPERATIVE WOUND CARE
MANAGEMENT?
[46] Sister Beverley told the court
that when the defendant refers a patient to her, the patient becomes
hers. She also said that
she discharges the patient. In contradicting
the above assertion, the defendant alleges that it is an established
practice for
Sister Beverley to contact him after a second wound
examination. This contradiction leads me to conclude that there was
no post-operative
wound care management plan.
DID THE DEFENDANT ASSESS THE
PLAINTIFF WHEN CIRCUMSTANCES REQUIRED?
[47]
On 23 August 2012 the defendant failed to check the underlying cause
of the wound infection despite the fact that he was not
sure whether
the underlying cause of infection is obesity, and/or diabetes, and/or
hypertension, and/or a complication of the removal
of the lesion
which was pre-cancerous. He failed to open the wound. In
cross-examination he was asked if on that day if the facts
revealed
that diabetes is an underlying cause what would he do? His response
was: ‘I would call Dr Kalla (the intensivist)
immediately’.
The defendant still did not assess the plaintiff.
DID THE DEFENDANT FAIL TO TAKE THE
NECESSARY MEASURES TO PREVENT THE AGGRAVATION OF POST OPERATIVE WOUND
INFECTION?
[48]
The defendant testified that on 27 August 2012, ‘the wound was
in the early stages’ when he referred the plaintiff
to Sister
Beverley. The defendant further testified ‘they would have
caught it within 48 to 72 hours and plaintiff would
have been up and
above’. These assertions prove that had the defendant
intervened earlier, the wound would not have worsened
to the stage
where it was on 8 September 2012.This proves that the defendant knew
exactly what to do but chose not to because he
just did not want to
continue treating the plaintiff.
DID THE DEFENDANT PROPERLY CONSIDER
VARIOUS RISK FACTORS WHICH INCREASED THE PLAINTIFF’S RISK FOR
POST OPERATIVE WOUND INFECTION?
[49]
From 23 August 2012, the defendant never called Dr Kalla to come and
check the plaintiff’s diabetes and hypertension.
He himself
never conducted any tests. His evidence is that he only asked the
plaintiff if she was taking Dr Kalla’s medication.
The
defendant says the wound was hardened because there was an underlying
infection. The wound had not improved by then and defendant
thinks
‘it was because the plaintiff’s diabetes was poorly
controlled’. The defendant did not do any tests because
the
plaintiff was not systematically infected. He asked the plaintiff to
come back after 4 days to re-assess the wound.
DID THE DEFENDANT FAIL TO CONDUCT A
PROPER INVESTIGATION IN ORDER TO DETERMINE THE APPROPRIATE COURSE OF
TREATMENT?
[50]
When the defendant prescribed Augmentin the very first time he said
he ascertained that the plaintiff’s wound was ok,
she was
normotensive, blood sugar was fine and the wound was healthy.
Surprisingly on 8 September 2012 the defendant prescribed
4 grams of
Augmentin after speaking to Dr Shaboodeen on the telephone. Dr
Shaboodeen described the wound as ‘bad wound sepsis’.
There is no evidence that plaintiff’s wound was ok, she was
normotensive, blood sugar was fine and the wound was healthy.
This is
in contrast to what the defendant said was the correct procedure when
he prescribed Augmentin the first time.
[51]
The defendant testified that Dr Shaboodeen prescribed a generic of
lower dose despite the fact that he telephonically requested
her to
prescribe 4 grams of Augmentin. This clearly confirms the allegation
by the plaintiff that Dr Shaboodeen said the defendant
‘must
clean his mess’. The inference I draw from Dr Shaboodeen’s
conduct is that of a person who does not want
to be involved with
something that has already gone wrong.
[52] Dr Shaboodeen did not come to
give evidence of the type of examination, tests performed on the
plaintiff and the details of
the conversation she had with the
defendant. Therefore, the evidence of the plaintiff that Dr Shabodeen
only looked at the wound
and told her to ‘put your clothes back
on’ without performing proper clinical examination and tests is
uncontested.
CAUSATION
[53] In the case of
International
Shipping Co (Pty) Ltd v Bentley
[3]
it
was pointed out by Corbett JA that causation involves two distinct
enquiries. The first enquiry is whether the wrongful conduct
was a
factual cause of the loss. The second enquiry is whether the wrongful
act is linked sufficiently closely or directly to the
loss for legal
liability to ensue or whether the loss is too remote. Regarding the
first enquiry he said the following:
‘
The
enquiry as to factual causation is generally conducted by applying
the so-called “but-for” test, which is designed
to
determine whether a postulated cause can be identified as a c
ausa
sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such a hypothesis plaintiff’s
loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the loss;
aliter
, if
it would not have ensued.
In short, recognition
of a duty of care is the outcome of a value judgment that the
plaintiff’s invaded interest is deemed
worthy of legal
protection against negligent interference by conduct of the kind
alleged against the defendant. In the decision
whether or not there
is a duty, many factors interplay; the hand of history, our ideas of
morals and justice, the convenience of
administering the rule and our
social ideas as to where the loss should fall. Hence, the incidence
and extent of duties are liable
to adjustment in the light of the
constant shifts and changes in community attitudes
’
.
FORESEEABILITY
In
the case of
Kruger
v Coetzee
[4]
the court held that for the purposes of liability culpa arises if (a)
a
diligens
paterfamilias
in the position of the defendant – (i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss; and (ii) would take
reasonable steps to guard against such occurrence; and (b) the
defendant failed to take such steps. Requirement (a)(ii) is sometimes
overlooked. Whether a
diligens
paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down. Hence the futility, in general,
of seeking
guidance from the facts and results of other cases. That the harm in
this case is foreseeable is demonstrated by the
consent form signed
by both the plaintiff and defendant. Wound infection and return to
theatre are listed as frequent risks.
[54]
The defendant as a
diligens
paterfamilias
foresaw the reasonable
possibility that his failure to take tests to exclude underlying
causes, take a pus swab, prescribe appropriate
antibiotics and/or to
admit the plaintiff when she requested him to do so could cause an
aggravation of the plaintiff’s wound.
Had the defendant so
acted, the aggravation,
severe wound
infection and breakdown, severe foul adherent exudate and cellulitis
would have been avoided.
UNLAWFULNESS
[55]
In
Minister
van Polisie v Ewels
[5]
it was held that our law has developed to a stage wherein an omission
will be regarded as unlawful conduct when the circumstances
of the
case are of such a nature that the omission not only incites moral
indignation but also the legal convictions of the community
demand
that it should be regarded as unlawful and the damage suffered ought
to be made good by the person who neglected to do a
positive act.
Subsequent decisions have reiterated that the enquiry in that regard
is a broad one in which all the relevant circumstances
must be
brought to account.
[56]
The defendant testified that the fact that the wound worsened meant
that there was a deep-seated infection. He said he opened
the wound.
He confirms that there was underlying infection on 27 August 2017,
which was above the fascia of the abdomen but he
did conduct any
tests to determine the cause of the infection. He had a legal duty to
test but he omitted to do so.
[57]
The fact that defendant referred to the plaintiff as fat indicates
the humiliation suffered by the plaintiff. The fact that
the
plaintiff went from one health practitioner to another, who in turn
phoned the defendant to make him aware that his patient
sought help,
and he did nothing about it, is unlawful conduct because not only
does it incite moral indignation but also the legal
convictions of
the community demand that it should be regarded as unlawful and the
damage suffered ought to be made good by the
defendant.
[58]
The defendant testified that he was waiting for Sister Beverley to
contact him after the second wound examination as that is
their
established practice. Upon Sister Beverley failing to contact him he
did not contact Sister Beverley nor the plaintiff to
find out the
status of the wound. The fact that Sister Beverley did not contact
the defendant on the second wound examination,
of a high-risk
patient, places a moral obligation on the part of the defendant to
inquire from Sister Beverley of the whereabouts
of the plaintiff.
[59]
In any event the defendant is lying because Sister Beverley had
already testified that when defendant refers a patient to her
for
wound cleaning the patient becomes hers. When Sister Beverley is done
with the patient she then discharges that patient.
Furthermore,
the defendant knew that the plaintiff had no money to pay Sister
Beverley but failed to request Sister Beverley to
treat the plaintiff
without charge. This proves that there was no post-operative wound
management plan.
[60]
My conclusion is that the defendant acted unlawfully by failing to
put a post-operative wound management plan in place.
[61]
The defendant also acted unlawfully by failing to provide Sister
Beverley with the risks profile of the plaintiff. Sister Beverley
testified that she gets the patients’ information from the
patients themselves and not from the defendant. Sister Beverley
went
to an extent of testifying that the patients themselves know the
details of their illnesses and the type of treatment that
they get
from the defendant.
[62]
Sister Beverley said she was going to treat the plaintiff without the
guidance of Dr Kalla. What is worse is that the defendant
testified
that Sister Beverley sometimes prescribes antibiotics despite the
fact that she does not have a license to dispense such
medication.
[63]
Common law places a duty on a doctor, depending on the circumstances
to disclose to a patient the dangers or risks involved
in a medical
procedure.
[6]
[64]
A risk is material if in the circumstances of the case, a reasonable
person in the patient’s position would if warned
of the risk be
likely to attach significance to it; or the practitioner is or should
reasonably be aware that the particular patient
if warned of the
risk, would likely attach significance to it.
[7]
[65]
The defendant did rightfully warn the plaintiff of the probable risks
of the procedure. The plaintiff attached significance
to the warning.
When the plaintiff felt pain, walking with the assistance of her
husband, she approached the defendant and the
defendant ignored her
and instead allowed her secretary to dismiss the plaintiff. What is
worse is that the defendant through his
secretary told the plaintiff
that ‘your husband must pay’ despite the fact that
plaintiff did not afford Sister Beverley’s
costs of treatment.
There is no evidence that the plaintiff denies that she was warned of
the risks of hysterectomy.
[66] There is no evidence that the
plaintiff expected the wound to heal immediately. All the plaintiff
wanted was for the defendant
to take care of the wound and avoid
aggravation because the defendant was duty-bound to do so.
REASONABLENESS
[67] The
standard of care the courts expect from a doctor is not the highest
standard but rather a reasonable standard. In the
case of
Mitchell
v Dixon
[8]
it
was held to be as follows
:
‘
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 he is liable
for the consequences if he does not.’
[68] In the case
of
Daniels
v Minister of Defence
[9]
the court held that the test is ultimately how would a reasonable
medical practitioner in the position of the defendant have conducted
himself,
what
procedures would he follow, what information would he impart to the
patient, how would he disclose that information and at
what pace and
with what amount of rigour would those measures be employed for it to
constitute reasonable and diligent conduct. A
further
consideration is the level of insight that a diligent and reasonable
practitioner in the position of the treating doctor
ought to possess
and ought to
demonstrate
in taking account of the likely consequences occasioned by a delay in
making a definitive diagnosis and in sending a
patient home without
such a diagnosis before a patient can receive treatment for a
definitive diagnosis
.
It
is clear that defendant delayed the determination of the underlying
cause of the sepsis.
[69] A court
cannot absolve a defendant merely because medical evidence shows a
sound medical practice. If professional opinion
overlooks an
obvious risk, it will not be a reasonable practice. The defendant
cannot be absolved because the hysterectomy went
well.
[70] A failure
to act in accordance with an awareness of possible danger as a
reasonably skilled and careful doctor ought to, has
been found to
constitute negligence.
[71] The experts’
evidence differs in many respects. Their testimony is more confusing
than helpful and it is very difficult
to draw logic from it.
[72] The evidence of Dr Swart and Dr
Davis differ and the joint minutes were prepared before the trial
began. Nothing could have
prepared them for the oral evidence of the
defendant. I am convinced that if they were privy to the oral
evidence of the defendant
they could have come up with different
joint minutes.
[73] For example Dr Swart
in his testimony testified that the 4 grams of Augmentin prescribed
by defendant over the telephone was
inappropriate. Dr Swart
voluntarily testified that 4 grams of Augmenton is a wrong
prescription and it is too much.
[74] Dr Davis thinks the
defendant’s conduct towards the plaintiff constitutes
abandonment while Dr Swart thinks it does not.
Dr Swart opines that
when the plaintiff did not go back to Sister Beverley and the
defendant, the latter had no obligation to enquire
as to the
plaintiff’s whereabouts.
[75]
In this regard Dr Davis contended that a service contract that exists
cannot be terminated unless the patient is referred elsewhere
or
arrangements were made for future care. Therefore, when a
practitioner ceases to treat a patient before the patient has
recovered or has terminated his or her contract with the practitioner
this amounts to abandonment of the patient.
In
light of the above differences and the fact that both specialists
changed their evidence under cross-examination, I’d rather
decide this case on the evidence of the other witnesses.
[76] I am convinced that even if I
were to decide the case on the expert reports, no amount of the
expert reasons can justify what
was said by the defendant in his
testimony.
[77]
Logic dictates that before a doctor prescribes any medication he must
examine a patient and where the situation dictates, do
some blood
tests, or take a pus swab and do cultures. The defendant failed to do
that.
[78]
The defendant fell on his own sword. On 23 August 2012 the defendant
failed to check the underlying cause of the wound infection
despite
the fact that he was not sure whether the underlying cause of
infection is obesity, and/or diabetes, and/or hypertension,
and/or a
complication of the removal of the lesion which was pre-cancerous.
Logic dictates that this is a step that every medical
practitioner
must take. How else is the medical practitioner able to tell what to
prescribe, and the procedure to follow if the
wound is not healing or
is healing slowly. The lack of determining whether sepsis resulted
from obesity, and/or diabetes, and/or
hypertension, and/or a
complication of the removal of the lesion which was pre-cancerous
definitely resulted into the damage suffered
by the plaintiff. If the
source of the sepsis was determined then the defendant would have
been in a position to prescribe proper
antibiotics.
[79] The Defendant gave oral evidence
that he did not have time to follow-up on the plaintiff as he has
many patients, he did not
examine the plaintiff when he was required
to do so, he did not take any tests to determine which medicine to
prescribe, he did
not contact Sister Beverley to find out what
happened with the plaintiff after his referral, and he failed to
check the underlying
cause of the sepsis, and aggravation of the
wound.
CAUSAL LINK
[80]
In
the case of
Minister
of Safety and Security v Van Duivenboden
,
[10]
the
court held that:
‘
A
plaintiff is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct was
probably
a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based
upon the evidence
and what can be expected to occur in the ordinary
course of human affairs rather than an exercise in metaphysics.’
[81]
Based on the testimony of the defendant himself
that
on 27 August 2012, ‘the
wound was in the early stages’ when he referred the plaintiff
to Sister Beverley and the fact
that the defendant further testified
‘they would have caught it within 48 to 72 hours and plaintiff
would have been up and
above’, the ‘but-for test’
is satisfied. If the defendant would have acted within 48 to 72
hours, the open septic
wound would not have worsened. Had the
defendant not negligently omitted to admit the plaintiff on 27 August
2012, there could
not have been any aggravation. Therefore, the
requisite causal link is established.
ABONDONMENT
[82] Another issue for determination
is whether defendant abandoned the plaintiff. The defendant testified
that he requested Sister
Beverley to do a histology. The defendant
did not lead evidence to the effect that he requested the results of
the histology. That
on its own indicates that the defendant abandoned
the plaintiff. Had he followed up on the histology, Sister Beverley
could have
informed him that plaintiff did not come back for
treatment. It is at that stage that defendant would be expected to
contact the
plaintiff and advise her even telephonically, of the
consequences of her failure to attend treatment. An inference that
can be
drawn is that defendant abandoned the plaintiff from the day
he referred her to Sister Beverley. The so-called referral was in
fact getting rid of the plaintiff constructively. This abandonment is
negligent and makes the defendant liable to the plaintiff.
[83] The
negligence of the defendant from 23 August to 08 September 2012
caused the damages suffered by the Plaintiff.
[84] There is no
contributory negligence by the plaintiff’s daughter cleaning of
the wound.
ORDER
[85] I
accordingly grant an order that:
The defendant is
to pay 100 per cent of:
1.
The agreed or proven damages of the plaintiff;
2.
The cost of
plaintiff’s attorneys and counsel’s fees including in
respect of preparation of trial;
3. The costs
attendant upon the obtaining of the medico-legal reports of the
following expert witnesses Dr Davis; and
4. The
preparation, reservation and appearance fees of Dr Davis
.
_________________________
NE
RAMAPUPUTLA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
HEARD
ON:
26
October 2017
JUDGMENT
DATE:
24
November 2017
FOR
THE PLAINTIFF:
Adv
Strydom (SC)
INSTRUCTED
BY:
AF
van Wyk
FOR
THE RESPONDENT:
Adv
Goedhart
INSTRUCTED
BY:
Webber
Wentzel
[1]
2015
(3) SA 266 (GJ).
[2]
See
D McQuid-Mason & M Dada
A-Z
OF Medical Law
(2011) 166 para 204.
[3]
1990
(1) SA 680
at 700.
[4]
1966
(2) SA 428 (A).
[5]
1975
SA (3) 590 (A).
[6]
Richter
v Estate Hamman
1976 (3) SA 226 (C).
[7]
Castell
v De Greef
1994 (4) SA 408
(C) at 426F-H.
[8]
1914
AD 519
at 525.
[9]
2016
(6) SA 561 (WCC).
[10]
2002
(6) SA 431
(SCA) para 25.