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[2020] ZAGPJHC 3
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M S obo N S v MEC for Health, Province of Gauteng (00790/15) [2020] ZAGPJHC 3 (31 January 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case no: 00790/15
In
the matter between:
ADV
S M N.O.
Plaintiff
(as
curator ad litem obo NS)
and
MEC
FOR HEALTH, PROVINCE OF
GAUTENG
Defendant
Case
Summary:
Medical
Negligence – whether failure to diagnose osteomyelitis of the
left tibia earlier constitute negligence
in
casu
.
JUDGMENT
MEYER J
[1] This is a delictual
claim for damages instituted by the plaintiff in his representative
capacity on behalf of his minor son
(to whom I shall refer as NS or
the plaintiff’s son), who sustained a minor injury to his left
ankle during January 2012
when he was skateboarding. He
subsequently developed chronic osteomyelitis of his left tibia which
eventually
resulted in a pathological fracture developing. He
has been left with a deformity of his left tibia with shortening.
The claim arose from the failure of the casualty officers employed at
the Rahima Moosa Mother and Child Hospital to diagnose the
osteomyelitis at an earlier stage. Osteomyelitis is an
infection of the bone, which can happen if a bacterial or fungal
infection enters the bone tissue from the bloodstream. The
matter presently only concerns the issues pertaining to the
defendant’s
liability; the quantum of damages allegedly
suffered by the plaintiff’s son was ordered to stand over for
later determination
at the commencement of the trial.
[2] The defendant is the
member of the executive committee for the department of health,
Gauteng. It is common cause that
the defendant would be
vicariously liable for any negligent treatment or diagnosis of NS by
the medical doctors and staff of the
Rahima Moosa Hospital. The
case centres on medical expert evidence and the conflicting views of
two orthopedic surgeons,
dr GA Versfeld, who gave expert evidence on
behalf of the plaintiff, and dr M Eltringham, who gave expert
evidence on behalf of
the defendant. The plaintiff also
testified, and the defendant called drs P Nair and A Radionova, who
were the casualty officers
on duty in casualty at the Rahima Moosa
Hospital during the nights on 2 February 2012 and 14 February 2012
respectively.
[3] The matter is vexed
by the fact that, according to the hospital records, NS suffered from
recurring tonsillitis. In fact, he
had a long history of
tonsillitis. He was treated for tonsillitis after his ankle
injury and a diagnosis of osteomyelitis
was entertained only later.
The general symptoms of tonsillitis and osteomyelitis are similar.
The critical question
is whether the failure to diagnose
osteomyelitis earlier amounted to negligence which was the cause for
NS’s ultimate condition.
[4]
The legal principles relating to professional negligence are trite.
They were concisely stated in
Topham v Member of Executive
Committee for the Department of Health, Mpumalanga
[2013] ZASCA
65
, thus:
‘
Professional
negligence is determined by reference to the standard of conduct of
the reasonably skilled and careful practitioner
in the particular
field and in similar circumstances. A medical practitioner
diagnosing and treating a patient is expected
to adhere to the
general level of skill, care and diligence possessed and exercised at
that time by the members of the branch of
the profession to which he
or she belongs. It follows that a wrong diagnosis does not per
say amount to negligence on the
part of the medical practitioner
concerned. It will only be negligence if the practitioner’s
conduct does not comply
with the general standard of care to which I
have referred
.’
(Footnote omitted.)
[5] The plaintiff
testified that on Sunday, 22 January 2012, his son fell off his
skateboard and bumped his left ankle. The
plaintiff believed
that it was a minor injury and did not take him for medical
treatment. However, because his son’s
foot became swollen
and he was complaining of pain, he took him to the Rahima Moosa
Hospital on Wednesday, 25 January 2012.
There he was just given
a Panado and sent home. The swelling remained the same and he
kept on complaining of pain during
the next few days. The
plaintiff therefore took him back to the Rahima Moosa Hospital around
seven or eight in the evening
on 28 January 2012. He was not
seen by a medical doctor, but only by a nursing sister who gave him
no treatment, no medication
and merely sent him home. Because
the pain persisted, the plaintiff took his son back to the Rahima
Moosa Hospital
during the afternoon on 31 January 2012, where he was
seen by a doctor, x-rays were taken, and the doctor advised him that
there
was no fracture. His ankle and foot were placed in a
backslab, he was given crutches, and sent home. I interpolate
to mention that a backslab is used as a treatment to immobilize a
limb. It is a type of cast that is non-circumferential,
only
covering the posterior aspect of the limb. It is held in place
by wrapping a bandage around it. The plaintiff
testified
that no medication was given, and he was told to bring his son back
to the hospital in two weeks’ time if the pain
persists.
The pain persisted, his son’s foot became more swollen and it
appears that the blood was not circulating.
He therefore took
his son back to the Rahima Moosa Hospital on 2 February 2012.
He was not seen by a doctor, but only by
a sister. He asked her
to remove the backslab and to see what was going on with his son’s
foot, because it seems to
him that the blood was not circulating, the
foot was getting more swollen and it seems the backslab was too
tight. The sister
refused and sent him home. His son
received no treatment and no medication.
[6] The plaintiff, his
wife and their son, NS, reside in a cottage on a property in
Fairland. On Tuesday, 14 February 2012,
the plaintiff’s
wife asked the daughter of the owner of that property, Ms Jeanine
Schoeman, an occupational therapist, to
remove the backslab and to
have a look at what was going on underneath the bandage and the
backslab, because NS was crying of pain.
Ms Schoeman, who also
testified, observed that the bandage was wet and smelling. Once
she had removed the backslab, she observed
that his leg was swollen
with blisters. She advised the plaintiff’s wife that NS
needed to see a doctor. That
evening the plaintiff took him
back to the Rahima Moosa Hospital. The first person he met at
the hospital was the nursing
sister who ‘chased’ them
away on 2 February 2012. He was told that they cannot help him
and that he must take
his son to a different hospital. He was
given a referral letter to the Charlotte Maxeke Johannesburg Academic
Hospital.
The plaintiff took his son to that hospital where he
was seen by a doctor and an x-ray of his ankle was taken. He
was then
referred to the Helen Joseph Hospital and the plaintiff was
given a referral note. They arrived at the Helen Joseph
Hospital
early in the morning on 15 February 2012 where NS was seen
by doctors in the emergency department. They spoke amongst
themselves
and then told the plaintiff that the damage was done and
that they must go back to the Rahima Moosa Hospital. They went
back
to the Rahima Moosa Hospital on 15 February 2012 where NS was
admitted and received surgery. The next day he underwent
another
surgical procedure.
[7] A materially
different picture emerges from the Rahima Moosa Hospital records, the
attending casualty officers’ clinical
notes and the evidence of
two of the attending casualty officers, drs Nair and Radionova.
There are no clinical notes or
hospital record to support the
plaintiff’s version that NS attended or was seen at the Rahima
Moosa Hospital on 25 January
2012. I accept, as was also
conceded by dr Nair when she was cross-examined, that documents get
lost and are misfiled in
public hospitals and that it is possible
that the casualty clinical note relating to NS’s alleged
attendance on 25 January
2012 could have been lost or misfiled.
But dr Radionova testified that the particulars of every patient who
attends at casualty
are entered in the casualty registration book
where his or her complaint or complaints are also entered as well as
the result of
the attendance. Dr Eltringham testified that he
went thoroughly through all the hospital records pertaining to NS and
looked
very carefully for evidence of an admission form being filled
out for NS as an outpatient of casualty on 25 January 2012, for any
nursing notes that were possibly made or any prescription note that
were possibly made and he could find none prior to the 28
th
January 2012.
[8] From the casualty
records it appears that NS’s first presentation at the Rahima
Moosa Hospital regarding the event in
question was at approximately
20h50 on Saturday evening, 28 January 2012. He was brought in
by his father with a history
of a temperature for one day having
injured his leg falling off his skateboard two days before. He
complained of a painful
swollen left ankle as well as constitutional
symptoms. The attending casualty officer on the Saturday night
performed a clinical
examination and noted that he had tonsillitis,
was walking on the limb with minimal swelling, the range of movement
in the ankle
was reduced and that the medial malleolus was tender; ‘
++tender medial malleolus’. The attending casualty
officer
diagnosed a soft tissue injury and an upper respiratory
infection with acute tonsillitis and prescribed Ibugesic 10 ml
(Brufen)
and Augmentin 250 mg that was changed to Amoxil 500 mg. NS
was requested to come back to the hospital, possibly for an x-ray,
if
the pain or swelling in his leg persists.
[9] NS indeed returned to
casualty on Tuesday, 31 January 2012. The attending casualty
officer recorded in his clinical note
that there was no improvement
of the ankle and it was still swollen and painful. He referred
NS for x-rays of his left ankle
and tibia, which showed no fracture.
He was diagnosed with having a sprain and treated by immobilizing his
left lower leg
in a backslab and providing him with crutches to allow
partial weight bearing. He was advised to go to the Orthopaedic
Outpatient
Department in two weeks’ time for review.
[10] The plaintiff took
his son to casualty on 2 February 2012 when he was seen by dr Nair at
09h45. The nursing staff noted
on the casualty note that he had
a temperature of 39 degrees, a pulse of 132 and blood pressure of
105/74. According to her
casualty clinical note, dr Nair
recorded that he was complaining of fever, vomiting and diarrhea for
one day. The diarrhea
occurred once and was yellow. The
vomiting was non-projectile and without blood. She recorded
that he had been on Amoxicillin
for the past four days for
tonsillitis, which has not improved. Under the heading medical
history she recorded that he presented
with tonsillitis two to three
times a year, that no abnormalities were detected with his growth
milestones, that he had a previous
fracture of the right arm with
surgery, that he was on Ritalin possibly for being hyper-active.
Under the heading clinical
findings she recorded that he was a ‘sick
looking child’, his left lower limb was in plaster of paris, he
had normal
heart sounds and no murmurs, he had fever, his chest was
clear, his abdomen was soft and non-tender and her ear nose and
throat
clinical examination revealed that he had bilateral
tonsillitis with gastro-enteritis. She modified the
antibiotics
prescribed for his tonsillitis four days ago to a seven
day course of Ciprofloxacin 250 mg instead of the Amoxil, and she
also
prescribed Panado, Brufen, and Disprin to gargle with.
This appears from the written prescription that she completed and
signed.
[11]
Dr Nair obtained the MBChB degree in 2009, then did two years
internship at Steve Biko Academic Hospital and she started at
the
Rahima Moosa Hospital during January 2012, initially as a casualty
officer and at present she is a qualified obstetrician and
gynaecologist. On 2 February 2012 her shift in casualty
commenced at 8.00 pm and ended the next morning at 8.00 am.
Dr
Nair, understandably (many thousands of patients are seen annually in
casualty at the Rahima Moosa Hospital), does not have
an independent
recollection of her examination of NS but relies on her casualty
note. In response to the plaintiff’s
version that was put
to her when she was cross-examined that NS was not seen by a
doctor on 2 February 2012, but only by
a sister who refused his
request to remove the backslab to see whether there was a problem
when she had been asked to do so and
instead sent him home, she said
that she always introduces herself to patients, and she continued to
say:
‘
. . . I am
the casualty doctor, I would not make up notes. This is a note
that I cannot even remember that I had written on
the 2
nd
of February. Why would I make up notes on a patient? I
have definitely seen this patient, I have examined the patient,
sat
with the patient, taken a full history of the patient and examined
the patient from head to toe and made a diagnosis, and prescribed
medication’.
She confirmed that she
had completed the clinical note relating to NS’s presentation
at casualty on 2 February 2012 as well
as the written prescription,
and that she signed both.
[12] Dr Nair testified
that the first person a patient would make contact within casualty is
an attending nurse. The nurse
takes the vital signs –
temperature, pulse and heartbeat - and ‘do what nurses are
supposed to do’. Once
that has been done, the casualty
officer sees the patient in one of the cubicles that are in casualty
for that purpose, obtains
his or her medical history and examines the
patient ‘from head to toe’. The complaint, as
recorded in her casualty
note, with which NS presented was fever,
vomiting, and diarrhea for one day. She is adamant that had
there been any complaint
relating to his ankle injury or had there
been a request for her to remove the backslab because his leg was
swollen or he felt
numbness or had he presented with excruciating
pain in his leg, she would have recorded that in her clinical note as
part of the
history and paid more attention to the leg. The
ankle had already been attended to and was, according to her, not a
presenting
complaint. But, as recorded by her in the casualty
note, NS presented with a specific complaint, which was that he had
been
to casualty four days before and prescribed Amoxicillin for
tonsillitis, which was not getting better, and that he, at the time
when he was seen by her, had fever, vomitting and diarrhea for a
day. Furthermore, she was told, as recorded by her, that
he has
a history of recurring tonsillitis two to three times a year.
[13] Dr Nair testified
that when a patient presents with complaints of fever, vomiting and
diarrhea, the attending casualty officer
seeks the source of the
infection. It is a general complaint by many children who
attend at casualty and casualty officers
try to figure out the source
of the infection from a variety of possible sources. She, as
recorded in her clinical note,
examined NS to find the source of the
infection that caused him to have fever, vomiting and diarrhea at the
time. On examination
of his ears, nose and throat, she found
bilateral inflamed tonsils, which is tonsillitis. She found
that the tonsils were
still inflamed despite the use of Amoxicillin
for the past four days. The antibiotic prescribed four days
before, in her
view, was not working for NS. She accordingly
escalated the Amoxicillin to a broader spectrum antibiotic,
Ciprofloxacin,
and also prescribed Panado, Brufen and Disprin to
gargle with. In her view, she did a full examination of NS,
including an
ear nose and throat examination, pinpointed what she
thought the cause of the infection was, and addressed it.
[14] NS presented back to
casualty at approximately 8.00 pm on 14 February 2012. This
time he was seen by dr Radionova.
The history provided to dr
Radionova as recorded in the referral note referring NS to the
Charlotte Maxeke Johannesburg Academic
Hospital, was
inter alia
that NS bumped himself on a skateboard and that he was
complaining of ankle swelling and pain. She recorded the
medication
that was prescribed to him (Ciprofloxacin, etc.) and the
reason why she was transferring him was for him to have a surgical
consultation,
because the ‘wound is pretty septic’.
[15] Dr Radionova
qualified as a medical doctor in the Ukraine in 1990. She has
been working as a casualty officer in the
casualty department of the
Rahima Moosa Hospital since 2005. She too does not have an
independent recollection of the attendance
of the plaintiff and his
son at casualty during the evening on 14 February 2012 when she was
the attending casualty officer on
duty and needed to rely on the
hospital records. She testified that her provisional diagnosis
was one of a soft tissue injury;
a septic wound on the left ankle.
She did not suspect any bone injury. She dressed the wound and
prescribed an intra-vascular
injection of Rocephin that was to be
administered by the nursing staff. The prescription is
documented and signed by her.
Rocephin, according to dr
Radionova, is a strong broad-spectrum antibiotic. It is the
strongest one that was available in
casualty at the Rahima Moosa
Hospital. The reasonableness of the medical treatment to
administer a single dose of intra-muscular
Rocephin to initiate
antibiotic therapy does not seem to be in issue. Dr Radionova
testified that because the wound was becoming
septic she wanted a
proper diagnosis, which only a specialist could give, as soon as
possible and not merely her own provisional
diagnosis. She
therefore referred NS for a surgical consultation at the Charlotte
Maxeke Johannesburg Academic Hospital.
Later that evening NS
was indeed seen by a pediatric surgeon at the Charlotte Maxeke
Johannesburg Academic Hospital who diagnosed
him with a bone injury,
osteomyelitis, and he was transferred to the Helen Joseph Hospital
for surgery. Dr Radionova testified
that had she suspected a
bone injury, she would have referred NS to the Helen Joseph Hospital,
because it is best equipped to deal
with orthopedic medical problems.
[16] The hospital records
show that NS arrived at the Charlotte Maxeke Johannesburg Academic
Hospital at about 11.00 pm on 14 February
2012 where he was seen by a
surgeon and referred to the Helen Joseph Hospital. It is
undisputed that the Charlotte Maxeke
Johannesburg Academic Hospital
has a strict admission policy. He arrived at the Helen Joseph
Hospital at about 3.00 am on
15 February 2012 and was later referred
back to the Rahima Moosa Hospital. He arrived at the Rahima
Moosa Hospital at about
7.00 am, was admitted at 11.00 am and a
surgical procedure in the form of an incision and drainage was
performed on him from about
12.00 pm for the osteomyelitis of the
tibia. A large abscess from his tibia and ankle joint was
drained. The following
day he was taken back to theatre for a
relook and debridement of the surgical wound. Drs Eltringham
and Versfeld are
ad idem
that the treatment that was given to
NS on 15 and 16 February 2012, was appropriate medical treatment.
[17] Dr Eltringham is of
the view that the original presentation of NS at casualty on 28
January was handled in a very acceptable
manner. The attending
casualty officer assessed him as having had a minor soft tissue
injury to his left ankle and, because
of the history of a
temperature, the casualty officer looked carefully and after a
thorough examination felt that he had tonsillitis,
which he has had a
recurrent history, and that the tonsillitis was the cause of his
pyrexia. Appropriate medication and therapy,
in the view of dr
Eltringham, were prescribed. Dr Versfeld disagrees that NS was
appropriately treated on 28 January, because
there is no indication
that he was complaining of tonsillitis. NS was complaining of a
painful ankle and dr Versfeld believes
that his symptoms were coming
from the osteomyelitis affecting his tibia. The attending
casualty officer, in the view of
dr Versfeld, failed to take notice
of the bony tenderness of the medial malleolus. An ‘astute
doctor’, in his
view, would have realised that there were
already features present which suggested that the treatment given was
not appropriate.
[18] The repeat
consultation on 31 January was, in the opinion of dr Eltringham,
again performed in an acceptable manner; the leg
was noted to be
still painful and swollen and an x-ray was taken to confirm that
there was no bone injury. For the soft tissue
injury to NS’s
leg he was appropriately provided with a pair of crutches and his leg
immobilized in a plasters splint.
An unsupported and
unprotected ankle ligament injury or a substitute injury may lead to
the increase in symptoms, because the injured
area is repeatedly
re-injured. Also, the swelling and pain will increase and
therefore the correct treatment would be to
immobilize on the
assumption that it is an uncomplicated soft tissue injury. Dr
Versfeld, on the hand, is of the opinion
that all went drastically
wrong on the 31
st
; the x-ray that revealed nothing should
have alerted the attending doctor that ‘something is not right
here’ and the
doctor should have escalated the matter to an
orthopaedic surgeon. Strains get better not worse with time.
In his opinion
a diagnosis of an ankle injury that is getting worse
nine days later (from 22 January) as a soft tissue injury and the
treatment
with a pair of crutches and immobilization of the limb, are
inappropriate and illogical. He is of the view that in the
presence
of no intervening injury (a fracture), a sprained ankle that
appears to have been getting steadily worse should have indicated to
the attending doctor that something was wrong and possibly a
diagnosis of osteomyelitis or septic arthritis should have been
entertained.
Failing to do this, in his view, constitutes
negligence.
[19]
The presentation on 2 February at casualty was, in the view of dr
Eltringham, probably confusing for the casualty officer in
that NS
presented with fever, vomiting and diarrhea. It was noted that
he had been on antibiotics for tonsillitis for four
days. The
tonsillitis was still felt to be a significant problem. The
casualty officer undoubtedly thought that the
leg injury was being
adequately treated with immobilization and crutches. A course
of antibiotics was prescribed. In
his opinion NS was
appropriately treated for his presenting symptoms, particularly given
his history of tonsillitis and the attending
casualty officer’s
clinical diagnosis of bilateral tonsillitis. Accepting that
this time NS was only seen by a nurse,
who refused to remove the
backslab and to look what was going on underneath it when she was
requested to do that, but instead told
the plaintiff and his son to
come back in two weeks-time, dr Versfeld expressed the view that that
was unacceptable and constitutes
negligence. Again, in his
view, a diagnosis of osteomyelitis should have been entertained.
Furthermore, and having
regard to the casualty note of 2 February, dr
Versfeld considers the examination and diagnosis as ‘totally
unreasonable’,
‘
[b]ecause
the man comes in, complaining of a leg problem and they have not
examined the leg . . . the backslab was not removed.
That was
his complaint. That is what he came to the hospital for.
He did not come to the hospital for tonsillitis.’
[20] Dr Versfeld’s
views that NS did not receive reasonable and appropriate medical
treatment by the attending medical staff
at the Rahima Moosa Hospital
is on the one hand based on the account which he received from the
plaintiff and his son, and on the
other based on the medical records
and particularly the clinical notes of the attending casualty
officers. Dr Versfeld assumes
that NS’s ankle injury
occurred on 22 February, that he attended at the Rahima Moosa
Hospital on 25 January and thereafter
again on 28 and 31 January and
on 2 February. During that period, in his view, the leg
symptoms seemed to have been deteriorating.
Nine days after the
injury an x-ray was taken and NS was advised that there was no
fracture. It should, in the view of dr
Versfeld, have been
apparent to the doctor that something was wrong and that a diagnosis
of osteomyelitis or septic arthritis should
have been entertained.
Insofar as dr Versfeld’s views are based on the account of the
plaintiff and his son he made certain
material factual assumptions
that have not been established. Dr Versfeld
inter alia
relies on the plaintiff’s evidence that his son hurt his ankle
on 22 January, that he took him to the Rahima Moosa Hospital
for the
first time on 25 January, that his son was never given any medication
at the Rahima Moosa Hospital except for a Panado
on 25 January, that
his son was only seen by a nursing sister on 2 February who chased
them away and refused to open the backslab
on their request to see
what was going on underneath it, and that his presenting complaint on
each occasion when her attended at
casualty was his painful and
swollen left ankle.
[21] I do not consider
the plaintiff a credible witness and his evidence on the
controversial issues to be reliable. His evidence
must be
treated with caution. If he were to be believed, the clinical records
and written prescriptions of the attending casualty
officers on 28
January and 2 February were falsifications, and the evidence of Dr
Nair a lie from beginning to end, even though
she made a good
impression in the witness stand and conceded that she gave no
attention to NS’s ankle other than to note
that it was
immobilized. The plaintiff blames the medical staff at the
Rahima Moosa Hospital for his son’s present
condition and is on
a conspectus of the evidence clearly biased.
[22]
Dr Versfeld’s point of departure seems to be that NS’s
diagnosis of and treatment for tonsillitis was a red herring.
Somebody with tonsillitis, in his opinion, would normally present
with a sore throat and that there is no history of a sore throat
recorded in respect of NS’s presentations at casualty on the
occasions in question. The plaintiff or his son did not
complain of a sore throat or of tonsillitis, but of a sore ankle.
In his view the attending doctors were negligent in not
assessing and
treating the problem that was presented to them, a painful swollen
ankle. Dr Versfeld assumes, therefore, that
NS did not present
with tonsillitis. In this regard he states:
‘
Well, I
believe that what temperature he had was related to the osteomyelitis
and that the diagnosis of tonsillitis was really made
on really
flimsy grounds. I mean if you have got a patient who is not
complaining of a sore throat, one wonders where the
diagnosis came
from.’
Dr
Versfeld further assumes that the plaintiff and his son asked a
nursing sister on 2 February to take the backslab off and that
she
refused to do that. Dr Versfeld says:
‘
Because the
man comes in, complaining of a leg problem and they have not examined
the leg. I mean no, they have not examined
the leg, because the
cast was not, the backslab was not removed. That was his
complaint. That is what he came to hospital
for. He did
not come to hospital for tonsillitis.
[23]
However, the plaintiff’s evidence that his son only attended at
the Rahima Moosa Hospital with complaints relating to
his ankle
during the relevant period, is refuted by the evidence of dr Nair and
is improbable. She recorded his complaint
in her clinical note
on 2 February as one of fever, vomiting and diarrhea for one day and
she testified that had he complained
of his left leg or requested her
to remove the backslab she would have recorded that in the clinical
note. Furthermore, although
the pertinent clinical notes indeed show
that the plaintiff or his son did not complain of a sore throat or of
tonsillitis when
he attended at casualty on 28 and 31 January and on
2 and 14 February, it is apparent from the clinical notes of 28
January and
of 2 February that the diagnosis of tonsillitis was made
on the attending casualty officers’ clinical examinations of
NS.
According to dr Eltringham - who has a special interest in
pediatrics and whose practice as an orthopedic surgeon is now about
80 to 90% pediatrics and who many years ago worked as a consultant in
the pediatric unit at the Johannesburg General Hospital -
children
frequently do not complain directly of certain things. But
moreover, he expressed the opinion that a person does
not have to
have a sore throat to have tonsillitis. Dr Nair explains that
tonsillitis is the swelling of tonsils accompanied
by fever. A
sore throat is indicative of pharyngitis and not tonsillitis.
Dr Versfeld concedes that he is not an expert
on tonsillitis.
[24] The plaintiff’s
evidence that his son hurt his ankle on 22 January is not reliable.
The history recorded by the
attending casualty officer on 28 January
was an 11 year old boy brought by dad with fever since a day ago; he
bumped himself on
a skateboard two days ago. I realise that the
attending casualty officer who completed this clinical note was not
called
to testify, but this is the selfsame clinical note on which
the attending casualty officer recorded his clinical diagnosis of
tenderness
on the medial malleolus, which, in the view of dr
Versfeld, was the first sign of osteomyelitis, and on which the
plaintiff strongly
relies to establish negligence on the part of the
attending casualty officers at the Rahima Moosa Hospital.
[25] The plaintiff’s
evidence that he and his son attended at the Rahima Moosa Hospital on
25 January is not supported by
any of the documented evidence of that
hospital. What is somewhat surprising to me is that it is not
only the clinical note
of the attending casualty officer on 25
January that is lost or mislaid but all the medical records
pertaining to such alleged
attendance.
[26] Relying on the
plaintiff’s evidence that he took his son back to the Rahima
Moosa Hospital on 2 February and that he
was only seen by a nursing
sister who refused to take his backslab off despite the complaint
that his leg was very painful and
his foot very swollen and instead
sent him home, dr Versfeld expressed the opinion that this ‘was
unacceptable that the nursing
staff turned this child away, and this
is negligence’. That evidence is false. It is
refuted by the evidence
of dr Nair and the objective evidence in the
form of her clinical note and written prescription.
[27] The plaintiff’s
evidence that his son received no medication when he attended
casualty at the Rahima Moosa Hospital is
improbable. The
medication prescribed to him on 28 January, on 2 February and on 14
February is documented and both drs Nair
and Radionova, who were the
attending casualty officers on 2 February and on 14 February
respectively, confirmed that they indeed
prescribed the medication
that they have documented. Dr Nair noted in her clinical note
of 2 February that the patient was
seen four days ago and on
Amoxicillin for tonsillitis which has not improved. Every item
prescribed by her in terms of the
written prescription is ticked off
twice. Dr Nair testified that in terms of the practice followed
at the Rahima Moosa Hospital
the ticking off of items of medication
on a prescription indicate that the medicine was dispensed or
issued. Dr Eltringham,
who in his career worked at the
Charlotte Maxeke Johannesburg Academic Hospital and at the Rahima
Moosa Hospital, also testified
that ticking off the medication is a
convention that the majority of pharmacists use in the majority of
hospitals as a method of
confirming that the medicine has been
dispensed or collected. Furthermore, according to Dr
Eltringham, there were two occasions
when hospital prescriptions were
written out for NS and it would be unusual if the medicine would not
have been provided to him.
Dr Versfeld conceded that ticking
off the items of medication on a prescription ‘may indicate’
that the medication
was given to the patient and in response to dr
Eltringham’s view that the method of ticking off is
confirmation that the
medication was prescribed and dispensed, he
said: ‘Fair enough’.
[28] Moreover, the fact
that NS did not get progressively worse rapidly, in the view of dr
Eltringham, indicates that he may have
taken the medication, despite
the fact that his father states that no medication was ever given to
his son. In the view of
dr Eltringham, the treatment that was
offered was probably administered and it suppressed the infection
sufficiently to alleviate
the symptoms. Once the antibiotic
course was completed, after seven days, the symptoms would have
rapidly increased again
and that is why he presented at the Rahima
Moosa Hospital on 14 February. Had he not had the antibiotics
his symptoms would
have rapidly increased prior to that date.
[29] Dr Versfeld is of
the opinion that the outcome of the treatment of acute osteomyelitis
in children depends on how rapidly the
condition is treated. In
its early stages, it is, according to dr Versfeld, a completely
treatable condition and often all
it requires is appropriate
antibiotic treatment. The available literature gives a success
rate of ‘something like’
90% if the condition is treated
rapidly and correctly. Dr Eltringham agrees that osteomyelitis,
if neglected, is more likely
to be problematic. In his view,
there is no guarantee that an earlier diagnosis of NS’s
osteomyelitis would have changed
the cause and outcome significantly
in any way whatsoever. Not all acutely managed, acutely
presenting osteomyelitis are
resolved initially and in many instances
especially in children, acute bone infection can progress onto
chronic osteomyelitis as
NS developed. However, he agrees that
chronic osteomyelitis is less common when it is treated rapidly and
correctly. But
in his view, it would not be an unexpected
outcome for acute bone infection in children to progress onto chronic
osteomyelitis.
Osteomyelitis does not always behave the same in
every individual.
[30] The correlation
between a sprained ankle, a sore ankle, and an infection
(osteomyelitis) is, in the opinion of dr Eltringham,
an unusual one.
In other words, osteomyelitis associated with ankle sprain is very
uncommon. Most osteomyelitis in
his view does not have a
preceding history of trauma. Osteomyelitis following NS’s
ankle injury is thus an uncommon
occurrence. Dr Eltringham
testifies that in his career as an orthopaedic surgeon he has only
seen three or four, or maybe
four or five, children who have
presented with trauma and developed subsequent osteomyelitis in the
area of the preceding trauma.
It is, in his view, not a common
presentation. On the other hand, soft tissue injuries around
the ankle are commonly seen
in casualty departments. Many
children sprain their ankles and they are often getting injured.
But very few of them
are complicated by developing an infection.
Tonsillitis too is a relatively common presenting problem especially
in hospitals
such as Rahima Moosa, which hospital serves the
community at large and is not a specialist referral centre.
[31] Orthopedic surgeons,
according to dr Eltringham, are often teased for not examining the
rest of the patient, but rather concentrating
on limbs or bones.
Some casualty officers are career casualty officers and have
tremendous experience and others are relatively
junior and
inexperienced. The expertise of casualty officers (who
frequently deal with sprained and twist ankles and few
are
complicated by developing infection, as well as tonsillitis) and
orthopedic surgeons are different. They would have examined
a
patient such as NS with a very different perspective to a
generalist. Dr Versfeld is also of the view that an orthopedic
surgeon or a pediatrician would have been in a better position to
make the diagnosis of osteomyelitis.
[32] Dr Eltringham is of
the view that it is very likely that NS had tonsillitis at the time
he sustained the injury to his leg.
Osteomyelitis, in the view
of dr Eltringham, can be difficult to diagnose especially when there
are other reasons for a temperature
such as NS had.
Hypothetically, if one has a sprained ankle one would have a swollen
sore ankle that may be red, warm to
the touch and sore to walk on.
The only difference between that and an infection in the same area
would be the presence of
a temperature or other signs of infection.
But swelling and inflammation with warmth and sometimes redness is
overlapping
symptoms. Dr Eltringham is of the view that the
history of NS having recurring tonsillitis and the fact that he had a
concurrent
tonsillitis at the time of his ankle injury would be
confusing to a casualty officer. The attending casualty
officers on
28 January and 2 February had, in the view of dr
Eltringham, found a reason for NS’s temperature, for the
infection. The
initial approach to manage NS’s temperature has
been caused by the tonsillitis. Dr Eltringham is of the view
that was
appropriate. Dr Versfeld agrees that the general
features of tonsillitis and osteomyelitis are similar with the
exception
that a patient gets more toxic and the symptoms would tend
to be more severe with osteomyelitis. He concedes that there
are
times when osteomyelitis can be difficult to diagnose, especially
in this case where NS also had tonsillitis at the time.
He also
agrees that NS had ‘[m]any episodes of tonsillitis according to
the history’.
[33] Dr Eltringham is of
the opinion that the bacteraemia that was present at the time of NS’s
ankle injury could have been
the cause for the infection settling
around his ankle. Within a day or two the injured area is
colonized by bacteria that
are floating around in the bloodstream,
whether from a tooth infection, soft tissue infection in the skin
such as a boil or scar
which children often get or from tonsillitis.
The infection in the bloodstream can then seed or localize to an
injured area.
The infection can often spread or occur several
days after the original injury, usually quicker in children than in
adults, but
it can be a few days up to a week or two. It is,
according to dr Eltringham, speculation as to when the infection took
hold
in NS’s left tibia. Dr Versfeld agrees that the
bacteraemia is spread by the blood and the bone infection could have
arisen from the tonsillitis.
[34] Dr Eltringham has no
doubt that the antibiotics prescribed for NS’s tonsillitis
inhibited the bacteria that were causing
his osteomyelitis,
suppressing the tibial infection enough to make a diagnosis of a
tibial osteomyelitis difficult and thus delaying
the diagnosis.
The antibiotics would delay the seeding process by a few days.
NS presented at casualty on 28 January,
31 January and 2 February in
relatively quick succession and then there was a relatively long
interval until 14 February when he
attended at casualty again. On
31 January he was prescribed antibiotics for his tonsillitis and on 2
February he was prescribed
a seven-day treatment of Ciprofloxacin.
The relatively long interval that it took him to attend at casualty
again is for
dr Eltringham in keeping with a lull in his symptoms, an
improvement as a result of the treatment of an infection with
antibiotics.
The antibiotics stopped seven days after 2 February, and
he got worse, which in the view of dr Eltringham is expected.
The
symptoms seemed to dr Eltringham as having increased a day or two
after NS stopped the Ciprofloxacin that was prescribed to him
on 2
February and finished on or about the 9
th
of February.
This to Dr Eltringham is in keeping with the request to Ms Schoeman
to remove the backslab on 14 February and
his attendance at casualty
later that evening. If NS did not have tonsillitis at the time
of his presentation to casualty
on 28 January, 31 January and 2
February, dr Eltringham is ‘certain that the diagnosis of
osteomyelitis would have been made
sooner. Dr Versfeld concedes
that the antibiotics prescribed for NS’s tonsillitis inhibited
the bacteria that was causing
his osteomyelitis.
[35] Dr Versfeld says
that he does not know when the osteomyelitis started, but there were
features of osteomyelitis present on
28 January. Central to dr
Versfeld’s opinion that NS’s symptoms were not
appropriately dealt with by the attending
casualty officers and that
a diagnosis of osteomyelitis or septic arthritis should have been
entertained earlier on and the matter
escalated to an orthopaedic
surgeon, is the clinical diagnosis of ++ tenderness of the
medial malleolus, which to dr Versfeld
means a considerable amount of
tenderness of the medial malleolus, that was made by the attending
casualty officer on 28 January.
The medial malleolus is the
protruding bone from the inside of the ankle. The tenderness
covers a very narrow area and is
very localized and specific.
If it was merely an ankle injury one would have expected the
tenderness to be where the ligament
is and not on the bony
structure. Tenderness of a sprain would be over the ligament
and here the attending casualty officer
diagnosed tenderness over the
bone. The ++ tenderness of the medial malleolus was, in the
view of dr Versfeld, the first
sign osteomyelitis.
[36] Dr Eltringham, on
the other hand, is of the view that dr Versfeld’s view amounts
to mere speculation as to when the osteomyelitis
took hold of NS’s
left tibia and is ‘highly unlikely’. First, the ++
in his view is a bit of a random comment
and a slightly vague
description. A + would be very slightly tender, ++ fairly
tender and doctors might go to +++ or ++++.
But he agrees that
the tenderness ‘was not just like minor it was more a minor but
not the most severe or very severe tenderness’.
Second,
the description of a tender medial malleolus is in the opinion of dr
Eltringham ‘more of a generic description for
the region of the
symptoms’ and not localised ‘to an area the size of a
thumb nail’. This view of dr Eltringham,
of course, is
supported by the attending casualty officer’s clinical
diagnosis of a soft tissue injury. Third, children
have
ligaments that are stronger than their bones whereas adults have
bones that are stronger than their ligaments. On average
adults
tear the ligaments around the ankle and children fracture bones
rather than tear ligaments. The most common scenario
with
children is to avulse the ligament off the bone pulling with it the
periosteum (thin sleeve of soft tissue which is not visible
on
x-rays) over the medial malleolus. Usually the injury of a
ligament in children occurs at the point of origin of the tendon
on
the medial malleolus and the medial malleolus would thus be the point
of tenderness. Fourth, what dispels dr Versfeld’s
theory
in the opinion of dr Eltringham, is that there was never
osteomyelitis of the medial malleolus, but of the distant third
of
the tibia. The point of tenderness over the medial malleolus
does not correlate to the subsequent diagnosis of the location
of the
osteomyelitis. The medial malleolus is part of the epiphysis,
which is the area below the growth plate of the tibia.
The
metaphysis is the area above the growth plate. The
osteomyelitis was of the metaphysis of the tibia and not the
epiphysis.
The growth plate is, generally speaking, a barrier.
Tenderness that correlates to the subsequent diagnosis of
osteomyelitis
would therefore, in the opinion of dr Eltringham, have
been above the medial malleolus, not on the medial malleolus.
The
clinical diagnosis of tenderness on the medial malleolus, in the
view of dr Eltringham, is consistent with a ligament injury or
a
sprain or a soft tissue injury. And that was the attending
casualty officer’s diagnosis on 28 January, as noted in
the
clinical note.
[37] Dr Eltringham is of
the view that the treatment provided by the casualty doctors on the
days up and until the 14
th
of February, was under the
circumstances of them not being orthopedic surgeons, acceptable and
reasonable. On 28 January
NS presented with a one day history
of temperature and two days history of his ankle. The casualty
officer looked for a reason
for the infection and found active
tonsillitis and NS was shown to have suffered from recurring
tonsillitis. Dr Eltringham
is of the view that the casualty
officer was ‘probably quite pleased they had found a reason for
the temperature, managed
the temperature by treating the tonsillitis
with appropriate antibiotics’. The casualty officer noted
a soft tissue
injury. NS was walking on his leg, it did not
seem to severe to the casualty officer and felt it did not need
specific treatment
but should it not settle requested that he comes
back for re-assessment and x-rays. Under cross-examination dr
Versfeld testified
thar he ‘is not saying that the doctor was
negligent’ on this occasion if it was not NS’s second
visit to the
hospital, but that the treatment given was not
‘necessarily ideal treatment at that moment in time’.
He further
states that he does not believe that it was a serious
omission of the attending casualty officer not to refer NS to an
orthopaedic
surgeon at this time.
[38] The pain and
swelling persisted and NS did go back to the Rahima Moosa Hospital on
31 January as prescribed by the casualty
officer on 28 January.
The casualty officer, dr Eltringham assumes, undoubtedly went through
the casualty notes and noted
the soft tissue injury was deemed to be
relatively minor, but that an x-ray had not been taken and he was
obviously swayed by the
comment that if NS comes back and his ankle
is still sore an x-ray should be taken to exclude a fracture.
And that is precisely
what the casualty officer did. The x-rays
showed no fracture. The appropriate treatment in the event of
an uncomplicated
soft tissue injury to the ankle is to immobilize the
ankle, because if it is unsupported and unprotected the symptoms may
increase
since the injured area is then repeatedly re-injured and the
swelling and pain will increase. That is what the casualty
officer
did. Dr Versfeld agrees that immobilizing a soft tissue
injury is appropriate treatment and he concedes that over-use of a
limb may cause pain and swelling of an ankle sprain not to decrease.
He further concedes that if it is accepted that the
ankle injury
occurred on 26 January, the diagnosis and treatment received on this
occasion were reasonable.
[39] As regards NS’s
presentation at casualty on 2 February, dr Eltringham says that the
previous two presentations had been
for different symptoms. Now
there was a patient who was presenting in the middle of the night to
a casualty facility with
vomiting, diarrhea, and a fever. And
not, according to the clinical note, of his ankle or of increasing
ankle pain.
If that was the case dr Eltringham would have
expected that the history would have documented painful ankle rather
than the history
of fever, vomiting and diarrhea. It appears
not to have been the overriding presenting symptom on that particular
day.
NS presented with a history of an injury to his ankle and
normally an injury to an ankle would not cause a temperature.
He
has a history of recurring tonsillitis infections and so the
casualty officer evaluated the patient and examined him.
General
practitioners normally assess the ears, the throat, the nose,
and listen to the chest. If they still can’t find the
cause of infection in children then they look at urine, because those
are the common sources of infection. In evaluating
NS it
appears from the clinical note that the casualty officer visualized
what she felt was tonsillitis and she felt that the clinical
impression of the tonsillitis was the cause for the temperature and
made the diagnosis of tonsillitis, which was the cause of the
infection. Temperature is normally the result caused by an
infection, either viral or bacterial. With a clinical
appearance
of infected tonsils plus the temperature, a diagnosis of
tonsillitis rather than an assumption that he had acute osteomyelitis
in those circumstances, in the view of dr Eltringham, is reasonable.
Unless NS had complained of progressively increasing
ankle pain,
there was no particular reason for the casualty officer to
concentrate on the ankle on this occasion. Under
cross-examination dr Versfeld conceded that if the diagnosis on this
occasion was based on the presenting symptoms as recorded in
the
attending casualty officer’s clinical note - fever, vomiting
and diarrhea – and not the ankle complaint, then the
diagnosis
would be a correct one on the recorded presenting symptoms and the
treatment given (the medication prescribed) reasonable.
[40]
Dr Versfeld’s opinion that NS’s symptoms were not
appropriately dealt with by the attending casualty officers and
that
a diagnosis of osteomyelitis or septic arthritis should have been
entertained at an earlier stage and the matter escalated
to an
orthopaedic surgeon, is outcome based. He expressed the view:
‘
I mean if
you look at the outcome you cannot say that they were appropriately
dealt with.’
But
this is a wrong approach. One cannot look at the outcome and
then conclude that there must have been negligence.
As was said
by Ponnan JA in
Goliath v MEC for Health, Eastern Cape
2015
(2) SA 97
(SCA) para 9:
‘
For to hold
a doctor negligent simply because something had gone wrong would be
to impermissibly reason backwards from effect to
cause.’
[41] All facts on which
the expert witness relies must ordinarily be established during the
trial, except those facts which the
expert draws as a conclusion by
reason of his or her expertise from other facts which have been
admitted by the other party or
established by admissible evidence.
(See:
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämp-fung MBH,
1976 (3) SA 352
(A) at
371G;
Reckitt & Colman SA (Pty) Ltd v S C Johnson &
Son SA (Pty) Ltd
1993 (2) SA 307
(A) at 315E);
Lornadawn
Investments (Pty) Ltd v Minister van Landbou
1977 (3) SA 618
(T)
at 623;
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 772).
Material facts upon which dr Versfeld relies have not been
established during the trial. Furthermore,
the conflicting
views of drs Eltringham and Versfeld are not both capable of logical
support. The opinions advanced by Dr
Eltringham have a logical
basis and accord with the proven facts and probabilities. (See
Michael and another v Linksfield park Clinic (Pty) Limited
and another
2001 (3) SA 1188
(SCA) paras 34-40.) Dr Versfeld’s
views are for the reasons given not capable of withstanding logical
analysis and are therefore
not reasonable. The views of dr
Eltringham are thus preferred.
[42] Finally, the matter
of costs. No good grounds exist for a departure from the
general rule that costs follow the event,
in other words that the
successful party should be awarded its costs. What has to be
considered though, is the defendant’s
request that the costs
order should include the fees consequent upon the employment of two
counsel. I am of the view that
neither the factual nor the
legal difficulties were such as to warrant the engagement of two
counsel for the defendant.
[43]
In the result the following order is made:
The
plaintiff’s claim is dismissed with costs.
____________________________
P.A. MEYER
JUDGE OF THE HIGH
COURT
Hearing:
26-30 November 2018
15
April 2019
24
June 2019
Judgment:
31 January 2020
Plaintiff’s
counsel: Adv JF Grobler
Instructed
by: Friedman Attorneys, Killarney, Johannesburg
Defendant’s
counsel: Adv P Pauw (assisted by Adv Mansingh)
Instructed
by: State Attorney Johannesburg