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[2021] ZAGPJHC 11
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Mashinini v Member of the Executive Council for Health, Gauteng Province (1352/2017) [2021] ZAGPJHC 11 (25 January 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
CASE
NO
:
1352/2017
DATE
:
25
th
January 2021
In the matter between:
MASHININI
,
NOMGQIBELO
NELLY
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COMMITTEE
FOR
HEALTH, GAUTENG
PROVINCE
Defendant
Coram:
Adams J
Heard
:
27, 28, 29, 30, 31 July 2020, 3, 4, 5 and 12 August 2020 –
The
‘virtual hearing’ of this matter – the trial –
was conducted as a series of videoconferences on the
aforementioned
trial dates on the
Microsoft Teams
digital platform.
Delivered:
25 January 2021 –
This judgment was handed down electronically by circulation to the
parties' representatives by email, by
being uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 13H00 on 25 January 2021.
Summary:
Action in delict – plaintiff suffered
internal injury during serious operation causing her to suffer
damages – MEC liable
– future hospital, medical and
related expenses –
MSM
obo KBM v Member of the Executive Council for Health, Gauteng
Provincial Government
2020
(2) SA 567
(GJ) – recent developments in the law applied –
MEC ordered to render certain
medical services to plaintiff at Charlotte Maxeke Johannesburg
Academic Hospital
–
ORDER
(1)
The plaintiff’s claim for past
hospital and medical expenses is postponed
sine
die
.
(2)
In respect of those
services and items listed under the claims for Specialist Surgeon’s
Expenses in the reports of Professor
Damon Bizos and Dr B H Pienaar,
and in their joint minute of the pre-trial conference held between
them, the MEC is directed to
ensure that these services are rendered
to, and procured for Mrs Mashinini by the Charlotte Maxeke
Johannesburg Academic Hospital
(CMJAH) as and when required at the
same or better level of service than in the private healthcare
sector.
(3)
Judgement is hereby granted in favour of
the plaintiff against the defendant for:
(a)
Payment of the sum of R2 084 250.40.
(b)
Payment of interest on the said amount of
R2 084 250.40 at the prevailing legal interest rate from
fourteen days from
date of this judgment to date of final payment.
(c)
Payment of the plaintiff’s costs of
suit, including the reasonable costs of all medico-legal reports and
joint minutes obtained
by the plaintiff, and the qualifying fees and
court attendance fees of her expert witnesses.
JUDGMENT
Adams J:
[1].
On the 16
th
of May 2014 the plaintiff (‘Mrs Mashinini’) attended on
the Tambo Memorial Hospital (‘TMH’) in Boksburg
to have
her gallbladder removed. In medical parlance, it is said that she
underwent a laparoscopic cholecystectomy, which is a
common procedure
during which a laparoscope (a narrow tube with a camera) is inserted
through a small incision into the abdomen
to enable the surgeon to
see the gallbladder whilst it (the gallbladder) is removed by the
doctor through another small incision.
A laparoscopic
cholecystectomy, although common, is described generally as major
surgery with serious risks and potential complications.
[2].
Mrs
Mashinini’s case, as it turned out, was one such instance in
which complications arose – simply put, the operation
was
botched. Her common bile-duct and her right hepatic artery were
perforated by accident during the operation. The consequences
for her
were disastrous and dire. The iatrogenic fallout for the plaintiff
was vast and far-reaching – she had to endure
numerous
subsequent surgical interventions and there is a real possibility of
her undergoing further surgery in the future. At
present, she still
experiences constant pain on the right side of her upper abdomen
where a stent had been inserted. Not to mention
the psychological and
psychiatric effect all of this has had on her activities of daily
living and her occupation – at some
point she thought that she
was going to die.
[3].
In this
action, Mrs Mashinini claims damages as a result of the personal
injury suffered by her during the failed operation from
the
defendant, the Member of the Executive Committee for Health in the
Gauteng Provincial Government (‘the MEC’), who
is the
Provincial Executive Authority responsible and vicariously liable for
the conduct of the medical staff at the TMH. Ironically,
Mrs
Mashinini, who is a Registered Nurse at the Chris Hani Baragwanath
Academic Hospital (‘CHBAH’) in Soweto, is an
employee of
the MEC. She is therefore claiming from her employer damages as
aforesaid.
[4].
Thankfully,
the MEC accepted that, in performing the surgery on Mrs Mashinini on
the 16
th
of May 2014, the medical staff involved in the said operation had
acted negligently and that such negligence had caused the plaintiff’s
injury and her subsequent damages which resulted from such injury.
Therefore, the issue of the merits / negligence / liability
had
become settled and resolved on the basis that the defendant would pay
to the plaintiff whatever damages she is able to prove.
On the 6
th
of August 2018 an order to that effect was granted by this court
(Mojapelo DJP).
[5].
What is
however not resolved is the amount of such damages to be awarded to
Mrs Mashinini. Therefore, what is in issue before me
is the
quantification of Mrs Mashinini’s damages under the different
heads of damages, namely past hospital and medical expenses,
future
hospital and medical expenses and related charges, future loss of
earnings and loss of income earning capacity and general
damages.
[6].
As regards
past hospital and medical expenses, during the hearing of the matter,
I was informed by Counsel for the parties that
discussions between
them were ongoing with a view to settling this head of damages. The
plaintiff claims under this head of damages,
as per a late notice of
intention to amend the amount claimed, the total amount of R363
213.23. The parties were confident that
an amount would be agreed
upon by the end of the trial, in which case I would have made an
award under this head of damages by
agreement between the parties. A
schedule of past hospital and medical expenses had been furnished by
the plaintiff’s attorneys
to the defendant’s attorneys –
rather belatedly, so I was told by Ms Makopo, who appeared on behalf
of the defendant.
The difficulty that the defendant has with the list
of expenses is that it contains treatment and expenses unrelated to
the iatrogenic
injury sustained by Mrs Mashinini as a result of the
negligence of the defendant’s medical personnel. By the time
the trial
was concluded, this head of damages had still not been
settled and an amount had not been agreed upon. This head of damages
therefore
stands to be postponed to enable the parties to continue
their endeavors to reach agreement on the quantum of the past
hospital
and medical expenses, alternatively, for adjudication of the
said quantum.
[7].
Additionally,
the defendant has somewhat belatedly raised a defence in relation to
the quantum of the plaintiff’s claim referred
to by the parties
as ‘the public healthcare defence’. In a nutshell this
defence, which is aimed at the plaintiff’s
claim for future
hospital, medical and related expenses, denies that the plaintiff is
entitled to receive monetary compensation
in respect of certain
future medical treatment and other services as the MEC tenders to
give the plaintiff the required treatment
and to provide the related
necessary services at any one of the public provincial hospitals,
which falls under his authority. Mrs
Mashinini rejects this defence
and persists with her claim for compensation sounding in rands and
cents. She contends that no factual
evidence was adduced by the MEC
to sustain the Public Healthcare Defence but for broad issues being
raised during cross examination
of plaintiff’s surgeon and
psychiatrist and certain aspects of availability of surgical and
psychiatric services being alluded
to by the defendant’s
psychiatrist. I shall revert to this aspect later in the judgment.
[8].
The aforegoing
issues are to be adjudicated against the factual backdrop, the
details and particulars of which are set out in the
paragraphs which
follow immediately hereafter, and which are garnered from the
evidence led during the trial of the matter, which
commenced on
Monday, the 27
th
of July 2020 and endured for eight days, as well as from numerous
expert reports, joint minutes and supplementary joint minutes
from a
number of experts, notably specialist surgeons / gastroenterologists,
psychiatrists, industrial psychologists, occupational
therapists and
actuaries. All of this documentary evidence forms part of the body of
evidence led at the trial.
[9].
Mrs Mashinini
was born on the 21
st
of August 1982. That makes her 38 years old at present. She was 31
years old on the 16
th
of May 2014 when she suffered the injury during the botched
laparoscopic cholecystectomy. During 2016 she got married to Hamilton
Khumalo, a 46-year-old fitter and turner. They have however been
together for a much longer period and the children born of their
relationship are a 13-year-old daughter and a 10-year-old son. The
family live in a three-bedroom house in Windmill Park in the
Boksburg
area.
[10].
Prior to the
incident on the 16
th
of May 2014 Mrs Mashinini was reportedly in good health, except that
during 2011 she received treatment for Tuberculosis for a
period of
approximately six months. Following the botched operation, she has a
myriad of complaints. She suffers from severe abdominal
pain,
experiences nausea and is prone to vomiting at times most
inconvenient. She experiences difficulty during sexual intercourse.
She has shortness of breath when walking long distances. There
appears to be ‘movement’ inside her body. She struggles
to do household chores and with concentration. She thinks that she
may be depressed. She occasionally feels tired, which could
be as a
result of the pain medication. She talks in her sleep and slaps her
husband's hand away when he attempts to wake her. She
complains of
constipation. She is occasionally scared of eating anything, as this
could lead to stomach-ache. Her memory is poor.
She experiences
middle backache and her stomach muscles are painful.
[11].
Mrs Mashinini
is qualified as a Registered Nurse, having obtained a Staff Nurse
qualification after a two year course during 2005
and 2006 and a
General Nursing Certificate after a course which she attended from
2011 to 2013.
[12].
She acquired
these formal qualifications whilst working. During 2007 for a period
of three months she was employed on a temporary
basis as an ‘Enrolled
Nurse’ by Arwyp Private Hospital in Kempton Park. From
September 2008 to 2013, for a period of
approximately five years, she
was employed by the Mpumalanga Department of Health at the Dledluma
Clinic in Komatipoort also as
an Enrolled Nurse. She was earning
approximately R8000 net per month in this capacity. From 2013 to the
6
th
of May 2014, when she underwent the ill-fated surgical procedure, she
was employed by the Mpumalanga Department of Health as a
Professional
Nurse at the Mongwani Clinic near Tonga. As per her April 2014 salary
advice, Mrs Mashinini was earning R13 200.66
gross per month at
that time, a portion thereof constituting overtime and other shift
allowances.
[13].
So, all was
well in the land at that point. Mrs Mashinini was practicing her
calling as a Nurse and she was making a good living.
She also had
plans to advance her prospects further by improving her
qualifications with a view to becoming a matron. That was
not to be.
The unfortunate operation intervened. The nature of the operation and
its dire consequences, as well as the cause, nature
and extent of the
injury suffered by Mrs Mashinini, are best described with reference
to the evidence of the plaintiff’s
Specialist Physician /
Gastroenterologist, Professor Damon Bizos, who incidentally also
treated Mrs Mashinini during the course
of 2019 and 2020, when she
was yet again required to consult a medical practitioner because of
the pain and discomfort she was
experiencing. Prof Bizos explained
that during the operation Mrs Mashinini suffered an injury to the
common bile-duct and the artery
from the liver – in simple
terms what happened is that the common bile-duct and the artery from
the liver had been perforated
accidentally by the Surgeons during the
operation. The injury, so Prof Bizos explained, resulted in a
stricture at the hilum and
occluded right hepatic artery.
[14].
As rightly
submitted by Mr Uys, who appeared on behalf of Mrs Mashinini, the
evidence of Prof Bizos is to a large extent unchallenged
and
uncontested.
[15].
Prior to the
laparoscopic cholecystectomy, which was perform at TMH on the 16
th
of May 2014 by Dr E Lunga, assisted by Dr Wong, Mrs Mashinini was
reportedly generally well. She had a caesarean section during
2009
and during 2011 she was treated for Tuberculosis. She was off work
from May to December of 2014 because of the operation and
its
sequelae and also for seven days during 2019. After the operation at
TMH she went home to her mother in Greytown, KZN. Although
she lived
in Gauteng at the time of the operation and worked in Mpumalanga, she
decided to go and recover and convalesce at her
family home in
Greytown, where she would also have had the benefit of support by her
mother. That is how it came about that she
ended up at Grey’s
Hospital when she started feeling unwell and the reality of an
operation that had gone horribly wrong
dawned on her.
[16].
The elective
laparoscopic cholecystectomy had originally been scheduled for the
24
th
of June 2014. However, due to acute and severe abdominal pain, which
was becoming unbearable, the date of the operation was brought
forward to the 16
th
of May 2014. It is clear from this that she was in a bad state before
the operation and that the purpose of the procedure would
have been
to relieve her of the pain and suffering. That was not to be.
Instead, it appears that after the operation, she was worse
off.
[17].
So much so
that on the 27
th
of May 2014 – some eleven days after the operation – she
was admitted to the Grey’s hospital after being referred
to the
said hospital by the Madadeni Clinic. At the time she was
experiencing severe and debilitating abdominal pains and discomfort.
A laparoscopy performed on the 29
th
of May revealed peritonitis and biliary ascites. This was explained
by Prof Bizos as inflammation of the lining of the inner wall
of the
abdomen and cover of the abdominal organs, coupled with an abnormal
increase in fluid in the peritoneal cavity.
[18].
On the 29
th
of June 2014 an Endoscopic Retrograde Cholangiopancreatography
(‘ERCP’) and stenting of Mrs Mashinini’s bile
duct
were performed. There was a Strasberg C and E2 bile duct injury and
she had post ERCP acute pancreatitis. There was a repeat
ERCP in
September 2014 and then on the 17
th
of November 2014 she was readmitted to the Grey’s hospital for
a bile duct reconstruction. This reconstruction was done after
five
clips placed on the common hepatic artery and right hepatic artery
were seen during dissection of the porta hepatis. There
was a
Strasberg E3 injury with a stricture at the hilum and occluded right
hepatic artery. The right and left hepatic ducts were
identified and
sutured to one another and a hepatico-duodenostomy was performed
using a pedicle greater curvature gastric tube.
This implies that the
right and left hepatic ducts had been separated by the injury.
[19].
The clinical
examination by Prof Bizos on the 7
th
of June 2019 revealed that Mrs Mashinini is obese. Her blood pressure
was 130/90. She has a right sub-costal scar which has extended
over
to the left. There is an incisional hernia in the midline area of the
right sub-costal incision. She has laparoscopic port
sites which have
no hernias.
[20].
After her
procedures at the Grey’s Hospital during November 2014, Mrs
Mashinini was admitted once for pain and nausea but
after that has
not been admitted. She sees doctors intermittently. She had an
ultrasound done at Sunward Park hospital. This abdominal
ultrasound
from the 16
th
of January 2017 showed that the liver was not enlarged. The
intra-hepatic ducts were slightly prominent but not grossly dilated.
There was no sign of a liver mass. The common bile duct was not
dilated. There were no pancreatic masses and the rest was essentially
normal. Prof Bizos concluded from this ultrasound that she had
slightly dilated intra-hepatic ducts, probably as a result of the
previous cholecystectomy with bile duct injury.
[21].
Regarding her
liver function tests which were done on the 28
th
of September 2018 with Ampath Laboratories, her bilirubins were
normal. Her alkaline phosphatase was normal at 101, however her
Gamma
GT was 75, which is normally less than 40. It must be noted that she
denies any drinking. Her ALT was normal at 20 (normal
35), AST was
raised at 50 (normal 32). Her amylase was normal and her albumin was
normal. Her CRP was slightly elevated at 9.
[22].
The 17
November 2014 hepatico-duodenostomy, according to Prof Bizos, was in
fact an exploratory laparotomy, hepatico-jejunostomy
and a gastric
tube reconstruction. This entailed, so the good Professor explained,
creating a communication between the hepatic
duct and the jejunum
(the second part of the small intestines). The reconstruction of the
duct was done through harvesting of vessels
from the greater
curvature of the stomach which was fashioned as a tube creating a new
hepatic duct which was connected between
the liver and the duodenum.
This gastric tube which was being fashioned was then anastomosed from
the bile ducts and to the duodenum.
This would give access for a
later ERCP.
[23].
In sum, Mrs
Mashinini, after the botched operation on the 16
th
of May 2014, ended up with a severe injury to her bile ducts and her
right hepatic artery. This has been reconstructed during a
later
operation. Her recent investigations do not show major anomalies
except for slightly dilated intrahepatic ducts as well as
a slightly
raised Gamma GT.
[24].
In his
medico-legal report of the 7
th
of June 2019 Prof Bizos recommended that Mrs Mashinini would need
repair of her right sub-costal scar with hernia repair and revision
of the scar. This would cost in the region of R50 000 as a mesh
would need to be used. She would also need to see a specialist
hepatobiliary surgeon on a yearly basis and would need sequential
sonars and Liver Function Tests (LFT’s), which, according
to
Prof Bizos, would cost in the region of R3500 per annum. She would
require a CT scan every three to four years, as well as a
MRCP then
to check the status of the ducts and thereafter an MRCP every five
years to make sure that there is no ongoing stricturing
of the bile
ducts. If she does develop stricturing, she will need an ERCP and
dilation. The cost of that would be in the region
of R40 000.
[25].
Prof Bizos
also concluded that there is a small chance that Mrs Mashinini would
need a redo hepatico-jejunostomy at the cost of
R250 000 – Prof
Bizos estimated the chance of her having redo surgery at about 15%.
He also concluded that there is ‘a
tiny chance that she will
develop major liver problems requiring liver transplant, but [he]
thinks that the chances of this would
be highly unlikely.’
[26].
As luck would
have it, subsequent to his report of the 18
th
of June 2019, further information became available to Prof Bizos and
important developments occurred, which required that he updates
his
opinion and recommendations.
[27].
Importantly,
Mrs Mashinini had undergone a procedure during December 2018 at the
Clinix Botshelong-Empilweni Private Hospital in
Vosloorus. She was
also admitted to the Glynwood Hospital in Benoni during June, August
and October in 2019, when she had a further
ERCP, as predicted by
Prof Bizos, and she had the stent removed. These procedures were
performed by a Prof Balabyeki. Also, she
had been treated at the
Charlotte Maxeke Johannesburg Academic Hospital (‘CMJAH’)
on a few occasions – there
she underwent an ERCP on the 10
th
of October 2019, at which time the stomach was full of food, and
further procedures were abandoned. An ERCP was repeated on the
29
th
of October 2019 and the gastric tube interposition was cannulated.
There was a stricture at the anastomosis between the hepatic
duct and
gastric tube anastomosis. A 9-12mm balloon was pulled though it
(there was no sludge) and a plastic stent was placed.
[28].
A further ERCP
was performed on 3 December 2020, when the stent was removed from
hepatico-gastro-duodenostomy. A stone was found
in the gastric tube,
which was removed during the procedure. Mrs Mashinini was to be seen
in the ward in 2 weeks for LFTs, therefore
on or about the 17
th
of December 2019 and, if the findings were normal, she would have to
be seen in January 2020. On the 15
th
of January 2020 she was seen by the Surgical Outpatients Department
at the CMJAH and again on the 12
th
of February 2020. She was then reportedly still complaining of pain,
but she was otherwise well.
[29].
She also
underwent an ERCP by Prof Martin Smith at the Wits Donald Gordon
Medical Centre (‘WDGMC’) in 2020. At that
time no
strictures were observed. During July 2020, with her problems
seemingly not abating despite all of the treatment she had
received
up to that point, Mrs Mashinini consulted with Prof Bizos, this time
complaining of the ever persistent right upper quadrant
pain and
nausea. Prof Bizos found that she had an incisional hernia in her
right subcostal incision. She was not Jaundiced. Liver
functions were
normal. An ultrasound revealed mildly dilated intrahepatic ducts.
[30].
In sum, Prof
Bizos concluded that the Gastric tube interposition had not been
trouble free and Mrs Mashinini has required multiple
admissions,
ERCPS and stenting, removal of stents over the last 2 years. This has
required admissions to hospital. Prof Bizos was
further of the
opinion that the chances of further stricturing and or stone
formation is high. He concluded that she would probably
need an ERCP
on an annual basis and the chances of her needing a
hepatico-jejunostomy en Y materializing within five years Prof
Bizos
estimated at a 40% chance.
[31].
Prof Bizos
explained that Mrs Mashinini was bound to suffer from an impaired
quality of life as a result of the long-term impact
of the adverse
outcome, the remaining risk for later complications which includes
anastomotic stricture, recurrent cholangitis
and secondary biliary
cirrhosis, all of which require constant conservative and invasive
assessment and management. He also was
of the view that the
plaintiff’s condition is associated with recurrent and
continuous nausea, vomiting stricture, stone
formation and recurrent
stenting which should be carefully monitored to avoid cholangitis and
will necessitate probable eventual
reconstruction.
[32].
Therefore, and as already indicated, after
the ill-fated operation on the 16
th
of May 2014, Mrs Mashinini was unable to return to work until about
January 2015. Shortly after the operation, she was again hospitalized
and then for the balance of the period she was recovering from the
incident and recuperating. From January 2015 to January 2018,
for a
period of approximately three years, Mrs Mashinini returned to and
remained in her employment as a Professional Nurse at
the Mongwani
Clinic near Tonga, employed by the Mpumalanga Department of Health.
At that time, she was earning approximately R25 000
gross per
month, inclusive of overtime, shift and other allowances. She left
this employment after requesting a transfer to Gauteng
and the
reasons given by her for requesting the transfer included the fact
that she felt that she was too far from home and her
family, who, all
along, was staying in Windmill Park in Gauteng. As she puts it, she
wanted to be close to her children.
[33].
So from
February 2018 to the present time, Mrs Mashinini was employed as a
Professional Nurse by the Gauteng Department of Health
at the Chris
Hani Baragwanath Academic Hospital (‘CHBAH’) in Soweto.
Initially, she was earning R19 405 gross
per month, which was
less than what she was earning in Mpumalanga. By February 2020 there
had been an increase in her salary attributable
in part to the fact
that she was again receiving shift and other allowances. The
plaintiff continues in that capacity presently.
[34].
With that
background, I now proceed to deal with the quantification of the
plaintiff’s claim under the different heads of
damages.
Future
Hospital, Medical and Related Expenses
[35].
Prof Bizos and
his counterpart, the defendant’s Principal Specialist General
Physician, Dr B H Pienaar, agreed the following
future treatment and
reasonable associated costs: Repair of the right subcostal scar with
hernia repair and revision of the scar
at R50 000 with a mesh to be
used; 20% lifetime risk of adhesive bowel obstruction of which half
would be treated conservatively
at R25 000 and half operatively
at a cost of R60 000; Consultations with a specialist (hepatobiliary
surgeon) on an annual
basis with sequential sonars and LFT’s at
a cost of R3500 per annum for the risk of recurrent cholangitis with
an average
of an admission every second year at a cost of R30 000 per
admission; a CT scan every 3 to 4 years to check for possible atrophy
of the right liver as the arterial supply has been compromised with a
10% chance of requiring a right hepatectomy at the cost of
R125 000;
immediate MRCP to check the status of the duct and thereafter an MRCP
every 5 years to ensure that no ongoing structuring
of the bile duct
is recurring at a cost of R20 000 per MRCP; ERCP and dilatation and
stenting at a cost of R40 000 (as a result
of the stricture); high
probability of further stricturing and/or stone formation
necessitating probable annual future ERCP with
a 40% change of
needing a hepatico-jejunostomy and Y surgical procedure within 5
years at a cost of R250 000 necessitating 6 weeks
off work.
[36].
Actuarially
calculated the aforegoing future hospital and medical expenses amount
in total to R1 034 487. From this total
an amount of
R155 173, representing a 15% general contingency, should be
deducted, resulting in future expenses of R879 314.
Mrs
Mashinini accordingly claims this amount from the MEC as representing
the Specialist Surgeon’s Expenses.
[37].
The MEC, on
the other hand, contends that these expenses should be dealt with on
the basis of the law as recently developed by this
Court
(Keightley J) in
MSM
obo KBM v Member of the Executive Council for Health, Gauteng
Provincial Government
(4314/15) [2019] ZAGPJHC 504;
2020 (2) SA 567
(GJ);
[2020] 2 All SA
177
(GJ) (18 December 2019), in which the Court held as follows:
‘
[207.1]
The common law rule requiring that delictual damages must be
compensated in money is developed
so as to permit a court to order
compensation in kind in appropriate cases in circumstances where:
[207.1.1]
the MEC is held liable for the negligent conduct of public healthcare
staff causing injury during or at birth to a child in the form of
cerebral palsy; and
[207.1.2]
the MEC establishes that medical services of the same or higher
standard will be available to the child in future in the public
healthcare system at no or lesser cost to the child than the cost
of
the private medical care claimed.
[207.2]
In respect of the services categorised in this judgment as the
identified services,
the MEC will be directed to ensure, as soon as
is reasonably possible, that they are provided to K at the CMJAH in
accordance with
the recommendations contained in the relevant expert
reports, and as recorded in this judgment, as having been agreed by
the parties.
[38].
Ms Makopo,
Counsel for the MEC, submitted that
in
casu
the
MEC has brought the above expenses within the ambit of the
ratio
in Keightley J’s judgment. The evidence, so she submitted, has
established that these medical services of the same or higher
standard will be available to Mrs Mashinini at the CMJAH. In fact, so
the argument went, Mrs Mashinini had been receiving treatment
at the
said hospital before by the selfsame Prof Bizos, who, as part of the
WDGMC, is contracted to render services in the Public
Healthcare
Sector on behalf of the CMJAH.
[39].
Mrs Mashinini,
on the other hand contends for payment of these amounts in cash and
is supported in that regard by the evidence of
Prof Bizos, who was of
the view that treatment by Mrs Mashinini in the Public Healthcare
Service would not be very practical for
the simple reason that her
condition necessitates constant, continuous and immediately available
emergency care and medical management
through a single dedicated
specialist. Prof Bizos therefore concluded, when cross-examined on
the issue, that the lack of resources
in the public health sector,
which seriously impedes service delivery due to a first come first
serve system, coupled with other
factors, means that Mrs Mashinini
would be seriously prejudiced if she was to be treated only by the
Public Health Sector and compensated
accordingly.
[40].
I find myself
in agreement with the submissions made in that regard on behalf of
the MEC. If regard is had to the evidence before
me, I am satisfied
that the medical services to be provided by Specialists Surgeons are
and will be available to Mrs Mashinini
in future in the public
healthcare system at no or lesser cost than the cost of the private
medical care claimed. Sight should
not be lost of the fact that Mrs
Mashinini is employed as a Registered Nurse by the MEC, and she would
be able to exercise her
entitlement to the treatment.
[41].
This can
however not be said in relation to the costs of treatment and
services for psychiatric and psychological fallouts –
there is
no evidence before me to suggest that the treatment and services to
be received in the Public Healthcare Sector would
be of the same
standard as that to be received in the private sector. Mrs Mashinini
by all accounts has had an adverse outcome
from a psychological point
of view. Pain, discomfort and associated sequalae has resulted in
mild to moderate depression which
flairs up whenever she has to deal
with medical emergencies, pain, nausea, vomiting and treatment. The
suicidal ideation and her
inability to control these emotions despite
being medically trained, the chronic and entrenched nature of the
depression and the
flare ups, leads to a bad prognosis.
[42].
It is the case
of the plaintiff that successful management necessitates a focused
team orientated treatment regime consisting of
psychological
assessment and treatment, psychotropic drugs, psychotherapy,
adjustments in all life roles inducing pain or fear
of pain and
continuous management and assessment for at least five years.
[43].
The
psychiatric evidence confirms that three aspects require immediate
and continuous future management, namely psychotherapy and
psychotropic medication; psychological assessment and treatment; and
amelioration of any life role, inclusive of employment causing
or
inducing fears of pain and discomfort. The costs relating to the
psychiatric and psychological treatment, according to the plaintiff,
amounts to R131 530. The contingency to be deducted from this
total should, in my view, take into account the fact Mrs Mashinini’s
psychiatric and psychological profile may very well be influenced by
other factors unrelated to the injury sustained by her as
a result of
the botched operation. So, for example, she was diagnosed with HIV,
which fact she had failed to disclose to many of
the experts. She
also had a miscarriage subsequent to the injury. I am therefore of
the view that a 20% contingency should be deducted
from this amount,
giving a total of R105 224.
[44].
According to
the occupational therapists, assistive devices, therapy, modalities,
intervention and domestic assistance are required
to treat and
ameliorate the sequalae of the adverse outcome and that treatment
should be managed in partnership by all the professionals
to secure a
favourable outcome;
[45].
The only
dispute between them relates to future case management and certain
items relating thereto. I agree with the MEC’s
stance in that
regard, as supported by his OT, who expressed the view that, all
things considered, some of these items are not
necessarily needed by
Mrs Mashinini and on the probabilities cannot be said to relate to
her injury. So, for example, I do not
see the logic in the need for
the lightweight utensils, small food processor, bucket on wheels,
long handled dustpan and broom
and the low clothes drying rack,
second purge chair and ergonomic office chair to reasonably assist
the Plaintiff.
[46].
I am also of
the view that there is no need for case management. I agree with the
defendant’s occupational therapist that
Mrs Mashinini is
clearly quite capable of managing her own affairs, finances and life.
With the assistance of an occupational therapist
and with regular
sessions with a psychiatrist she will, in my view, be able to cope
more than adequately. In order to take into
account these issues, I
believe that a 20% contingency should also be applied to the total in
respect of these expenses, which,
according to the plaintiff, amounts
to R343 783. Therefore, R343 783 – R68 756.60
(20% contingency) = R275 026.40.
[47].
The total
monetary payment to be awarded in favour of the plaintiff in respect
of future hospital, medical and related expenses
is the total sum of
R380 250.40, which will be coupled with an order that in respect
of the Specialist Surgeon’s expenses,
the MEC provides such
services and give such treatment to Mrs Mashinini as and when
required.
Past and future Loss of Earnings / Loss of
Income Earning Capacity
[48].
The industrial
psychologists are in agreement that Mrs Mashinini has the aptitude,
work ethic, inclination and suitability for her
elected employment,
that being as a Nurse in the healthcare environment.
[49].
Up to the
point when she underwent the operation during May 2014, she was
progressing well, earning at that point as a Registered
Nurse
R13 200.66 gross per month. However, even after the event, and
despite all of her problems, her progress and advancement
from an
occupational point of view was still proceeding well. As and at
February 2020 Mrs Mashinini was earning an amount of R27 515.46
gross per month. This means that in the six years since she suffered
the injury her salary had doubled. At first blush, therefore,
there
appears to be no actual loss of income to the plaintiff.
[50].
It is however
the case of the plaintiff that she has been compromised as a result
of the injury in that she has been unable to pursue
her studies in
midwifery, which would have entitled her to attain promotion to the
position as a matron. There can accordingly
be no doubt, so it is
contended on her behalf, that the plaintiff’s career progress
and prospects have been curtailed. How
does one calculate the value
of the loss?
[51].
The actuarial
approach adopted by the plaintiff is one based on Mrs Mashinini being
employed as a professional nurse Grade 1, notch
3, with earnings
amounting to R272 553 per annum since November 2019 and that she has
historically progressed at a notch a year
since appointment at CHBAH.
Furthermore, it assumes that notch increases would in future be
received every second year instead
of annually to provide for any
possible delay. The assumption on this approach is furthermore that
Mrs Mashinini would receive
promotion to the position of Matron in
January 2025 at the age of 42.5 years, being twelve years after
qualifying and registering
as a Registered Nurse, with subsequent
notch progressions as a Matron every second year, which would result
in the plaintiff’s
income culminating as a matron at notch 5 in
2043 at the age of 60, the agreed pre-incident retirement age being
65.
[52].
Post adverse
outcome the plaintiff’s postulation of her future projected
income is based on increases of a notch every second
year without
promotion to the position of a matron and with two years’ early
retirement. Mr Uys submitted that the influence
of a repaired hernia
and resultant retirement falls in the exclusive expertise of the
surgeons and cannot be disputed on a clinical
surgical basis. The
rationale is clear, once a hernia occurred and despite repair this
condition will probably interfere with the
plaintiff’s normal
employment until age 65.
[53].
Mr Uys
furthermore contended that, on the basis of the evidence before me,
the calculation advanced by the plaintiff’s actuary
is
factually well founded.
[54].
These bases
result in a pre-morbid projected income of R10 033 800 and
post-morbid income of R7 525 600. I agree with these
submissions and
the approach generally. I would however apply contingencies to these
amounts as follows: 20% general contingencies
in respect of the
pre-morbid projected income and 10% in respect of the post-morbid
projected income. As regards the pre-morbid
contingency application,
the rationale is simply that there are no guarantees that the
plaintiff would have made it to the position
of Matron – the
competition for that type of positions is fierce and there is a big
pool from which the candidates for that
position are drawn. As for
the post-morbid contingency application, my view is that the
plaintiff is employed by Government and
her position is secure. There
is still a possibility that she would attain the position of Matron.
Also, despite all of the difficulties
she complains of presently, she
appears to have done well in the six years since the operation.
[55].
Applying these
contingencies produces the following result: R8 027 040 –
R6 773 040 = R1 254 000,
which, in my view,
represents fair and reasonable compensation in respect of the
plaintiff’s future loss of income.
General
Damages
[56].
I now turn to
deal with the quantum of the general damages suffered by the
plaintiff.
[57].
Mr Uys
suggested that a sum of R700 000 should be awarded to the
plaintiff for her general damages. For comparative purposes,
he
relied on
Benjamin
v De Beer
1997 (4H3) QOD 1 (SCA), in which a 42-year-old woman, who underwent a
thyroidectomy (the removal of her thyroid gland), which resulted
in
post-operative complications, namely the plaintiff suffering severe
haemorrhaging and asphyxia, cardiac arrest, necessitating
artificial
respiration. The plaintiff in that case on two occasions was rushed
to the operating theatre for emergency treatment.
A tracheostomy was
inserted under general anaesthetic to facilitate breathing, also
causing unpleasant consequences: plaintiff
unable to speak whilst
tube thus placed in airway. Communication conducted by plaintiff
having to first inhale, then to cover tube
so that air may pass up
the airway past the vocal cords and out of mouth or nose, then to
uncover tube to breathe again and then
covered again for next speech
production. Procedure cosmetically unsightly, particularly for a
woman, socially demeaning, functionally
unpleasant and uncomfortable,
and fraught with distressing complications. Plaintiff further
sustaining bilateral vocal cord paralysis
or palsy. Plastic surgery
administered to incision. Plaintiff then experiencing sudden
breathing problem and undergoing further
operation involving laser
surgery through the mouth on her vocal cords. After discharge
plaintiff again having difficulty in breathing
and placed in oxygen
tent for 3 days. Breathing difficulties recurring and plaintiff
readmitted to hospital for further laser surgery
to vocal cords to
improve breathing. Neither procedure entirely satisfactory and
plaintiff admitted to hospital yet again and undergoing
surgery to
move one vocal cord. Plaintiff ultimately being left with an airway
which is too small, giving rise to ‘very severe
airway
problem’. Infection could cause swelling which could block
airway, thus necessitating instant medical attention.
[58].
In that case,
in which the complications appear at first blush to have been more
severe and serious, the plaintiff was awarded R90 000
in 1997,
which updated to 2020 monetary value is R515 000,
[59].
Mr Uys also
reminded the Court of the extreme bouts of pain and discomfort
experienced by Mrs Mashinini in 2014 and again recently
and the
continuous nausea, recurrent vomiting, right upper quadrant pain,
annual recurring assessments and past and future surgery
and
psychiatric outcome and treatment and future management demands a
substantial award.
[60].
Counsel for
the defendant, Ms Makopo, submitted that an amount of R400 000
would be reasonable compensation for the plaintiff’s
general
damages.
[61].
In making an
award under this head of damages, I have had regard to the comments
by the SCA in the matter of
De
Jongh v Du Pisanie
,
2005(5) SA 457 (SCA), in which matter an amount of R250 000 was
awarded in respect of general damages for a head injury which
led to
brain damage. Importantly, in that matter the SCA, quoting Holmes J,
also pointed out the following fundamental principle
relative to the
award of general damages:
‘
The
court must take care to see that its award is fair to both sides –
it must give just compensation to the plaintiff, but
it must not pour
largesse from the horn of plenty at the defendant’s expense.’
[62].
Applying this
principle and having regard to the facts in the matter, to which I
have referred to
supra
,
notably the fact that some six years after the event, Mrs Mashinini
is still suffering the effects of the botched operation, I
am of the
view that the plaintiff’s general damages should be R450 000,
which amount should adequately compensate the
plaintiff for general
damages.
Conclusion
[63].
The amounts to
be awarded to the plaintiff as damages are therefore the following:
R380 250.40 – for future hospital,
medical and related
expenses; R1 254 000 – future loss of income; and
R450 000 – general damages = Total
amount to be awarded:
R2 084 250.40.
[64].
In respect of
the Specialist Surgeon’s expenses, I intend directing the MEC
to ensure that these services are rendered to,
and procured for Mrs
Mashinini as and when required by the Charlotte Maxeke Johannesburg
Academic Hospital (‘CMJAH’)
at the same or better level
of service than in the private healthcare sector.
Costs
[65].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so. See:
Myers v Abramson
,
1951(3) SA 438 (C) at 455.
[66].
I can think of no reason why I should
deviate from this general rule.
[67].
Accordingly, I intend awarding costs in
favour of the plaintiff against the defendant.
Order
Accordingly, I make the
following order: -
(1)
The plaintiff’s claim for past
hospital and medical expenses is postponed
sine
die
.
(2)
In respect of those
services and items listed under the claims for Specialist Surgeon’s
Expenses in the reports of Professor
Damon Bizos and Dr B H Pienaar,
and in their joint minute of the pre-trial conference held between
them, the MEC is directed to
ensure that these services are rendered
to, and procured for Mrs Mashinini by the Charlotte Maxeke
Johannesburg Academic Hospital
(CMJAH) as and when required at the
same or better level of service than in the private healthcare
sector.
(3)
Judgement is hereby granted in favour of
the plaintiff against the defendant for:
(a)
Payment of the sum of R2 084 250.40.
(b)
Payment of interest on the said amount of
R2 084 250.40 at the prevailing legal interest rate from
fourteen days from
date of this judgment to date of final payment.
(c)
Payment of the plaintiff’s costs of
suit, including the reasonable costs of all medico-legal reports and
joint minutes obtained
by the plaintiff, and the qualifying fees and
court attendance fees of her expert witnesses.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
27
th
to 31
st
July 2020, 3
rd
to
5
th
and 12
th
August 2020 – the
trial of this matter proceeded on the 9 aforementioned days as a
‘virtual hearing’
in a series of videoconferences on
the
Microsoft Teams
digital platform
JUDGMENT DATE:
25
th
January 2021 – judgment handed down
electronically
FOR THE PLAINTIFF:
Mr Piet Uys
INSTRUCTED BY:
Malcolm Lyons & Brivik Incorporated, Rosebank, Johannesburg
FOR THE DEFENDANT:
Advocate N Makopo
INSTRUCTED BY:
The State Attorney, Johannesburg