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[2013] ZASCA 65
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Topham v MEC for the Department of Health, Mpumalanga (351/2012) [2013] ZASCA 65 (27 May 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 351/2012
In
the matter between:
DOREEN TOPHAM
...............................................................................................
Appellant
and
MEMBER
OF THE EXECUTIVE COMMITTEE FOR THE
DEPARTMENT
OF HEALTH, MPUMALANGA
................................................
Respondent
Neutral
citation:
Topham v Member of Executive Committee for the
Department of Health, Mpumalanga
(351/2012)
[2013] ZASCA 65
(27
May 2013)
Coram:
Mpati P,
Brand and Cachalia JJA and Van der Merwe and Meyer AJJA
Heard:
10 May
2013
Delivered: 27 May 2013
Summary: Medical
negligence – failure to diagnose hip dislocation resulting in
avascular necrosis involving femur head –
liability of medical
doctor’s employer – issues relating to negligence and
causality.
______________________________________________________________________________
ORDER
On
appeal from:
North Gauteng High Court, Pretoria (Mabesele J
sitting as court of first instance):
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of the court
a quo dismissing the appellant’s claim with costs is set aside
and there is substituted an order
which reads:
‘
(a) The defendant
is declared liable for payment of the plaintiff’s proven or
agreed damages resulting from the negligent
failure to have diagnosed
her right hip dislocation on 1 May 2006 and the avascular necrosis
involving her right femur head that
developed as a result thereof;
(b) The defendant is
ordered to pay the plaintiff’s costs of the trial on 12, 13 and
14 September 2011, such costs to include
the qualifying and
reservation fees, if any, of the plaintiff’s expert witnesses,
Drs Van der Westhuizen and Kaiser.’
______________________________________________________________________________
JUDGMENT
MEYER
AJA (MPATI P, BRAND and CACHALIA JJA and VAN DER MERWE AJA
concurring):
[1] This is an appeal
against the judgment of Mabesele J in the North Gauteng High Court
dismissing a delictual claim for damages.
The claim arose from the
alleged failure of a doctor employed at Rob Ferreira Hospital in
Nelspruit, Mpumulanga to diagnose a hip
dislocation. The appellant,
Mrs Doreen Topham, appeals with the leave of this court. The court a
quo was only concerned with the
issues pertaining to the respondent’s
liability while the quantum of damages allegedly suffered by the
appellant stood over
for later determination.
[2] The respondent is the
Member of the Executive Committee for the Department of Health,
Mpumalanga. It is common cause that the
respondent would be
vicariously liable for any negligent treatment or diagnosis of the
appellant by the medical doctors and staff
of the Rob Ferreira
Hospital.
[3] The appellant was
involved in a motor vehicle collision during the early hours of 1 May
2006 in which she dislocated her right
hip. She was taken to the Rob
Ferreira Hospital by ambulance and admitted to the casualty section.
Her vital signs were recorded
by the nursing staff and she was then
examined by Dr Molete, a newly admitted intern, but he failed to
diagnose her hip dislocation.
In fact, he found nothing wrong and
discharged her. Upon her discharge later that morning the appellant
went to the home of her
mother, Mrs Martha Topham, where she was
cared for and assisted until her re-admission to the Rob Ferreira
Hospital on 9 May 2009.
She was re-admitted, after consulting a
general practitioner in private practice, Dr Smith, on 8 May 2006. He
referred her for
x-rays and diagnosed a dislocated right hip. He then
referred her to the Rob Ferreira Hospital. The medical personnel at
the Rob
Ferreira Hospital agreed with this diagnosis and treated her
for this condition until her discharge on 1 June 2006.
[4] In dismissing the
appellant’s claim the court a quo found that, although Dr
Molete ‘misdiagnosed’ the appellant’s
right hip
dislocation, he performed the correct procedures to determine the
problem and he had adhered to the standard of care
that was required
of him. His conduct was therefore neither negligent nor the cause of
the appellant’s damages. In the appellant’s
particulars
of claim Dr Molete and the other personnel were alleged to have been
negligent in that they neglected to diagnose her
dislocated right
hip; failed to realise that there were abnormalities of the right hip
joint; neglected to treat her for the anterior
dislocation of the
right hip properly and timeously; and failed to take such steps as
were reasonable to ensure that she did not
suffer any harm or damage
other than what would normally follow from the investigation and
treatment of her condition. That negligence,
according to the
appellant, resulted in a complication known as ‘avascular
necrosis’ involving her right femur head.
She consequently
claimed damages from the respondent.
[5] The judgment of the
court below cannot be supported. The learned judge not only
disregarded evidence presented by and on behalf
of the appellant but
also failed properly to consider the evidence of Dr Molete. He
further made an irrelevant and unwarranted
credibility finding
against the appellant. To my mind, the evidence overwhelmingly
supports the conclusion that Dr Molete had been
negligent in failing
to diagnose the appellant’s right hip dislocation and treating
her accordingly.
[6]
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 se 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.
1
[7] The appellant
testified and called three witnesses at the trial. They were her
mother, and two medical experts. One was a specialist
in diagnostic
radiology, Dr Van der Westhuizen, and the other a specialist general
surgeon, Dr Kaiser, who also had experience
as a trauma doctor and in
the treatment of orthopaedic injuries. Their evidence was
uncontroverted. The only witness who testified
for the respondent was
Dr Molete.
[8] The appellant
testified that she was travelling with her younger sister and the
latter’s boyfriend in a motor vehicle
driven by her sister when
the collision occurred. The driver lost control of the car and
collided with a tree. She was seated behind
the driver’s seat
and her leg at the knee was trapped and squeezed by that seat. She
could only be freed by having metal
parts of the driver’s seat
cut. Her right hip, mouth and neck were injured. She experienced
severe pain in her right hip
and was taken to hospital. Her mother,
Mrs Martha Topham, testified that she rushed to the Rob Ferreira
Hospital after hearing
of the collision. Her daughter complained of
neck pain and pain in her right hip. The appellant’s
recollection of the events
immediately after the incident was
understandably unclear because she was in considerable pain at the
time.
[9] It cannot, however,
be disputed from her evidence and that of her mother’s that the
appellant was experiencing severe
pain in her right hip when she was
discharged from the hospital after her initial admission. She was
unable to stand, walk, sit
up or bend her right leg. It was too
painful. Her mother and brother-in-law had to assist her into a
wheelchair and into the vehicle
to take her home.
[10] The evidence of the
appellant and that of her mother about the days that followed her
discharge until her re-admission to hospital
requires no elaboration.
It is to the effect that her physical condition did not improve and
her pain never waned. She remained
unable to stand, to walk, to sit
up straight or to take care of herself. Her mother took care of her
needs and assisted with her
personal care.
[11] According to the
clinical notes of Dr Molete he saw the appellant at 4:22 am on 1 May
2006. At that time he was one of two
doctors on duty in the casualty
section of the hospital, which was a very busy multi-disciplinary
institution with a high intake
of patients in its casualty section at
the end of every month. The appellant was brought to casualty by the
emergency medical service
personnel and handed over to him. He spoke
to her. His notes indicated that she had complained of pain in her
right thigh and mouth,
that her right thigh had been immobilised with
a splint and that she had a collar on her neck. He found her to be
clinically stable
and fully conscious with a Glasgow Coma Scale
reading of 15/15. Her vital signs, which according to Dr Molete are
important indicators
of a patient’s condition, were normal.
[12] Dr Molete examined
the appellant for what he called ‘very serious life threatening
conditions’ because she had
been a victim of a motor vehicle
accident. He applied the ‘head to toe’ method of
examination, which is an assessment
of a patient’s head, neck,
chest, cardio-vascular system, abdomen, back and limbs. His
examination revealed no abnormalities
of her head, chest, vascular
system, abdomen and back. Because her neck was in a collar it could
only be mobilised once a neck
injury was excluded. In examining her
limbs Dr Molete found that she had extreme pain in her right thigh.
He suspected a fracture
of the appellant’s right femur. He was
also alerted to the possibility of a fracture thereof by the
emergency medical service
personnel. He only examined that limb
visually.
[13] Dr Molete testified
that patients involved in motor vehicle accidents were prone to neck
fractures and injuries to the thorax
and to the pelvis. X-rays of the
cervical spine, chest and pelvis were the normal set of trauma x-rays
that were called for in
such cases. He had ‘screening’
x-rays taken of the appellant’s cervical spine, chest and
pelvis in addition to
those of her right thigh. He denied that he had
failed to examine the appellant for a possible dislocation of the
hip. He included,
he said, the appellant’s pelvis when he
referred her for x-rays in order to ‘screen’ her for
fractures of the
pelvic bone and for any other pelvic injuries or
abnormalities. Dr Molete reviewed all the x-rays without a
radiologist’s
report and diagnosis and found no abnormalities.
[14] Dr Molete removed
the splint that immobilised the appellant’s right thigh because
no fracture of that limb was detected
on the x-ray. He continued with
his clinical examination. The x-ray of her pelvis and his clinical
examination satisfied him that
there were no abnormalities in her
pelvis. He testified that his clinical examination of the appellant’s
pelvis was done
properly and that ‘… there is no way
that (he) could have missed a dislocation.’ It is now, of
course, common
cause that there was indeed a dislocation.
[15] Dr Molete testified
that he usually recorded all important aspects of his examination of
a patient in his clinical notes. Although
they reflect his
examination and his findings in respect of the appellant’s
head, neck, chest, abdomen, back and right femur
before he referred
her for x-rays they, apart from the results of the x-rays, did not
reveal anything about his clinical examination
of her pelvis and
right thigh after he had received the x-rays. He conceded that he
ought to have recorded that he had performed
an examination of her
pelvis. He was not able to give any plausible explanation as to why
he had not done so. Except for what he
recorded in his notes Dr
Molete’s evidence was essentially limited to his usual practice
and procedure of examining patients
in the position of the appellant.
He could not remember whether he had performed further tests once he
had received the x-rays
but he testified that it was highly unlikely
that he would not have followed his usual practice and procedure.
[16] Dr Van der
Westhuizen’s opinion that the x-ray taken of the appellant’s
pelvis was of such poor quality that it
was of no diagnostic value
was not disputed. It could not assist in detecting or excluding a hip
dislocation. A hip dislocation
would in any event, in the opinion of
Dr Van der Westhuizen, not have shown up on the specific x-ray. A
lateral view of her hip
was required to detect or to exclude a hip
dislocation. Dr Molete conceded this much. Despite this Dr Molete did
not deem it necessary
to obtain further x-rays. The respondent’s
counsel informed the trial judge during Dr Van der Westhuizen’s
testimony
that Dr Molete ‘… had deferred to a clinical
examination to clear the patient with regards to a hip dislocation.'
Yet, Dr Molete testified that in diagnosing the appellant he also
relied on the x-ray that was taken of her pelvis.
[17] Although he is not a
clinician, Dr Van der Westhuizen was of the opinion that a hip
dislocation could clinically be excluded
without reference to any
x-rays if a clinical examination of a patient produced free movement
of the joint without pain. In his
opinion this could be determined
clinically by means of what in general medicine is called the
‘Trendelenburg’ test
or manoeuvre, which is a stand-up
examination where every joint is tested. Dr Kaiser testified that a
patient who is admitted after
a motor vehicle accident should receive
a complete clinical examination once a complete history of the
patient had been obtained.
The patient should be asked where pain is
experienced. In the case of a hip injury or suspected hip injury a
proper examination
also entails asking the patient whether he or she
could stand up and to flex or bend his or her hip: a patient with a
hip dislocation
cannot stand up or bend or flex his or her upper leg,
because it is too painful. The examination also embraces the vascular
and
nerve supply to the leg; observing the movement of the leg with
one’s hands in order to feel whether there is a fracture or
crepitus or the alignment is out; pulling the leg in order to feel
whether there is a fracture or dislocation or letting the patient
walk in order to make a determination from the patient’s
movements; asking the patient to stand on both legs, then on one,
and
then on the other - the Trendelenburg test. A patient with a hip
dislocation will not be able to stand on the leg that is dislocated.
Dr Kaiser further opined that the clinical appearance of a hip
dislocation could not go unnoticed. The patient presents with a
slightly shorter leg, because the leg pulls up. The leg is internally
rotated and in abduction, which means that the abnormal leg
is
pushing into the normal leg and the hip joint is slightly bent.
[18] Dr Kaiser was of the
opinion that a patient with such severe pain as the appellant had
experienced should not have been discharged
merely because the x-rays
were inconclusive. Further examination and investigation was required
in order to detect the cause for
the pain. If there is any
uncertainty in a case of severe pain in a hip joint the patient
should be sent for a lateral x-ray and
a radiologist should interpret
it if necessary in order to ensure that a dislocation is not
overlooked. If necessary a CT scan
or MRI examination must be
performed. Dr Molete agreed with the opinion of Dr Kaiser that if he
was uncertain about the appellant’s
condition the prudent and
professional action for him to have taken would have been to have
referred her for proper radiological
observation and, if that proved
insufficient, for a CT scan or MRI investigation. He testified that
he did not do so, because it
was in his view not necessary.
[19] According to Dr
Kaiser a hip dislocation is a severe trauma injury caused by a
massive force. The way her injury was caused
was, in his opinion,
consistent with a hip fracture, which was excluded at the time, or a
hip dislocation. The force of hitting
a knee against an object causes
it to flex and turn and the hip to dislocate. The upper leg either
dislocates to the front, to
the back or centrally where it locks into
the hip socket. Orthopaedic surgery has very few emergencies but a
hip dislocation is
one involving a vascular injury. The blood supply
to the femur head is reduced or disrupted when the hip joint is
dislocated. There
is a ‘golden period’ of six hours after
the injury within which the dislocated hip joint must be repaired.
Otherwise
a patient runs a very high risk – 85.8% - of
developing the complication of avascular necrosis leading to the
death of the
tissue of the femur head which receives insufficient
blood supply. Avascular necrosis is a progressive condition which
develops
over time. The extent to which avascular necrosis involves
the femur head is determined by the extent of the vascular damage.
The
femur head will collapse in time due to a major avascular
necrosis involving the whole femur head.
[20] A patient is
entitled to a thorough and careful examination such as his or her
condition and attending circumstances permit
with such diligence and
methods as are usually practiced under similar circumstances by
members of the branch of the profession
to which the attending doctor
belongs. The opinions of Drs Van der Westhuizen and Kaiser provide
the benchmark by reference to
which Dr Molete’s conduct falls
to be assessed. The examination procedure explained by Drs Van der
Westhuizen and Kaiser
is evidently elementary and forms part of
general medicine. The opinion of Dr Kaiser that every general
practitioner should be
able to diagnose a hip dislocation has not
been questioned. Dr Molete also testified that he would not have
missed a hip dislocation
and he suggested that the appellant must
have sustained her right hip dislocation subsequent to her discharge
from the Rob Ferreira
Hospital on I May 2006. This of course was not
the case.
[21] Dr Molete’s
examination and diagnosis of the appellant manifestly fell short of
the degree of professional skill and
diligence expected of an average
general practitioner in similar circumstances. In examining her Dr
Molete did not notice the obvious
clinical signs with which a patient
suffering from a hip dislocation presents. There is no evidence that
he performed the Trendelenburg
test when he examined her. He relied
on an x-ray of her pelvis that was of such poor quality that it had
no diagnostic value. His
reliance on that x-ray formed part of his
examination and persuaded him to have her discharged. Having found no
cause for the appellant’s
severe hip or thigh pain Dr Molete
neglected his duty by not taking further measures to establish the
cause of her pain such as
calling for further x-rays. The appellant
should simply not have been discharged in circumstances where the
cause of her pain had
not been determined.
[22] In my view the
respondent’s counsel correctly conceded that it has been proved
that the appellant suffered personal injury
or harm as a result of Dr
Molete’s negligence.
2
The appellant was
examined by Dr Kaiser on 30 October 2008. At that stage she still had
severe pain in her right hip area. Based
on the history of the
appellant
3
and his clinical
examination of her,
4
Dr Kaiser’s opinion
was that she had developed the complication of avascular necrosis of
her right femur head. Dr Kaiser was
of the opinion that the long term
consequences of failing to diagnose a hip dislocation were serious
and that the appellant would
probably require a hip replacement in
the future.
[23] The appellant
succeeded in proving that she developed avascular necrosis of her
right femur head. But for Dr Molete’s
negligence the appellant,
as a matter of probability, would not have suffered that
complication. The appellant’s counsel
conceded this, also
correctly in my view. The question whether Dr Molete’s
negligent conduct is also linked sufficiently
closely or directly to
the harm suffered by the appellant for legal liability to ensue has
not been pertinently raised. It could
hardly be contended that
considerations of reasonableness, justice and fairness dictate that
the respondent should not be held
liable for the harm suffered by the
appellant.
[24] In the result the
following order is made:
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of the court
a quo dismissing the appellant’s claim with costs is set aside
and there is substituted an order
which reads:
‘
(a) The defendant
is declared liable for payment of the plaintiff’s proven or
agreed damages resulting from the negligent
failure to have diagnosed
her right hip dislocation on 1 May 2006 and the avascular necrosis
involving her right femur head that
developed as a result thereof;
(b) The defendant is
ordered to pay the plaintiff’s costs of the trial on 12, 13 and
14 September 2011, such costs to include
the qualifying and
reservation fees, if any, of the plaintiff’s expert witnesses,
Drs Van der Westhuizen and Kaiser.’
___________________
P A Meyer
Acting Judge of Appeal
APPEARANCES:
For
Appellant: JH Ströh SC (with him JA du Plessis)
Instructed
by:
O
Joubert Attorney
Riviera,Pretoria
Phatshoane
Henney Incorporated
Westdene,
Bloemfontein
For Respondent: F
Diedericks SC (with him N Naidoo)
Instructed by:
The
State Attorney
Pretoria
The
State Attorney
Bloemfontein
1
Mitchell
v Dixon
1914 AD 519
at 525;
Van Wyk v
Lewis
1924 AD 438
at 444 and 462;
Blyth
v Van den Heever
1980
(1) SA 191
(A) at 221A;
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
2001
(3) SA 1188
(SCA) paras 35 and 37;
Premier
of the Western Cape Province & another v Loots NO
[2011] ZASCA 32
para 12;
Buls
& another v Tsatsarolakis
1976
(2) SA 891
(T) at 893H–895F;
S
v Kramer & another
1987
(1) SA 887
(W) at 893E–895A;
Pringle
v Administrator, Transvaal
1990
(2) SA 379
(W) at 384I–385E;
Castell
v De Greef
1993 (3)
SA 501
(C) at 509F–510A and 511I–512B.
2
Causation
in delict involves two distinct enquiries: the first is factual
causation which is generally conducted by applying the
‘but
for’ test and the second is legal causation or remoteness of
damage. See
Premier of the Western Cape Province v Loots NO
(fn
1) para 16
et seq
.
3
She
having been involved in a motor vehicle collision on 1 May 2006; the
hip dislocation injury sustained by her in that collision;
her
initial symptoms; the diagnosis of her right hip dislocation about
eight days after the injury had been sustained; the commencement
of
treatment long after the ‘golden period’ of six hours
had expired; and the severe pain in her right hip that she
still
experienced when she was seen by Dr Kaiser more than two years after
she had dislocated her right hip joint.
4
She
had limited movement of her right hip joint; she had an abnormal
gait; and all the signs of a hip joint problem.