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[2010] ZAGPPHC 582
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Leeuw v J.A.V.D.B.B (653/2002) [2010] ZAGPPHC 582 (1 February 2010)
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IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
TPD CASE
NO: 653/2002
APPEAL
CASE NUMBER: A 1173/06
In the
matter betwee
DR
YGMM LEEUW
….....................................................................................................................
Appellant
and
J[...]
A[...] V[...] D[...] B[....] (B[...])
…
.............................................................................................
Respondent
JUDGMENT
1
.
The
Respondent
("Plaintiff’)
sued the Appellant
(“Defendant’)
for damages before Hartzenberg J
because Defendant allegedly botched a voluntary abortion on
Plaintiff, resulting in a hysterectomy.
At the trial the issues were
separated and only the issue of Defendant’s alleged liability
was considered
(“the merits"). Quantum
was to stand
over. The Court a
quo
found Defendant to be liable. This is an
appeal against that order with leave of the Court a
quo.
2.
In Defendant’s
plea he denied firstly that he did the abortion and secondly denied
any form of negligence or professional
incompetence.
3.
The uncontested facts
are as follows:
3.1
The Respondent, then aged 33 years, and residing in Brits went to the
Mary Stopes Clinic in Pretoria between 08H00 and 09H00
on Friday, 22
January 1999 for purposes of undergoing a voluntary termination of
pregnancy. She was examined by the nursing staff
and found that she
was 15 weeks and 6 days pregnant i.e. in her second trimester of
pregnancy. She received four cytotech tablets
used in termination of
pregnancy, both to induce contractions in order to expel the foetus,
and to soften the cervix to facilitate
excretion of the foetal
material through the cervix. At about 15H30 the Defendant first saw
the Plaintiff and started the procedure
to perform the termination of
the pregnancy, which started by trying to dilate the cervix. The
Defendant then informed the Respondent
that he could not perform the
procedure as her cervix was too narrow or undilated. She was given a
letter of referral by the Defendant
to the Pretoria Academic Hospital
for further treatment and management of her condition. She was told
then by Sister Eloise to
return to the Mary Stopes Clinic on the next
day, the 23
rd
January 1999, when a specialist obstetrician
and gynaecologist would be available to attend to her. The Plaintiff
left the clinic
and returned home. The next day she returned to the
Mary Stopes Clinic between 08H00 and 09H00 where a Dr LeMae diagnosed
a laceration
of her cervix and referred her to Professor Tshibangu, a
specialist obstetrician and gynaecologist. The Plaintiff went to
Professor
Tshibangu and arrived there about 15 minutes later, where
he diagnosed foetal death and saw what he described as a transverse
cut
of the cervix with necrotic and infected edges, as well as
“
conceptual blemish material coming through the laceration".
Professor Tshibangu prescribed treatment with antibiotics to
combat infection following which he advised the trial of cytotech to
expel the foetus, failing which a hysterectomy would have to be
performed. The Plaintiff then consulted her general practitioner
in
Brits on Monday, the 25
th
who immediately referred her to
Dr Human, a specialist obstetrician and gynaecologist. Dr Human
admitted Respondent to hospital
in Brits on the 25
th
January 1999. He testified that on 25 January 1999 the whole foetus
was visible on sonar with no amniotic fluid and the Respondent
aborted what looked like foetal bones on the 26
th
January
1999. Dr Human’s and Professor Tshbangu’s evidence was
that the necrosis and infections on the laceration must
have been
caused prior to the 23
rd
January 1999, because it was not
a fresh wound.
4.
The Defendant’s
case on the appeal is as follows:
“
6.1 The Defendant could not have caused the laceration of
the Respondent’s cervix as diagnosed on the 23
rd
January.
6.2 He had not performed a termination of pregnancy;
6.3 There
was
no causal nexus between the procedure he had
performed and the type of trauma suffered by the Respondent'
(See: paragraph 6.1, page 13 of Respondent’s heads of
argument)
5.
The case
turns on the following issues:
5.1By whom and when was the laceration of the Cervix (
"transversal
cut')
caused; and
5.2 Did Defendant attempt a second abortion on Friday, 22
nd
January 1999 (i.e. the same afternoon)?
5.3 Was there a “
crush procedure"
done after
Plaintiff left Mary Stopes Clinic on Friday, 22
nd
until
Professor Tshibangu saw her on Saturday morning? (The “
crushing
procedure”
was not touched on in the Court a
quo.)
6.
The Court a
quo
found that the laceration could only have been caused by Defendant
and also found that the Defendant did in fact make a second
attempt
to perform the abortion.
7.
The
uncontroverted evidence was that from the time Plaintiff left the
Mary Stopes Clinic on the 22
nd
January 1999 until
Saturday, 23
rd
November 1999, when she saw Dr LeMae, when
the laceration was detected, no one else saw the Plaintiff (i.e.
professionally). The
other undisputable evidence was that the
laceration could not have been inflicted on the Saturday, 23
rd
.
It was older than that. Furthermore, the evidence was that the
necrosis and infection that was found around the edges of the
laceration could have occurred within a 24-hour period. On this basis
the Court a
quo
found that by way of elimination it could only
have happened during the time Defendant was busy with the Plaintiff.
8.
Defendant’s
argument on appeal is that:
8.1
Neither the Defendant nor the nurses saw any laceration at the time;
8.2 No mention was made thereof in the clinical notes;
8.3 Dr Human’s (expert) evidence that a canula used by
Defendant, would not normally cause such a laceration;
8.4 In argument before the Court, a further point was raised, i.e.
that Dr Human said a “
crush procedure"
had been
done before he saw her on Monday 25
th
. It was argued that
that must have happened after Defendant last saw plaintiff and before
she saw Dr Human, because Dr Human said
some type of “
crush
procedure"
had taken place. It was specifically submitted
that either Dr LeMae did it on Saturday morning, or someone else, or
some other
intervention took place and that that “
crushing
procedure
” in all likelihood caused the laceration. The
point was argued that in this regard the Plaintiff did not discharge
her onus
of putting any blame on the Defendant.
9.
It will be
convenient to deal with this last argument firstly. On behalf of the
Defendant it was submitted that Plaintiff was not
aware of what
procedures were taking place in her, neither by the Defendant nor by
Dr LeMae.
Because of
this she could not say that Dr LeMae did not perform a “
crushing
procedure”,
nor could she deny that the laceration could
have happened then. The evidence, however, is uncontested that
Plaintiff went home
directly after being seen by the Defendant.
Defendant is adamant he did not perform a “
crushing
procedure”
and therefore it must have happened afterwards.
The counter argument, as raised on behalf of Plaintiff, was that
there is uncontested
evidence, that cytotech is given specifically to
induce contractions and to dilate the cervix. Furthermore, the
Plaintiff was administered
4 tablets initially when she entered the
clinic and again a further 2 tablets after the initial procedures by
Dr Leeuw. Dr Human
testified that this drug will also eventually
cause the amniotic fluid in the uterus to escape
(“the
breaking of the water
3
').
That would
then naturally cause a crushing of the foetus in order to push it
through the birth canal. He also explained that the
bigger the foetus
the bigger the pressure from lack of fluid will be on the body of the
foetus. It is clear from his evidence that
this probably happened in
this instance. That would dispel the argument that a crush procedure
was performed on the Plaintiff and
that in all likelihood it was
during that procedure that the laceration was inflicted. To my mind,
on a balance of probabilities,
this is the far more probable cause of
the crushing and the pure speculation as submitted on behalf of the
Defendant. These submissions
on behalf of the Defendant in this
regard cannot stand.
As for not
seeing the laceration the uncontroverted evidence was that where the
nurses were standing they would, in any event, not
have been able to
see the laceration on the cervix. The fact that Defendant made no
note of it means he either ignored it if it
was there, or he did not
notice it at all, which on the evidence can only mean that he was
negligent in that regard. Ms Meyer on
behalf of Defendant submitted
that it would be improbable for the Defendant to have referred the
Plaintiff to a hospital if he
had, for instance, inflicted a
laceration. It is difficult to know what the Defendant really did. On
his evidence he said that
he could not do the abortion because the
cervix was not dilated enough and furthermore he said that the uterus
was retroverted.
He said this is the reason why he referred the
Plaintiff to the hospital. However in his letter of referral he makes
no mention
whatsoever of the retroverted uterus. Dr Human also said
that when he saw the Plaintiff the uterus was not retroverted and in
any
event it is very unlikely that it would have happened at the
stage of pregnancy that Plaintiff was in. It is also the evidence of
the Plaintiff that she felt 2 distinct injuries while the Defendant
was busy with her in his “first” attempt at abortion.
It
is common cause that he was, at that stage, busy with the canulas to
try and dilate the cervix. As for Dr Human’s “
concession
”
that the canula would not normally cause such a laceration, he also
testified that at that stage of the life of the foetus
(i.e. second
trimester) the cervix (and the uterus) would have been swollen, and
as it gets bigger, it stretches and becomes thinner,
and therefore
would cut more easily. On the evidence regarding the crushing and the
evidence relating to the use of the canula
I can find no fault with
the finding of the Court a
quo
regarding who inflicted the
wound.
11
.
The
question of when the wound was inflicted runs concurrently with the
question of whether a second attempt at abortion was made.
The
evidence is quite clear that under prevailing circumstances
(disregarding any presence of a laceration) no second attempt should
have been made. All concerned conceded as much. In fact, Defendant
specifically stated that after the first attempt he stopped
the
procedure and referred the Plaintiff to the Pretoria Academic
Hospital (as it was then named).
12.
However,
on two occasions Defendant made notes that, on the normal reading
thereof, signify that two attempts were made. He abandoned
the first
attempt at 15H45 on the 22
nd
January. He noted that after
a “
further”
two cytotech tablets were
administered, and after waiting a further 35 minutes, the cervical os
was “
stiir
not dilated.
13.
In spite
of conceding that the word
"stilí'
in that context
conveys a comparative temporal meaning, he could not explain what he
meant thereby. In fact, he completely evaded
all answers to direct
questions in that regard. His only answer was that he did not
prescribe or administer the drugs (the two
tablets). It was done by
the nurses. He also could not explain the obvious connection between
the relevant times of dosage and
discharge which clearly confirm that
the extra 35 minutes correspond to the overall time-frame. The
Defendant was undoubtedly not
telling the truth or strenuously
evading it. His denial of a second attempt can therefore not be
accepted. It also leaves the gap
for the only reasonable inference
that the laceration was caused by him whether during the first or
second attempt. The Plaintiff
in this regard was clear that she felt
two incidents of burning pain during the first inspection by the
Defendant. She felt it
again later when the other doctors inspected
her. It is interesting to note that the Defendant’s counsel did
not even address
this issue in her written heads of argument.
14.
For those
reasons I can find no fault with the reasoning and conclusions of the
Court a
quo.
15.
It must be
noted that at this stage that before the argument on the merits
started the Appellant had to overcome certain further
hurdles which
were raised as points
in limine
by the Plaintiff. The first
two were that no power of attorney was filed on record, neither was
any security set by the Defendant.
Defendant’s counsel produced
both at the start of the hearing and the Plaintiff accepted it as
such. The Defendant also had
to ask for a reinstatement of the appeal
and a condonation for late filing of the record and of the heads of
argument. Again the
Plaintiff did not raise any objection and left
the issue in the hands of the Court. However, the Plaintiffs counsel
Mr Van Bergen
did indicate that they would like to have the whole
issue finalised. In view of all that the Court acceded to their
request and
therefore granted the request by the Defendant for
reinstatement and condonation.
16.
The
question of costs remains to be settled. The Defendant tendered the
costs of the application for reinstatement and condonation.
This was
accepted by the Plaintiff. As the appeal falls to be dismissed, the
obvious order is that the costs must follow the result.
The
Defendant, however, employed two counsel and asked for the costs of
two counsel. It is common cause that both parties were
represented in
the Court a
quo
by one counsel. The same counsel drew the
heads of argument for the Defendant, but another counsel, Ms Meyer,
appeared at the hearing.
Counsel for the Plaintiff was assisted by
senior counsel in drafting the heads of argument, but at the last
minute became unavailable
to actually argue the matter in court. It
was submitted by the Defendant that this was not a case that required
the attention of
two counsel. The issues at stake were mainly factual
and all those facts were canvassed at the trial. Nothing seriously
new emerged
during argument except for the evidence of the “
crushing
procedure".
That, however, was also only a factual issue. In
the circumstances I do not think that this matter merited the
employment of two
counsel. I therefore make the following order:
1. The appeal is dismissed with costs;
2.
The Appellant is to pay the costs occasioned by the application for
reinstatement and condonation;
R D
CLAASSEN
Judge of the
High Court
I agree:
J N POSWA
Judge of the
High Court
I agree:
M ISMAIL
Judge of the
High Court