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2011
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[2011] ZAGPPHC 184
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Topham v Member of the Executive Committee for the Department of Health, Mpumalanga (25284/2009) [2011] ZAGPPHC 184 (4 October 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO: 25284/2009
DATE:04/10/2011
In
the matter between:
DOREEN
TOPHAM
.........................................................................................................
Plaintiff
and
MEMBER
OF THE EXECUTIVE COMMITTEE
FOR
THE DEPARTMENT OF HEALTH,
MPUMALANGA
.........................................
Defendant
JUDGEMENT
Mabesele
J
The
plaintiff has instituted an action against the defendant for damages
which the Plaintiff suffered due to negligent conduct of
the
defendant.
The
plaintiff alleged that the medical personnel of the defendant
misdiagnosed her hip dislocation on 01 May 2006, resulting in
her
suffering from a vascular necrosis of the right femur head.
The
plaintiff is Doreen Topham, an adult female residing at 16 Francis
street, Nelsville, in Nelspruit.
The
defendant is a member of the executive committee for the department
of health, Mpumalanga.
The
matter proceeded on the merits only.
The
defendant runs a properly licensed general hospital known as Rob
Ferreira Hospital, in Nelspruit. The defendant provides facilities
at
aforementioned hospital, inter alia, to admit and treat victims of
motor vehicle accident and provide for the pre and post-operative
care of patients admitted at the hospital. The defendant has
qualified medical personnel such as nurses and doctors.
In
the early hours of 01 May 2006 the plaintiff got involved in a motor
vehicle accident. The plaintiff was a passenger in the said
vehicle
which was driven by her sister. Present in the vehicle, also, at the
time of accident, was a boyfriend of the plaintiffs
sister.
Immediately
after the accident, said the plaintiff, she could not hear anything
except pains on her body. She became unconscious.
She recovered in
the casualty unit in the hospital. She did not receive any medical
treatment or examination, she said. Save medication
which was given
to her in the casualty unit, she was not given any medication on her
discharge. She was discharged from the hospital
on the same day on
which she was admitted. She could not stand or walk properly when she
left the hospital due to severe pains
on her right hip. As a result,
her brother-in-law carried her in a wheelchair into the mini-bus or
kombi that was parked outside
the hospital. On arrival at home and
subsequent thereto she constantly felt severe pains on the same right
hip.
On
08 May 2006 she consulted a private doctor for medical assessment of
her right hip. The doctor, with the help of an x-ray, detected
a
dislocation of the hip. She was then referred back to Rob Ferreira
Hospital for appropriate treatment.
The
plaintiffs version that she did not sustain injuries from the time
that she left the hospital on 01 May 2006 until such time
that she
consulted a private doctor was corroborated by her mother.
Doctor
Van der Westheizen is a radiologist. He testified on behalf of the
plaintiff He provided an expert opinion, as a radiologist,
on use of
x-ray and clinical examination of patients involved in motor vehicle
accident. Of importance from his evidence is that
a clinical
examination which is performed properly to determine possible
presence of dislocation of bones in the human body may
be relied upon
without necessarily referring to or relying on the x-ray. He said an
effective and proper clinical examination which
is aimed at detecting
possible presence of a dislocation of a hip should be performed,
inter alia, as follows:
(i)
The doctor who performs the examination should know the history of
the patient.
(ii)
The patient's affected joint should be able to move freely when the
doctor gently moves it around.
(iii)
The patient may be requested to stand upright. Adding to these tests,
doctor Gerhard Kaizer, who detected a vascular necrosis
of the right
femur head on the plaintiff, stated the following:
(i)
The patient should be asked to bend a hip which the patient complains
about.
(ii)
A vascular and nerve that supply blood to the affected leg should be
examined.
According
to doctor Kaizer who examined the plaintiff, two years after the
accident, for purposes of road accident fund claim, the
plaintiff
developed a vascular necrosis of the right femur head as a result of
non-treatment of her dislocated hip. According to
his expert
knowledge, he said, damage to the plaintiffs hip could have been
prevented provided the said hip was operated within
six hours from
the time that the plaintiff was involved in the accident.
Doctor
Thabo Molete took the stand. He was in the employ of Rob Ferreira
Hospital in 2006. He had just completed his medical studies
that
year. However, said doctor Molete, he had been performing clinical
examination on patients, as part of his practical work,
from his
third year of study of medicine until he completed his medical
degree. He mentioned, however, that he always performed
examination
under supervision.
Doctor
Molete performed clinical examination on the plaintiff in the early
hours of 01 May 2006 after the plaintiff was referred
to casualty
unit by the nurses. The nurses had already examined the plaintiffs
blood pressure, pulse and respiratory system, as
required of them
(the results of the examination appear on page 152 of the bundle).
The nurses were suspicious of a fracture of
a femur as a result of
motor vehicle accident.
The
blood pressure, pulse and respiratory system of a patient are
referred to as vitals, said the doctor. These vitals serve as
signals
to any doctor with regard to the condition of the patient who is
under examination. Should the vitals reveal abnormalities,
any
doctor, according to the witness, should be extra cautious that the
patient who is under clinical examination could be experiencing
a
severe pain or had sustained internal injuries such as internal
bleeding. Under those circumstances, therefore, the doctor should
be
extremely cautious, the witness said. He said the readings of the
vitals were recorded as follows:
(i)
Blood pressure = 117/79
(ii)
Pulse = 84
(iii)
Respiratory = 16
These
readings, he said, were normal, thus suggesting to him that the
plaintiff was clinically stable. The plaintiffs cardiovascular
system
and the blood flow were normal. He then proceeded to test, in order
to satisfying himself, as required by medical practice,
whether the
plaintiff was conscious. This, he did, inter alia, by greeting the
plaintiff and asked her about her day. The plaintiff
provided answers
expected from a conscious patient. Thereafter he asked the plaintiff
about pains on her body. The plaintiff responded
that she felt pains
on her mouth and right thigh. He then noted these complaints on a
document numbered 152 in the bundle of documents.
Despite the parts
of the body mentioned to him, he clinically examined the plaintiff
from the head to toe, generally, using his
hands and instruments.
Although he could no longer remember the exact tests which he
performed on the plaintiffs right thigh due
to number of patients he
had seen and lapse of time since he examined the plaintiff, he is
certain, he said, that he could not
have omitted to perform the
following:
(i)
Touching the affected thigh with his fingers to elicit pain.
(ii)
Moving around or pulling the affected leg to detect
possible
abnormalities;
(iii)
Ensuring that the limb is straight. If not, that would be an
indication of a fracture;
(iv)
Checking whether or not a limb was swollen;
(v)
Assessing nerves and vessels to determine free flow of
blood
to the affected leg. The witness said what made him certain that he
did not have omit to perform the said tests is that he
always perform
same tests to patients involved in motor accidents and those who
sustained injuries from sport. This explanation
leaves me with no
doubt that the doctor performed these tests on the plaintiff. He said
he performed the tests on the plaintiff
after he had sent the
plaintiff for an x-ray(the results of which did not help much due to
its poor quality) When he was asked
why would the plaintiff leave the
hospital on a wheelchair if she had no pains, he responded that it is
not unusual for the patients
to leave hospital with pains after
treatment.
The
version of this witness that he clinically examined the plaintiff
after the latter had complained of pains on the mouth and
thigh was
not disputed. Therefore, the version of the plaintiff that she was
never examined and was unconscious in the casualty
unit is not true.
Again, the plaintiffs version that she complained of pains on the
right hip cannot be said to be true. The reason
is that the
plaintiff, on her own version, was unconscious in the casualty unit.
Therefore, the doctor's version insofar as it
relates to what he said
the plaintiff
complained
about, stands. The doctor, through demonstration in the witness box,
clearly, differentiated a thigh from a hip. He explained,
however,
that a thigh stretches up to the pelvis where a hip is located. This
explanation suggest to me that a thigh cannot be
separated, totally,
from the hip. Despite the plaintiffs failure to have alerted the
doctor about the pain on her right hip, the
question still remains as
whether or not the doctor was negligent by his failure to have
detected dislocation on the hip of the
plaintiff on 01 May 2006.
According
to the plaintiffs particulars of claim, the doctor and nurses were
negligent as follows:
(i)
They neglected to diagnose an anterior dislocation of the right hip
of the plaintiff.
(ii)
They failed to realise that there were abnormalities of the right hip
joint.
(iii)
They neglected to treat the plaintiff for the anterior dislocation of
the right hip properly and/or timeously.
(iv)
They failed to take such steps as were reasonable to ensure that the
plaintiff did not suffer any harm or damage.
Negligence
occurs when a person is blamed for an attitude or conduct of
carelessness, thoughtlessness or imprudence because, by
giving
insufficient attention to his actions, he failed to adhere to the
standard of care legally required of him.
1
The criterion adopted by our law in this regard is the objective
standard of the reasonable person. Therefore, the person is negligent
if the reasonable person in his position would have acted differently
if the unlawful causing of damage was reasonably foreseeable
and
preventable. In Kruger v Coetzee
2
the following was said:
For
the purposes of liability culpa arises if-
(a)
A diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him loss; and
(ii)
would take reasonable steps to guard against such occurrences; and
(b)
the defendant failed to take such steps.
Doctor
Van der Westheizen testified that clinical examination to determine
possible dislocation of a bone is an accepted scientific
method in
the medical field if an x-ray is not utilized. This is the method
which doctor Molete utilized to determine abnormalities
on the
plaintiff.
Despite
inexperience on the part of doctor Molete, he explored same tests
suggested by both medical experts for the plaintiff, thereby,
clearly, adhering to the standard of care required of him. In
particular, the doctor moved around or pulled the affected thigh
(which is connected to the pelvis where a hip is located) to detect
possible abnormalities. Most importantly, he assessed the nerves
and
vessels to determine free flow of blood from where the thigh is
connected to the pelvis through the entire leg. He always made
certain that the limb was kept straight to determine a possible
fracture.
The
doctor did not focus, only, on the painful areas pointed out to him
by the patient. Instead, he examined the patient from head
to toe, as
clearly reflected on page 152 of bundle of documents. He was guided,
also, by vitals which did not reveal abnormalities
on the patient.
The
doctor did not examine the plaintiffs hip, specifically. He properly
examined the thigh which was complained about and is connected
to the
pelvis where a hip is located. To my mind, therefore, thorough
examination of the thigh through appropriate tests did cover
pelvis
and hip. I am not unmindful of the fact that a medical practitioner
who treats a patient is expected to adhere to the standard
of care
required of him and to take reasonable steps to prevent any possible
foreseeable harm which the patient may suffer. This,
to my mind,
suggests that a medical practitioner cannot be expected to
successfully prevent harm from occurring, but should take
reasonable
steps to prevent such occurrence. Therefore, a medical practitioner
may not be accused for failure to diagnose certain
illness after he
or she had taken reasonable steps to do so.
In
the present case, the medical practitioner misdiagnosed hip
dislocation despite performing correct tests to determine the
problem.
He did not concentrate, only, on parts which the plaintiff
complained about. Instead, he examined the plaintiff from the head to
toe, guided by vitals. In my view, therefore, the doctor took
reasonable steps to guard against harm on the part of the plaintiff.
Moreover, it should be borne in mind that medical practioners cannot
be expected to demonstrate impossible standards when they
treat
patients.
3
What is clearly expected of them is adherence to standard of care.
Counsel
for the plaintiff argued that the vitals which the doctor relied on
as guidance should be ignored in that they were prepared
by nurses.
This argument has no merit, in my view, in that it is a standard
procedure in the hospital, according to doctor Molete,
that vitals
are prepared by professional nurses before patients are referred to
the doctors for treatment.
In
the result, I make the following order: The plaintiffs claim is
dismissed with costs.
M.M
MABESELE
(Judge
of the South Gauteng High Court)
1
Neethling
et al, Law of delict p. 116
2
1966(2)428
(A)
3
Monteoli
v Wool worths (Pty) LTD 2004(4) SA 735 ( WLD)