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[2017] ZAECPEHC 45
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C.M v MEC, Department of Health, Eastern Cape and Another (1787/2014) [2017] ZAECPEHC 45 (14 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No.: 1787/2014
In
the matter between:
C.
M.
Plaintiff
and
MEC, DEPARTMENT OF HEALTH,
EASTERN CAPE
First
Defendant
THE MEDICAL SUPERINTENDENT,
LIVINGSTONE
HOSPITAL, PORT ELIZABETH
Second
Defendant
JUDGMENT
REVELAS
J
:
[1]
This
action for damages against the defendants is based on the past and
future loss of maintenance and support suffered by a minor
pursuant
to the death of her biological father (“
the
deceased”)
in the Livingstone Hospital in Port Elizabeth. It is the plaintiff’s
case that the deceased died as a result of negligence
on the part of
the hospital staff, nurses and doctors employed by the Department of
Health in the Eastern Cape, and who attended
to the deceased since he
was admitted to the aforesaid hospital on 30 March 2009.
[2]
It
is common cause that the deceased sustained serious injuries,
including head and facial injuries caused by blunt force during
an
assault on his person on 30 March 2009. He was found lying prone on
the side of the road when the ambulance arrived to convey
him to
hospital where he was admitted at approximately 17h25. The
deceased was certified as dead during the early hours of
31 March
2009 at 00h30. According to the medico-legal post mortem examination
of the deceased’s body, the cause of his death
was noted as “
a
head injury due to blunt force”.
The
post-mortem findings regarding the deceased’s body, included a
bruised scalp in the right frontal area, a hinge fracture
of the base
of the skull, epidural haemorrhage in the left temporal area, diffuse
subdural and subarachnoid haemorrhage and blood
in the trachea.
[3]
The
defendants dispute that any of the staff at the Livingstone Hospital
were negligent. The parties have however agreed
on the
quantum of damages, in the event of it being found that the hospital
staff members attending to the deceased on the night
in question,
were negligent in breaching the duty of care they had towards the
deceased. At the time of his death the deceased
was employed at
P.E. Propshafts CC, earning R855.80 per week. The deceased had
contributed R350.00 per week towards maintenance
prior to his death.
The amount agreed upon by the parties is R267,640.00, as per the
actuarial report prepared by the forensic
actuarial firm Munro’s
and calculated in accordance with the deceased’s income and his
maintenance contributions referred
to above.
[4]
It
was not in dispute, that by accepting the deceased as a patient, the
staff employed by the defendants at the Livingstone Hospital
were
under a duty of care to provide the deceased with medical and
surgical care, nursing treatment, supervision and aftercare,
with the
professional skill, care and diligence that can be reasonably
expected of a hospital and its medical and nursing personnel.
[5]
The
correctness of the contents of the following documents were admitted
by the defendant: The records of the ambulance personnel
who
conveyed the deceased to Livingstone Hospital; the hospital records
kept in respect of the deceased; and the post mortem report
dated 3
April 2009.
[6]
Only
one witness, Professor Gert Saayman, was called to testify on behalf
of the plaintiff. He is the head of the Department
of
forensic medicine at the University of Pretoria. Apart
from a Master’s degree in forensic pathology, he is
also a
fellow of the Society of Forensic Pathologists.
[7]
Mr
Potgieter, who appeared on behalf of the defendants, put no version
on his clients’ behalf to the Professor. The
cursory
cross-examination of the professor took matters no further and his
testimony stood largely uncontradicted.
[8]
No
witnesses were called on behalf of the defendants. No defence was
pursued either. Curiously, when argument was to be heard,
the
following day, the defendants had a different legal representative
who, not having had the benefit of hearing Professor Saayman’s
testimony, was hardly in a position to challenge the contents
thereof. As a result, only the testimony of the plaintiff’s
expert witness was determinative of the question of liability.
[9]
According
to the ambulance records, the 27-year old deceased had been breathing
spontaneously when he was found on the side of the
road. He
maintained his own airway and a stable cardiovascular state. A
sluggish pupillary reaction was noted.
His Glasgow Coma
Score was 13/15 which means that his verbal and motor responses were
intact. He was therefore in a relatively
good state,
considering the brutal assault he was subjected to.
[10]
An
hour after the deceased’s admission to hospital, in the
hospital’s casualty section, the first nursing entry is made
at
18h30. The clinical notes compiled by the attending medical
practitioner revealed that the deceased was still breathing
spontaneously
and he had a Glasgow Coma Scale score of 10 over 15.
His condition was thus deteriorating. It was further
noted
that the deceased’s nose and ears were bleeding, that an
X-ray of his skull and chest were taken. A request was made
for
a blood analysis (a full blood count, as well as urea and electrolyte
analysis). An intravenous dextrose drip was also
administered. In this regard it must be noted that the
deceased’s blood alcohol level was quite high when he
was
admitted, a fact that clearly did not escape the hospital personnel
if one has reference to notes on this aspect.
The
dextrose drip was the only treatment he received during his entire
stay at the hospital.
[11]
At
22h40 the deceased was transferred from casualty to a ward. At
this point he was no longer responding, even to verbal commands.
He responded slightly to pain stimuli and did not open his eyes.
Professor Saayman noted in his report that after 22h40 no
further
contemporary notes with regard to subsequent re-evaluation or
interpretation of X-ray results appear to be available.
At
00h20 it was noted that the deceased was no longer breathing. From
22h40 – 00h30, when he is certified as dead, the deceased
appears to have had no contact with any medical personnel. Therefore
the Professor concluded that the deceased must have died somewhere
between 22h40 and 00h20.
[12]
Based
on the information available to him, Professor Saayman inferred that
the deceased suffered obvious and very significant injuries.
The nature and severity of the injuries were such that the attending
physician should have considered the blunt force assault and
serious
head injury as the primary clinical diagnosis. Other
considerations, such as alcohol intoxication as a cause of depressed
consciousness, should have been a secondary consideration of the
staff. This comment was written in the professor’s
report
with regard to an entry in the medical records of the deceased which
read “
++etoh!!”
and
was a direct reference to the deceased being under the influence of
alcohol.
[13]
With
reference to the two photographs taken of the deceased taken prior to
the post mortem examination, Professor Saayman observed
that the
deceased’s injuries were highly visible and multiple in number.
He also noted visible peri-orbital soft tissue
swelling which,
in his opinion, was a strong clinical indication of base of skull
fracture. The bleeding from the nose and
ears were also strong
indicators of such a fracture. These were all apparent from the
two photographs that were exhibits.
The aforesaid factors
together with the decline in Glasgow Coma scale score were all
indicators of a base of the skull fracture
and the inevitable
intracranial haemorrhage associated therewith. In these
circumstances, Professor Saayman testified, any
reasonable doctor or
nurse would have recognized that the integrity of the patient’s
airways must be maintained at all costs,
as blood could be
accumulating in the trachea and elsewhere (which in fact happened as
evidenced in the post mortem examination
report). The deceased
ought to have been incubated. The signs of deterioration in his
condition, which was relatively good
initially, should have
galvanized the medical staff into action and to monitor him every 15
minutes and later every 30 minutes.
A CT brain scan
should have been performed and was not.
[14]
Upon
the deceased’s admission to the hospital, according to
Professor Saayman, the doctors and nursing personnel ought to
have
performed a proper assessment of the deceased and noted down a
strategy or plan regarding his treatment. A neurological
observation ought to have been made, despite the fact that there was
a multiplicity of possible diagnoses. This was imperative.
As a
result there was no plan and no neurological assessment. Despite the
two initial superficial assessments, no steps were taken
to treat the
head injury observed by the emergency personnel and the doctor.
As counsel for the plaintiff said, the personnel
adopted a “
wait
and see”
approach
to their treatment of the deceased.
[15]
Professor
Saayman held the view that the deceased had a relatively good
prognosis and chance of survival at the time of his admission
to
hospital, but that neglect on the part of the medical staff was the
cause of the deceased’s untimely demise. On the uncontroverted
evidence before me, I must accept the conclusions and opinions of
Professor Saayman, which were conveyed in a most objective manner
and
which impressed me as both convincing and highly probable.
[16]
In
the event, it must accepted that the deceased was admitted to the
Livingstone Hospital with a treatable condition, but due to
a lack of
professional care on the part of the hospital staff attending to him,
he was not saved. He could have been saved at the
hands of more
diligent and professional hospital staff who cared more about
assessing and monitoring his condition and treating
his very serious
injuries, and less about the fact that he had consumed alcohol in
excess.
[17]
In
the circumstances, I make the following order:
1.
The
defendants are to make payment to the Plaintiff in the sum of
R267,640.00 (Two Hundred and Sixty Seven Thousand, Six Hundred
and
Forty Rand), the one paying, the other to be absolved, in respect of
plaintiff’s claim, payable within 14 (Fourteen)
calendar days
from date of this Order, together with interest thereon at the rate
of 10.25% per annum, calculated from a date 14
(Fourteen) calendar
days after date of this order until date of payment.
2.
The
defendants are to pay plaintiff’s costs of suit and any costs
attendant upon the payment of the amount referred to in
paragraph 1,
as taxed or agreed, on a party and party basis, on the High Court
scale, together with interest calculated thereon
at the rate of
10.25% per annum payable as from 14 (Fourteen) days after date of
Taxation or agreement until date of payment, such
costs to include,
but not be limited to:
2.1
The
costs of the reports and supplementary reports, if any, of:
2.1.1
Professor
G Saayman, specialist forensic pathologist;
2.1.2
Munro
Forensic Actuaries.
2.2
The
reasonable qualifying fees and expenses, including travelling
expenses, if any of:
2.2.1
Professor
G Saayman, specialist forensic pathologist;
2.2.2
Munro
Forensic Actuaries.
2.3
All
costs attendant upon the trial, including but not limited to the
reasonable costs of consultations of plaintiff’s counsel
and
plaintiff’s attorney with plaintiff, his experts and his lay
witnesses in the preparation for trial.
_____________________
E
REVELAS
Judge
of the High Court
Appearances
:
For
the plaintiff: Adv P H Mouton and Adv B Westerdale instructed
by G.P. Van Rhyn, Minnaar & Co Inc, Uitenhage c/o Struwig
Hattingh Attorneys, Port Elizabeth
For
the defendant: Mr L Potgieter (on 11 September 2017) and Adv I Dala
(on 12 September 2017) instructed by the State Attorney,
Port
Elizabeth
Date
heard: 11 – 12
September 2017
Date
delivered: 14 September 2017