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2024
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[2024] ZAFSHC 22
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C.E and Another v Member of the Executive Council: Department of Health Free State Province and Another (1304/2019) [2024] ZAFSHC 22 (26 January 2024)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. 1304/2019
In the matter between:
C[…]
E[…]
FIRST PLAINTIFF
N[…]
E[…]
(assisted by first
plaintiff)
SECOND PLAINTIFF
and
THE MEMBER OF THE
EXECUTIVE COUNCIL:
DEFENDANT
DEPARTMENT OF HEALTH,
FREE STATE PROVINCE
CLAUDIA
ELLIOT
THIRD PARTY
CORAM:
GUSHA,
AJ
HEARD
ON:
7, 8 and 10 MARCH 2023, 20-22 JUNE 2023, and 5-6
DECEMBER 2023.
DELIVERED
ON:
26
JANUARY 2024
JUDGMENT
"Our
greatest regrets in life tend not to be the things we did wrong or
failed to achieve; but rather the missed opportunities
or things we
didn't do that we wish we had. All too often missed opportunities are
in plain sight"
Germany Kent (Own
emphasis).
[1]
I use the above quote as a prelude to this judgment as it aptly
embodies what this
whole case is about.
[2]
Mr N[…] E[…] Jnr (the deceased)
[1]
was in life a young man of 26 years, a husband to the first plaintiff
and a father to his 4 year old daughter, the second plaintiff.
[3]
The common cause facts are concisely that the deceased on the 6
th
March 2016 presented at the casualty department at Thusanong
Hospital, reportedly complaining of severe headaches, loss of weight,
vomiting and general lack of appetite. He reportedly, was also on
anti-depressant medication. Upon examination by Dr Thompson
[2]
and as noted in her clinical notes, she observed that he was
generally emaciated, sat slouched, was not engaging at all and had
a
blunted effect. Subsequent to the examination she diagnosed the
deceased with acute depressive disorder and admitted him to the
hospital ward for further treatment.
[4]
Primarily, because Thusanong Hospital had no psychiatric ward and
there was no improvement
in the condition of the deceased, the latter
was on the 22
nd
March
2016 transferred to Boitumelo Regional Hospital for psychiatric
treatment. Thereat the family of the deceased informed a certain
Dr
Perez that there was a family history of Von Hippel-Lindau Syndrome
(VHL syndrome)
[3]
as the
patriarch, Mr E[…] Snr, was diagnosed with VHL syndrome and
the family suspected the deceased to suffer from the
same fate. Upon
this information being imparted to her, Dr Porres immediately
arranged for the deceased to be transferred to Universitas
Academic
Hospital in Bloemfontein for a brain scan and or further
screening.
[4]
Sadly, before he
could be transferred, the deceased demised on the 26
th
March 2016.
[5]
Aggrieved by the death of the deceased, the plaintiffs instituted
action against the
Member
of the Executive Council for Health, Free State Province (the
defendant)
[5]
for pecuniary loss
as detailed in their particulars of claim.
[6]
The nub of their claim is that the servants of the defendant were
allegedly negligent and or breached their duty of care in the
treatment of the deceased while he was hospitalised at both Thusanong
Hospital and Boitumelo Regional Hospital, as a result, the
plaintiffs
aver that they suffered damages. To bolster their claim, they aver
that the defendant’s servants were negligent;
5.1.
By diagnosing the deceased at Thusanong Hospital as suffering from
depression and/or drug abuse;
5.2.
By treating the deceased at Thusanong Hospital as suffering only from
depressions and/or drug
abuse;
5.3.
By not diagnosing the deceased at Thusanong Hospital, and treating
him, as suffering from Von
Hippel-Lindau syndrome;
5.4.
By diagnosing the deceased at Boitumelo Regional Hospital as
suffering only from drug abuse,
depressive mood and aggression;
5.5.
By treating the deceased at Boitumelo Regional Hospital as suffering
from drug abuse, depressive
mood and aggression;
5.6.
By not diagnosing the deceased at Boitumelo Regional Hospital, and
treating him, as suffering
from Von Hippel-Lindau syndrome;
5.7.
By not diagnosing and/or detecting cysts in the deceased’s body
or a large hemangioblastomas
in his brain.
[6]
It is further the plaintiffs pleaded case that as a result of the
aforesaid alleged
negligence, the plaintiff was misdiagnosed and was
not treated for the VHL syndrome, resulting in his condition
deteriorating and
culminating into his untimely demise.
[7]
The defendant disavowed any negligence as alleged by the plaintiffs,
pleading instead,
that its servants exhibited the requisite care,
skill, expertise and caution when they treated the deceased.
Truncated, the plea
is that on admission of the deceased at Thusanong
hospital, the first plaintiff conveyed naught to the medical
personnel regarding
the family’s history with VHL syndrome.
Mentioning instead that he was not keeping any food down for some 4
weeks, suffered
from severe headaches, psychiatric problems and
depression and was abusing dependence inducing substances (drugs).
[7]
In the alternative the defendant denied that the deceased’s
death was caused by any alleged negligence of its servants. Alleging
instead that the first plaintiff and or the deceased were negligent
in that they failed to disclose to the medical personnel the
family’s
history with VHL syndrome.
[8]
The defendant further pleads in the alternative that, in the event
that the court finds that its servants were negligent in the
treatment of the deceased, then the defendant denies that such
negligence was the cause of the deceased’s death.
[8]
At the onset of the hearing the parties in terms of Rule 33(4) of the
Uniform Rules
of Court agreed to separate the merits from the
quantum. In accordance with that agreement, I am called upon to only
adjudicate
on the merits. Accordingly the issue(s) to be decided by
this court is whether the servants of the defendant at both hospitals
failed to exercise the requisite degree of skill and care in their
treatment of the deceased by not diagnosing VHL syndrome and
whether
such failure and or negligence on their part contributed to the death
of the deceased.
[9]
As most of the evidence with regards to the deceased’s
admission at both Thusanong
and Boitumelo hospitals is common cause,
I shall not traverse those aspects relating to the admission and
continued stay of the
deceased at the respective hospitals. In my
view, either parties’ case turns on whether the disclosure
relating to the deceased’s
risk of developing VHL syndrome, in
view of the patriarch’s history with the disease and its
hereditary nature, was made
to the personnel at either hospital,
either by the deceased or his family. To that end, and for purposes
of this judgment I shall
focus only on the disputed facts in that
regard.
[10]
The plaintiffs tendered the evidence of the following witnesses; Mrs.
E[…] E[…]
(Mrs. E[…]) the deceased’s
mother, Mrs. E[…] R[…] (Mrs. R[…]), the
deceased’s sister, Dr
Muller a pathologist and Dr Scott a
general practitioner and also the E[…]’s family Doctor.
[11]
Mrs. E[…] testified that the deceased became sick and vomited
blood. As a result thereof
they took him to Boitumelo hospital in
Odendaalsrus. At the hospital she informed the attending Dr, who she
called Dr. Theron,
that her husband was diagnosed with VHL syndrome
some 30 years ago and that her son presented with similar symptoms;
convulsions
and severe headaches.
[9]
Dr
Thompson
however informed her that she could not conduct any tests as she was
working at casualty she would admit the deceased and the medical
personnel at the ward would conduct the necessary tests.
[12]
She further testified that since the deceased’s admission at
both hospitals, the family
frequently visited him and with each visit
found him in a generally worse condition, with no signs that the
medical personnel were
attending to him. She mentioned that at some
of these visits, they would notice that the deceased had not been
fed, his bedding
was wet and the deceased wore
adult
diapers
, and there were no intravenous drips, to mention but a
few incidents of alleged patient neglect. She testified that with
each visit
she and indeed other members of her family, would not miss
an opportunity to inform the medical personnel about the family’s
history with VHL syndrome, but alas, all fell on deaf ears.
[13]
After the deceased’s transfer to Boitumelo Regional Hospital
she again informed the medical
personnel of the family’s
history with VHL syndrome. Here too, her pleas came to naught. It is
only on the 24
th
of March 2016 when the deceased was seen
by a Dr Porres, who immediately upon being informed of the family’s
history with
VHL syndrome, made arrangements to have the deceased
transferred to Universitas Academic hospital in Bloemfontein. Sadly 2
days
before he could be transferred, the deceased demised.
[14]
The germane aspects which emerged during cross examination are that
the Elliot family were aware
of VHL syndrome and its hereditary
nature, dangers and management since at least 2002 when the patriarch
of the family was diagnosed.
It therefore is puzzling that when Mrs.
E[…] was quizzed on why upon noticing the symptoms in the
deceased he was not immediately
taken for medical treatment and or
screening for VHL syndrome, she tried to obfuscate by testifying that
she is a lay person and
could not be expected to know the intricacies
of the syndrome. In view of the patriarch’s known diagnosis
since 2002 and
known management of the disease, I find this
explanation less than candid and improbable. The finding of
improbability is bolstered
by the following; if indeed she was not
aware of the dangers and or management associated with VHL syndrome,
why, on her own version
at least, would she persistently and
frantically inform the medical personnel at both hospitals about VHL
syndrome? The inescapable
conclusion surely must be that this is so
precisely because she was aware of the dangers, management etc. of
the disease.
[15]
She was further quizzed on the length of time it took to take the
deceased to hospital, in view
of his condition and numerous visits
with his treating Doctors. She retorted that the deceased was an
adult who was capable of
making his own decisions and as he had just
secured a promotional post as his place of employment, the deceased
elected to go to
work rather than attend to his health.
[16]
Mrs. R[…] testified that the deceased was her brother. The
family has been aware of VHL
syndrome since the patriarch’s
positive diagnosis in 2002. Dr Scott who was their family doctor was
also aware of the family’s
history with VHL syndrome. Despite
their father’s diagnosis she testified that the family was not
offered screening and or
surveillance.
[17]
Upon the deceased falling ill they took him to Thusanong Hospital.
Thereat she and the other
members of her family (her mother and the
deceased’s wife) informed Dr Thompson of the family’s
history with VHL syndrome
and their suspicions regarding the
deceased. She also handed to Dr Thompson the medical certificates
from both Drs. Scott and Bester.
She largely supported her mother’s
evidence with regards to informing the medical personnel at both
hospitals regarding the
family’s history with VHL syndrome.
[18]
Dr Muller performed an autopsy on the body of the deceased on the 1
st
April 2016. The main findings as contained in his comprehensive
report
[10]
are that the body
of the deceased presented with a benign hemangioblastoma in the brain
(cerebellum). A clear cell papillary cystadenoma
(tumour) was
observed on the deceased’s left testes. He commented that the
simultaneous occurrence of the hemangioblastoma
and the clear cell
papillary cystadenoma is consistent with VHL disease. Further, that
although the exact cause of death could
not be determined by post
mortem examination, it was most likely related to the space occupying
effect of the hemangioblastoma.
Metabolic disturbances or fatal
cardiac arrhythmia cannot be excluded with certainty. I accept the
evidence of Dr Muller as it
was coherent and logical and stands
uncontroverted.
[19]
Dr Scott is medical doctor plying his trade as a general practitioner
for some
32
years
and is also the E[..]’s family doctor. He testified that he was
aware of the family’s history with VHL syndrome
as the
patriarch was his patient. The deceased was his patient since 2011.
In 2015 the deceased presented with chronic lower back
pain. As he
wanted to rule out any problems with the spine in view of the known
history of VHL syndrome, he referred the deceased
to Pelonomi
Hospital for spinal examination. As per the patient referral letter,
Exhibit A, the deceased presented with spontaneous
onset of
paraesthesia and pain of the whole back, worse over thoracic spine,
shoulders and lumbar spine. Further noted on the referral
letter was
the patriarch’s history with VHL syndrome. The findings of the
MRI scan performed were noted as “insignificant
findings”
and the deceased was informed to return for a follow up in 6 weeks.
Evidently the deceased did not make the return
appointment as no
other clinical information is available in this regard either from Dr
Scott or any of the family members.
[20]
Fast forward a year later. As per the medical certificates admitted
into evidence, in 2016 Dr
Scott saw and treated the deceased for a
range of ailments, ranging from headaches, backache, vertigo and
encephalitis.
[11]
On the 02
nd
of February 2016 he saw the deceased again, this time he presented
with headaches and dizziness, he was referred to Bongani Hospital
for
CT and or an MRI scan. Reportedly the hospital did not conduct the
tests as they did not have CT and or MRI scans, the deceased
was
reportedly only given medication. He saw the deceased again on the
17
th
,
22
nd
and 23
rd
of February 2016. On the 1
st
of March 2016 the deceased was seen by a Dr Bester, on a referral
from Dr Scott, for a scan on his back and not his brain. Dr Bester
reported that on the day of the examination, the deceased was
extremely ill such that it was difficult to obtain his medical
history.
It is noteworthy that none of the medical certificates
issued by Dr Scott
reference
VHL syndrome.
Not even the medical certificate issued by Dr Bester dated 01 March
2016 references VHL syndrome.
[12]
[21]
Dr Scott testified that he saw the deceased again on the 25
th
of February 2016, he realised that the deceased was not getting
better and he then changed his medication. For the remainder of
his
evidence Dr Scott went on a tangent about what the hospitals ought to
have done and did not do and proceeded to give an opinion
of the
detection, management and or treatment of VHL syndrome. He opined
that if the deceased was referred for a CT scan when he
was admitted
on the 6
th
of March 2016, the scan would have detected the
tumour that was found on the deceased’s body post-mortem, and
with the known
history of VHL syndrome, the hemangioblastoma would
equally have been detected.
[22]
He conceded during cross examination that he is a general
practitioner and not a specialist,
was not a geneticist and also not
an expert on the detection, treatment and or management of VHL
syndrome. He however maintained
that in order to diagnose VHL
syndrome he did not need to be a specialist as the disease could be
detected without testing genes.
He testified that in order to
diagnose the disease all that was needed was a CT scan to confirm the
presence of a tumor, if the
results came back with a hemangioblastoma
then VHL syndrome would be confirmed without conducting any genetic
tests. As will become
evident later on, If only it were that simple,
we would not be here!
[23]
This was the sum total of the plaintiffs case.
[24]
In rebuttal of the claim, the defendant called 2 witnesses, Dr
Thompson and Professor Christianson.
[25]
Dr Thompson testified that she is a medical practitioner currently in
private practice. On 06
March 2016, she was employed at Thusanong
Hospital as a community service medical officer (an intern) and
posted at casualty. She
supported the evidence of the E[…]
that the deceased was brought to casualty, examined and or assessed
by her and subsequently
admitted to the ward. She however pertinently
disavowed that either of the E[…] informed her of the family’s
history
with VHL syndrome. She testified that as a relatively
inexperienced Doctor at the time, she knew very little, if anything,
about
VHL syndrome, and had mention thereof been made, she would have
looked it up and also noted same in her clinical notes. Furthermore,
the medical certificates handed to her by the family also did not
reference the disease. She remained steadfast throughout her
evidence
that neither the deceased nor his family made mention of VHL syndrome
in her presence.
[26]
During cross examination she was quizzed about the missing family
history on the clinical notes.
She conceded that same did not appear
on the clinical notes but explained that the deceased did not present
with life threatening
symptoms and as casualty was extremely busy
that evening, a fact confirmed by the Elliots, she deemed it
necessary to only note
what was important for purposes of admitting
the deceased. She also testified that once in the ward, the medical
personnel would
obtain all the relevant information and conduct
whatever tests were deemed necessary. This was the sum total of her
evidence.
[27]
According to his curriculum vitae professor Christianson is a
specialist in medical sub-genetics
and an academic in the field.
[13]
His evidence is that VHL syndrome is a complex disorder in which the
diagnosis and follow up is a challenge in clinical practice.
An
on-going and multi-disciplinary approach involving different
specialists is recommended and the facilities required for medical
genetic counselling and testing would mostly be available in tertiary
and quaternary care facilities. He testified that neither
Bongani nor
Boitumelo Regional Hospital were classified as tertiary and or
quaternary care facilities. In fact he testified that
both were
primary care facilities staffed by general practitioners and not
specialists, and that in his experience doctors at these
hospitals
possess no expertise to diagnose VHL syndrome. His evidence is
further that the clinical presentation of VHL syndrome
is variable
and may first manifest from 11-20 years of age, with 50% of patients
symptomatic at the time of diagnosis with cerebellar
hemangioblastoma
being the most common presentation of VHL syndrome. Further that the
mortality and morbidity are high, with the
most frequent cause of
death being complications of cerebellar hemangioblastomas and that
life expectancy was between 40 and 52
years of age.
[28]
The high water mark of his evidence was that the clinical protocol
for screening, surveillance,
early detection, and or treatment of
tumors in patients with the clinical diagnosis of VHL syndrome and
their first degree relatives
has been in place and available free of
charge since the early 1990’s. He testified that as VHL is a
hereditary disease,
the rationale behind the early screening was to
offer and or start management of the disease in those family members
who inherited
the disease as early as possible as the early diagnosis
and surveillance with improved imaging resulted in an improved
prognosis
and diagnostic techniques resulted in an improved prognosis
of VHL syndrome. Early screening also served to exclude those first
degree family members who did not inherit the disease.
[29]
In the preparation for his report, he testified that he went through
the plaintiffs’ documents
that he was furnished with. In those
he found nothing to suggest that through the 1990’s to the
death of the deceased, he
and or his wife were placed under a
surveillance programme. He testified that it was imperative, as the
deceased had a 50% risk
of inheriting the disease from his father.
Professor Christianson opined that as the facilities for genetic
testing were at that
stage already available free of charge at the
medical genetics unit in the department of neurology at Universitas
Hospital in Bloemfontein,
this failure to place the deceased under
early surveillance presented a missed opportunity for an early
detection and diagnosis
of VHL syndrome.
[30]
With regards to the standard of care the deceased received whilst at
Thusanong hospital, Professor
Christianson opined that proper
examination and assessment of the deceased was done and a diagnosis
of acute depression was made.
As the deceased presented with its
symptoms at casualty, he opined that there was nothing untoward with
said diagnosis as made
by Dr Thompson. He further opined that the
deceased was previously seen and examined by Doctors Scott and Bester
who were both
senior to Dr Thompson, and noteworthy, both had the
deceased’s family history. Furthermore, Dr. Bester’s
notes were
clear in respect of the diagnosis and prognosis.
Furthermore, in both the medical certificates handed to Dr Thompson
by the family,
VHL syndrome was not referenced.
[31]
He testified further that from the clinical notes furnished, it
appears that someone noted the
history of hemangioma in the
patriarch. In as much as plaintiffs’ counsel tried to get the
Professor to concede that whoever
noted same actually meant to
inscribe hemangioblastoma, he remained steadfast that he interprets
what is on the clinical notes
and cannot assume what was or was not
meant. Professor Christianson testified that a hemangioma, unlike a
hemangioblastoma, is
a benign birth mark which presented itself on
the surface of the skin and was not of medical concern, he was thus
not surprised
that the mention of the hemangioma appears to not have
been acted on at the hospital.
[32]
He expressed a different view to that expressed by Dr Scott that on
the available clinical information,
a diagnosis of VHL syndrome could
be made. Professor Christianson testified that the investigation of
the disease was an on-going
process until a diagnosis was ultimately
made. At the time before the deceased’s death no one, Dr Scott
included, knew that
the deceased had a large hemangioblastoma on one
of his testes, this was only revealed post mortem. He was also at
variance with
the expressed opinion by Dr Scott that the deceased
would have survived. Professor Christianson testified that patients
with VHL
syndrome had a defective gene, the condition was not
curable, the proper care of a patient only served to elongate the
patient’s
life. In the final analysis, Professor Christianson
opined that, taking into account the grading of the hospital and the
expertise
and or skill of the personnel available in such
institutions, in his expert opinion, proper care was given to the
deceased at Thusanong
Hospital.
[33]
For the same reasons, he arrived at the same conclusion with regards
to the degree of care and
skill at Boitumelo Regional Hospital. He
further opined that as soon mention of VHL syndrome was made by the
deceased’s family
to Dr Porres, she immediately took the
necessary steps to refer the deceased to a tertiary hospital, sadly
the deceased demised
before such transfer could be made.
[34]
As early as 2002 when the deceased’s father had a positive
diagnosis for VHL syndrome,
the failure to offer the deceased
screening and surveillance was a missed opportunity. According to him
the deceased ought to have
been screened every 2 years post his
father’s diagnosis. He further opined that the fact the
deceased had been vomiting,
not eating and practically emaciated, was
an indication that the deceased had been in poor health for some
time.
[35]
This was the sum total of the defendant’s case.
[36]
It is settled law that to found delictual liability a plaintiff must
allege in detail and prove
that the defendant was negligent.
[14]
If a plaintiff relies on a breach of duty of care, he or she must set
out the facts that could or should have been foreseen by
the
defendant.
[15]
The
test for negligence is whether a reasonable person in the defendant’s
position would have reasonably foreseen harm befalling
the plaintiff
as a result of his conduct, and would have taken reasonable steps to
prevent the harm. If so, the question is whether
he took reasonable
steps to avert the harm that ultimately occurred. The reasonableness
of such conduct is assessed objectively.
[16]
[37]
Liability for medical negligence is determined by asking whether the
failure of a professional
person to adhere to the general level of
skill and diligence, possessed and exercised by the members of the
branch of the profession
to
which
he or she belongs, would normally constitute negligence. What
constitutes the general level of skill exercised by members
of a
particular profession is demonstrated through evidence of experts in
that profession. Our courts have in numerous judgments
outlined the
approach to the evaluation of such evidence.
[17]
[38]
In
McGregor
and another v MEC Health, Western Cape
[18]
the court held that
“…
The
functions of an expert witness are threefold. First, where they have
themselves observed relevant facts that evidence will be
evidence of
fact and [be] admissible as such. Second, they provide the court with
abstract or general knowledge concerning their
discipline that is
necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of
the current state of knowledge
and generally accepted practice in the field in question. Although
such evidence can only be given
by an expert qualified in the
relevant field, it remains, at the end of the day, essentially
evidence of fact on which the court
will have to make factual
findings. It is necessary to enable the court to assess the validity
of opinions that they express. Third,
they give evidence concerning
their own inferences and opinions on the issues in the case and the
grounds for drawing those inferences
and expressing those
conclusions.”
[39]
Therefore, fundamentally, an expert’s primary function is to
assist the court to reach
a conclusion on matters in which the court
itself does not have the necessary expertise to decide. It is
accordingly not the mere
opinion of a witness which is decisive, but
his ability to satisfy the court that because of his or her special
expertise, the
reasons for the opinion expressed are founded on
logical reasoning.
[40]
In
casu
the court is faced with 2 divergent opinions. From the onset, I am of
the view that the opinion expressed by Dr Scott on the detection,
treatment, surveillance of VHL syndrome stands to be rejected. By his
own admission he is not an expert in the field of genetics,
he is a
general practitioner. As his evidence progressed and indeed his cross
examination, it became painfully apparent that his
knowledge of the
diagnosis and management of the disease was at best limited and
amounted to conjecture at worse. Therefore whatever
opinion he
proffered was without any logical reasoning.
[19]
Furthermore whatever opinion he expressed during the proceedings was
not objective- he is after all the deceased’s and the
Elliot’s
family doctor.
[41]
In view of Professor Christianson’s qualifications and
expertise in the field of genetics,
I am inclined to accept the
opinion he proffered. Not only was he a coherent and cogent witness
he greatly assisted the court in
understanding the syndrome, he was
undoubtedly non-partisan, notwithstanding the fact that he was called
by the defendant. Proof
of his objectivity is found in his criticism
of Pelonomi Hospital when the deceased attended thereto for CT scans.
Notwithstanding
the fact that the referral letter was clearly
endorsed with the family history of VHL syndrome, it did not appear
that the deceased
was referred for the surveillance and or screening
protocol. Professor Christianson called this yet another missed
opportunity
in the life of the deceased. As what transpired at
Pelonomi is not the subject of these proceedings and thus not before
me, I shall
not take that aspect any further than I have.
[42]
In view of the expert opinion expressed by professor Christianson, I
hold the view that the medical
personnel at Thusanong hospital were
not negligent in their treatment of the deceased. They acted on the
symptoms he presented
with, the letters from Doctors Scott and Bester
referencing depression. I further hold the view that the
probabilities, when weighed
against the available facts, favour the
finding that the medical personnel, more especially Dr Thompson, at
Thusanong were not
informed about the family’s history with VHL
syndrome. Both Ms E[…] and R[…] prevaricated and
vacillated when
quizzed in cross examination on this aspect. I accept
the evidence of Dr Thompson that she was not informed of the presence
of
VHL syndrome in the family, she struck me as an honest witness and
certainly had nothing to gain by coming to court and spinning
untruths. Furthermore in view of Dr Thompson’s observation of
the almost catatonic state the deceased was in at admission,
I find
it improbable that he too would have said anything to the medical
personnel.
[43]
Lastly, it needs no restating that a medical practitioner is not
expected to bring to bear upon
a case entrusted to him / her the
highest possible degree of professional skill, but he / she is bound
to employ reasonable skill
and care. Even if it could be said that
the diagnosis by Dr Thompson was incorrect, that does not in itself
mean that she was negligent.
The test to be applied to determine
negligence is whether a reasonable general practitioner at her level
and at the hospital she
was at would, under the same circumstances
and available facts, have made the same diagnosis she did.
Considering the level she
was at, the type of hospital she was
employed at and the services available and rendered there; the
available information to her;
her own observation and examination of
the deceased, I am satisfied that reasonable care and skill was
employed in treatment of
the deceased at Thusanong hospital.
[44]
I hold the same view when it relates to Boitumelo Regional hospital.
Here, too, no negligence
can be found. This much is evinced by the
plaintiffs’ own evidence that they too did not know whether the
deceased had VHL
syndrome, they harboured only a suspicion, and that
upon informing Dr Porres of this, the necessary action was taken. In
my view,
the fact that it was found post mortem that the deceased had
a cerebellum hemangioblastoma does not establish negligence on the
part of the defendant’s servants. In
Meyers
v MEC,
Department
of Health, Eastern Cape
[20]
the court held that;
“
In
assessing a person’s conduct in a case such as this, one must
guard against the ‘insidious subconscious influence
of ex post
facto knowledge’, and bear in mind that ‘[n]egligence is
not established by showing merely that the occurrence
happened . . .
or by showing after it happened how it could have been prevented’
– the reasonable person does not have
‘prophetic
foresight. (footnotes omitted)...”
[45]
If the version of the plaintiffs is accepted as is, that indeed they
were never offered any screening
or surveillance protocols, then this
would have been the first instance of a missed opportunity in the
life of the deceased. Secondly,
Dr Scott as the family’s doctor
is well versed in their history with VHL syndrome, well versed in the
deceased’s medical
condition and prolonged illness, his failure
to refer the deceased for screening, and or, surveillance presented
the second instance
of a missed opportunity. I do not for a second
accept his explanation that as a doctor in private practice he could
not directly
refer the deceased to a public hospital with a request
to conduct the necessary tests. He had all the time to refer the
deceased
since 2011, at least, alternatively when the deceased’s
symptoms started being more severe and frequent.
[46]
The third missed opportunity can be attributed to the deceased
himself. In 2015 after his MRI
results were inconclusive and he was
expected to return after 6 weeks he failed to do so. In 2016 when he
ought to have known that
his medical condition was becoming dire,
instead of attending to his health he elected to assume duty as his
new post.
[47]
I can go on and on detailing the missed opportunities in the life of
the deceased but that would
serve no purpose, the few that I have
mentioned serve only to highlight that in the life of the deceased,
indubitably, the missed
opportunities were in plain sight.
[48]
Albeit I have already found that no negligence was established, for
the sake of completeness
and because the aspect of causation was
raised in arguments, I find it apposite to very briefly deal
therewith. Causation in the
law of delict gives rise to two rather
distinct problems. The first is a factual one and relates to the
question as to whether
the negligent act or omission in question
caused or materially contributed to the harm giving rise to the
claim. If it did not,
then no legal liability can arise and cadit
quaestio. If it did, then the second problem becomes relevant, viz.
whether the negligent
act or omission is linked to the harm
sufficiently; closely or directly for legal liability to ensue or
whether, as it is said,
the harm is too remote. This is basically a
juridical problem in which considerations of legal policy may play a
part.
[21]
[49]
In
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A)
it was pointed out by Corbett JA that causation involves two
distinct enquiries. The first enquiry is whether the wrongful conduct
was a factual cause of the loss. The second is whether in law it
ought to be regarded as a cause. In this regard the following
is
apposite;
“
The
enquiry as to factual causation is generally conducted by applying
the so-called ‘but for’ test, which is designed
to
determine whether a postulated cause can be identified as a causa
sine qua non of the loss in question. In order to apply this
test one
must make a hypothetical enquiry as to what probably would have
happened but for the wrongful conduct of the defendant.
This enquiry
may involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful
conduct and the
posing of the question as to whether upon such a hypothesis
plaintiff’s loss would have ensued or not. If
it would in any
event have ensued, then the wrongful conduct was not a cause of the
loss; aliter, if it would not have ensued.
The second enquiry
then arises, viz. whether the wrongful act is linked sufficiently
closely or directly to the loss for legal liability
to ensue or
whether, as it is said, the loss is too remote. This is basically a
juridical problem in the solution of which considerations
of policy
may play a part. This is sometimes called "legal causation".
(See generally Minister of Police v Skosana
1977 (1) SA 31
(A), at 34
E - 35 A, 43 E - 44 B; Standard Bank of South Africa Ltd v Coetsêe
1981 (1) SA 1131
(A), at 1138 H - 1139 C; S v Daniëls en 'n
Ander
1983 (3) SA 275
(A), at 331 B - 332 A; Siman & Co (Pty) Ltd
v Barclays National Bank Ltd
1984 (2) SA 888
(A), at 914 F - 915 H;
Mokgethi en Andere v Die Staat, a recent and hitherto unreported
judgment of this Court, pp 18 – 24).”
[50]
A plaintiff is not required to establish the causal link with
certainty but only to establish
that the wrongful conduct was
probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably
have occurred, based
upon the evidence and what can be expected to occur in the ordinary
course of human affairs rather than an
exercise in metaphysics.
[22]
[51]
Accordingly, in order to be successful the plaintiffs bore the onus
to show that, but for the
negligence, alleged non diagnosis of VHL
syndrome, the deceased would have survived. On this score too I hold
the view that they
would not have passed muster.
[23]
The post mortem report by Dr Muller is clear and stands
uncontroverted that the exact cause of death could not be determined.
All that the court knows is that it was considered to be most likely
due to the space occupying effect of the hemangioblastoma.
No
evidence was placed before the court with regards to how, if at all,
the treatment of the VHL syndrome in the deceased would
have ensued
and what the outcome(s) thereof would have been. Furthermore no
evidence was placed before the court with regards to
when the tumour
in the brain developed, no evidence that had the hospitals detected
VHL syndrome, the tumour would have been successfully
removed and
that the deceased would have survived the operation etc.
[52]
In final analysis the plaintiffs bore the onus to establish
negligence by the servants of the
defendant on a preponderance of
probabilities, sadly none was established. I have the greatest
sympathy for the loss of the first
plaintiff’s husband and the
second plaintiffs’ father, however that should not and indeed
does not move me to infer
blameworthiness where none exists.
[24]
As sad and final as the circumstances are, on the proven facts the
plaintiffs’ case stands to be dismissed.
[53]
In conclusion, I can do no better than the following remarks by Zondi
JA in the Meyers case;
“
In
conclusion, the plaintiff has suffered such terrible consequences
that there is a natural feeling that he should be compensated.
But,
as Denning LJ correctly remarked in
Roe
v Ministry of Health & others; Woolley v Same
[1954] EWCA Civ 7
;
[1954] 2
All ER 131
(CA) at 139
:
‘But we should be doing a disservice to the community at large
if we were to impose liability on hospitals and doctors for
everything that happens to go wrong. Doctors would be led to think
more of their own safety than of the good of their patients.
Initiative would be stifled and confidence shaken. A proper sense of
proportion requires us to have regard to the conditions in
which
hospitals and doctors have to work. We must insist on due care for
the patient at every point, but we must not condemn as
negligence
that which is only a misadventure.’”
[54]
This
leaves the court with the remaining aspect of the third party
procedure as instituted by the defendant.
[25]
Despite instituting same, the defendant seems to
have
undergone a Damascene moment and has during arguments, elected to
withdraw the third party procedure, as submitted, the wrong
party had
been cited. Counsel for the plaintiffs did not quibble with the
withdrawal save to pray for costs in this regard. In
view of the
withdrawal of the third party procedure (albeit at such late stage of
the proceedings) and in view of the decision
reached in this matter,
nothing more needs to be said in this regard, save for the issue of
costs which I deal with momentarily.
[55]
As regards the issue of costs, I see no reason to deviate from the
norm that costs should follow
the result. In any event no such
submissions were made by either party. With regards to the third
party procedure however, albeit
withdrawn, in view of the late
withdrawal and the cost and preparation the plaintiffs no doubt would
have embarked on, the dictates
of fairness are that they are entitled
to the costs related thereto.
[56]
Accordingly the following orders are issued:
1.
The plaintiffs’
claim is dismissed with costs.
2.
The defendant to pay the costs occasioned by the third party
procedure.
_______________
NG
GUSHA, AJ
On
behalf of the plaintiff Adv. MDJ Steenkamp
Instructed
by: Bezuidenhouts Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv BS Mene SC
Instructed
by: Office of the State
Attorney
BLOEMFONTEIN
[1]
The
deceased sadly demised on the 26
th
March 2016 at Boitumelo Regional Hospital.
[2]
Attending
Dr at the casualty department.
[3]
VHL
syndrome is a hereditary condition associated with tumors arising in
multiple organs. VHL related tumors include, amongst
others,
hemangioblastomas, which are blood vessel tumors of the brain,
spinal cord and retina. The clinical manifestations thereof
in each
patient depend on the type of genetic mutation present.
[4]
Management
and or treatment for VHL syndrome was not available at Boitumelo
Regional Hospital, such treatment only being provided
at tertiary
hospitals.
[5]
[5]
Based
on liability for damages caused by the negligent conduct of the
medical personnel.
[6]
Amended
index to pleadings pages 4-14.
[7]
Amended
index pleadings at pages 21-31.
[8]
Ibid.
[9]
Mrs.
Elliot conceded in cross examination that the attending Doctor at
casualty was Dr Thompson and not Dr Theron.
[10]
Amended
index: expert witnesses pages 97-115.
[11]
Amended
index-pleadings pages 124-127.
[12]
Ibid
at
pages 128-129.
[13]
Amended
index-Expert witnesses pages 38-96. Albeit he has since retired.
[14]
Eversmeyer
(Pty) v Walker
1963
(3) SA 384
(T),
SA
Fish Oil Producers’ Association (Pty) Ltd v
Shipwrights
& Engineers Holdings Ltd
1958 (1) SA 687
(C).
[15]
Beurain
h/a Toptrans Transport v Regering van die RSA
2001 (4) SA 921 (O).
[16]
Kruger
v Carlton Paper of SA (Pty) Ltd
2002 (2) SA 335
(SCA),
Kruger
v Coetzee
1966
(2) SA 428(A)
at 430 E-F,
Pitzer
v Eskom
[2012]
ZASCA 44
(SCA) para 24.
[17]
Goliath
v Member of the Executive Council for Health, Eastern Cape
[2014]
ZASCA 182
;
2015 (2) SA 97
(SCA),
Louw
v Patel
(245/2021)
[2023] ZASCA 22
(9 March 2023),
JA
obo DA v MEC for Health
Eastern
Cape
2022 3 SA 475 (ECB).
[18]
[2020]
ZASCA 89
;
2021 (3) SA 337
(SCA) para 17.
[19]
Mediclinic
v Vermeulen
(504/13)
[2014] ZASCA 150
(26 September 2014)
[20]
2020
3 SA 337 (SCA).
[21]
Minister
of Police v Skosana
1977
(1) SA 31
(A) 34D-H.
[22]
Minister
of safety and security v Van Duivenboden
2002 (6) SA 431
(SCA) at 25.
[23]
In
view of the now known fact that the VHL syndrome is an exceedingly
difficult disease to diagnose and manage. Its management
is an
on-going multi-disciplinary process incapable of an on the spot
diagnosis and or management.
[24]
Broude
v Mcintosh and others
1998 3 SA 60
(SCA).
[25]
Ibid
at
pages 32-34.