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[2024] ZAFSHC 66
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Marumo v Member of the Executive Council for Health: Free State Province (24/2015) [2024] ZAFSHC 66 (4 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 24/2015
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DOLLY
NTOMBIZODWA MARUMO
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
Defendant
HEALTH:
FREE STATE PROVINCE
CORAM:
LEKHOABA AJ
HEARD
ON:
14 &
15 NOVEMBER 2023
DELIVERED
ON:
04 MARCH 2024
JUDGMENT
BY:
LEKHOABA AJ
INTRODUCTION:
[1]
This is a claim arising from an incident that took place on 19 June
2013, at Brandfor
t
, on the N1
Bloemfontein, Free State Province. The plaintiff was in the ambulance
and under medical supervision and care of paramedics
when she went
into labour and gave birth to a still born child. The plaintiff
issued summons against the defendant on 6 January 2015,
claiming an amount of R1 500 000 (One Million Five Hundred
Thousand Rand) due to negligence on the part of the defendant.
[2]
The Defendant is the Member of the Executive Council: Free State
Department of Health,
who is sued herein in her representative
capacity as head of the Free State Provincial Department of Health.
[3]
The Plaintiff in her particulars of claim alleges that at all
material times when
giving birth, she was in an ambulance under
medical supervision and care of emergency medical practitioners in
Brandfort.
[4]
She further alleges that she was under the medical care or
supervision of medical
staff of Maranatha clinic and Vaalrock Clinic
Brandfort. She contends that at all material times thereto the
above medical
practitioners were in the employ of the Department of
Health, Free State, alternatively Maranatha Clinic Brandfort and
Vaalrock
Clinic Brandfort. She alleges that at all material times the
abovementioned medical practitioners and staff had a legal duty of
care towards the Plaintiff during the delivery of her baby.
[5]
The plaintiff alleges that the medical practitioners or staff were
negligent and acted
contrary to the legal duty owed to her on various
grounds which are enumerated in the plaintiff’s particulars of
claim.
[6]
It is not disputed that the plaintiff was pregnant and due for
delivery; the ambulance
arrived at plaintiff’s house at 14:16
and that the plaintiff complained about pains in her stomach at
around 07:00 and her
husband, Mr. Marumo called for assistance at
around 09:00. There is no record of the plaintiff’s cell number
that Mr. Marumo
alleges to have
been
used to summon the ambulance anytime that morning.
[7]
The plaintiff’s case is
pleaded that she gave birth in the ambulance as a result
of
negligence of personnel at Maranatha clinic and paramedics which
resulted in her suffering damages. They failed to assist Mr.
Marumo
to get hold of the call centre at the time when he was at Maranatha
clinic. When they finally assist Mr. Marumo to get an
ambulance
dispatched, the paramedics failed to provide and perform the
treatment to the plaintiff with the degree of care, skill
and
diligence prevailing in medical profession and that resulted in the
death of the plaintiff’s baby.
[9]
The defendant’s case is that the unequivocal evidence before
the court is that the phone
records as well the clinical notes
indicating that the plaintiff had only sought assistance of an
ambulance at 13:40 being the
earliest when he had called Mr.
Makhetha. The ambulance departed the station at 14:07 according to
Ms. Kujoane’s evidence
and arrived at the scene at 14:16. This
was within 9 minutes. The defendant submitted that had Mr. Marumo
called the call centre,
his wife’s case, which is classified as
a priority 1 would have received priority, and the ambulance would
have been informed
by the call centre of such case within 2 minutes
of the call being logged.
[10]
In their Plea, the defendant denies that the plaintiff had been under
supervision and care of
his employees at all material times during
labour and the birth of the baby. The defendant further denies that
any of his employees
had been negligent.
ISSUES:
[11]
Whether the defendant breached its legal duty owed
to the Plaintiff in failing to dispatch an ambulance
to the Plaintiff
timeously.
I am now turning to deal
with the evidence of the parties
EVIDENCE
:
[12]
Mr. Marumo testified to the following effect:
That on 19 June 2023, he
woke up at around 07:00 to check up on how was the plaintiff doing.
Plaintiff complained about pains on
her stomach. He further testified
that after 08:00 he then prepared the children for school. He took
the eldest child to school
and the young one remained with his
mother. Mr Marumo came back from taking the eldest child and took the
youngest one. He alleges
that he used the Plaintiff’s cellular
phone to call the centre number 10177 in order to summon the
ambulance. he called number
(10177) throughout the morning without
success. He further testified that the Plaintiff was getting tired
and the pain was getting
worse and kept on calling the number 10177.
[13]
At 09:00 he walked to Maranatha Clinic, because he knew that
ambulances are stationed there. He avers that
on his arrival he met
with Mr Makhetha, a paramedic outside the clinic and informed him
about Plaintiff’s condition and Mr.
Makhetha informed him that
he could not assist and encouraged him to keep on calling the call
centre number. He then informed Mr.
Makhetha that he had been calling
the number 10177 without success.
[14]
He proceeded inside the Maranatha Clinic and met with Me. Tau from
whom he requested for an ambulance
to fetch the Plaintiff. Me. Tau
also could not assist and advised him to keep on calling the call
centre number for an ambulance.
He testified that when he left the
clinic, he took the cell phone number of Mr. Makhetha and left.
At around 11:00, when he
came back from Maranatha Clinic the
Plaintiff informed him that there were fluids coming out of her
private parts and He kept on
calling the number 10177 again.
[15]
Mr. Marumo further averred that he then called Vaalrock Clinic and
spoke to Reggie Mpopetsi who
promised to call him back and Mr. Reggie
Mpopetsi failed to do so. Mr. Marumo called again and asked Mr
Mpopetsi why ambulance
was not coming if there are ambulances parked
at Maranatha Clinic. Mr. Mpopetsi informed Mr. Marumo that he spoke
to Ms. Tsoang
and Ms. Tsoang arranged an ambulance to come fetch the
Plaintiff.
[16]
Under cross examination, Mr Marumo confirmed that he did not attempt
to call the ambulance upon
Plaintiff’s first complaint of the
pains and he further confirmed that the Plaintiff complained between
08:00 - 09:00 that
the pains were getting worse. It emerged during
gross examination that plaintiff’s cell phone record for that
particular
day was not available
[17]
The second witness for the plaintiff was Dr Kemp and the court noted
his qualifications and experience.
He is a family practitioner with
MBCHB qualification. Dr Kemp completed the medico-legal report on
behalf of the Plaintiff. He
corroborated Mr. Marumo’s evidence
as above.
[18]
He testified to the that effect that Mr. Marumo informed him that he
walked to Marantha Clinic and he was
turned back without being helped
with the ambulance
.
He testified that had Maratha
Clinic personnel assisted Mr. Marumo with logging a call at the time
when he was at Maranatha clinic
that could have saved the plaintiff’s
baby. His conclusion was that the ambulance was delayed more than
seven (7) hours which
made the difference between life and death of
the baby. It is premised on the fact that calls were made between
7:00 and 8:00 to
the call centre and after that Mr Marumo walked to
the Maranatha clinic and the staff there did not assist in calling
ambulance
despite being informed about the condition of the
plaintiff.
[19]
During cross examination Dr Kemp indicated that the facts were
relayed to him by
Mr. Marumo during
consultation and he did not consider medical documents that were
before him and it was put to him that the first
time the Emergency
Medical Services (“the EMS”) was informed of the
Plaintiff’s case was at 14:07, as also recorded
on the clinical
notes. In light of what Mr. Marumo informed him about and the
documents that he was referred to, the doctor was
asked what made him
to reach the conclusion that the ambulance was over seven hours late.
He conceded that he only relied on the
timelines provided by Mr.
Marumo.
[20]
When pointed to the contradiction in what he
was relaying to the Court and the earlier testimony of
Mr. Marumo,
that he called Vaalrock Clinic and did not get assistance, his
response was that he never had sight of the telephone
records. He
conceded that if telephone records were made available to him, he
would have altered his opinion on the delay of seven
hours and having
seen the said telephone records, he would agree with the Defendant’s
version. He further conceded that at
the time of compiling his
report, he did not consider the standard operating procedures and
guidelines of EMS in responding to
call. He went on to concede that
the time frames of Mr Marumo calling Vaalrock Clinic at 13:45
and the clinical notes indicating
that EMS arrived at 14:16 and the
calls being logged by the personnel after the ambulance had attended
to the Plaintiff at 14:25
and 14: 27 respectively was correct.
[21]
Under cross examination he conceded that he was not an expert in the
field of obstetrics and
gynaecology. He further confirmed that he is
not expert to attest to any delays in respect of matters in this
field of expertise
and general medical knowledge does not suffice.
After his testimony the Plaintiff’s case was closed. Three
witnesses testified
on behalf of the defendant.
[22]
The first witness for the Defendant, Ms. Christian Kujoana testified
that she is employed as a Basic Ambulance
Assistant, providing basic
life support. She had 13 years’ experience and on the 19 June
2013 was on duty with Mr Makhetha
and she was the driver.
[23]
She testified that Mr Makhetha received a call at 14:07 that they
must attend to a pregnant person. They
departed from the station at
14:07 and arrived at the scene at 14:16. They left the scene at 14:23
heading to Pelonomi Hospital
in Bloemfontein and problems occurred
along the way, and they had to go to Maranatha clinic instead and
arrived at 14:36. They
left Marantha clinic at 14:59, and at 15:31
they were met by a response vehicle along the way to Pelonomi
Hospital. They arrived
at Pelonomi at 16:00. She testified that the
reason they drove to the hospital instead of the clinic, was because
all emergency
cases were transported to Bloemfontein.
[24]
The Defendant`s second witness, Ms. Boitumelo Tsoang testified that
She is employed as an Intermediate
Life Support by the Defendant’s
EMS Department. She stated that on 19 June 2013, she received a call
from Mr Mpopetsi from
Vaalrock Clinic, who informed her that there
was a woman who was about to give birth. She then informed Mr
Mpopetsi that she will
log a call with the call centre. She
immediately logged the call on behalf of the Plaintiff. She
stated that she remembers
very well because it occurred during the
day around 14:00, she was on her way to pick her manager from a
meeting in Bultfontein.
[25]
The Defendant last witness, Mr Towa, testified that he is employed as
a Manager by the Defendant
and manages the Emergency Medical Services
control centre. He further testified that as part of his
responsibilities he looks after
the systems and ensures that the call
centre is able to receive and manage calls. He was employed as such
since 2008. He testified
that the number 112 was a national emergency
number that was introduced in the year 2006, and used to locate
Emergency Medical
Services anywhere in the Country. It operates in
two centres – 1 in Midrand (Gauteng) and another in the Western
Cape.
[26]
Mr. Towa testified that the duration on the first call from Mr.
Marumo to the number 112 was
30 seconds, the second was 23 seconds
and the last was 8 seconds. He submitted that in order to have a
successful call the duration
must at least be 2 minutes. He concluded
that none of the above calls was successful.
[27]
When presented with the report that was contained on page 17 to 20 of
the Defendant’s bundle.
He identified it as an incident
report from the system when logging an ambulance request, and
testified that the times in that
report are generated by the system.
He testified that according to the incident report that was
before him, the calls were
logged by his colleagues on behalf of a
community member. He concluded his testimony by stating that the
phone records give a clear
picture of what transpired on 19 June
2013, even though he has no personal knowledge of the incident.
ANALYSIS:
[28]
Before analysing the matter it is important
to consider matters of common cause between the parties
which are
amongst the following:
[28.1]
Ambulance did arrive.
[28.2] Mr.
Marumo walked to Maranatha clinic and spoke to Mr. Makgetha
[29]
Certainly the versions are mutually
irreconcilable, for which the court has to look into the totality
of
the evidence tendered, and assess the possibility of each
parties evidence, and either to find in favour of the
plaintiff or not. Alternatively, that the defendant is liable for the
apparent
negligence.
[30]
Negligence can be defined as the failure to take reasonable care to
avoid causing injury or loss
to another person. To determine whether
someone acted negligently, we apply the objective “reasonable
person test”
to compare the person’s act or omission to
the conduct expected of the reasonable person acting under same or
similar circumstances.
In the event that the person’s conduct
does not meet the standard expected of the reasonable person. The
conduct could be
considered negligent.
[31]
The plaintiff must show that the defendant
staff acted negligently in rendering care, and that such
negligence
resulted in damages. To do so four elements must be proven: 1.
A professional duty owed to the patient; 2) breach
of such duty;3)
injury caused be the breach; and 4) resulting damages.
[32]
In
Kruger v Coetzee
1996 (2) SA 428
(A)
Holmes JA, in its judgment, the court held that:
It
is ‘necessary for the plaintiff to prove not only that the
possibility should have been foreseen but also that there were
reasonable steps which should have been taken – Defendant
having foreseen the possibility and taken certain steps –
Onus
on plaintiff to establish further steps he could and should have
taken’
[33]
When dealing with negligence the issue of
foreseeability arises. The question is whether the defendant or
its
employees could reasonably foresee that harm could arise and whether
they could have taken steps to prevent such harm. Only
when the
casual link is created between the birth of a child and uncaring
conduct of the defendant’s medical staff. It is
then that the
question of whether that the defendant should have foreseen,
reasonably so, that her conduct will bring undesirable
consequences.
[34]
The Court was furnished with the telephone call records which
indicated that the plaintiff’s
husband Mr. Marumo successfully
made a call to Mr. Makhetha at 13:40 and at the same time he also
made a call to Vlakfontein clinic
at 13:45. Mr. Makhetha and Ms.
Ntswang when logging a call on behalf of Mr. Marumo their calls
clatched. It became apparent that
as testified by the last defence
witness Mr. Towa the two calls clatched but one call by Ms. Ntswang
was successfully logged in
for assistance of the Plaintiff, at
approximately at 14:07 the ambulance was dispatched to the
Plaintiff’s place of residence
and arrived at the scene at
14:16, the ambulance then left the scene at 14:23. The ambulance
arrived at Maranta clinic at 14:36
and later travelled to Pelonomi
Hospital and the Plaintiff arrived at Pelonomi at 16:00.
[35]
Given the evidence that was presented before the court the plaintiff
started feeling the pains from 07:00
and Mr. Marumo decided to walk
to Maranatha clinic when he realised that he was not getting through
the call centre to summon the
ambulance in person. Instead of a call
being logged for him, he was advised to continue to call the call
centre. Had a call being
logged on behalf of the Plaintiff at the
time when Mr. Marumo was at the Maranatha clinic the baby could have
been saved
.
[36]
I agree with the plaintiff when she states in paragraph 21.8 of her
heads of arguments that the defendant
witness Mr. Towa confirmed that
they got two (2) types of calls which one is where a call was made by
his colleague on behalf of
the member of the community. It ties in
with the evidence of Dr Kemp that the employees of Maranatha clinic
had a duty to assist
Mr. Marumo when he was there in person.
[37]
The Plaintiff’s witnesses contradicted each other in that Dr
Kemp testified that Mr. Marumo started
calling the number 10177 from
approximately 07:00 while Mr. Marumo testified that around 07:00 his
wife started feeling the pains
and they had to wait for the water to
break before they can summon an ambulance. Dr Kemp testified
that the delay to dispatch
ambulance was 7 hours, and during cross
examination he changed and conceded that he did not take into account
the medical records
that was in his position and he did not had sight
of the telephone calls records.
[38]
It is uncontended that Mr. Marumo indeed went to
Maranatha clinic and was not assisted but advised to continue
to call
the call centre. Mr. Makhetha gave Mr. Marumo his cell number. I
agree with the plaintiff when they say Mr. Marumo walked
to Maranatha
Clinic and spoke to Mr. Makhetha and that it is not correct that the
first attempt to obtain an ambulance was made
at 13:45.
[39]
The ambulance arrived at the plaintiff’s
house at 14:16 and left at 14:23 heading to Pelonomi Hospital
in
Bloemfontein and according to Ms. Christina Kujoana problems occurred
along the way, and they had to go to Maranatha clinic
and arrived at
14:36
.
Clinical and paramedics could not assist the
Plaintiff inside the ambulance and upon arrival at Maranatha clinic,
instead ambulance
left Marantha clinic to Pelonomi hospital at
14:59, and at 15:31 they were met by a response vehicle along the way
to Pelonomi
Hospital. They arrived at Pelonomi at 16:00.
[40]
National Health Act, 2003 (Act no. 61 of 2003)
provide a framework for a structured uniform health system within the
Republic, taking into account the obligations imposed by
the
Constitution and other laws on national, provincial and local
governments with regard to health services. Section 11 provides
that:
[11.1] Emergencies must
be responded to in a co-ordinated and efficient manner by emergency
medical service.
[11.2] For the purpose of
sub-regulation (1), the emergency medical service must –
(a) Ensure
emergency vehicles are appropriately equipped and staffed, and
(b) Have systems to
ensure that patients are treated in accordance with current evidence
guidelines to reduce variations in
care and improve patient outcomes.
(3) For the purposes of
sub-regulation (2)-
(a) Health care
Professionals must have and adhere to evidence- based clinical
practice guidelines on stabilising patients before
and during
transportation of patients.
(b) There is a
standardised method of patient handover, which is implemented.
[41]
In regard to the assessment of witnesses and
resolution of mutually destructive versions, including
the general
probabilities it was stated in
National Employers’
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440 D-G
that:
“
It seems to me,
with respect, that in any civil case, as any criminal case, the onus
can ordinarily only be discharged by adducing
credible evidence to
support the case of the party on whom the onus rests. In a civil
case, the onus is obviously not as heavy
as it is in a criminal case,
but nevertheless where the onus rests on the plaintiff as in the
present case, and where there are
two mutually destructive stories,
he can only succeed if he satisfies the court on a preponderance of
possibilities that his version
is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is
therefore false or mistaken
and falls to be rejected. In deciding
whether that evidence is true or not the court will weigh up and test
the plaintiff’s
allegations against the general probabilities.
The estimate of the credibility of a witness will therefore be
inextricably bound
up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the plaintiff,
the court
will accept his version as being probably true. If, however
the probabilities are evenly balanced in the sense that they
do not favour the plaintiff’s case any more than they do the
defendants, the plaintiff can only succeed if the court nevertheless
believes him and is satisfied that his evidence is true and that the
defendant’s version is false.
”
[42]
In
AM AND ANOTHER v MEC FOR HEALTH, WESTERN CAPE
2021 (3) SA
337
(SCA)
the functions of an expert witness were explained
as follows at para 17:
“
[17]
Something needs to be said about the role of expert witnesses and the
expert evidence in this case. The functions
of an expert witness are
threefold. First, where they have themselves observed relevant facts
that evidence will be evidence of
fact and 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.
”
[43]
It is common cause that, pursuant to the
provisions of Section 11 of, that the defendant has a duty to provide
a co-ordinated and effective emergency medical service. When
looking into totality of the evidence presented before this
Court,
the plaintiff has succeeded to prove his case on balance of
probabilities. Maranatha Clinic staff could have foreseen the
possibility of causing harm to the plaintiff and her unborn child by
failing to call an ambulance for the plaintiff at the time
when Mr.
Marumo was at the clinic since the condition of the plaintiff is
classified as a priority 1.
CONCLUSION:
[44]
After considering the papers and hearing evidence on behalf of both
parties. Consequently, I find that the
plaintiff has proven, on
balance of probabilities:
[44.1] That the defendant
had a legal duty to assist Mr. Marumo with calling an ambulance at
the time when he was at Maranatha clinic.
[44.2] The employees of
the defendant were negligent in failing to assist Mr Marumo in
calling the ambulance as this conduct led
to the delay in assisting
the plaintiff.
[44.3] The
defendant is thus vicariously liable for the negligent acts of her
employees.
[44.4] That
paramedics failed to provide the plaintiff with basic life support
during transportation so as to ensure that
the baby was born alive
thereafter remained alive.
COSTS
[45]
It is trite that costs follow the action.
There is no reason to depart from the settled principle.
Consequently, the defendant is liable to pay costs of action and
qualifying fees of the plaintiff’s appointed expert, Dr
D C
Kemp.
ORDER.
[46]
In the circumstances, the following order is granted:
[46.1]
The defendant shall compensate the plaintiff for 100% of her
proven
or agreed damages.
[46.2]
The defendant to pay the costs.
LEKHOABA,
AJ
Appearances:
On
behalf of the Plaintiff:
Adv.
D. De. Kock
Instructed
by:
WEBBERS
Attorneys
Bloemfontein
On
behalf of the Defendant:
Adv.
K Nhlapo-Merabe
Instructed
by:
State
Attorney
Bloemfontein