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2023
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[2023] ZAECBHC 11
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Gazi v Member of the Executive Council for the Department of Health Eastern Cape (413/2021) [2023] ZAECBHC 11 (13 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – BHISHO)
CASE
NO.: 413/2021
Matter
heard on: 5 June 2023
Judgment
delivered on: 13 June 2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between: -
SICELO
ISAAC GAZI
Plaintiff
And
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF HEALTH,
EASTERN
CAPE PROVINCE
Defendant
JUDGMENT
SMITH J:
[1]
The plaintiff, a 53-year-old adult male, instituted civil action
against the Member of the Executive
Council for Health, Eastern Cape
(the first defendant), and the Superintendent General of the
Department of Health, Eastern Cape
(the second defendant), for
damages arising from the negligence of the defendants’
employees.
[2]
The plaintiff alleged that during October and November 2019, he was
admitted to the Elliot Hospital
and treated for a gunshot wound to
his right leg. He averred that the medical staff of that hospital,
acting in the course and
scope of their employment, were negligent in
that they,
inter alia
, failed to: examine the plaintiff’s
wound properly; diagnose the plaintiff’s injury as an
orthopaedic emergency; refer
him to another institution for an
angiogram and x-ray examination; and enlist the services of a
specialist orthopaedic surgeon
who would have been able to interpret
the x-ray plates properly and refer him for possible repair of the
vascular injury.
[3]
The issues of liability and quantum of damages were separated, and
the matter proceeded in respect
of liability only, with the issue of
quantum postponed for later determination.
[4]
At the hearing of the matter the parties agreed to admit the written
opinions of the following
experts: Dr Osman (orthopaedic surgeon); Dr
Mazwi (Neurosurgeon); Dr Hardy (Clinical Psychologist); Dr Mzayiya
(orthopaedic surgeon);
and the joint minute prepared by Drs Osman and
Mzayiya.
[5]
The defendants did not dispute any of the findings and conclusions of
the abovementioned experts.
Mr Sambudla, who together with Ms Nqabeni
appeared for the plaintiff, therefore only adduced the evidence of
the latter.
[6]
The plaintiff’s undisputed testimony was as follows. On 29
October 2019, after he was shot
by an unknown assailant at Ngcobo, he
was taken the Elliot Hospital for treatment. He arrived at the
hospital at about 8 am and
was immediately taken to the outpatients’
department (the OPD) from where he was sent for x-rays. He thereafter
again returned
to the OPD where he was examined by Dr Nkontobe. The
latter cleaned the wound - at some point inserting his finger into
the wound
- and studied the x-ray plates. He then told the plaintiff
that he not could detect any fractures, sutured the wound, put him on
a drip and then discharged him. At home he noticed that the wound had
become swollen and was still bleeding. He returned to the
hospital
after a few days and was again referred to the OPD. There he was seen
by another doctor, namely Dr Onyiwa, who after studying
the x-rays,
told him that he detected a fracture of the tibula. Dr Onyiwa then
told Dr Nkontobe that he had missed the fracture.
The former then
dressed his leg in plaster of Paris and discharged him with the
instruction to keep his leg elevated while lying
down.
[7]
The wound did, however, not improve but continued to swell and bleed.
It had also become putrid
and discoloured and exuded a foul smell. He
thus returned to the Elliot hospital where he was admitted, and the
plaster of Paris
removed. On 27 November 2023, he was taken to the
Frere Hospital, East London, after fainting in the toilet. On 29
November 219,
his leg was amputated, initially below the knee and
when it was established that the infection had spread further, a
second amputation
was performed above the knee.
[8]
The plaintiff was not cross-examined and Mr Dukada, who appeared for
the defendants, confirmed
that they did not dispute any aspects of
his testimony.
[9]
In their joint minute, Drs Osman and Mzayiya, agreed that ‘the
poor decision taken at the
initial presentation, i.e., the site of
the injury, fracture of the fibula, active bleeding and there not
being any records of
the pulses in the foot is the basis for the
negligence’ and that ‘reasonable care’ required
that the plaintiff
should have been referred for an angiogram.
[10]
The negligence of the defendants’ medical staff in treating the
plaintiff at the Elliot Hospital, is
thus manifest. Mr Dukada was
unable to challenge the ineluctable inferences that: the plaintiff
has established on balance of probabilities
that the negligent
conduct of the defendants’ employees was the direct and
proximate cause of the amputation of the plaintiff’s
limb; that
they were acting within the course and scope of their employment at
all material times; and that the defendants are
consequently liable
for whatever damages the plaintiff will be able to prove in due
course.
[11]
In the result the following order issues:
11.1. The
issue of liability is hereby separated from the issue of quantum; the
matter shall proceed on the issue of
liability with the issue of
quantum postponed sine die for later determination.
11.2. The
defendant is held liable for all damages that the plaintiff may prove
in respect of the negligent treatment
administered during his
admission at Elliot Hospital on the 29
th
October 2019.
11.3. The
defendant is liable for the costs of trial on the issue of liability,
including all reserved costs, if any,
together with interest thereon
at the prevailing legal rate from 14 days after date of taxation or
agreement to date of final payment
thereof, which costs shall
include:
11.3.1.
the costs of two
counsel, where utilized.
11.3.2.
the costs of preparing
for consultations and trial including the costs of consultations with
the various expert witnesses and the
plaintiff;
11.3.3.
the travelling and
accommodation costs of plaintiff’s legal representatives
attending consultations and court;
11.3.4.
the reservation and
appearance fees, if any, together with the qualifying fees, if any,
of plaintiff’s expert witnesses whose
reports were filed in
terms of Rule 36 (9) (a) and (b); the costs of preparing their
reports and supplementary reports, if any;
and the costs of preparing
their joint minutes, including attending consultations and trial.
JE SMITH
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the Plaintiff:
Adv.
Sambudla
Adv.
Nqabeni
Mjulelwa
Inc Attorneys
No.
1 Alfred Road
Devereux
Avenue
Vincent
EAST
LONDON
(Ref.:
MJULELWA/cm)
Counsel
for the Defendant:
Adv.
Dukada
The
State Attorney
c/o
Shared Legal Services
32
Alexandra Road
KING
WILLIAM’S TOWN
(Ref.:
571/21-P2 (Mr Maqambayi)