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[2022] ZANCHC 70
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Kahla v MEC Health Northern Cape Province (2797/2016) [2022] ZANCHC 70 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno:
/ Case number
:
2797/2016
Datum
verhoor: / Date heard: 25 / 03 /2022
Datum
gelewer: / Date delivered: 4 /11 /2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Regional Magistrates: YES / NO
Circulate
to Magistrates: YES / NO
In
the matter between:
CLEMENTINE
OFENTSE KAHLA
PLAINTIFF
and
THE
MEC HEALTH: NORTHERN CAPE PROVINCE DEFENDANT
Coram:
Coetzee
AJ
JUDGMENT
COETZEE,
AJ
[1]
Plaintiff, a 39 year old married woman, claims damages from the MEC
for Health of
the Northern Cape Province.
[2]
Her claim is based on delict and in particular, what is commonly
known as medical
malpractice.
[3]
It is common cause between the parties that:
3.1
she was admitted to the Kimberley Provincial Hospital for an elective
caesarian section operation which was
performed by Dr Oosthuizen on
22 January 2004;
3.2
during the performance of the caesarian section operation Dr
Oosthuizen noted a bloodstained discoloring of
the urine in the urine
bag. In this regard Dr Oosthuizen testified as follows:
"So
as I have said after the
bladder
injury
I
did note there were some bloodstains in the urine and to be able to
make sure that it is not an ongoing thing, you change the
bag to get
a clear bag to see what the colour of the clean urine be."
(My
emphasis)
[4]
After the plaintiff's discharge from hospital she developed what has
been referred
to as complications which was attended to by Dr Von
Soest who performed a cystoscopy and a laparotomy and repaired a
"laceration"
of the bladder.
[5]
In a joint minute between Drs Archer and Cronje (defendant's experts)
and Dr Pienaar
(plaintiff's expert) the following relevant aspects
were not in dispute:
"
(2)
It was to be expected that there would be adhesions from the previous
caesarian section and that the surgery
might be more difficult due to
this as well as the weight of the plaintiff.
(3)
The surgery on the plaintiff thus had to be carried out with extra
care and diligence in identifying
structures with specific reference
to the bladder.
(4)
According to the operative record the baby was delivered 8 minutes
after starting the operation.
(6)
It seems that the injury to the bladder was considered due to
bloodstained urine.
(7)
The urine bag was changed.
(8)
Notwithstanding the finding in paragraph 6 above, no definitive
measure such as the installation of
fluid/dye into the bladder to
identify the area of leakage were applied.
(9)
The fact that bladder injury occurred was confirmed on a cystoscopy
and managed according to the standard
of care on 26 January 2014.
(10)
The injury could only have been sustained at the time of the
caesarian section."
[6]
Dr Cronje did not contribute to the joint minute, nor did he sign
same.
[7]
Dr Van Soest did not testify.
[8]
In view of the facts common cause as referred to above and in the
joint minute the
injury could only have been sustained during the
performance of the caesarian section.
[9]
It is expected that a surgeon performing the operation should and
would be able to
explain how the injury could or was inflicted. Dr
Oosthuizen did not do so. In this regard his proposition that
it was caused
by a retractor was contradicted by Dr Archer.
[10]
Furthermore, Dr Oosthuizen's proposition that it was a partial tear
that opened up after the
bladder filled cannot be found to be
plausible as:
10.1
it was not pleaded;
10.2
it was not put to Dr Pienaar;
10.3
it was not in Dr Archer's report;
10.4
it contradicts Dr Van Soest's finding of a laceration.
[11]
As regards the duty resting on the defendant the following has been
authoritatively stated:
"We
are here concerned with an unconscious patient who has suffered an
admitted injury. That being so, the spectre of
negligence on
the part of the attending surgeon loomed large. At the close of Mrs
Meyers' case before Revelas, J her evidence together
with that of Dr
Pienaar and the documentary exhibits, were sufficient as to place an
evidentiary burden upon Dr Vogel who shed
some light upon the
circumstances attending Mrs Meyers' injury. Failure to do so
meant that, on the evidence as it then stood
he ran the risk of a
finding of negligence against him for, where Mrs Meyers as the
plaintiff, bore the overall onus in the case,
Dr Vogel nonetheless
had the duty to adduce evidence to combat the prima facie case made
by Mrs Meyers. It remaining for
him to advance an explanatory
(though not necessary exculpatory) account that the injury must have
been due to some unpreventable
cause, even if the exact cause be
unknown."
See
in this regard:
MEYERS
vs MEC, DEPARTMENT OF HEALTH, EASTERN CAPE
[2020] 2 All SA 377
SCA
[12]
In my view Dr Oosthuizen did not attempt on plausible grounds to give
any explanation for the
injury sustained, save for the undisputed
evidence that the injury to the bladder must have occurred during the
operation.
[13]
If this is so, it would have been expected from Dr Oosthuizen to do
more than what he tells the
court he did in attempting to establish
what exactly caused the injury in view of the fact that he realised
the possibility of
an injury after having noticed the bloodstained
urine in the urine bag.
[14]
In this regard it is to be noted that the plaintiff's expert as well
as the defendant's expert
were
ad
idem
that
no definitive measures such as the installation of fluid/dye into the
bladder has been done in order to identify the area of
the leakage.
[15]
The only attemps made to establish whether there was an injury was to
change the urine bag and
to physically inspect the operating area.
This, in my view was not enough in view of the fact that other
difinitve measures, as
referred to above, were available as one would
expect a diligent surgeon would employ to ascertain whether there was
an injury
to the bladder.
[15]
In the above premises I am of the view that Dr Oosthuizen, in failing
to do more than what he
did, constitute negligent conduct on his part
and I therefore make the following order:
1.
Judgment is granted in favour of the plaintiff on the merits.
2.
The defendant is ordered to pay the plaintiff all damages that the
plaintiff will be able
to prove, alternatively, as agreed between the
parties that emanates from the injury to the bladder of the plaintiff
sustained
by her during the caesarian section done at the Kimberley
Hospital by Dr Oosthuizen on 22 January 2014 and the fact that the
presence
of the injury was not established during the caesarian
section.
3.
The defendant is ordered to pay the plaintiff's costs for proving her
case on the merits,
including the costs of all postponements and
interlocutory applications.
4.
The above costs to include:
4.1
the qualifying fees for Dr BH Pienaar;
4.2
the qualifying fees for Dr Pienaar for the preparation of reports,
attending consultations and attending the trial;
4.3
the reasonable travelling and accommodation fees of Dr Pienaar for
attending the trial;
4.4
it is declared that the witness of the plaintiff referred to in
paragraph 4.1 was a necessary expert witness;
4.5
the reasonable travelling and accommodation fees of plaintiff's legal
representatives to consult with Dr Pienaar in Pretoria
for purposes
of preparation of the expert summaries and the trial.
5.
The full cost of having the record of proceedings typed
.
COETZEE
WJ
ACTING
JUDGE
For
the Applicant: Adv.
Adv C Botha oio Elliot Marris & Hay
For
the Respondents:
Adv
L Mtukushe oio State Attorney, Kimberley.