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[2021] ZAGPJHC 700
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I O on behalf of N O v The Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government (35055/2016) [2021] ZAGPJHC 700 (16 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 35055/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
16
AUGUST 2021
In
the matter between:
I
O obo
N
O
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH AND
SOCIAL
DEVELOPMENT OF THE
GAUTENG
PROVINCIAL
GOVERNMENT
Defendant
(This
judgment is handed down electronically by circulation to the parties’
legal representatives by email and uploading it
to the electronic
file of this matter on CaseLines. The date for hand-down is deemed to
be 16 August 2021.)
JUDGMENT
MIA,
J
[1]
On 11 March 2014, the plaintiff’s wife was admitted to Chris
Hani Baragwanath
Hospital. The plaintiff wife was pregnant with her
fourth child. She was scheduled for an elective caesarean delivery as
well as
a tubal ligation. The baby was delivered by way of caesarean
section at 16h13 on 11 March 2014, and the tubal ligation was
performed
on the same date. The patient was taken to the recovery
ward, where she was observed and administered the prescribed ringers
lactate
solution during the evening. The following morning, she was
found unresponsive and declared dead. It was ultimately found that
she died as a result of a post-partum haemorrhage. The plaintiff Mr
IO, the father and guardian of the child, sued on behalf of
the minor
child delivered during the caesarean delivery and in his capacity. He
claimed the medical and/or nursing staff of the
Chris Hani
Baragwanath Hospital were negligent in the aftercare of his wife, and
their negligence resulted in the death of his
wife, the mother of the
minor child. Therefore, the plaintiff claims 100% (one hundred
percent) of his damages and in his representative
capacity for and on
behalf of the minor child, which damages flow from the death of his
wife and the mother of his child.
ADMISSIONS
[2]
At the commencement of the proceedings, the court was informed that
the parties agreed
that the operation had occurred on 11 March 2014.
Furthermore, it was agreed that the plaintiff’s wife died not
more than
twelve hours after the operation.
PLAINTIFF’S
EVIDENCE
[3]
Counsel for the plaintiff initially intended to call two witnesses,
namely the plaintiff
and Dr N. Sikakane. He later elected to lead the
evidence of the state pathologist, Dr L. Matanga. Both counsel agreed
that the
joint minutes of the clinical psychologists and the
industrial psychologists should be accepted as evidence. The first
witness,
the plaintiff, Mr I O, testified that he was married to his
wife for twenty-two years and had known her for thirty-four years.
They had conceived six children, but only three survived. The second,
third and fourth pregnancies resulted in miscarriages. The
plaintiff
testified that the surviving children were twenty-four, twenty-three,
and six years old, respectively.
[4]
The plaintiff testified that at 18h15, his wife was moved to the
recovery room, and
she was kept there for two hours. She was then
moved to ward sixty-five. She requested toiletries and liquid fruit.
In the ward,
her bed was two metres from the nurses' station. The
plaintiff informed his wife that he would go to work and return
early. She
informed him that she would only be kept for six hours and
then be discharged. He explained that the only risk explained to him
was that a caesarean section delivery was safer given his wife’s
advanced age. They had also decided on a tubal ligation
as they did
not want further pregnancies. He also testified that they were aware
that a blood transfusion might be required, but
his wife was a
Jehovah’s witness and refused a blood transfusion. The
plaintiff testified that his wife signed the agreements
as he could
not access the doctors after being admitted. He testified that it was
even impossible to talk to any doctors or get
anything to her to eat
or drink after she was admitted.
[5]
Dr Sikakane, the second witness called by the plaintiff, testified
that she qualified with
a Bachelor of Science degree from the
University of the Witwatersrand in 2001. She completed an Honours in
Microbiology in 2002.
She completed a Bachelor in Medicine and
Surgery (MBCHB) in 2007 from the University of Kwazulu Natal. She did
her internship at
Chris Hani Baragwanath Hospital from 2008 until
2009. Dr Sikakane served community service at Sebokeng Community
Hospital in 2010.
She was the Medical Registrar in Obstetrics and
Gynaecology for Charlotte Maxeke, Raheema Moosa and Chris Hani
Baragwanath Hospital
from 2011 to 2014. She worked as a consultant in
obstetrics and gynaecology, an area in which she specialised in 2014.
She obtained
a Diploma from the University of Kiel in 2014 in
laparoscopy. In 2015 she worked at Chris Hani as a medical
specialist, teaching
junior doctors and supervising registrars. She
supervised in the labour ward, in theatre during labour, she oversaw
the pregnancy
clinic and the antenatal and postnatal wards. In
2016-2017 she was appointed as head of obstetrics at Bertha Gxowa
Hospital in
Germiston. She studied part-time in 2017 at the
University of Cape Town. Since 2018 she has been in private practice
at Bedford
Gardens Hospital and Genesis Maternity Clinic.
[6]
Dr Sikakane’s evidence was that the plaintiff’s wife was
a high-risk patient.
She had a history of high blood pressure,
cardiac issues and a poor history of three miscarriages. In addition,
she had diabetes
and had been treated for tuberculosis and completed
six months of the treatment. Given her history, there was an
obligation to
inform her about the risks during her pregnancy. She
testified that patients such as the plaintiff’s wife were to be
informed
about their different conditions and referred to the
different clinics for supplementary supportive care. She testified
further
that the spouse of such patients would also be informed of
such conditions to enable them to support them.
[7]
Furthermore, she testified that upon reading the hospital record that
the plaintiff’s
wife ought to have been sent to the high-risk
ward post the surgery in view of the various high-risk factors,
namely:
·
she had more than four
pregnancies and was at an advanced maternal age categorised as
grand
multipara;
·
she had high blood
pressure;
·
she had diabetes;
·
she previously suffered
from tuberculosis and had a lobectomy of the left lung;
·
a caesarean section
delivery predisposed the plaintiff’s wife to post-partum
haemorrhage.
[8]
Dr Sikakane testified moreover that the hospital record indicated
that oxytocin and
ringers lactate were prescribed to be administered
to the plaintiff’s wife after the baby's delivery. The oxytocin
was to
be administered to assist with the contraction of the uterus.
The plaintiff’s wife was given ringers lactate solution as it
is replaced sodium potassium, and electrolytes. It also lowered blood
pressure as the plaintiff’s wife had a history of high
blood
pressure. The plaintiff’s wife being a Jehovah’s witness,
would not accept blood. Thus the ringers lactate solution
would have
assisted with low blood volume and was thus used to resuscitate her.
It was Dr Sikakane’ s view that if the oxytocin
had been
administered with the ringers lactate solution, the plaintiff’s
wife’s uterus would have contracted. Furthermore,
she noted
that the amount of urine was less than expected, suggesting the
plaintiff’s wife was in shock. In addition, she
was not
bleeding much, and the mucous was pink. In her view, Dr Sikakane
noted from the records that the nurses noted the urination
amounts,
it was low, and they did not call for a doctor, nor did they
administer the oxytocin.
[9]
Under cross-examination, counsel for the defendant put to Dr Sikakane
that the comments
about the plaintiff’s wife’s lung and
heart condition leading to her death could only be determined by a
pulmonologist
and cardiologist. Dr Sikakane agreed and admitted that
those were not her areas of specialisation. She also agreed that the
caesarean
section operation was uneventful. There was no evidence to
suggest that blood vessels were interfered with or left open. She
testified
that the failure to administer oxytocin was the only step
in her view not taken to prevent haemorrhaging in the plaintiff’s
wife as deduced from the records. The pathologists report, and
evidence was not tendered as evidence yet, and she could not comment
on the causal link between the haemorrhaging being the cause of death
in the patient. She could not comment on the tubal ligation
as only
the surgeon could give an opinion on this aspect.
[10]
She qualified her view that the patient be admitted to the high care
ward by her evidence that
the high care ward was always full in her
experience at Chris Hani Baragwanath Hospital. She was not aware of
what the position
was when the patient was operated upon. If the high
care ward was full, she testified that it would have been appropriate
to take
her to the labour ward.
[11]
The third witness for the plaintiff, Dr Luyolo Leonardo Matanga,
testified that he has an MBCHB
from the University of Natal and has
been a medical practitioner for fifteen years. He has a Diploma in
Forensic Pathology and
has dedicated ten of the fifteen years to the
practice of pathology. He is employed as a state pathologist at the
Medico-Legal
Laboratory, Diepkloof. He testified furthermore that he
conducted the autopsy on the plaintiff’s wife to ascertain the
cause
of death whilst she was in the hospital and filed a post mortem
report marked as exhibit “A”. He read part of the report
into the record as follows:
“
I, Dr Luyolo
Leonard Matanga, hereby certify that:
(i)
That I examined the body
of an adult coloured female on 18 March 2014, at the MEDICO LEGAL
LABORATORY, DIEPKLOOF, beginning at 8h30,
(ii)
that the body was
identified to me,
a.
by the Forensic Officer MP
Langa as that of DK No. 335/2014
b.
with a stated age of 42
years
(iii)
that the death occurred as
informed on
5 January
2014 at 1h48
.”(my
emphasis)
[12]
He testified furthermore that the information provided to him was
that she died within twenty-four
hours of having undergone a
caesarean section operation. She was found in the ward, and it was
suspected that she died from a pulmonary
embolism, a blood clot in
the lungs. However, after conducting the autopsy, he found the
following:
·
Evidence of a recent
caesarean section and tubal ligation was confirmed (sterilisation
procedure);
·
The uterine and abdominal
surgical sutures were intact, and there was no evidence of intra-
peritoneal haemorrhage (the surgery
was conducted well, all sutures
were intact, and there was no internal bleeding because of the
sutures);
·
Atonic uterus containing a
large amount of blood (after childbirth, the uterus is meant to
contract and expel all the contents such
as the afterbirth and any
blood that remains. In this instance, the uterus had failed to
contract and was thus atonic;
·
Mucous membranes and
internal organs were pale, indicating significant blood loss.
[13]
Given the above findings, he concluded that the cause of death was
post-partum haemorrhage in
a person who recently underwent a
caesarean section. He explained moreover that the incision was made
during the caesarean section
operation, which was successful in the
present instance. The uterus was sutured and was supposed to contract
due to the hormone
oxytocin, released naturally by the body. In this
instance, the uterus did not contract normally. The body released a
hormone called
oxytocin, and the suckling of the baby further
facilitated this. He explained that routinely oxytocin was also
administered intravenously
through a vein to assist with the
contractions. This would assist the uterus to contract. The nurses
would thereafter check if
the placenta is whole and delivered. The
remnants of the amniotic sac would be wiped with a swab. The wound
would then be sutured.
He testified further that the womb still
needed to contract even after it was cleaned and sutured as it was
filled with arteries
and veins, which can continue to bleed slowly
and fill the area.
[14]
Dr Matanga explained that oxytocin is produced by the body naturally,
but it is manufactured
to administer to assist the body. The body can
still fail to contract, leading to disastrous consequences, and in
that instance,
a specialist obstetrician would intervene and deal
with the issue. He also explained that oxytocin was used in standard
delivery
to assist and expedite delivery and during a caesarean
section after delivery to assist with contraction of the womb. The
doctor
customarily prescribed the amount, and the nurses administered
the oxytocin. He explained that he observed a subendocardial
haemorrhage
in the left ventricular outlet. This, he explained, was
not well understood but had high associations with hypovolemic shock.
Hypovolemic
shock is a condition when the patient bleeds out. The
plaintiff’s wife also only had one lung, and the oxygenation of
the
lung would also have contributed to the inadequate oxygenation of
the blood.
[15]
Dr Matanga explained that there was a range of complications that
occurred, which he explained.
The plaintiff’s wife was bleeding
from the intravascular system in the uterus and bleeding into the
womb. There was low oxygen
because the deceased had only one lung.
The heart tried to compensate by beating faster and, as a result,
went into shock. He explained
that the tubal ligation procedure was
successful, and the fallopian tubes were incised and ligated. The
deceased was bleeding within
the womb, so there would not have been
much bleeding through the vaginal passage onto sanitary pads. He
noted on sectioning the
endometrial cavity that a blood clot
distended it. The bleeding was from the myometrium. This was due to
the failure of the womb
to contract.
[16]
During cross-examination, counsel for the defendant referred Dr
Matanga to paragraph 11 of the particulars
of claim where the
plaintiff averred that defendant:
“
11.1 performed
the bilateral tubal ligation in a manner which fell short of the
professional skill reasonably required of a hospital,
its staff and a
specialist gynaecologist;
11.2…
11.3 failed to
ensure that all the blood vessels of the deceased which were
interfered with during the bilateral tubal ligation
were adequately
and properly closed off to prevent the deceased from haemorrhage;
11.4 failed to
take reasonable steps in the circumstances to prevent the deceased
from haemorrhaging;
11.5 failed to
ensure that such aftercare procedures as were required in the
circumstances were executed;
11.6 failed to
take such steps as were reasonable in the circumstances to ensure
that the deceased did not experience haemorrhage
to such an extent as
would endanger her life;
11.7 failed to
take such steps as were reasonably necessary in the circumstances as
were necessary to prevent the deceased
from suffering fatal sequelae.
12.
As the results of the defendant’s negligence aforesaid, the
deceased experienced fatal haemorrhaging
in and subsequent to the
performance by the employees of the defendant for the bilateral tubal
ligation and passed away on the
11 March 2014.”
[17]
Dr Matanga commented that the sutures relating to the tubal ligation
were intact, and there was
no bleeding which the plaintiff’s
wife suffered due to the tubal ligation procedure. The bleeding was
inside the uterus and
unrelated to the tubal ligation procedure at
all. He explained that during the autopsy, he looked at whether there
was an omission
or a commission. During his examination, he found the
tubal ligation was performed correctly, as was the caesarean section.
There
was no bleeding into the abdominal cavity due to either the
tubal ligation procedure or the caesarean section operation. He also
expressed the view that the two-centimetre increase in the
ventricular heart did not play a role in the death either.
[18]
The plaintiff closed its case after leading the evidence of the above
three witnesses. The defendant
applied for absolution from the
instance.
[19]
The issues for determination for this court were as follows:
19.1 Whether the
medical and nursing staff were the cause of death of the plaintiff’s
wife as a result of negligence.
In other words, whether the act or
omission of the defendant, namely, the defendant, including its
medical practitioners and staff’s
negligence amounted to
substandard care caused or materially contributed to the harm
suffered by the plaintiff as set out in the
particulars of claim in
paragraph 11, in the circumstances where the plaintiff suffered
post-partum haemorrhage causing her death?
19.2 The quantum of
the damages arising from the plaintiff’s claim if the plaintiff
proves negligence.
19.3 Whether
absolution from the instance should be granted?
[20]
In
Gordon Lloyd Page and Associates v Rivera and another
[2000] 4 SA 241
A at paragraph [2] the Court referred to the test for
absolution from the instance as follows:
“
[2
]
The test for absolution to
be applied by a trial court at the end of a plaintiff's case was
formulated in
Claude
Neon
Lights
(SA)
Ltd
v
Daniel
1976 (4) SA 403
(A) at 409G-H in these terms:
"..
.
whe
n
absolutio
n
fro
m
th
e
instanc
e
i
s
sough
t
a
t
th
e
clos
e
o
f
plaintiff'
s
case
,
th
e
tes
t
t
o
b
e
applie
d
i
s
no
t
whethe
r the evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon
which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
(
Gascoyne
v
Paul
and
Hunter
1917 TPD 170
at p. 173;
Ruto
Flour
Mills
(Pty)
Ltd
v
Adelson
(2)
1958 (4) SA 307
(T))."
Thi
s
implies that a plaintiff has to make out a
prima
facie
case - in the sense that there is evidence relating to all the
elements of the claim - to survive absolution because without such
evidence no court could find for the plaintiff (
Marine
&
Trade
Insurance
Co
Ltd
v
Van
der
Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt
Bewysreg
4 ed 91-92). As far as inferences from the evidence are concerned,
the inference relied upon by the plaintiff must be a reasonable
one,
not the only reasonable one (Schmidt 93). The test has from time to
time been formulated in different terms, especially it
has been said
that the court must consider whether there is "evidence upon
which a reasonable man might find for the plaintiff"
(
Gascoyne
loc
cit
)
- a test which had its origin in jury trials when the "reasonable
man" was a reasonable member of the jury (
Ruto
Flour
Mills
).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it
should
rather be concerned with its own judgment and not that of another
"reasonable" person or court. Having said this,
absolution
at the end of a plaintiff's case, in the ordinary course of events,
will nevertheless be granted sparingly but when
the occasion arises a
court should order it in the interests of justice. Although Wunsh J
was conscious of the correct test, I
am not convinced that he always
applied it correctly although, as will appear, his final conclusion
was correct.”
[21]
Counsel for the defendant submitted that on 10 November 2020, the
trial commenced and that despite
the evidence led by counsel for the
plaintiff, the gynaecologist and the pathologist’s evidence did
not meet the onus required
by the plaintiff. He referred to the
plaintiff’s amended particulars of claim referring to the
allegations of negligence
and submitted that the plaintiff failed to
demonstrate any form of negligence on the part of the defendant.
Moreover, counsel for
the defendant referred to
Molele v Van
Heerden
(60192/2015) [2018] ZAGPPHC 609 (28 March 2018)
(unreported) at paragraph [31] and referred to rule 39. He also
referred to the
absolution test from the instance Gordon Lloyd Page
and Associates above referred to. He argued that the plaintiff had to
make
out a case relating to all aspects of the case and be
reasonable.
[22]
He submitted furthermore that the plaintiff’s pleadings did not
accord with the evidence
led. In clarifying, he argued that there
were glaring inconsistencies and the plaintiff’s pleadings were
at variance with
the evidence, resulting in the plaintiff falling
short of establishing its case on its face. He relied on the four
essentials formulations
and submitted that the plaintiff’s
pleadings did not accord with the evidence led. Referring to the
above cases, he submitted
that the plaintiff should have submitted
evidence relating to all aspects of the claim. The evidence must
cover all aspects of
the claim; the evidence should not be
inconsistent with the pleadings. In amplifying his submissions, he
submitted that Dr Sikakane
did not give any evidence of the
defendant's negligence about the tubal ligation. She did not agree
with the plaintiff’s
averments, and neither did the
pathologist. He continued and argued that the plaintiff did not lead
any evidence in respect of
paragraph 11 to prove the defendant's
negligence or that of its doctors or nurses concerning the tubal
ligation, which is the case
which the plaintiff pleaded.
[23]
Counsel for the plaintiff relied on several similar authorities to
that of the defendant, namely
Hurtwitz
v Neofytou
(23542/2015)
[2017] ZAGPJHC 137 (2 June 2017)
(unreported),
where the court referred to the case of
Gordon
Lloyd Page and Associates
above
and applied the test there as set out in
Claud
e
Neon
Lights
(SA)
Ltd
v
Daniel
1976 (4) SA 403
(A) at 409G-H. He also referred to the case of
Liberty
Group Limited t/a Liberty Life v K and D Telemarketing and others
[2020] JOL 47303
(SCA) at paragraph [14] where the Court held:
“
[14] The dictum
from Steytler cited above makes it clear that it is established
practise that a decision of absolution from the
instance in a trial
has the effect of a definitive sentence. Simply put, a decision on
the sufficiency of evidence led in that
suit, by way of an order of
absolution from the instance, has a definitive effect and is
susceptible to appeal. The court is
functus officio
and has no
power or jurisdiction to hear any further evidence in relation
thereto”
[24]
The reference to the
Molele
case above echoes the requirement
that the evidence led must establish a prima facie case relating to
all of the elements relating
to the claim at the end of the
plaintiff's case. In the present matter, the plaintiff alleged that
the defendant was negligent
concerning the performance of the tubal
ligation and did not take the necessary care. Neither the evidence of
Dr Sikakane nor Dr
Matanga confirmed that the procedure relating to
the tubal ligation was problematic. There were no omissions in the
sense that
there was a failure to perform any procedure or
commissions in the sense that the procedure performed was done
incorrectly, according
to Dr Matanga. Dr Sikakane was unable to point
out the negligence concerning the plaintiff’s pleaded case
either. Whilst
she alluded to substandard services, such as referring
the patient to a high care ward, she acknowledged that such a ward
was always
fully occupied requiring placement in another ward. She
could not explain how the defendant was negligent as averred in the
pleadings,
namely in relation to the tubal ligation.
[25]
When considering the principles and tests applicable to absolution
from the instance, it is apparent
that the plaintiff did not prove
its case as pleaded in the particulars of the claim. The evidence and
particulars of the claim
were at variance with each other in that the
particulars of the claim referred to negligence concerning the tubal
ligation, and
the evidence did not support this. Furthermore, the
pathologist’s report indicated the date of demise as 5 January
2014,
whilst the pleadings indicate the deceased died on 11 March
2014, and the hospital record reflects that the deceased was checked
in the ward and given medication on the morning of the 12 March 2014,
she nursed the baby in the ward as well. She was only discovered
to
be non-responsive and declared dead later that morning on 12 March
2014. In considering the above, I conclude that the plaintiff
failed
to provide sufficient evidence to establish a
prima facie
case
of negligence as pleaded in paragraph 11 of the particulars of the
claim. In applying its mind reasonably, this court is unable
to find
that the plaintiff proved its case or find in its favour.
Consequently, the application for absolution from the instance
must
succeed.
ORDER
[26]
For the above reasons, it is thus ordered that:
1.
The application for absolution from the instance is granted.
2.
The applicant shall bear the costs on a party and party scale.
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant
:
Adv K.K Maputla
Instructed
by
:
Molema Attorneys
Masilomolema@yahoo.co.za
On
behalf of the respondents :
Adv J. Magodi
Instructed
by
:
Office of the State Attorney
Kmaile@Justice.gov.za
Date of
hearing
:
11,12,13 and 16 November
2020, 04 December 2020, 29 March 2021
Date
of judgment
:
16 August 2021