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[2021] ZAGPPHC 484
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P.N obo S.G.K and Another v W.N and Another (6537/2021) [2021] ZAGPPHC 484 (23 July 2021)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 6537/2021
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
DATE: 23/7/21
In the matter between:
N[....],
P on
behalf of G[….] S[….]
K[....]
FIRST PLAINTIFF
K[....],
K
SECOND PLAINTIFF
And
W[....],
N[....]
FIRST DEFENDANT
B[....],
K[....]1
P[....] M[....]
SECOND DEFENDANT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The first and second respondents (the plaintiffs) issued summons
against one Dr Shaik,
an obstetrician and gynecologist, under case
number [....], for damages which the plaintiffs allege arose from the
negligence of
Dr Shaik in his treatment of Ms T[....] F[....] K[....]
(the deceased). She gave birth to S[....] G[....] K[....] (G[....])
on
8 September 2015 and died a week later on 15 September 2015.
[2]
Dr Shaik filed a plea on 23 March 2018, wherein he averred that he
had executed his
duty of care towards the deceased in conjunction
with the first defendant, Dr W[....] (the excipient) and the second
defendant,
Dr B[....]. Dr B[....] did not file an exception. The
excipient is a surgeon with a sub-specialty in critical care. Dr
B[....]
is a specialist anesthesiologist.
[3]
Due to the fact that the hospital and clinical records did not record
the excipient
and Dr B[....]’s involvement, a request for
further particulars was served on Dr Shaik’s attorneys in order
to obtain
particulars with regard to their involvement. Only limited
particulars were supplied and certain requests for further
particulars
were denied. This left the plaintiff with limited
information regarding the excipient’s involvement relating to
the medical
care of the deceased.
[4]
On 9 February 2021 a summons was issued against the excipient and Dr
B[....]. After
entering an appearance to defend, the excipient filed
a notice to remove the cause of complaint on 25 February 2021.
[5]
On 15 March 2021 the plaintiff filed a notice of intention to amend.
The second defendant
accepted the amended pages on 7 April 2021.
Despite the amendment the excipient on 23 March 2021 confirmed that
the excipient wanted
to pursue the exception.
[6]
The issues to be determined are, whether the plaintiffs pleaded the
required
facta probanda
in
respect of the excipient’s legal duty, whether the excipient’s
provision of professional services relied upon was
clearly identified
as a material term of the alleged doctor/patient relationship and
whether the excipient’s alleged legal
obligations towards the
deceased was expressly pleaded in the particulars of claim as
amended, in order to establish whether there
was a breach thereof.
THE PLEADINGS
[7]
The exception is based om the allegation that the particulars of
claim is vague and embarrassing, alternatively lacks the necessary
averments to sustain a cause of action further alternatively fails to
disclose a cause of action.
[8]
The amended particulars of claim par 4 in relevant part reads as
follows:
“
4.1
A summons with particulars of claim (hereinafter “the Shaik
action”) was issued on
17 November 2017, and served on 5
December 2017, by the plaintiffs herein, against Dr Mohamed Zaheer
Shaik (hereinafter “Dr
Shaik”), a specialist obstetrician
and gynecologist, who had attended to the deceased’s pregnancy
and labour during
2015.
4.2
In the Shaik action, the plaintiff pleaded, in respect of Shaik’s
legal duty of care
that
4.2.1
During 2015 and at the consultation rooms of Dr Shaik, the deceased,
acting personally, and Dr Shaik, also
represented personally,
concluded a verbal agreement in terms whereof Dr Shaik would examine,
assess, advise and manage the deceased’s
pregnancy, labour and
parturition, and would provide medical and surgical services to her
in respect whereof, with such skill,
care and diligence as could
reasonably be expected of a specialist obstetrician and gynecologist
rendering such agreed services.
4.2.2
As a consequence of the aforesaid agreement a doctor/patient
relationship arose and continued to exist between
the deceased and Dr
Shaik until the deceased’s transfer from Dr Shaik’s care
on 10 September 2015.
4.2.3
By reason of the existence of the aforesaid doctor/patient
relationship, a legal duty of care arose and
rested on Dr Shaik in
respect of the treatment and care of the deceased and the rendering
and provision of advice, and medical
and surgical services with such
skill, care and diligence as could reasonably be expected of a
specialist obstetrician and gynecologist
in similar circumstances.
4.3
In a plea dated 20 February 2018, served on the plaintiffs on 23
March 2018, Dr Shaik admitted
his legal duty of care toward the
deceased and averred that this legal duty was executed in conjunction
with the first and second
defendants herein.
4.4
During September 2015 and at the Netcare Femina Hospital, Dr Shaik,
who was treating the
deceased, and acting on behalf of the deceased,
involved the first and second defendants herein in the treatment of
the deceased.
4.5
In a request for further particulars to Dr Shaik, served on Dr
Shaik’s attorneys of
record on or about 16 April 2018, Dr Shaik
was requested to provide the following particulars in relation to the
first defendant
herein including
4.5.1
the full names of the first defendant;
4.5.2
the address from whence the first defendant practices;
4.5.3
qualification or specialty in medicine, of the first defendant, as
applicable on 10 September 2015.
4.6
In so far as Dr Shaik avers that he executed his legal duty in
conjunction with the first
defendant herein, Dr Shaik was requested
4.6.1
to state at whose request the first defendant became involved in the
execution of the duty of care of the
deceased;
4.6.2
to provide the reason for the involvement of the first defendant in
the care and/or treatment of the deceased;
4.6.3
to state the time on 10 September 2015 when the first defendant
become involved in the execution of the
duty of care toward the
deceased;
4.6.4
to inform the plaintiffs what treatment and/or investigation and/or
advice was rendered by the first defendant
herein in relation to the
deceased;
4.6.5
to advise on what basis Dr Shaik avers that the first defendant also
owed the deceased a duty of care.
4.7
………
4.8
…………
4.9
In a reply to the aforesaid request for further particulars, Dr Shaik
responded on 26 July
2018, as follows:
4.9.1
The first defendant herein
4.9.1.1 is a specialist
surgeon with a registered sub-specialty in critical care;
4.9.1.2 practices at
suite 30, 3
rd
Floor, L[....] M[….]2 Park, 2[…]
C[….] Lane, L[….]2 Manor, C[….]2;
4.9.1.3 rendered
professional services to the deceased pursuant to the deceased’s
referral to the first defendant
(a)
by Dr Shaik;
(b)
on 9 September 2015.
4.9.1.4
Dr Shaik further responded that the remaining particularity sought in
relation to the first defendant “constitutes
matters for
evidence to which the plaintiffs are not currently entitled
alternatively constitute interrogatories to which the defendant
is
not obliged to, and does not, submit.”
[9]
The plaintiffs continued to plead, in relevant part, as follows:
“
4.10
As a consequence of the aforementioned involvement in the treatment
of the deceased, and the first and second defendant’s
acceptance of the deceased as a patient, a doctor/patient
relationship arose and continued to exist between the deceased, on
the
one hand, and the first and second defendants, on the other,
until the deceased’s transfer on 10 September 2015.
4.11
By reason of the existence of the aforesaid doctor/patient
relationship, a legal duty of care arose
and rested on the first and
second defendants in respect of the treatment and care of the
deceased and the rendering and provision
of advice, and medical and
surgical services which were reasonably required by the deceased with
such skill, care and diligence
as could reasonably be expected of a
specialist surgeon in critical care and anesthesiologist,
respectively, in similar circumstances.”
[10]
In par 5.1 to 5.19 of the particulars of claim the facts pertaining
to Dr Shaik’s treatment
of the deceased is set out in great
detail. Then in par 5.20 the involvement of the excipient and the
second defendant is set out
as follows:
“
5.20
On or about 9 and/or 10 September 2015, at an unknown time, the first
and second defendants became involved in the care of
the deceased.
5.20.1 The first
defendant herein rendered critical care treatment to the deceased as
averred by Dr Shaik and as set out in paragraph
4.9.1 above;
5.20.2
The second defendant herein performed an anesthetic on the deceased
and provided further critical care to the deceased, as
set out in
paragraph 4.9.2 above.
5.21
On 10 September 2015 the deceased was transferred to the S[….]
B[….] A[….] Hospital (hereinafter
the “SBAH”).
The reason for the transfer was recorded on transfer documents as
being for “financial reasons”.”
[11]
Regarding the breach of the alleged legal duty owed by the excipient
the pleading reads as follows:
“
6.
In wrongful breach of the legal duty owed by the defendant to the
deceased, the first
and/or second defendants, was/were negligent in
one or more of the following ways in that: he/they
6.1
failed to note that the deceased was probably suffering an internal
bleed, alternatively
failed to act, timeously or at all, in
appreciation of an awareness of an internal bleed on 8 September 2015
to 05h00 on 9 September
2015; and/or
6.2
failed to note, alternatively to act in appreciation of the fact that
the deceased’s
hemoglobin was critically low and on 9 and 10
September 2015 despite the blood transfusion and to arrange to
re-admit the deceased
to theatre for a second re-look laparotomy
and/or sub-total hysterectomy; and, or
6.3
failed to arrange a computerized tomography scan (“CT scan”)
of the deceased’s
abdomen to assess whether there was evidence
of a continued internal bleed on either 9 or 10 September 2015.
6.4
allowed the deceased’s condition to deteriorate for unduly long
periods with the result
that she developed a disseminated
intravascular coagulopathy and severe liver damage, when such damage
could and should have been
avoided by the timeous re-admission to
theatre to control the abdominal bleeding; and/or
6.5
failed to intervene surgically, or to procure the assistance of a
general or vascular surgeon
timeously or at all; and/or
6.6
arranged and/or allowed the transfer of the deceased to another
hospital in circumstances
where the deceased’s condition was
unstable and require further surgery, when he/they ought to have
first performed, or arranged
for a second re-look laparotomy and
sub-total hysterectomy, and stabilization of the deceased, prior to
transfer to another facility;
and/or
6.7
failed to prevent the deceased from developing complications as a
consequence of the abdominal
bleeding in circumstances where he/they
could and should have done so by timeous re-admission to theatre
and/or referral to a general
vascular surgeon for assistance and/or
failed to treat the deceased with due professional skill, diligence
and care as can reasonably
be expected of a specialist surgeon in
critical care and anesthesiologist, respectively, resulting in the
death of the deceased.
[12]
The first complaint was that the plaintiff placed reliance on the
claim against the excipients
on the admission of a legal duty of care
by Dr Shaik, which legal duty of care Dr Shaik claims to have
executed in conjunction
with the excipient. The excipient alleged
that the plaintiffs failed to specify the basis upon which Dr Shaik’s
legal duty
of care arose, what legal duty of care was admitted by Dr
Shaik which he avers to have executed in conjunction with the
excipient,
alternatively the plaintiffs failed to attach the summons
against Dr Shaik and his plea thereto.
[13]
The second complaint was that in par 4.3 of the particulars of claim,
it was pleaded that during
September 2015 and at the Netcare Femina
Hospital, Dr Shaik who was treating the deceased involved the
excipient and second defendant
in the treatment. In par 4.4 the
plaintiffs plead that as a consequence of the involvement in the
treatment of the deceased a doctor/patient
relationship arose between
the excipient and the deceased until the deceased’s transfer to
another hospital on 10 September
2015. However, it is alleged that
the plaintiffs failed to set out the facts, or sufficient facts on
which they rely for the existence
of the legal duty. It is alleged
that it is not clear from the particulars of claim how Dr Shaik
involved the excipient and what
precisely the excipient’s
involvement entailed, to give rise to the doctor/patient
relationship.
[14]
The third complaint was that in par 4.5 of particulars of claim it
was alleged that by reason
of the existence of the doctor/patient
relationship, a legal duty of care arose and rested on the excipient
in respect of the treatment
of the deceased and the rendering and
provision of advice and medical and surgical care and diligence, as
could reasonably be expected
of a specialist surgeon in critical
care. However, it was alleged that the plaintiffs failed to set out
the facts on which they
rely for the existence of a doctor/patient
relationship.
[15]
The fourth complaint was that in par 5.20 the plaintiffs plead that
at an unknown time and date
the excipient became involved in the care
of the deceased. In par 6 the plaintiffs set out what they allege the
content of the
legal duty of care is which they allege the excipient
is alleged to have breached. However, it is alleged that the
plaintiffs have
failed to set out the facts on which the allegations
of the excipient’s breach of a legal duty of care are based. It
is alleged
that it is not sufficient to make the mere allegation
without pleading the relevant facts on which the excipient’s
involvement
is based.
THE APPLICABLE LEGAL
PRINCIPLES APPLIED TO THE COMPLAINTS
[16]
It is trite that the excipient has the duty to persuade the court
that the pleading is excipiable
on every interpretation that can
reasonably be attached to it.
[1]
It
follows that the pleadings must be looked at as a whole, if
uncertainty arises regarding a pleader’s intention the
excipient
must show that upon any construction of the pleadings, the
claim is expiable, a “ charitable test “ is used and the
pleader is entitled to a benevolent interpretation.
[2]
[17]
An exception that a pleading is vague and embarrassing will only be
allowed if the excipient
would be seriously prejudiced if the
offending allegations are not expunged.
[3]
The
correct test to apply, when considering an exception is to accept, at
this stage, that the allegations contained in the particulars
of
claim are true and then determine whether it discloses a cause of
action.
[4]
It
is also trite that the defect must appear
ex
facie
the pleadings and no extraneous facts may be used to show that the
pleading is excipiable, apart from instances where an inconsistency
exist
[5]
[18]
The provisions of Rule 18(4) states that “
every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, with
sufficient
particularity to enable the opposite party to reply thereto”.
Uniform Rule 22(2) states that the
defendant shall in his plea either admit or deny, or confess and
avoid all the material facts
alleged in the combined summons or
declaration, or state which of the facts are not admitted and to what
extent, and shall clearly
and concisely state all material facts upon
which he/she relies. Uniform Rule 18(4) read with 22(2)
requires of a pleading
to state the concise material facts, plead the
legal conclusion flowing forth from the material facts, and that the
material facts
and legal conclusion drawn there from must
substantiate the relief sought by the plaintiff in its prayers.
[19]
The excipient contended that the plaintiffs claim should be founded
in contract and relied on
Lillicrap,
Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd,
[6]
for
this proposition, the reliance on the aforesaid authority was
misplaced. In medical negligence cases the duty of care owed to
the
patients can be either contractual or delictual.
[7]
Whether
the claim is contractual or delictual will depend on the facts. A
duty of care arises from the agreement between the parties
and
physician which involves the physician who undertakes to execute the
patient’s instruction with reasonable care and skill.
[8]
Whether
it did indeed arise in this instance is not for this court to decide,
nor whether in this situation a duty of care was imposed
on the
medical practitioner. The question at this stage is merely whether a
proper case is made out on the pleadings.
[20]
A formal doctor/patient relationship (based on the agreement) is not
a necessity. The mere fact that a medical practitioner
becomes
involved in the treatment of a patient places him in a position of
being responsible for the patient. The law regards
this as
sufficient to give rise to a legal duty to avoid negligently causing
harm.
[9]
[21]
It is clear that the underlying doctor/patient relationship between
the deceased, Dr Shaik and
the excipient has been pleaded with
sufficient particularity, to establish the basis on which the
plaintiffs’ allege that
a legal duty was established between
the excipient and the deceased, as well as the nature and scope of
the alleged duty.
[22]
The plaintiffs set out in exact terms that the duty of care of Dr
Shaik arose from a doctor/patient
relationship which is based on a
prior verbal agreement. The terms of the verbal agreement are set out
and as a result of the agreement
concluded, a doctor/patient
relationship arose as a result of which Dr Shaik incurred a legal
duty towards the deceased.
The plaintiffs continued to set out
the scope and ambit of Dr Shaik’s legal duty in para 4.2.3 of
the particulars of claim.
[23]
The plaintiffs in par 4.3 of the particulars of claim allege that Dr
Shaik admitted his duty
of care, but stated that he exercised it in
conjunction with the excipient and the second defendant. This
constitutes an admission
and avoidance as provided for in rule
22(2),
[10]
Which
in turns lays the basis for joint liability as envisaged in Rule
10(3) which reads as follows:
“
Several
defendants may be sued in one action jointly, jointly and severally,
separately or in the alternative, whenever the question
arising
between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of substantially
the same
question of law or fact which, if such defendants were sued
separately would arise in each separate action.”
[24]
The excipient furthermore complains that the particulars of claim
were not annexed to the particulars
of claim. This complaint is also
without merit as Rule 18(6) only applies to claims which are based on
a written agreement. What
is required in terms of Rule 18 is a
concise statement of material facts, which the plaintiffs did
provide. The excipient has an
additional remedy if he feels aggrieved
and that is to serve notices on terms of Rules 35(12) and (14)
[11]
on
the plaintiffs.
[25]
The excipient furthermore alleges that the plaintiffs did not state
when the summons against
Dr Shaik was issued. This allegation is
wrong as in par 4.1 of the particulars of claim the plaintiffs allege
that the summons
was issued on 17 November 2017 and served on 5
December 2017. The first complaint should therefore be
dismissed.
[26]
The excipient continues to allege that the plaintiffs fail to set out
the facts on which they
base their claim, alternatively did not set
out sufficient facts to support their claim of the legal duty of care
allegedly owed
by the excipient. It is alleged that it is unclear how
Dr Shaik involved the excipient and what his involvement entailed.
A perusal of par 4 read with par 5 and 6 clearly illustrates that
there is no merit in this complaint.
[27]
It needs to be borne in mind that the plaintiffs’ claim is not
based on a positive act
committed by the excipient, but rather on a
failure to act. The plaintiffs do therefore not allege that
there were certain
positive actions taken by the excipient , which
were negligently carried out by the excipient.
[28]
The duty of care is a recognised duty of care in law and the basis
for the existence of the duty
of care is identifiable (a
doctor/patient relationship), accordingly the pleading is not
rendered excipiable. In this instance
the excipient will be
called upon to file a plea in the form of a confession and avoidance
or a denial. In addition thereto,
any prejudice can be cured by
means of a request in terms of Rule 21. In the light from
the aforesaid, the second complaint
has no merit.
[29]
In this instance, in any event the precise involvement of the
excipient and his undertakings
can only be clarified during
evidence. None of the plaintiffs are in a position to plead any
further allegations to those
that they already have. The
information falls exclusively within the knowledge of Dr. Shaik and
the excipient. It was
submitted that it would also in this
regard not be competent for a Court,at this point, to find that the
particulars of claim are
excipiable. The excipient’s
precise involvement can only be clarified during evidence. The
information falls exclusively
within the knowledge of the excipient
and therefore it is not competent for this court to find that the
particulars of claim are
excipiable.
[30]
The excipient’s heads of argument dealt with the third and
fourth complaints as a single issue. The excipient advanced
the
argument that the particulars of claim does not differentiate between
a claim formulated in contract and that in delict. However,
the
grounds were not advanced in the notice of exception, as a result the
excipient is not allowed to raise this ground for the
first time in
the heads of argument. In any event the plaintiffs pleaded the legal
duty attributable to the excipient, namely a
negligent and wrongful
breach thereof and damages as a result of such breach. The aforesaid
identified the plaintiffs claim against
the excipient to be founded
in delict.
[31]
The grounds of exception advanced in par 3.2 as part of the notice of
exception is a repetition
of the grounds of complaint as set out in
par 2.3 and have already been dealt with. Regarding the fourth
complaint the excipient
alleges that the plaintiff without having
pleaded the “positive involvement” of the excipient, is
not entitled to plead
facts relating to wrongful and negligent breach
of duty of care. This argument has no merit, it is both untenable in
law and disregards
the nature of a claim founded on a negligent
breach of duty of care or omission.
[32]
One should take into consideration, as already stated, that the
plaintiffs’ claim is a
claim based on a failure to act, which
should be distinguished from a positive negligent claim. Our courts
demand that a legal
duty of care be established before a failure to
act can be pleaded. It is not required that the plaintiffs are
obliged to plead
that certain positive duties exist before, an
entitlement to allege a failure to act arises.
[33]
In the light of the aforesaid the complaints raised by the excipient
do not have any merit and
should be dismissed.
COSTS
[34]
The costs should follow the outcome, the only issue is whether costs
of senior counsel should
be allowed. Mr Boot (SC), quite correctly,
conceded that the case does not justify the employment of senior
counsel, but that it
was prudent to do so in this instance. He also
quite correctly conceded that the question of costs is in the final
analysis in
the discretion of the court. As helpful as Mr Boos (SC’s)
contribution was I am not convinced that costs of senior counsel
should be awarded in this case.
[41]
I make the following order:
1.
The exception is dismissed;
2.
The excipient is ordered to pay the costs of this application.
R G TOLMAY
JUDGE OF THE HIGH
COURT OF PRETORIA
[1]
It
v Fetal Assessment Centre 2015(2) SA 193 CC at para 10; Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA 2006(1) SA 461 (SCA) para 3; Children’s Resources
Centre Trust & others v Pioneer Food (Pty) Ltd &
Others
2013(2) SA 213 (SCA) at para 36
[2]
Nel
& others NNO v McArthur 2003(4) SA 142 (T) at 149E-G
[3]
Ibid
[4]
Stewart
v Botha 2008(6) SA 310 (SCA) at para 4
[5]
Barnard
v Barnard 2000(3) SA 74 (C) at para 10; YB v SB supra at para 12
[6]
1985(1)
SA 475
[7]
Correira
v Berwind 1986(4) SA 60 (ZH) at 64E-66H; TS & Another v Life
Healthcare Group (Pty) Ltd & another 2017(4)
SA 580 (KZN);
See also Life Health Care Group (Pty) Ltd v Sulliman 2019(2) SA 185
(SCA) although the appeal was upheld the SCA
did not question the
fact that a medical practitioner’s duty could be both
contractual and delictual
[8]
Strauss
& Strydom 1967, p266; McQuoid-Mason & Strauss 1883 LAWSA
Vol. 17, par. 151;
Van
Oosten 1996, p57; Strauss, 1991, par. 36 – 37; Strauss “
Duty
of Care of Doctor Towards Patient May Arise Independent of
Contract”
SA Practice Manual,
Vol. p155, par. 2, 1988; Correira v Berwind 1986(4) SA 60 at 66 F;
Van Wyk v Lewis
1924 AD p443
444; 455 – 456;
Collins v Administrator Cape 1995(4) SA 73 at 81;
Buis
v Tsatsarolakis 1976(2) SA 891 T.
10 See also Neethling
Potgieter & Visser, 1989 Sect. 4 – 5 where the authors
state: “
There is no fundamental difference between a
delict and a breach of contract, the injured party can choose to act
on the one or
the other.
[9]
Minister
of Safety & Security v Van Duiven Boden 2002(6) SA 431 SCA at
par. 25;
Life
Healthcare Group (Pty) Ltd v Suliman 2019(2) SA 185 SCA at par. 10.
[10]
(2)
The defendant shall in his plea either admit or deny or confess and
avoid all material facts alleged in the combined summons
or
declaration or state which of the said facts are not admitted and to
what extent, and shall clearly and concisely state all
material
facts upon which he relies.
[11]
(12)
Any party to any proceeding may at any time before the hearing
thereof deliver a notice as near as may be in accordance with
Form
15 in the First Schedule to any other party in whose pleadings or
affidavits reference is made to any document or tape recording
to
produce such document or tape recording or his inspection and to
permit him to make a copy or transcription thereof. Any party
failing to comply with such notice shall not, save with the leave of
the court, use such document or tape recording in such proceeding
provided that any other party may use such document or tape
recording.
(14) After appearance to
defend has been entered, any party to any action may, for purposes
of pleading, require any other party
to make available for
inspection within five days a clearly specified document or tape
recording in his possession which is relevant
to a reasonably
anticipated issue in the action and to allow a copy or transcription
to be made thereof