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[2020] ZALMPPHC 18
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Molokomme v MEC for Health Limpopo (1440/2014) [2020] ZALMPPHC 18 (12 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST
TO
THE
JUDGES:
:
YES
/NO
(3)
REVISED.
CASE
NO: 1440/2014
12/5/2020
In the matter between:
MAITE
HARRY MOLOKOMME
PLAINTIFF
And
MEC
FOR HEALTH LIMPOPO
DEFENDANT
JUDGMENT
MADAVHA:
AJ
[1] This
is an action in which the plaintiff in his personal capacity and on
behalf
of the two minor children claims for loss of support from the
Defendant arising from the death of his wife.
[2] At
the commencement of the trial the issue of liability was separated
for determination
before all other issues. This Judgment deals with
that issue only.
BACKGROUND
FACTS
[3]
It is common cause that:
(a) Plaintiff
was married to the deceased (Kwena Jeanette Molokomme,) they were
blessed
with three children. The two were both employed as teachers.
(b) On
12 August 2013 the deceased reported to the husband that she had
tonsils and was
not feeling well.
(c) On
19 August 2013 she consulted Dr Manthata who then referred her to Dr
Masipa.
(d) On
21 August 2013 she consulted at Polokwane Provincial Hospital, Dr
Masipa who is
a specialist maxillofacial surgeon, diagnosed her to be
having Ludwig Angina, in that he noticed the following symptoms: -
She
was walking with difficulty, talking with difficulty, she had a
swelling below the lower jaw in the upper neck. Externally the
nostrils were flurrying a sign indicative of searching for air, on
the mouth area she had an open mouth, the tongue was elevated
and the
mouth was supplementing the nostrils for breathing. Ludwig Angina is
said to be rare but serious and rapidly progressing
bacteria
infection that affects the floor of the mouth and the neck.
(e) Upon
the diagnosis, Dr Masipa noted that the deceased had an airway
problem meaning
she had difficulty in breathing. It was then of
paramount importance to provide her with an airway. An insertion and
drainage of
the puss was done on the deceased, a large amount of pus
was extracted and the deceased was immediately relieved.
(f) The
deceased was given antibiotics and admitted for further drainage and
medication to stop the pus.
(g) It
is further common cause that on 22 August 2013, the deceased signed a
consent form
for the operation and an operation was done.
(h)
The cause of death as noted on the post-mortem report was aspiration
Pneumonitis
associated with infiltrative neck abscesses. The neck
structure had several abscesses.
THE
LEGAL TEST
[4] The
test in medical negligence cases is succinctly summarized inter alia
by
Corbett JA in Blyth v Van der
Heerer,
[1]
.
The two questions mentioned in Blyth arising in this matter are:
(i) What
factually was the cause of death of the deceased?
(ii) Did
the negligence on the part of Defendant, if any, cause or materially
contribute
to the death in the sense that the Defendant by the
exercise of reasonable professional care and skill could have
prevented death
from occurring.
[5] In
proving its case the Plaintiff led evidence of an expert Dr Gregory
Promnitz
a specialist Physician. Dr Promnitz compiled a report on 25
September 2015, in which he opined as follows:
"That the deceased had
developed a dental abscess with subsequent submandibular cellulitis
resulting in her developing the
so called Ludwig' s Angina. He opines
that at that stage the patient should have been admitted to hospital
and given intravenous
antibiotics such as Augmentin and Flagyl.
Ludwig angina is a clinical diagnosis, airway management is the
foundation of treatment
of Ludwig angina and the method of securing
this patient airway would have resulted on clinical judgment.
Approximately 65% of
patients with this condition will require
surgical drainage and Physical examination alone is in sufficient in
determining which
patient requires a surgical procedure. It is
therefore recommended that x-ray imaging is indicated in patient with
Ludwig angina
once antibiotics have been commenced and decisions in
regard to airways management have been made. It is recommended that a
CT
Scan
with
contrast be performed to detect patients have developed supportive
complications."
Dr Promnitz testified that a
surgical intervention was required and that a CT Scan should have
been done, in order to check on how
to manage her further. The CT
Scan plans surgical approach, it gives an idea on what to expect and
how best to secure the airway.
He is of the opinion a tracheotomy
should have been performed in that way the pus could not have gone
into the lungs.
[6] The
clinical examination of the diceased prior to her being sent to
theatre was
critical and it appears that the anesthetists did not see
the patient in the ward prior to the surgery. He opined that had the
patient been properly examined before the surgery and an inspection
of her mouth been made it would have become obvious that the
deceased
would require a safe airway before attempting any drainage procedure.
Under these circumstances it would have been appropriate
to involve
an ENT surgeon and the deceased should have had a tracheotomy
performed. From the post mortem report it is obvious that
an
endotracheal intubation of this patient would have been extremely
difficult and the decision to perform the tracheotomy on the
deceased
would have rested with the anesthetist and the treating doctors at
the time.
Once it became obvious that this
patient had such extensive changes in her pharynx, an emergency
tracheotomy should have been performed
to secure an adequate airway.
Dr Promnitz opinion is that the
deceased death was completely preventable had she been properly
assessed preoperatively and investigated
preoperatively. She should
have had a CT Scan prior to surgical intervention to assess the
degree and extent of infection.
[7] Under
cross examination, it transpired that when compiling his report Dr
Promnitz
did not have preoperative evaluation form, prescription
chart and the preadmission report made by Dr Masipa and Dr Baloyi. He
however
stands by his opinion and submitted that although he did not
have all the information when opining it would not change his
opinion.
The Defendants evidence.
[8] The
defendant led evidence of Dr Masipa James who is a specialist
Mascilofacial
Surgeon. On 21 August 2013 he was on duty and he
examined the deceased. She was diagnosed with Ludwig angina in that
she had a
swollen and tender to touch neck, she was unable to eat,
she could not walk properly, she was breathing with difficulty and
her
tongue was elevated.
Since she had a compromised
airway, an incision and drainage under local anesthesia on a dental
chair was performed. The procedure
in a way enabled the deceased to
breath way better. The deceased was admitted for a further incision
and drainage that had to be
done in theatre the next day.
Antibiotics, Augmentin and flaggy was given to the deceased. An x-ray
(panoramic view) of the denture
was done.
The deceased was on the following
day prepared for theatre wherein a team was set to assist Dr Masipa,
in doing the incision and
drainage. A special arrangement to take her
to theatre urgently was done in that she needed immediate attention.
Dr Masipa testified that although
they wanted to operate on the deceased urgently so, all the theatres
were occupied, and had to
defer the operation for the following day.
A team made up of Dr Ryabchiq who is the anesthetic, Dr Baloyi and Dr
Shogole, together
with Dr Masipa discussed the patient.
[9] When
she arrived at theatre she was able to breath, and the symptoms were
better
than she was the previous day. Dr Boris assessed her and
noticed that there was pus in the neck. The team having noted that
there
is pus on the neck agreed that they would opt for endotracheal
intubation, which is putting a tube in the mouth rather than
tracheotomy,
which is cutting below the adam’s apple in order
to insert the tube. The clinical presentation of the patient at that
time
warranted that they avoid tracheotomy in that there was a
possibility that the patient might aspirate.
[10]
Endotracheal intubation is a process wherein a pipe is inserted into
the trachea with the intention
of opening up the airway. This process
is non-surgical in that there is no cutting.
Tracheotomy on the other hand, you
use a knife, cut skin and deeper tissues aiming towards trachea to
locate it, aiming at the windpipe,
then insert the tube.
Dr Masipa considered the
disadvantages of tracheotomy, in that it is surgical. The patient's
neck was short, swollen and it was
going to be difficult to do a
tracheotomy in that once they cut a great possibility of pus going
into the trachea was foreseen.
In the process of trying to
intubate the patient, pus came out, suction equipment was made
available, a process of suctioning the
pus was done, together with
giving the patient air. Dr Boris was busy with suctioning, and he
noted a lot of pus in the mouth.
An ENT was then called and a
successful tracheotomy was performed as soon as they cut the neck,
pus was coming out. The patient
then went to cardiac arrest and had
heart failure. Dr Boris tried to resuscitate the patient
unfortunately she died.
Dr
Boris Ryabchiq.
[11] A
specialist anesthetists, was informed that there was an emergency,
Ludwig angina patient around 15h30
he saw the patient outside the
operation room. Within the team the of the operation, they discussed
tracheotomy, and found it to
be dangerous cause there was a high risk
of aspiration, in that if the incision was to go through the affected
area, the pus would
go out. On his first attempt to intubate, he
realized the situation was actually worse. He saw huge tongue cells,
he couldn't push
the tongue because he did not want to temper with
the visible abscess.
[12] He
tried to insert the tube for about 10 minutes but it was difficult,
he had to suck pus, blood and
saliva. The mouth was stained with
blood and pus, and it was difficult to intubate. The team decided to
do a tracheotomy and in
the process massive discharge of pus come
out, when busy with tracheotomy, he was giving her oxygen and busy
sucking the pus that
came out profusely.
Dr Boris submitted that his first
attempt to intubate was at 16h10, second one and 16h30 and the
tracheotomy was done between 16h55
and 17h00.
[13] Dr
Tsakani Mohlari, a Chief Specialist in health, specialist in
aneostiology was called
in as an expert witness by the Defendant. The
diagnosis made on the patient was correct. The expert witness called
by the plaintiff
is a general practitioner and does not specialize in
Ludwig angina, it is the maxillofacial who knows the condition
better.
The discretion of which method to
use, lies with the anesthetist. Airway management of patients with
Ludwig angina depends on the
condition of the patient and the
facilities available in the institution.
[14] In this case
the choice of using endotracial intubation was based on the fact that
the pus was
drained the previous day. The rupturing of pus locules is
possible and it's a known complication of Ludwig angina. There was a
need to protect the airway from aspiration hence they choose
endotracial intubation. The reason why it failed twice was because
pus was oozing all over. The doctor protected the brain by giving
100% oxygen.
Pleadings
[15] In the
summons the Plaintiffs claim is based on various acts of alleged
negligence by the
Defendant. Both experts concede that the diagnosis
made by Dr Masipa was correct and that the patient case was an
emergency. Dr
Masipa in realizing that the patient has difficulty in
breathing performed an incision and drainage in order relieve the
patient.
It was not in dispute that abscesses were on the neck and
that pus was also noted on the neck. In deciding to perform an
endotracheal
intubation, the team had taken into account that the
neck was swollen possibly due to the presence of pus. A tracheotomy
procedure
would mean they had to cut the neck in order to intubate
and in cutting if they cut through the abscesses, pus would erupt.
[16] Dr
Boris when noticing the massive pus suctioned the pus and blood at
the same time providing
oxygen to the patient. The post mortem report
states the cause of death as being aspiration pneumonitis associated
with infiltrative
neck abscesses.
In
conducting the endotracheal intubation, the defendant wanted to
provide the patient with airway, so that they can be able to
treat
the abscesses on the neck.
Can
it be said that Dr Masipa was negligent in not having used a computed
tomography (CT scan) prior the intubation? The patient
had abscesses
on the neck and that was a clinical diagnosis made by Dr Masipa. The
Plaintiff expert opined that had a CT Scan been
used, the defendant
would have seen where these abscesses were and would have opted for
tracheotomy.
It
was submitted that the abscesses move within the body its not
stationery meaning the CT Scan could have shown an abscess at that
particular time, which later could have moved.
The patient condition is said to
have been an emergency and the Doctors had to do whatever that was
possible at that time to assist
her.
On noticing that the massive pus
is oozing Dr Boris suctioned the pus and gave oxygen. On tracheotomy
upon cutting of the neck lots
of pus come out, this confirms the
clinical exam by Dr Masipa that the neck was infested with abscesses.
DISCUSSION
It
is trite that he who asserts a damage causing event must prove it.
The legal duty owed by the medical staff at the health facilities
to
the deceased entailed that they adhere to the general level of skill
and diligence possessed and exercised at the time by members
of the
branch of the profession to which they belonged.
[2]
They had no duty to provide
the highest possible degree of professional skill. Only reasonable
care and skill is required.
[3]
The Plaintiff had to prove,
through credible and persuasive evidence that the doctors failed to
adhere to the required standards.
The
opinion of the medical experts was central to the determination of
the required level of care and whether there was a breach
of it.
The
requirement in evaluating such evidence is that expert witnesses
support their opinions with valid reasons. Where proper reasons
are
advanced in support of an opinion, the probative value thereof is
strengthened
.
[4]
It
is not the mere opinion of the witnesses that is decisive but his
ability to satisfy the Court that, because of his special skill,
training and experience, the reasons for the opinion which he
expresses are acceptable
.
[5]
In
Michael v Linksfield Park Clinic (Pty) Ltd
[6]
it was held that:
"The
court is not bound to absolve
a
defendant from
liability for alleged negligent medical treatment or diagnosis just
because evidence of expert opinion, albeit genuinely
held, is that
the treatment or diagnosis in issue accorded with sound medical
practice. The court must be satisfied that such opinion
has
a
logical basis, in
other words that the expert has considered comparative risks and
benefit and has reached
a
"defensible
conclusion".
The
first difficulty with Dr Promnitz evidence is that he concedes that
when compiling his report he did not have all the medical
records in
his possession, in his opinion he states that the patient should have
been given antibiotics and when made aware of
the fact that such was
indeed done, he states that it does not in anyway change his opinion.
The basis of negligence is based on
the non use of a CT scan, the
importance of the scan is to show the position of the abscesses,
which diagnosis was done by Dr Masipa.
Dr
Promnitz opined that the method used to incubate the patient was
incorrect and had a CT Scan been done the correct procedure
could
have been followed.
It
was not disputed that the patient's neck had abscesses full of pus
and upon the first attempt to incubate the pus oozed out.
Dr
Boris tried to suction the pus but with difficulty, at the same time
giving oxygen to the patient, is that not what a reasonable
medical
officer is expected to do under those circumstances.
In
Goliath v Member
of the Executive Council for Health, Eastern Cape
[7]
it was held: 'to hold a
doctor negligent simply because something had gone wrong, would be to
impermissibly reason backwards from
effect to cause'.
Consequently,
the following order is made:
1.
The action is dismissed with costs.
M.B MADAVHA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION: POLOKWANE
Appearances
For
the Plaintiff:
Adv: I Van Ende
Instructed
by:
Smit & Maree Attorneys
For
the Defendant:
Adv: Phaswane
Instructed
by:
State Attorney Polokwane
Heard
on
10 December 2019
Judgment
delivered on:
12 May 2020
[1]
1980 (1) SA 191
(A) at 196E
[2]
Van Wyk Lewis
1924 AD 438
at 444
[3]
Mitchell v Dixon
1914 AD 519
at 252
[4]
Schwikkard & Van de Merwe, Principles of Evidence 4 ed at 103
[5]
Menday v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 5698
[6]
Michael v Linksfield Park Clinic (Pty) Ltd (200 I) I All SA 384
(SCA) para 37
[7]
(085/2014) ZASCA 182, 20 l
5 (2) SA 97
(SCA) at para 9