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[2019] ZAKZPHC 11
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C.S.R and Another v Dhavaraj (16850/2014) [2019] ZAKZPHC 11 (11 March 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: 16850 / 2014
In
the matter between:
C S R
First Plaintiff
W
R
Second Plaintiff
and
DR K C
DHAVARAJ
Defendant
Coram:
Koen J
Heard:
18, 19, 20 & 21 FEBRUARY 2019
Delivered:
11 MARCH 2019
O R D E R
The following order is granted:
1.
The plaintiffs’ claims are dismissed;
2.
Each party is directed to pay their own costs.
J
U D G M E N T
Koen
J
[1]
This is an action for contractual damages by the first plaintiff in
her personal capacity,
and together with her husband the second
plaintiff in their representative capacity as the parents and natural
guardian of their
minor daughter, J, a girl born on 17 January 2012.
They allege that:
(a)
they had contracted with the defendant, a specialist obstetrician and
gynaecologist, to
perform a sterilisation by tubal ligation
(hereinafter referred to as a ‘TL’) on the first
plaintiff when their second
child, a boy J, was born by caesarean
section (C/S) on 15 February 2011;
(b)
the defendant failed to perform such TL; and
(c)
that as a result the first plaintiff subsequently fell pregnant with
and gave birth
to J.
[2]
The damages claimed include:
(a)
The reasonable costs for the construction of
an additional room at their residence
R 98 000.00
(b)
Maintenance in respect of J until she is
self-supporting
R1 138 000.00
(c)
General damages inclusive of pain, shock,
discomfort and loss of amenities of
life in respect
of the first plaintiff
R250 000.00
R1 436 000.00
[3]
Although the plaintiffs’ particulars of claim also contain
allegations of an
alleged failure ‘to discharge the duty owed
to the First Plaintiff’, that the defendant allegedly failed
‘to
employ such skill and care as was required and reasonable’,
and that the defendant was ‘negligent’, suggesting
a
possible cause of action founded in delict, the plaintiffs have
expressly disavowed any reliance on delictual principles and
the case
proceeded purely as a contractual one. That approach is, no doubt,
correct, as no obligation to perform a TL could follow
other than
from a contract. The defendant had not performed a TL on 15 February
2011. The only issue was whether he had contractually
bound himself
to perform such a TL. The plaintiffs’ case was not that a TL
was performed but that it failed, in which instance
questions of
negligence and substandard professional care might have been
involved.
[4]
At the commencement of the trial an order was granted in terms of
rule 33(4) at the
request of the parties, directing that the issue of
liability and the possible prescription of the plaintiffs’
claims be
tried first and that the quantum of the claims will stand
over for determination at a later stage, if necessary.
[5]
In respect of the contractual claim the plaintiffs in their
particulars of claim,
as amended during the trial, allege that:
(a)
On or about 7 February 2011 and at the medical rooms of the defendant
in Raisethorpe, Pietermaritzburg,
KwaZulu-Natal and/or on or about 15
February 2011 and at St. Anne’s Hospital, Pietermaritzburg,
KwaZulu-Natal, the first
plaintiff with the assistance of the second
plaintiff
[1]
concluded a partly written, partly oral agreement with the defendant.
(b)
The written portion of the agreement comprised the documents relating
to the first plaintiff’s
admission to St. Anne’s
Hospital.
(c)
The material express, alternatively implied, alternatively tacit
terms of the agreement
were:
(i)
The first plaintiff was admitted to St. Anne’s Hospital for the
purpose
of giving birth, which procedure would be conducted by the
defendant;
(ii)
The treatment to be administered to the first plaintiff was to ensure
the successful
birth of J;
(iii)
The defendant would after the birth of J cause the TL of the first
plaintiff’s fallopian
tubes by surgery, for the purpose of
rendering the first plaintiff sterile and incapable of
procreating.
[2]
(d)
The defendant breached the agreement in that he failed to effect the
TL of the first plaintiff’s
fallopian tubes, that he had
advised the plaintiffs that the surgery for the TL was successful,
and that he failed to administer
any birth contraception to the first
plaintiff, alternatively to inform the first plaintiff to utilize
contraception after the
birth of J.
[6]
It is common cause on the evidence that the defendant:
(a)
attended successfully to deliver J by way of caesarean section on 15
February 2011;
[3]
(b)
did not perform a TL immediately thereafter.
[7]
The defendant’s version as pleaded is that he admitted the
agreement, between
himself and first plaintiff, to deliver J by
caesarean section at St. Anne’s Hospital in Pietermaritzburg on
15 February
2011, with the care and skill reasonably required of a
competent and experienced obstetrician. He however denies an
agreement to
perform a TL after the birth. He pleaded specifically
that on 7
February 2011, during a consultation at his
rooms, the first plaintiff informed him that she and the second
plaintiff had decided
not to have any more children, further that he
counselled her on the various methods of contraception which were
available and
in particular the possibility of a TL, that the first
plaintiff was undecided as to whether or not to undergo a TL, and
that it
was agreed that she would consider her position and that if
she decided to go ahead with the TL, she would instruct the defendant
accordingly and sign the relevant form consenting to such a
procedure. He maintains that at no stage thereafter was he informed
by the first plaintiff that she had decided to go ahead with a TL,
nor was there any consent form provided in relation to such
procedure. Accordingly he did not perform a TL on her. On the day
immediately following J’s birth, namely 16 February 2011,
he
informed her that no TL had been done and on the same day prescribed
Microval, an oral contraceptive made available to patients
at no
charge in terms of a government initiative. On 24 February 2011 he
advised her to return to him in six weeks’ time
for a TL to be
performed laparoscopically, if she so desired. No such appointment
was kept. He admits that J was subsequently born
by caesarean section
on 17 January 2012 and that immediately thereafter he performed a TL
on the first plaintiff as agreed with
her.
[8]
The sole issue in dispute is accordingly whether there was a valid
and binding agreement
concluded between the parties that the
defendant would perform a TL on the first plaintiff on 15 February
2011.
[9]
In regard to that issue the versions of the plaintiffs and the
defendant are mutually
destructive. In such a case it is trite law
that the plaintiffs, who bear the
onus
of proof
,
can only succeed if they satisfy this Court on a preponderance of
probabilities that their version is true and accurate and therefore
acceptable and that the version advanced by the defendant is false
and mistaken and falls to be rejected. As was said in
National
Employers General
Insurance v Jagers
:
[4]
‘
In
deciding whether that evidence is true or not the Court will
weigh up and test the plaintiff's allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour the plaintiff's case
any more
than they do the defendant's, the plaintiff can only succeed if
the Court nevertheless believes him and is satisfied
that his
evidence is true and that the defendant's version is false.
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in
Koster Ko-operatiewe Landboumaatskappy Bpk v
Suid-Afrikaanse Spoorweë en Hawens (supra
) and
African
Eagle Assurance Co Ltd v Cainer (supra
). I would merely stress
however that when in such circumstances one talks about a plaintiff
having discharged the
onus
which rested upon him on a balance
of probabilities one really means that the Court is satisfied on
a balance of probabilities
that he was telling the truth and that his
version was therefore acceptable. It does not seem to me to be
desirable for a Court
first to consider the question of the
credibility of the witnesses as the trial Judge did in the present
case, and then, having
concluded that enquiry, to consider the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry.
In fact, as I have pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably
lies, that recourse is had to an estimate of
relative credibility apart from the probabilities.’
[10]
Furthermore in considering credibility the judgment in
S
v Singh
[5]
is instructive (and although it deals with a criminal case, the
following comments are apposite):
‘…
it
would perhaps be wise to repeat once again how a court ought to
approach a criminal case on fact where there is a conflict
of fact
between the evidence of the State witnesses and that of an accused.
It is quite impermissible to approach such a case thus:
because the
court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses,
including the
accused, must be rejected.
The
proper approach in a case such as this is for the court to apply
its mind not only to the merits and the demerits of the
State and the
defence witnesses but also to the probabilities of the case.
It
is only after so applying its mind that a court would be justified in
reaching a conclusion as to whether the guilt of an accused
has been
established beyond all reasonable doubt.
’
(my emphasis)
[11]
I turn then to consider the evidence relevant to an assessment of the
probabilities in this matter.
[12]
In seeking to discharge the onus upon them, the plaintiffs testified
and produced various exhibits.
The documents handed in as exhibits
included the hospital records from Netcare, St. Anne’s
Hospital.
[6]
The parties agreed the status of these records to be that they are
what they purport to be and as proof of the contents thereof.
Copies
could be used without the need to produce the originals. In respect
of all the other documents introduced, including the
clinical records
and notes kept by the defendant it was agreed that the documents are
what they purport to be and that copies may
be used without producing
the originals. The truth of the contents thereof was not admitted and
would have to be proved.
[13]
When considering the probabilities relating to any dispute involving
sterilisation, the starting
point must be the legislative background
contained in the following provisions of the Sterilisation Act
[7]
and the regulations
[8]
issued thereunder.
[14]
In terms of s 2(2) of the Sterilizaion Act a person capable of
consenting may not be sterilised
without his or her consent first
being obtained. S 4 provides that
‘
For
the purposes of this Act, “
consent”
means
consent given freely and voluntarily without any inducement and
may
only be
given if the person giving it has—
(
a
)
been given a clear explanation and adequate description of the—
(i)
proposed plan of the procedure; and
(ii)
consequences, risks and the reversible or irreversible nature of the
sterilisation procedure;
(
b
)
been given advice that the consent may be withdrawn any time before
the treatment; and
(
c
)
understood and
signed
the prescribed consent form
.’
(emphasis added)
In
terms of s 9 any person who contravenes or fails to comply with the
provisions of the Sterilisation Act is guilty of an offence
and is
liable on conviction to a fine or to imprisonment for a period not
exceeding 5 years.
[15]
The regulations under the Sterilisation Act inter alia are as
follows.
In
terms of regulation 2(1):
‘
A
person who is capable of consenting and who requests that a
sterilisation be performed on him or her shall complete Part A and
Part B of Form 1 and submit such form to the head of the health
facility, together with a completed standard consent form
’
.
In
terms of regulation 4:
‘
A
standard consent form for surgical procedures used by the health
facility or hospital concerned
shall
be completed in any request for sterilisation
’
.
In
terms of regulation 5 a ‘public or private health facility’
is required to be designated as a ‘facility in
terms of s 5 of
the Act’, which requires it to comply with certain requirements
relating to access to medical and nursing
personnel, access to an
operating theatre, and the like, as St. Anne’s Hospital would
be.
[16]
It was not disputed that no consent to sterilization was submitted to
the ‘head of the
health facility’ at the time that the
caesarean section in respect of J was scheduled and performed. The
records from St
Anne’s Hospital signed by the first plaintiff
on that occasion merely indicate that a caesarean was to be
performed. There
is nothing signed by the first plaintiff in respect
of a TL. A lawful TL would therefore not have been possible.
[17]
The question then arises whether, even in the absence of a formal
consent not having been produced
to St Anne’s Hospital, there
was an agreement between the parties that the defendant would perform
the TL, which presumably
then would extend to some contractual
obligation on his part to ensure that the legally required consents
were in place, or giving
advice to the plaintiffs as to how comply
with any such statutory requirements. Although the latter was not
specifically pleaded
as a contractual obligation, I shall assume it
for the purposes of this judgment as it was the plaintiffs’
evidence that
what they had to do was sign the consent produced by
the defendant and hand it in to his rooms, and on their version, no
more.
[18]
The probability as to whether there was an agreement to perform the
TL must be assessed in the
light of the evidence. I do not intend
setting out a summary of all the evidence in this judgment but shall
only refer to the material
parts relevant to a consideration of the
probabilities. However in reaching the conclusion at the end of this
judgment, I have
had regard to all the evidence adduced.
[19]
It was not in dispute on the evidence that:
(a)
The first plaintiff discovered during her pregnancy with her first
born, a daughter born
on 5 June 2004, that she tested HIV positive;
(b)
Having had a daughter the plaintiffs wished to have a son;
(c)
During her pregnancy with J, it was confirmed that she was expecting
a boy;
(d)
By the time she would give birth to J, she would already be 39 years
old and hence probably
approaching the latter stages of her child
bearing years;
(e)
During that pregnancy it was suggested that she should not have any
further children thereafter
because of her condition generally.
Various options were discussed between the defendant and the
plaintiffs. Although the plaintiffs’
were unable to state the
exact date of such discussions, it seems from the defendant’s
clinical notes and a claim by the
defendant processed by Bonitas
Medical Fund, the medical aid of the plaintiffs, and for which the
defendant was paid, that such
visit occurred on 7 February 2011.
(f)
At that visit the plaintiffs’ were provided with a standard
written consent
form headed ‘Operation Consent’ devised
and generated by and generally used in the practice of the defendant.
The actual
consent form provided to the plaintiffs could not be
produced. The consent dated 12/01/12 signed in respect of the TL
subsequently
performed at the birth of J was produced. The evidence
was that this was the standard consent form that has been used in the
defendant’s
practice over many years. The consent form that
would have been handed to the plaintiffs on 7 February 2011 relating
to the birth
of J would have been similar in format and content.
(g)
This standard consent form used by the defendant is addressed to the
‘Sister in charge,
OT,
[9]
St. Anne’s Hospital’. It lists the procedures
contemplated, which would have included ‘elective C/S’
with
procedure code ‘2615’, and ‘TL’ with
procedure code ‘2492’. That was not disputed. The consent
is required to be signed by the first plaintiff as the patient. The
plaintiffs were also required to obtain
[10]
an authorisation number from their medical aid and insert it where
indicated on the form. The document concludes with an inscription
in
bold at the bottom, which reads:
‘
***
This form to be handed to
the doctor in theatre
***’.
[20]
Ms Padayachee, a receptionist/creditors’ clerk employed at the
defendant’s practice
for the last 17 years confirmed the
evidence of the defendant that the operation consent form would be
completed by the insertion
of the procedures and codes, according to
her by the defendant in his room, and following a print command being
given, be printed
on a printer in the reception area. On the patient
emerging from the doctor’s room, this form would then be handed
to the
patient. Her evidence was that sometimes, but not always, an
unsigned copy is kept on the patient’s file. It is not in
dispute
that such a consent form was handed to the plaintiffs on that
day.
[21]
The defendant’s evidence was that the plaintiffs were still
undecided on the issue of sterilisation
and that he advised them to
go and reflect on it and then to sign the form indicating their
election, as he could not proceed with
the TL in the absence of a
clear consent that it was what they desired (leaving aside the
requirements of the Sterilisation Act).
The defendant was adamant
that the form was to be taken to the hospital upon admission, being
addressed to the ‘sister in
charge’ after the required
authorisation number would have been obtained and inserted on the
form. He was corroborated as
to that general practice by the evidence
of Ms Padayachee who testified that the staff at the rooms of the
defendant explain to
patients that they must take this consent form,
get authorisation from their medical aid and then hand it to the
sister at the
hospital on the day of admission for the procedure. She
said that these forms do not find their way to the hospital any other
way.
If the form was sought to be handed to the defendant’s
staff at his rooms, then the patient would be advised to take the
consent form to the hospital on admission.
[22]
The plaintiffs maintain that they signed this consent form at the
defendant’s rooms after
existing from his room, and that they
handed it to a member of his staff immediately after that
consultation. (This contrasts to
the consent form in relation to the
birth of J where the first plaintiff’s evidence was that the
consent had been furnished
and was taken away by her and her husband
to their home where it was signed on the 12 of January 2012 and
witnessed by K, their
neighbour at the time. This from was in this
St. Anne’s Hospital file).
[23]
Ms Padayachee described that when the consent form is printed in the
reception area, the details
appearing thereon relating to the name of
the patient and the procedures to be conducted would be inserted in
the defendant’s
diary for the day for which the procedures are
scheduled. The day before the scheduled operation she would prepare
the ‘theatre
slate’. This takes the form of an email
which is sent to the hospital concerned, with a copy supplied also to
the defendant,
setting out the names of patients and their scheduled
procedures for that particular theatre day. She would also confirm
the anaesthetist
and paediatrician who would be in attendance. The
hospital will prepare the theatre on the basis of what is scheduled
as per the
theatre slate.
[24]
Ultimately all the procedures scheduled for a particular day as per
the theatre slate, might
not be carried out. Specifically in this
case, in addition to the caesarean the TL might not necessarily be
performed, depending
on whether the patient had confirmed all the
procedures, and in particular had provided the written consent for
the TL.
[25]
The records of St. Anne’s Hospital, the contents whereof were
admitted as the truth, revealed
that the first plaintiff was admitted
early on the morning of 13 February 2011. The reason for the
admission was stated to be ‘elective
C/S’. In the
demarcated space in response to the enquiry whether the ‘written
consent from doctor’ was submitted,
‘NO’ was
indicated. The first plaintiff (although initially hesitant as to
whether it was her signature on the form)
confirmed that she had
signed the form.
[26]
In a separate record, headed ‘Peri-operative document’,
it was recorded under the
‘Pre-operative phase (preparation for
surgery)’ that the consent for the ward, that is for an
elective caesarean had
been obtained, but that no consent for the
theatre had been obtained. Under the heading ‘Particulars of
operation’
it was recorded that a ‘lower segment
caesarean section’ was performed and ‘one live male
infant extracted at
09h32’.
[27]
The aforesaid records from St Anne’s Hospital staff may be
contrasted to those of 17 January
2012 in relation to the birth of J.
There the admission forms likewise reflected the ‘reason for
admission’ simply
as ‘elective ceaser’ (sic) but in
response to the question whether the ‘written consent from
doctor’ was
submitted, the reply was a circled ‘YES’.
The ‘Nursing progress report’ however recorded that
‘patient
admitted for elective caesarean section and bilateral
tubal ligation. Admitted by night staff’. The ‘Peri-operative
document’ recorded in regard to ‘consent’ that
consent had been obtained both in the ward and theatre. The ‘Nature
of the operation’ was also recorded to be ‘lower segment
caesarean section’ and ‘bi-lateral tubal ligation’.
[28]
The evidence of the defendant was that apart from his clinical notes
kept in the patient file
he also keeps a billing sheet wherein, in
relation to various attendances indicated in date form, he records
the procedure codes
for his billing staff to issue invoices to his
patients and their medical aid societies. In respect of the visit on
7 February
2011 he recorded procedure codes 0147 and 2603 (which
represents external cephalic version - excluding aftercare) and 2610,
(which
represents tacocardiograph pre-natal and intrapartum -
including stress and non-stress test; own machine - excluding
aftercare).
Immediately below that he inserted ‘next week C/S &
TL assist’. Although the latter appeared opposite the date
‘15/2/2011’ he testified that these entries were all made
on 7/2/2011 and were in respect of the procedures then contemplated
to be performed depending on the final decision of the plaintiffs as
to whether the first plaintiff wanted to proceed with the
TL. The
clinical notes of the defendant for 7/2/11 record ‘to sign
written consent – C/S- TL’, which he explained
meant that
the first plaintiff was to go away, consider the TL and that if
required, she was to sign the written consent for the
caesarean and
the TL and present it at the hospital on the day the procedures were
to be performed.
[29]
He was criticized in cross examination on his version that he had not
received any written consent
from the first plaintiff, but
nevertheless proceeded with the C/S. He explained however that the
C/S clearly had to be performed
and that would be obvious, but the TL
was significant and not necessarily required. The first plaintiff was
in any event according
to the hospital admission records admitted for
a caesarean section.
[30]
The first plaintiff and her husband both testified that at the end of
the procedure on 15 February
2011 with the birth of J there was much
joy in the operating theatre and that the defendant had uttered words
to the effect that
he would not be seeing the first plaintiff again
or that she wouldn’t be returning to theatre again. The
evidence in this
regard is necessarily vague as the first and second
plaintiffs’ were testifying to these events some 8 years after
they had
occurred. The defendant accepted that apart from
contemporaneous clinical and other notes he had made at the time, he
too would
not have an independent recollection of what transpired.
The plaintiffs’ sought to suggest that based on these
utterances
they assumed that the TL had been performed in line with
the consent they maintained they had handed to the defendant’s
staff.
[31]
The defendant, apart from contending that he could not independently
recall any such statement,
pointed to the improbability thereof,
namely that no obstetrician / gynaecologist would utter such a
statement to convey that a
TL had in fact been performed when he
could have been in no doubt that no such procedure had been performed
only minutes earlier.
Further, the theatre staff would immediately
have pointed this out. Ultimately in argument, both the plaintiffs
and the defendant
appear to accept that no reliable inference could
be drawn from any such words, even if they were in fact uttered. The
plaintiffs
explained that what might have been intended was that in
view of the first plaintiff’s age she would be unlikely to
return
to hospital with another child, and that now having had a boy
as they had wished, they did not plan on having further children.
I
agree that nothing more can be inferred from the use of those words
if they were in fact uttered, and that it was probably simply
banter
on a joyous occasion.
[32]
The first plaintiff testified that when she left the theatre she
believed that she had been sterilised.
[33]
The defendant’s contemporaneous clinical notes of the first day
after the caesarean, namely
16 February 2011, record that the first
plaintiff was ‘advised TL not done TCB 6/52.’ The
reference to ‘TCB 6/52’
was explained as that the first
plaintiff was ‘to come back’ to the defendant in 6 weeks’
time as to whether
she wanted to have a TL done.
[34]
The defendant’s clinical note for the third day, 18 February
2011, records that the first
plaintiff was fit for discharge ‘on
Microval’. Microval, as mentioned earlier in this judgment,
[11]
is a government supplied form of oral contraception which is made
available
to patients free of
charge.
[35]
The discharge records of St. Anne’s Hospital reflect that the
‘final diagnosis’
was a caesarean section (there was no
reference to a TL) and that the first plaintiff was discharged with
Stopayne medication,
to be used when necessary. There was no
reference to the Microval. The defendant however sought to explain
the absence of any reference
to Microval on the basis that it was
supplied free of charge and as a government initiative and hence not
listed.
[36]
According to documents from the plaintiffs’ medical aid,
Bonitas, a claim for R3 212,30
was paid to the defendant’s
practice on 2 March 2011. This was in respect of the defendant’s
attendances on 15 February
2011 in respect of an item with code 2615
(which refers to ‘Global obstetric care. All inclusive fee for
caesarean section,
and obstetric care from the commencement of labour
until after the post-partem six weeks visit) and code 2492 (which is
the code
in respect of salpingectomy colon uni- or bilateral
sterilisation for accepted medical reasons).
[37]
The first plaintiff testified that she consulted a general
practitioner, Dr Marrie, during 2011.
She was not certain of the
date. Although the consultation related to J, she complained to the
doctor that she was not feeling
well. The doctor then advised her
that she was pregnant. When she expressed surprise because she
believed she had been sterilised,
he suggested that she contact the
doctor who attended to the sterilisation forthwith. She recalled that
this occurred on a Friday.
Her husband then contacted the defendant
and the latter indicated that they should meet with him urgently the
next morning, on
the Saturday. Although it appears that the
consultation with Dr Marrie and the subsequent meeting with the
defendant might have
been a week apart, nothing turns on this
apparent discrepancy.
[38]
The clinical notes of the defendant reveal that the plaintiffs
consulted with him on 20 August
2010. He recorded that the first
plaintiff had missed her 6 week check-up after the birth of J. The
defendant’s clinical
note reads that she ‘was diagnosed
Preg! & wants not for TOP
[12]
despite status.’ He also recorded various findings.
[39]
The plaintiffs during argument placed emphasis on the exclamation
mark which appears after the
word ‘Preg’ in the
defendant’s clinical notes interpreting it as expressing
surprise. They questioned why the
defendant would express such
amazement or shock at the first plaintiff being pregnant if he knew
he had not performed a TL on her.
During argument the defendant
submitted that this was insignificant as his clinical notes for
5/1/04 in relation to the first plaintiff’s
pregnancy with her
first born had likewise recorded ‘Preg!’ The status of
that clinical note is of course simply, that
it is what it purports
without being the truth of the contents thereof, as it was not proved
during the evidence. Be that as it
may, what the notes do show is
that the defendant’s use of an exclamation mark is not confined
to the first plaintiff being
diagnosed pregnant with J. Most
significantly however, the use of the exclamation mark does not only
permit an inference of amazement
indicative of some form of
acknowledgement on the part of the defendant that he believed he had
previously performed a TL when
he fact had failed to do so. Such an
inference would also be in conflict with the tenor of the balance of
his notes.
[40]
The plaintiffs testified that it was during this time that the
defendant indicated a willingness
to assist them, which it was
argued, amounts to an acknowledgment of liability for the position in
which the first plaintiff found
herself, ie being pregnant again. The
import of the first plaintiff’s evidence was that this
assistance would take some form
of financial assistance, whereas the
evidence of her husband was that the exact nature of such assistance
was not discussed.
[41]
The plaintiffs allege that the defendant subsequently reneged on any
such undertaking. In the
evidence of both plaintiffs the reason,
apparently proffered by the defendant, was that he had spent or was
spending money on the
construction of a temple at his property near
Albert Falls outside Pietermaritzburg. The defendant does own an
immovable property
at Albert Falls which apparently has a home and
outbuildings constructed. It includes a general purpose facility
which some visitors
use as some form of retreat. The defendant
confirmed that the property is used for birdwatching and fishing and
even prayer by
those visitors who were so inclined. The argument on
behalf of the plaintiffs was that the plaintiffs would not have been
aware
of the existence of such a facility unless mentioned by the
defendant, and that this could only have been in the context of him
reneging on his previous undertaking to assist (possibly
financially). This, it was argued, indicated that he accepted
liability
for the first plaintiff’s pregnancy with J due to him
not having performed the TL at the time of the birth of J, otherwise
there would have been no need for him to accept any responsibility if
he had not been contractually obligated to perform a TL and
failed to
do so.
[42]
The defendant’s counter to this argument was that he is insured
against claims of this
nature, and that he wold never acknowledge any
liability in respect of a potential claim, as that would cause him to
lose his rights
of indemnity. He might have mentioned his property at
Albert Falls in a different context.
[43]
The defendant’s clinical notes in respect of the birth of J on
17 January 2012 record ‘bilat
TL done – Histo’.
This indicates that a bilateral TL procedure was performed and the
portions of the fallopian tubes
excised were sent for histology to
confirm the success of the operation.
[44]
Summons in this matter was issued on 8 December 2014 and apparently
served on the defendant on
9 December 2014. According to the
defendant it was during consultations with his professional medical
society, which would indemnify
him in respect of a claim of this
nature, that he only discovered that a claim had been submitted under
code 2492 in respect of
his 15 February 2011 attendances on the first
plaintiff, for payment of the sum of R836,50 for a sterilisation,
whereas in fact
such a procedure was not performed. He thereupon took
steps to have the amount reversed. It was not stated when such steps
were
taken but in a note received from Bonitas it is recorded that
the reversal of the sum of R836,50 was ‘actioned’
(presumably
given effect to) on 13 August 2015. The evidence of the
reversal of this fee became available for the first time at the
trial.
The defendant explained, and to some extent this was confirmed
by Ms Padayachee from him office, that he would write the codes on
his billing sheet and that the billing sheets would be handed to the
accounts lady in their office from time to time who would
then lodge
the claims with the medical aids concerned. There was some conflict
as to whether this would occur before or after procedures
are
performed, Mrs Padayachee having indicated the authorisation must be
obtained in advance but the billing would be done after
the
procedures are administered or performed. Nothing material turns on
this. In some instances claims might be made in advance
and in other
instances only after the procedures have been performed.
[45]
The defendant testified that the submission of the claim for a TL on
15 February 2011 was an
administrative error. He testified that an
invoice or statement would also have been sent to the second
plaintiff, but that no
query was ever raised in regard thereto. That
would obviously not be surprising, as on the plaintiffs’
version they believed
that a TL was performed. No query could be
expected from the plaintiffs until after the first plaintiff’s
pregnancy with
J was confirmed. However, even thereafter apparently
no query was raised.
[46]
The raising of that fee with the medical aid and it having been paid
by Bonitas would obviously
have reinforced the plaintiffs’
belief that it was part of their agreement with the defendant that he
was to have performed
a TL on 15 February 2011. Why charge for such a
procedure if it was not done? Otherwise it could be a fraudulent
claim. In the
ordinary course this would indeed be a strong
probability factor against the defendant, unless explained
satisfactorily. The defendant’s
explanation was that
administrative staff had in error but based on what was stated in his
billing sheet as to the procedures which
were
contemplated he would perform ‘next week’, namely
CS and TL, raised fees in respect of both procedures. This was
unbeknown
to him at the time as he did not deal with the raising of
fees personally. However no TL had been performed and no fee should
have
been raised in respect thereof. When he became aware of this
error, he asked for it to be reversed.
[47]
There was some criticism that it took 8 months’ before the
reversal was done. That criticism
might however be unfair as the
documentation refers to the request for the reversal being actioned
in August of 2015, but the date
of the actual request for reversal is
not disclosed. However even accepting a delay of some months before
it was reversed, the
accusation would be that the reversal was
requested to undo the inferences sought to be drawn from this
procedure having been charged
for in the first place, and to
manipulate the outcome of this trial. That would seek to ascribe
conduct to the defendant aimed
at defeating the proper administration
of justice and/or would be tantamount to fraud.
[48]
It was also pointed out during argument that in terms of
s 17(2)
of
the
National Health Act 61 of 2003
:
‘
Any
person who
–
(a)
…
(b)
falsifies any record
[13]
by
adding to or deleting or changing any information contained in that
record
[14]
…
commits
an offence and is liable on conviction to a fine or to imprisonment
for a period not exceeding one year or to both a fine
and such
imprisonment.’
Any
amendment or alteration of the defendant’s clinical notes would
accordingly amount to possible criminal conduct.
[49]
In
Gates v Gates
[15]
it was said that:
‘…
.
the
reasonable mind is not so easily convinced in such cases because in a
civilised community there are moral and legal sanctions
against
immoral and criminal conduct and consequently probabilities against
such conduct are stronger than they are against conduct
which is not
immoral or criminal
.’
[50]
The defendant’s explanation that the claim for the TL fee in
respect of his attendances
on 15 February 2011 was an administrative
error, must also not be adjudged in isolation but viewed against the
context of all the
other evidence. In particular, it seems that the
claims process from his rooms is not always as reliable as the
Bonitas records
also revealed claims paid out in respect of alleged
attendances by the defendant on the first plaintiff on 10 February
2011. His
clinical notes however reflect no such attendances on the
first plaintiff that day, and no such attendance was ever hinted at
by
the plaintiffs. This further debit of fees was only discovered
during the course of this trial when evidence was being led. The
defendant expressed his complete surprise and said he would
immediately request the reversal thereof. The defendant’s
administrative
claims process is therefore clearly fraught with
problems. Either claims are made for work not done, which would be
fraud, by either
the defendant or an employee for personal gain, or
the administrative process is very unreliable. The primary inference
would of
course be that the work claimed for had in fact been done
and could not now be denied, which no doubt would have weighed
heavily
with the plaintiffs’ legal advisers in having advised
the plaintiffs to pursue the action.
[51]
In addition the notion that the claims submitted by the defendant’s
debtor’s clerk
vicariously constitutes an admission of a
contractual obligation to have performed the TL on 15 February 2011,
would fly in the
face of the defendant’s clinical notes,
particularly that on the first day after the procedure, he recorded
advising her
that no TL was performed and she was ‘to come
back’ regarding any possible sterilisation 6 weeks later. One
might be
sceptical about this note, because why would such advice be
required if the required consent which was a precondition to the
defendant
performing the TL, had not been in place the day before.
However, it is also a comment, at the level of probability, which
would
not necessarily be out of place from an abundance of caution,
given the history of dealings between the parties.
[52]
A perusal of the topographical lay out of the original clinical notes
would not suggest that
this statement was inserted fraudulently
later. The spacing between lines appears consistent. The rewriting of
the particular page
or possibly pages, as they are loose leaf and not
in a bound document, might not be impossible, but would also
constitute illegal
or at least immoral conduct, which is not
generally accepted as a matter of probability. More importantly
though, although the
possibility of such deceptive conduct was hinted
at faintly during argument, the plaintiffs never confronted the
defendant with
any such suggestion during his cross-examination to
afford him the opportunity to comment thereon. He might have had a
very conclusive
answer. Fairness and the general principles relating
to cross examination require that the defendant should have been
confronted
with any such accusation if it was to be pursued. The fact
that he was not thus confronted is fatal to any argument along these
lines.
[53]
The plaintiffs’ claim is contractual. What the defendant’s
clinical notes for the
consultation on 7 February 2011 and the
evidence on probability establish, is that a possible TL on the first
plaintiff to be performed
on 15 February 2011 was discussed, that it
was offered by defendant as a service he could render, that the
plaintiffs’ might
even have been fairly resolute in their
determination at that point to have a TL performed, but that the
offer of performing such
procedure still had to be accepted by the
plaintiffs. The acceptance of that offer, to give rise to an
enforceable contractual
term to perform the TL, had to be
communicated to the defendant by the consent of the first plaintiff
in the form of a written
consent actually coming to his attention.
Having regard to the effect of a TL, namely sterilisation of the
first plaintiff, nothing
less would suffice. This is not an instance
where some form of communication of acceptance short of actual
recognition by the defendant
by the consent being brought to his
mind, could result in the consensus
ad idem
on all the terms
of an agreement, which a binding and enforceable agreement in law
requires.
[54]
Where the plaintiffs’ claims fail is the absence of proof that
such consent actually came
to or was brought to the defendant’s
actual attention. Indeed much of the defendant’s
cross-examination proceeded on
the basis of accepting that he had not
become aware of the consent form which the plaintiffs maintained was
handed to them, signed
by them and allegedly handed to a member of
his staff, who might have misplaced it or not placed it in the
patient file. St Anne’s
Hospital records are consistent with
the consent not having been produced at the hospital or being
available at the time of the
caesarean section in respect of J. The
plaintiffs might no doubt
bona fide
have believed, accepting
their version, that they had communicated their acceptance for the TL
to be performed by the defendant
by handing in the consent form to
his reception staff, although this was never specifically pleaded,
nor any estoppel raised by
replication.
[55]
They might also no doubt subsequently have been reinforced in that
belief by the fact that the
TL procedure was charged for and the
defendant was paid by Bonitas. Although there was no evidence that
they had seen the charge
on any statement sent to them and had relied
thereon, they would have become aware of the charge raised and paid
by Bonitas at
the latest before the trial commenced. The request by
the defendant for the reversal of the charge for the TL and the
actual reverse
of the charge only came to their attention during the
hearing of the action.
[56]
That subjective belief on the part of the plaintiffs might also
subsequently have tainted the
construction which they placed on words
which might have been uttered during the joyous occasion when J was
born. The whole of
the plaintiffs’ evidence is dependent on
personal recollection more than eight years later. It is also no
doubt subconsciously
influenced by the nature of their claim and
events, such as that payment was made in respect of the TL procedure,
which
prima facie
would suggest that the defendant had indeed
agreed to perform such procedure.
[57]
As against that evidence, are the contemporaneous notes of the
defendant, which have not been
impeached. These indicate that there
was still uncertainty as regards the TL at the last consultation
before the caesarean was
performed, the first plaintiff being advised
post the caesarean that no TL was performed, and that she was to come
back about having
such a procedure done. That note cannot simply be
ignored. The subsequent claim for such a procedure, which would be a
subsequent
event and normally strongly indicative of the parties’
true contractual agreement, has been explained. That explanation is
also not one which can simply be rejected, particularly where other
billing errors have also been made and the billing for a TL
on 15
February 2011 had not been made by the defendant personally. As
remarked earlier, no estoppel was raised in this regard either.
[58]
In my view, based on an examination of the aforesaid evidence, the
probabilities overall favour
the defendant, or at best for the
plaintiffs, are evenly balanced in which case the onus becomes
decisive. The plaintiffs have
not discharged the onus of proving a
preponderance of probability in their favour. The defendant is
accordingly entitled to be
absolved.
[59]
This is not a matter in which the
bona fides
of the plaintiffs
can readily be questioned. It appears to me more correctly to be one
of those instances where both parties, genuinely
believing in their
respective versions, have contributed to a result where the
plaintiffs’ claims have failed simply because
they were unable
to discharge the onus of proving that there was a complete meeting of
the minds in regard to every material aspect
of their negotiations,
as to give rise to consensus
ad idem
.
[60]
The result is that the defendant has been successful. However the
plaintiffs’ persistence
with their action, where they were
armed with proof that Bonitas had made a payment to the defendant in
respect of a TL performed
on 15 February 2011 (the reversal of which
and the reason therefore never being disclosed to them before the
commencement of the
trial), was reasonable. In the exercise of my
discretion on costs I determine that each party pay their own costs.
[61]
In the light of the conclusion to which I have come it is not
necessary to consider the defendant’s
special plea of
prescription and I accordingly refrain from doing so.
[62]
The following order is granted:
1.
The plaintiffs’ claims are dismissed;
2.
Each party is directed to pay their own costs.
KOEN J
Appearances
For
the Plaintiffs:
MR. V NAIDOO
SC
Instructed
by:
SILVIA DA SILVA & ASSOCIATES
Ref.: SDA/MED NEG/R381
Tel.: 033 – 342 5040/1
For
the Defendant:
MR. A VAN RENSBURG
Instructed
by:
MACROBERT INCORPORATED
Ref.: MR REINIER JACOBS/1034253
C/O VENNS ATTORNEYS
Ref.: DL/04158289
Tel.:355-3100
[1]
The reference to such agreement being
concluded with the assistance of the second plaintiff (her husband)
was conceded by plaintiffs’
counsel to be irrelevant.
[2]
There were also further terms alleged
regarding the defendant having to conduct the operation with
professional skill and care,
but these were not relied upon and
expressly disavowed.
[3]
The
first
plaintiff and the defendant have had a long association, the
defendant having assisted her initially to fall pregnant with
her
first child who was born on the 5 June 2004, a subsequent
miscarriage, the birth of J on 15 February 2011 and the birth of
J
on 17 January 2012.
[4]
1984 (4) SA 437(E)
at 440F to 441A.
[5]
1975 (1) SA 227
(N) at 228F-H.
[6]
Exhibit B.
[7]
Sterilisation Act
44 of 1998
.
[8]
‘
The
Regulations under the Sterilisation Act, 1998 (Act 44 of 1998)’
GN R872,
GG
20285, dated 16 July 1999.
[9]
Operating theatre.
[10]
The authorization
number could either be obtained in advance or after receipt of the
consent form
.
[11]
See para 7.
[12]
Termination of pregnancy.
[13]
The ‘record’ referred to
are a user’s ‘health records’.
[14]
s17 (1) requires a
person in charge of a health establishment to set up control
measures to prevent unauthorised access to health
records and to the
storage facility in which and all systems by which records are kept.
A ‘health establishment’
is defined as meaning ‘the
whole or part of a public or private institution, facility, building
or place whether for profit
or not, that is operated or designed to
provide inpatient or outpatient treatment, diagnostic or therapeutic
interventions, nursing,
rehabilitative, palliative, convalescence,
preventative or other health services.’
Prima
facie
the
clinical records kept by the defendant in respect of his patients
fall within those parameters.
[15]
1939 AD 150
at 155.