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[2018] ZAFSHC 111
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H v Preller Plain Apteek (5900/2008) [2018] ZAFSHC 111 (29 June 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5900/2008
In
the matter between:
B
H
Plaintiff
and
PRELLER
PLAIN
APTEEK
Defendant
HEARD
ON:
1 & 2 NOVEMBER 2016,
16,
17 & 18 OCTOBER 2017,
24
JANUARY 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
29 JUNE 2018
[1]
The plaintiff instituted an action for damages against the defendant
arising out of the alleged negligent administration of
the injection
into a sacral nerve in or emerging from or having emerged from one of
the paramedian sacral foraminae, two hand widths
above the gluteal
fold in the vicinity of the sacrum. It is common cause that the
injection was administered on 26 August
2006 by an employee of the
defendant at its premises.
[2]
The parties handed in a draft order agreeing to separate the merits
and quantum. I made it an Order of Court and this
Court is
seized only with the determination of the merits at this stage.
The
grounds of negligence alleged by the plaintiff
[3]
On paragraph 8 of the amended particulars of claim the plaintiff is
alleging that the defendant breached the legal duty of care
in the
following respects viz:-
“
8.1
the said employee was not qualified at all,
alternatively
adequately qualified to administer injections of this nature; and/or
8.2
the said employee failed to refer the administration of the injection
to a suitably qualified person; and/or
8.3
the said employee administered the injection incorrectly by the
administering it into a sacral nerve in one of the paramedian
sacral
foraminae or in the sacral canal via the midline sacral hiatus;
and/or
8.4
the said employee failed to administer the injection in accordance
with accepted medical protocol to wit in the upper outer
quadrant of
the buttock.”
The
grounds of denial of negligence by the defendant
[4]
The defendant denied liability. The allegations in the plea are
couched in the following manner:-
“
Behalwe
om te ontken dat die betrokke werknemer van Verweerder nie oor die
standard mediese- en/of verpleegkundige vaardigheid in
die toediening
van inspuitings beskik het nie en paragraaf 5.2 te ontken, word die
res van die beweringe in hierdie paragraaf erken.”
“
6.2
Verweerder pleit dat die betrokke inspuiting toegedien is in die
boonste buite kwadrant van die Eiseres se regter boud en pleit
verder
dat die inspuiting toegedien is met 12.7 mm kort G26 naald met 0.45
mm deursnee (algemeen bekend as ‘n subkutane naald)
welke ook
nie die sakrale senuwee kan bereik of die paramediane sakrale
foraminae of die sakrale kanaal kan bereik en/of raak nie,
en/of kan
bereik en/of raak op die wyse soos deur die Eiseres beweer nie.”
“
7.2
Verweerder pleit dat medies, anatomies en fisiologies gesproke die
kanse uiters skraal en/of bykans onmoontlik is dat die beweerde
diskus besering na die inspuiting kousaal kon plaasvind en/of
plaasgevind het soos deur die Eiseres beweer”
“
8.1.1
Verweerder pleit verder dat die betrokke inspuiting inderdaad in die
boonste buite kwadrant van die Eiseres se regter boud
toegedien is”
Plaintiff’s
evidence
[5]
The facts are briefly as follows.
[6]
Prior to 12 August 2006 the plaintiff had urinary tract infection
causing her kidney and lower back pain. She consulted
Dr Bosman
a chiropractor who eased the pain a bit. However, she felt a
bit overweight and decided to start a well talked
about diet
programme offered by the defendant.
[7]
On 16 August 2006 at the business premises of the plaintiff she met
Mareli Gscabai who explained the details of the diet plan.
She
was given some pink tablets meant to obliterate sugar cravings.
In addition an injection containing a fat burner and
Vitamin B was
administered on her by Christanet Gousaard (now Janse van Vuuren).
Before an injection was administered on
her she kept a close interest
to ensure that it was safe. Incidentally she remarked about the
size of the needle that it
was really big. In her estimation it
was approximately five (5) centimetres long. She noticed that
the needle holder
was green in colour.
[8]
She was in a standing position when she opened her pants for her to
inject her buttocks. She was expecting to be injected
on the
right buttock. Christanet told her that “nee, ek moet jou
bo jou naat inspuit.” In that case she
exposed her sacrum
area without exposing her buttocks for the injection to be
administered on her.
[9]
Christanet cleaned her with a swab soaked with alcohol and she could
feel its coldness thereof. She then proceeded to
inject her.
Although she could not see the exact area of the injection, it was
almost in the middle of her body more or less
near the gluteal cleft
at the top. Everything went according to the plan and she left.
[10]
On 23 August 2006 she returned a urine sample holder and to receive
another injection. While in conversation with Mareli,
Christanet hurriedly entered. She was evidently late for their
appointment and she politely apologised. They exchanged
pleasantries and plaintiff was pleased that she had lost three (3)
kilograms in the past week.
[11]
Christanet removed the green coded needle in preparation to
administer an injection. Customarily she observed her every
movement to satisfy herself that she was adhering to the required
safety standards. She stood up in front of the desk she
was
sitting next to. She had one hand on the desk, pulled her pants
down and learned forward. This position was in
contrast to the
first injection which was administered while she was standing
upright.
[12]
Like the first time she felt the coldness of the swab on the same
area as the previous week. She felt the prick more
or less to
her left side. In split seconds she felt an excruciating
shooting pain at the back of her left leg into her foot.
This
was followed by hot flushes all over her body and she heard ringing
noises in her ears. It was the first time she experienced
such
a feeling. She knew that she was going to faint and she told
Christanet. Both Mareli and Christanet put her on
the chair.
The latter said that she must put her head between her legs.
She remembers seeing Mareli running out of
the room probably to
summon help and shortly thereafter she blacked out. She
suffered excruciating headache with stiff muscles
all over her arms,
legs and back.
[13]
When she regained her consciousness she was surrounded by a number of
people but still feeling the excruciating headache and
back pain.
Mareli asked her if she had epilepsy and she responded in the
negative. She told her she had properly had
grand epileptic fit
because she had convulsions and her eyes rolled back. She knew
about this because her husband suffers
from epileptic fits.
[14]
Christanet rubbed her arm and apologised for injecting her.
Embarrassingly she discovered that she had wet herself.
An
ambulance was called and she was taken to hospital. She was
attended to by a medical practitioner and later discharged.
Before discharging her, the medical practitioner advised her to
consult a neurosurgeon if the back pain persists.
[15]
The pain persisted and she secured an appointment with Dr
Relling(neurosurgeon) on 29 August 2006 who operated on her back
on
30 August 2006. The explanation that he gave her was that her
disk was totally shattered in the same fashion as a glass
of wine
that is dropped down. The pain did not dissipate and she
consulted and sought a second opinion from Dr Hugo (neurosurgeon)
who
performed another laminectomy in 2008 because pieces of her disk were
left behind.
[16]
As a result she is presently suffering constant back pains and had to
leave her employment as a manager at Columbus Cleaning
and Hygiene.
Prior to 23 August 2006 she did not take medication for epilepsy.
She experienced another epileptic fit
on 3 June 2007. Different
epilepsy medication was prescribed for her and eventually she was
taken off the medication in January
2013.
[17]
Under intense cross-examination she testified that she was admitted
to Bloem Care for depression in 2007. That was after
the
incident in question. A medical practitioner who treated her
there Dr Jordaan erroneously identified her as another patient
who
had family members with epilepsy. This aspect was rectified
about a week later while receiving treatment there.
[18]
She confirmed that the urinary tract infection had caused her a lower
back pain. The decision to consult Dr Bosman was
motivated by
the fact that he had helped her husband in the past. Although
the pain progressed from around 10 August 2006
she continued
reporting for duty. It was only after she returned from sick
leave that she virtually handed everything to
her employees.
[19]
She was taken through the reports of Dr Repko and Edeling and
pertinently that they did not make mention of the needle that
was
allegedly used on her. Her response was that she had repeated
her version to every medical practitioner and she cannot
give a
response why that aspect was not properly recorded by them. She
remained resolute that the injection was administrated
in the middle
above her gluteal cleft. At the time she was injected her pants
were still covering her buttocks otherwise
she was only able to
inject her through her pants.
[20]
She denied telling Christanet that she was suffering from a severe
back pain. Her response was that she was not in the
room while
she was in conversation with Mareli. Furthermore she did not
recall informing her that she was working at a place
where she was
required to carry heavy boxes. Lastly, she did not say she
experienced back pains the previous weekend.
[21]
Once more she confirmed how she felt after the injection. She
could not remember what transpired while sitting on the
chair because
she had blacked out.
[22]
Dr Herman Jacobus Edeling a neurosurgeon registered with the Health
Professional Council of South Africa who qualified in 1992
gave
evidence on behalf of the plaintiff in the field of neurosurgery.
He explained that his field concerns primarily conditions
affecting
the nervous system which includes the central and peripheral nervous
system. The central nervous system is the
brain and spinal
cord. The peripheral nervous system pertains to the nerves that
emanate from the brain and spinal cord and
travel to supply various
parts of the body.
[23]
He explained referring to the model of the lower end of the spinal
column that it is a bony column. At the end of it
is the coccyx
which has a triangular shape. Directly above it is another
triangular shaped bone called the sacrum consisting
of five fused
sacral vertebrae with holes and gaps between them.
[24]
The twelve bones that are stuck together are connected by joints and
in the spine part of the joint is the intervertebral disc.
The
function of the vertebral disc is to carry and support the weight of
the whole top part of the body ie to provide a measure
of flexibility
or pliability to a weight bearing structure.
[25]
According to him a disc prolapse is when a back part of the disc is
injured and the ligament containing the disk raptures resulting
in
the disc material extruding backwards from the space into the spinal
canal. The nerves are emanating from the spinal cord.
As
soon as they exit they divide into two branches labelled the ventral
ramus and the dorsal ramus. The ventral rami come
out the
sacral foraminae. The dorsal rami emerge from the sacral
foraminae at the back and lay on the surface of the muscle
penetrating all soft tissues that overly the bone. These nerves
are all connected to the brain and that any sensation will
be
transferred to the brain.
[26]
He further explained that the midline is a vertical line from the
middle of the head at the back down the middle between the
left and
the right side at the back. The term para median means
alongside the midline although it does not give an indication
of how
many millimetres from the midline.
[27]
He pointed out the gluteal cleft of the plaintiff as shown in photo
15 on page 41 of the defendant’s bundle. He
confirmed
that on top is the skin part where the nerves will lie. He
stated that if a needle was to penetrate the skin, it
will first go
through the skin itself. Thereafter it will go through the
subcutaneous tissue which is basically fat and some
fibrous tissue.
Then it will go through the muscle facia which is a layer of white
tissue lying on the surface of the muscle.
Lastly it will hit
the bone. However, if the needle was inserted closer to the
midline, then it will be a shorter path to
the bone.
[28]
The gluteal cleft can have a different length depending on the
height, weight of different people. Infra gluteal fold
refer to
the fold below the buttocks.
[29]
He compiled the first report before consulting with the plaintiff
after being given her injury diagnoses. These were
given to him
as complications of sacral intra neural injection, meaning injection
into a nerve. This was followed by epileptic
seizures and the
L5-S1 disc prolapse with cauda equina radiculopathy. As a
result she underwent two operations by Drs Relling
and Hugo.
[30]
On 11 October 2013 he had an initial consultation with the
plaintiff. This necessitated the amendment of the previous
report hence he compiled an addendum to the previous medico-legal
report. His previous conclusion was wrong because from
the
documents at his disposal he concluded that she was more in a
horizontal position when the injection was administered.
This
was contrary to her explanation as to how the second injection was
administered. On this occasion she was standing next
to the
table with her feet closer to each other. Although there was an
incline, she was not horizontal.
[31]
Regarding the needle that was used, he formed his opinion on the 26G
which was handed in as exhibit 1. He did not canvass
this issue
with the plaintiff because she told him that she did not see the
needle. He explained the difference between subcutaneous
intermuscular and intravenous injections. Together with the
defendant’s expert, Dr Wilkinson, they agreed that the
injection site was two hand widths above the gluteal fold.
[32]
However he was critical of the method and described it as an
inaccurate description because people have different hands and
sizes
thereof. In order to be correct in that approximation, a
patient has to be undressed, lying horizontal so that the
gluteal
fold can be clearly noticeable. The easy reasoning on why the
method is not preferable is because patient’s
buttocks differ
in size and shapes depending on their bone structure and size.
The difficulty was apparent in the deficiency
of this method because
Dr Wagner could not indicate where it was along the line.
[33]
Both of them looked at the plaintiff’s photographs indicating
the site of the injection. They accept that the horizontal
orientation of the injection was in or close to the posterior midline
between her buttocks. This means that it was in the
midline or
close to the midline. This was consistent with what the
plaintiff had indicated with the circle. However,
they were
unable to agree or specify how far or close to the midline.
Accordingly closer to the midline means that it was
in the sacral
area which covers the area indicated with the circle by the
plaintiff.
[34]
They could not agree on the capacity of a 26G subcutaneous needle
with a length of 12.7 millimetres to penetrate a sacral nerve.
According to him such a needle will be able to penetrate the sacral
nerve. The basis of his conclusion is that the only tissue
between the nerve and the outside is the skin and subcutaneous
tissue. So, if a needle measuring 12.7 millimetres is injected
through the skin directly inwards, it can easily hit the nerve.
This can also happen where the needle is pushed on the softer
part of
the body because there is no resistance there. In that case
that needle will get to a depth some distance beyond
the 12.7
millimetres assumed depth of injection.
[35]
He concluded that the acute symptoms and their intensity could only
have been caused by an injection into the nerve.
In his view
there is no other mechanism he could contemplate that can cause that
kind of acute symptom. The pain that she
felt on her left leg
down to the foot is consistent with an injection that was
administrated on the left side.
[36]
In her case she experienced a vasovagal attack which occurs when the
brain is bombarded by a very potent sensory stimulus.
In this
matter it was an unusual sensory input from a nerve into the brain.
This is commonly referred to as a faint.
The two EEG reports
showed a brain focus. The plaintiff did not suffer from any
head injury or stroke. The conclusion
is that the brain focus
was probably present all the time in a latent or symptomatic manner.
The plaintiff suffered a grand
mal seizure which is described as a
bad and obvious kind of epilepsy. This is the case where there
is incontinence, all four
limbs shake and loss consciousness.
[37]
Further the MRI scan taken by Dr Relling six days after the event
showed that she had a severe sequestrated disc prolapse.
When
she regained her consciousness she was aware of the back pain.
This did not happen at a later stage. The conclusion
is that
the disc prolapse occurred at the same time as the epileptic fit.
In this matter the plaintiff had a longstanding
chronic degeneration
of her L5-S1 disc.
[38]
Under cross-examination, he testified that people faint for a severe
emotional reaction. In this matter, the plaintiff
felt a sharp
intense pain on the second injection. This did not occur the
first time she was injected. The difference
between the two
injections is that the second one went into her sacral nerve.
[39]
He vehemently denied the proposition that she could have fainted from
a number of actual issues. The basis of his assertion
was that
a medical diagnosis is based on the scientific probability of being
right. In casu there is the immediate proximate
temporal
relationship between the injection, the pain and the vasovagal
attack. This means that the diagnosis of a vasovagal
attack
precipitated by an injection into a nerve is a high probability.
To think otherwise will amount to an absurdity.
[40]
He conceded that the subcutaneous nerves are linked with the nerves.
He pointed out that corporal punishment on the buttocks
does not
cause one to have a shooting pain down the leg. It is not the
same with injection going into a nerve and injecting
an irritating
substance into it. The outcome will be different.
[41]
He gave a detailed explanation of how an injection into a small
peripheral cutaneous nerve lead to a person experiencing pain
down
the leg. In essence when a strong sensory impulse enters the
nervous system through a nerve irrespective of what nerve
is, the
impulse is carried proximately towards the brain. The pain may
feel as if it’s coming from a nerve in the leg
whereas the
impulse went from the sacral nerve in the conus medularus of the
spinal cord. That he explained as the pain phenomena.
The
brain cannot decipher whether it is for example a thorn in the leg or
a burning in the leg. He confirmed that he stood
by this
conclusion that the injury diagnosis is complications of sacral
intramural injection. The pain and the sensory overload
associated with the injection into the sacral nerve were too
insurmountable. According to him the injection precipitated
epilepsy from a latent focus. He differed with other experts
who held a contrasting view.
Defendant’s
evidence
[42]
Christanet Janse van Vuuren was the pharmacy assistant employed by
the plaintiff at the relevant time. She had completed
a
pharmacy assistant course obtaining a certificate thereof. She
was in charge of the diet programme together with Mareli
Gscabai.
She was the one who was administering injections.
[43]
In 2003 in Bloemfontein she received training for one (1) day from
Josef and Gert Coetzee regarding the diet. It was
based on the
overall programme, how to test urine and administer injections.
The injections were administered weekly and
the substance in the
syringe remain the same. She was taught to administer the
injection on the shoulder and buttocks.
The technique she was
taught was to divide the buttock into four quarts and inject on the
outer corner of the top quarter.
The decision of the location
of the injection lied with the patient. On the day in question
she administered the injection
on the plaintiff using a needle
commonly referred to as 26G. She vehemently denied using a
needle with a green tip.
[44]
Prior to injecting the plaintiff she had already performed almost
eight hundred (800) injections on others. She had injected
the
plaintiff prior to 23 August 2006 although she could not remember on
which part of the body. However what she vividly
remembers is
that she did not inject her as shown on photo 12 on page 42.
This refers to the circled area over the sacrum
[45]
On that day she came into the room and found the plaintiff standing
and complaining about a very bad back pain. She was
explaining
that she was carrying heavy boxes and one of her friends had injected
her with Voltaren over the weekend. The
pain had subsequently
subsided. Thereafter the plaintiff dropped her pants a little
bit and she proceeds to inject her.
[46]
After injecting her, the plaintiff expressed not feeling well and she
advised her to sit down, put her hands infront of her
and rest on her
arms. She asked Mareli to fetch water. All of a sudden
the plaintiff made unusual noise and started
sliding down the chair.
Her eyes rolled. She summoned help and they made her lie on a
mattress. A colleague Marisa
Beukmann mentioned that it was an
epileptic attack and assisted her that she must not swallow her
tongue. They called for
an ambulance.
[47]
She confirmed that there was incontinence because the blue chair was
wet. The plaintiff suffered convulsions but not
at the time she
was lying on the floor. The entire episode from the injection
to her regaining her consciousness took less
than ten (10) minutes.
[48]
She accepted that when the person is injected, there is the
depression of the skin although it will differ from one person
to the
other. Most of the incidents on the day she could not remember
because everything happened a long time ago.
Indeed she
apologised to the plaintiff after injecting her.
[49]
She denied injecting the plaintiff as she alleged. Although she
initially said she injected her on the bottom quarter,
she retracted
that it was a mistake as she meant to say the corner of the top left
outer quarter. She consulted with Dr Wagner
and told him that
the injection was to be administered two hand widths from the gluteal
fold.
[50]
Briefly Mareli Gscabai testified that she was employed by the
defendant as a diet clinic consultant and worked with Christanet
for
a period of approximately a year. She received training and she
was trained by the Pharmacist to administer injections.
The
needle that was used was a small brown needle. Although
initially she did not give injections at some stage she did.
[51]
She observed many times that Christanet administered injections
because the programme was very popular. She doubted strongly
that Christanet could have used a 21G needle. They were very
specific about the size of the needle and that Christanet was
a
careful person.
[52]
She conducted the initial interview with the plaintiff. All the
information was obtained from the plaintiff. This
includes the
fact that she had a back pain. She remembered vaguely the
incident on 23 August 2006. She denied that
her husband suffers
from epileptic fits and at no stage did she say so. Further,
words like grand mal are unknown in her
vocabulary.
[53]
Dr Elizna van Aswegen was stationed at Mediclinic Emergency Unit when
the plaintiff was brought to her. She took the
history of the
patient in order to examine her. In addition a straight leg
raising test was performed to see if the sciatic
nerve might be
pinched and if the patient has any pain. It was negative.
She was aware that the plaintiff had a severe
back pain after an
injection followed by a fall. She agreed that the disk prolapse
result in a tearing of a ligament containing
disk materials. If
it leaks it goes somewhere and it take some time before reaching the
spinal column and a patient getting
an impingement on a nerve.
[54]
Dr Leon Wagner a forensic pathologist with impeccable curriculum
vitae previously attached to the Faculty of Medicine at the
University of the Free State gave evidence on behalf of the
defendant. In February 2010 he took the photographs of the
plaintiff
indicating where the needle was inserted on her.
However he did not consult with her regarding the history and what
led to
this particular matter.
[55]
He confirmed that Christanet Janse van Vuuren had told him that she
was trained to give injections two (2) hand widths from
the gluteal
fold. This was the correct place to administer an injection
whether subcutaneous or intramuscular. It be
unusual for any
complications to follow if the patient is injected in the right upper
quadrant. He contradicted the report
by Dr Repko that the
injection after administered it moved upwards. Further that the
subcutaneous needle was too short and
frail to be inserted through
the ligaments. The ligaments are very hard, thick and sturdy to
be penetrated by such a needle.
He concluded that the injection
could not have contributed to causing an epileptic fit.
[56]
He fortified his argument by stating that a drug that is injected in
a slightly obese person will be confined to the fatty
not the
muscular tissue. The drug will simply lie there and take time
to dissolve before being absorbed into the vascular
system and have
any systemic effect. In this matter the drug given was harmless
to have any effect on the brain.
[57]
He differed with Dr Edeling that the needle was small and that even
if it was injected on the midline it could not have penetrated
to the
extent of perforating the nerve and depositing the drug injected.
In addition the fact that the test performed by
Dr van Aswegen was
negative indicates that there was no protrusion or inflammation
present of the sciatic or the sacral nerves.
The absence of
pain means there is no injury.
[58]
He conceded that he is not a clinician but was expressing an opinion
on clinical issues not falling within the ambit of his
speciality.
He differed with the testimony of Dr Edeling that the plunger must be
pressed with force to get into the body.
[59]
Briefly the evidence of Henda Pretorius corroborated that of Dr van
Aswegen that she did the general assessment on the plaintiff
when she
arrived at the emergency unit. She obtained the history from
the patient and recorded the vital signs.
[60]
Professor Coert de Vries a registered Radiologist and head of the
Department of Clinical Imaging and Sciences also took to
the stand.
He explained the latest developments in his field and new methods
called minimum invasive therapy. He explained
epilepsy
differently although substantially confirming what Dr Edeling had
already touched on.
[61]
He testified that the epileptogenic focus is in the brain and an
injection is nowhere near the brain. According to him
the
conclusion of Dr Edeling that the small nerves that lies on top of
the muscle as peripheral nerves over the sacrum can easily
be hit by
a needle was wrong. The basis of his reasoning is that those
dorsal rami are not motorically connected to the leg.
Especially an injection that touches or penetrates such a peripheral
nerve, would not cause a shooting pain down the leg.
This is
impossible simply because there is no direct link between the dorsal,
sensory and motoric system to get that direct pain.
[62]
Cross-examination elicited that he had not seen any clinical notes
why the plaintiff was admitted at Mediclinic on 23 October
2006.
These were not taken into account when he compiled his report.
He was also not aware whether the plaintiff suffered
any epilepsy or
not prior to 23 August 2006 and thereafter. Neither was he
aware that he was put on medication called Tegretol.
Although
he steadfastly maintained that a needle cannot cause an epileptic fit
or seizure, he could not tell what caused the plaintiff
to experience
the epileptic fit.
[63]
The last witness Dr Dewald Gouws a Radiologist and former partner of
Van Dyk and Associates practised his profession for twenty
three (23)
years prior to his retirement in 2016. On 25 February 2011 he
compiled a report on pages 146 to 147. The
plaintiff showed the
area where the injection was administered. The photographs are
on page 148 of the bundle. He measured
the distance between the
skin to the spinal column was measured at 87.2 millimetres.
[64]
He concluded that there was no possibility that a small needle can
approach the canal. It is equally impossible to do
with a big
needle. In essence, the needle is impossible to puncture the
nerve. Accordingly a sacrum can be penetrated
at oblique not
horizontal angle. Of the two needles mentioned in the matter it
was impossible.
Applicable
legal principles
[65]
The plaintiff bears the onus in proving that the employee of the
defendant failed to adhere to the requisite standard of care
when she
injected her on 23 August 2006. Further that through her
actions she suffered a seizure that resulted in prolapse
of the L5-S1
disc.
[66]
In order to establish liability conduct of the defendant must have
been wrongful.
[1]
It is
trite that in a delictual claim a plaintiff is duty bound to prove
negligence, causation and harm. The test for culpa
was laid in
Kruger
v Coetzee.
Holmes
JA expressed himself in the following manner:-
“
For
the purposes of liability culpa arises if –
(a)
a diligens paterfamilias in the position of the
defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (a) (ii) is sometimes overlooked. Whether a diligens
paterfamilias in the position of the person concerned would take any
guarding steps at all and, if so, what steps would be reasonable,
must always depend upon the particular circumstances of each case. No
hard and fast basis can be laid down. Hence the futility,
in general,
of seeking guidance from the facts and results of other cases”.
[2]
[67]
The formula for determining negligence is not a “one size fit
all” solution appropriate in every case. This
was also
stated in
Sea
Harvest
(Pty) Ltd and another v Duncan Dock Cold Storage (Pty) Ltd and
another
as follows:-
“
Having
said this, it should not be overlooked that in the ultimate analysis
the true criterion for determining negligence is whether
in the
particular circumstances the conduct complained of falls short of the
standard of the reasonable person. Dividing the
inquiry into
various stages, however useful, is no more than an aid or guideline
for resolving this issue.”
[3]
This
is the correct approach that has been endorsed and adopted by the
Constitutional Court as the applicable test.
[4]
[68]
The aggrieved party must prove causation on a balance of
probabilities. The court has repeatedly held that the “but
for” test requires flexibility and common sense approach. In
Minister of Safety and Security v Duivenboden
the court
eloquently said the following:-
“
A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.”
[5]
[69]
In this matter the parties adduced evidence of eminently qualified
experts in their respective fields. Evidently they
expressed
conflicting opinions on the matter at hand. In evaluating the
evidence of expert witnesses, it must be determined
whether and to
what extent their opinions are based on logical reasoning. This
was emphasized by the Supreme Court of Appeal
as follows:
“
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning.”
[6]
This
has been held to be the only way the court is able to determine which
one of the conflicting opinions should be preferred.
[7]
[70]
The primary function of an expert is to assist the court in matters
that the court does not have the necessary knowledge to
decide the
issue. The court must be “satisfied that because of his
special skill, training or experience the reasons
for the opinion
which he expresses are acceptable”.
[8]
The cogency of the underlying reasoning which led the experts to
their conflicting opinions must be determined.
[9]
Evaluation
of the evidence
[71]
It is common cause that Christanet injected the plaintiff on 23
August 2006. The dispute between the two (2) is the area
of
injection and the type of needle she used to administer the
injection. According to the plaintiff it was on the encircled
area covering the sacrum. This is clearly illustrated by her on
the diagram on page 1 of the plaintiff’s bundle.
She
testified that on both occasions the injection was administered in
the middle of her body more or less to the top part of her
gluteal
cleft. The site of the administration of the injection is also
recorded as more to the midline as conveyed by the
plaintiff to Dr
Relling.
[10]
Further
both neurosurgeons namely Drs Edeling and Wilkinson are in agreement
that the injection was either in the midline
or close to the
midline. This is consistent with the evidence of the plaintiff.
[72]
Christanet testified that she had administered hundreds of these
injections. She had only received extremely limited
training of
one (1) day. She was taught to administer an injection by
dividing the buttocks into four quarters. Then
on the bottom
quarter on the outer right hand is the appropriate place to inject.
However, she retracted this and replaced
the bottom quarter with the
outer corner of the top right.
[73]
In consultation with Dr Wagner, she had apparently told him that she
was taught to administer the injection two (2) hand widths
from the
gluteal fold. The difficulty with this can mean the measurement
upwards which will cover the area of the sacrum.
This practice
was also discarded as in accurate by Dr Edeling because patients
present with different shapes and sizes.
[74]
The inconsistencies in her evidence pale into are palpable in the
face of the overwhelming evidence of the plaintiff and the
experts.
Her imprudent manner of administering the injection and ambiguous
explanation to Dr Wagner is not supported by the
objective facts.
Obviously her limited training in administering injections
contributed to her actions. She acted negligently
and below the
standard required of a person in her position. The version that
it was administered on the outer upper quadrant
of the right buttock
is rejected. The conclusion is that the injection was
administered in the area of the sacrum with a
needle green in colour
as the plaintiff testified.
[75]
The next issue is whether the injection caused the plaintiff to
suffer the seizure that result in the prolapse of the L5-S1
disc.
It is on this aspect that there are divergent and conflicting views.
Dr Edeling is of the view that the epileptic
fit and disc prolapse
were precipitated by the injection. Both Dr Wagner and Prof.de
Vries are in unison that such a small
needle of 12.7 millimetres
could not have punctured or perforated the nerve. This view is
also shared by Dr Gouws.
[76]
It is common cause that the plaintiff was injected and almost
immediately had an epileptic fit. She was rushed to the
hospital where certain tests were run in particular the “straight
leg raising test” which was negative. However
it appears
that the pain progressed and she consulted Dr Relling six (6) days
later who informed her that her disc was shattered.
Her case
was such an emergency that a day later he operated on her.
[77]
During his testimony Dr Edeling reached the following conclusion:-
“
What
would your comment be with regard to that condition? --- My
Lord, the first thing, is that the acute immediate symptoms
that she
described and the intensity of those symptoms are such that it can
only have been an injection into a nerve. There
is no other
mechanism that I can contemplate that can cause that kind of acute
symptom.
COURT
:
Injection to the nerve? --- Into a nerve.
Into
a nerve? --- Yes.”
[11]
[78]
This irritation of the nerve by the injection was followed by a group
of symptoms known as vasovagal attack. The effect of
it is that the
blood pressure drops and too low to circulate the blood from the
heart to the brain while a person is standing.
As the blood flow
become insufficient in the brain then the person collapses. In the
case of the applicant the EEG report had revealed
that she had a
brain focus. Her history is that she had not suffered any attack in
her life prior to the day in question. She could
have easily lived
her whole life without suffering an epileptic fit. This was triggered
by the injection into the nerve. This is
the uncontested evidence
tendered based on sound reasoning by the expert.
[79]
He sharply differed with the report by Dr Jacques du Plessis
(neurosurgeon) who concluded that the injection could not have
caused
the pain in her leg. There is no justification for this conclusion.
In addition, it was reached given a certain set
of facts different
from those narrated by the plaintiff.
[80]
Dr Wagner is also a forensic pathologist who expressed views on this
matter outside his field of expertise. He started off
by disputing
that such a needle can hit the nerve. Under cross-examination it was
pointed out to him that Dr Edeling’s evidence
was not disputed
that a needle can cause the indentation of the nerve. He change tack
and stated that he disputed the extent of
the indentation. In the end
he conceded that Dr Edeling gave the most probable explanation of
what happened to the plaintiff.
Given this concession I reject
his evidence and accept that of Dr Edeling.
[81]
The essence of the conflicting opinions between Dr Edeling and Prof.
de Vries is whether an injection into a buttock over the
sacrum can
cause a person to suffer an epileptic fit. Prof. de Vries testified
that there is no direct link between the dorsal,
sensory system and
the motoric system to get that direct pain. This is contradicted by
Dr Edeling in the following manner:-
“
When
a very strong sensory impulse enters the nerves system, through any
nerves, the impulse is carried proximately toward the brain.
When the impulse gets into the spinal cord, the place where it gets
in is right alongside where nerves from adjacent areas are
coming
in. That bottom area of the spinal cord which is called a conus
medullaris, is a very
short segment of
spinal cord in which all of the lumber and sacral vertebrae emerge.
They are very close to one another.
Now, when the very strong
sensory signal hits the spinal nerve it spreads in the spinal cord
and then it goes up, not only the
pathway linked to that nerve, but
also it goes towards the brain in pathways linked to other adjacent
nerves. … So
it has got nothing to do with motoric
innervation. … So, the pain spread from the distribution of
the sacral percutaneous
nerve into the distribution of adjacent
nerves giving the experience of pain in the leg.
”
[82]
Professor de Vries was expressing an opinion outside his field of
expertise. It would appear that he was briefed on limited
facts
and was unaware that prior to 23 August 2006, the plaintiff had not
suffered any epileptic fit. Under cross-examination
his theory
fell apart dismally.
[83]
This is illustrated clearly in the record as follows:-
“
Did
this patient have an epileptogenic foci? --- I have not had imaging
and no imaging was provided to me to exclude that.
No ECG or
EEG findings.
Professor,
if you ever testify in a court again, please ask the people who brief
you in the matter, to provide you with all the
facts. Two ECG’s
had been performed on her subsequent to this procedure, showing that
there were abnormal ECGs.
Are you aware thereof? --- No.
Are
you aware thereof that prior to this injection she had not suffered
from epilepsy? --- No.
Are
you aware thereof that since this incident she was put on epilepsy
medicine, Tegretol I think it was, yes. --- No
Are
you aware thereof that subsequent to that incident of the injection,
she again suffered a seizure? --- No.
Ann
they call you as an expert to come an give us an academic lesson of
this case that should be applicable, but they fail to provide
you
with the facts. Do you agree with me? --- It seems to me that I
have got a poor …
Brief.
--- No, not a poor brief, I think that my memory is not that good.
What
do you say was the cause of the pain in the leg then? --- I cannot
explain that.
Cannot
explain that. But I will tell you what professor. Dr Edeling
gave an exposé of this matter for hours and hours,
dealing
right from the start to the end on the logical way, because he had
all the facts; he took all the facts into consideration
and his
evidence is the most probable in this matter. You cannot give
an explanation. What caused the epileptic attack
then, the
seizure? She had a seizure; what caused it? --- What was the
cause of that epileptic attack?
Yes.
--- The, the needle injection in my opinion, it is not possible to
provoke an epileptic focus.
What
caused the epileptic fit or the seizure in this case? --- I do not
know”
[12]
[84]
Given this exchange and his concession of the limited exposure to the
facts I place no reliance on his opinions as they are
not supported
by any logical reasoning.
[85]
Indeed the plaintiff had a pre-existing condition. However, she could
have lived her whole life without suffering epilepsy.
This was
precipitated by the injection as testified by Dr Edeling. In
this regard the necessary causal link has been established.
It
is trite that you take your victim as you found him. In my
view, that the plaintiff has discharged the necessary onus
of proving
that the conduct of the employees of the defendant was negligent in
administering the injection on her in the sacral
area. This
resulted in her suffering an epileptic fit that resulted in the
prolapse of the L5-S1 disc.
[86]
There is no reason why the costs should not follow the event.
This was an involved and matter of considerable complexity
which
justifies the employment of two (2) counsel. It will be appropriate
to make such an order.
[87]
In the result the following order is made:-
87.1
The defendant is liable to compensate the plaintiff in respect of any
such damages as the plaintiff is able to prove in due
course.
87.2
The defendant is ordered to pay the costs of suit, as taxed or agreed
upon on a party and party scale including the costs of
employment of
two (2) counsel and the reasonable and necessary travelling,
accommodation and qualifying expenses of Dr Willem Edeling
(neurosurgeon).
_____________
MATHEBULA,
J
On
behalf of applicant: Adv. S Joubert SC
Assisted
by: Adv. H Botha
Instructed
by: Rooth & Wessels
c/o
Bezuidenhout Inc.
On
behalf of respondents: Adv. H Benadè
Instructed
by: Symington & De Kok
[1]
Indac Electronics (pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A)
at 797
[2]
1966 (2) SA 428
(A) at 430 E-G
[3]
2000 (1) SA 826
(SCA) at 839
[4]
Oppelt v Head: Department of Health, Western Cape
2016 (1) SA 325
(CC) para 69
[5]
2002 (6) SA 431
(SCA) para 25
[6]
Michael and another v Linksfield Park Clinic (Pty) Ltd and another
2001 (3) SA 1188
(SCA) para 36
[7]
Medi-Clinic v Vermeulen
2015 (1) SA 241
(SCA) para 5
[8]
Menday v Protea Assurance Co Ltd
1976 (1) SA 565
€ at 569 B
[9]
Buthelezi v Ndaba
2013 (5) SA 937
(SCA) at 442 G
[10]
Volume 2 page 7 of the Clinical notes – “ Sy het egter
onlang ‘n inspuiting by ‘n apteek gehad, waarskynlik
met
‘n B Vitamin as deel van ‘n dieetplan. Volgens die
pasient was die inspuiting redelik medial toegedien
en het sy acute
pyn in die boud ervaar tesame met skwakheid in die been.
[11]
Volume 2 page 153 line 15 -22 of the Record
[12]
Volume 3 page 211 line 14 – 25 to page 212 line 1 - 24