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[2017] ZANCHC 7
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Els v MEC: Department of Health, Northern Cape (1744/2010) [2017] ZANCHC 7 (10 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 1744/2010
Date
heard:
09-09-2016
Date
delivered: 10-02-2017
In
the matter between:
DALEEN
ELS
Plaintiff
And
MEC: DEPARTMENT
OF HEALTH, NORTHERN CAPE
Defendant
CORAM:
WILLIAMS J:
J
U D G M E N T
WILLIAMS
J:
1.
The plaintiff, Ms Daleen Els, instituted action against the
defendant, the MEC: Department of Health, Northern Cape for damages
resulting from the negligence of the employees of the Department of
Health in the performance of their duties at the Kimberley
Hospital.
It is alleged that during the performance of an operation on the
right breast of the plaintiff the tip of a needle/alternatively
a
foreign object had been left behind,
causing a continuous draining sinus which resulted
in severe pain and
led to numerous visits to doctors hospitals for medical treatment
during the period September 2001 until 2009
.
2.
The defendant denies any negligence and pleads that plaintiff
suffered from a pre-existing condition. Alternatively, should it
be
found that there was a foreign object in the right breast of the
plaintiff, that such was not caused by the negligence of the
defendant or any of its employees.
3.
The parties agreed that the merits and quantum be separated and that
the quantum stand over for later adjudication.
4.
The plaintiff's problems started during 2001 when she felt a burning
sensation in her right breast and discovered a lump. She
was referred
to the Kimberley Hospital by her general practioner during
August 2001 where a fine needle aspiration was done
which revealed
the presence of inflammatory cells.
5.
She was then booked for an open biopsy on 18 September 2001. The
plaintiff testified that she had been hospitalised for five
days
after the open biopsy was performed but the hospital records indicate
that she was discharged the following day on 19 September
2001. Be
that as it may, the plaintiff says that she experienced terrible pain
whilst recuperating at home and noticed that the
wound was inflamed
with a pussy discharge. During that time her GP attended to the wound
and prescribed a different antibiotic
- to no avail.
6.
On 26 September 2001 the plaintiff returned to the Kimberley Hospital
where the sutures were removed and she was given another
course of
antibiotics.
According
to the plaintiff the wound on her right breast would improve for a
while but then it would once again became inflamed,
open up and
become pussy.
7.
During May 2002 she was admitted for the excision of subareolar
ectatic ducts. After three days she was discharged and sent home
with
antibiotics. A week later the area became infected again and had a
smelly discharge. She visited the GP, Dr Van Niekerk, again
who
helped to clean and treat the wound. She explained that the skin
would eventually grow over the wound but that it would later
again
become inflamed and burst open.
8.
During September 2002 she was back at the Kimberley Hospital with
recurrent sepsis and was booked for a wedge excision of stitch
sinus.
About a week after her discharge the problem of inflammation and
sepsis started up again. This time she visited a certain
Dr Fischer
in her home town of Jan Kempdorp who prescribed a strong antibiotic
and cleaned the wound for her every day for about
a week. Thereafter
the situation improved for a while, but she never recovered fully.
9.
At some stage thereafter the plaintiff moved to Bloemfontein. Whilst
in Bloemfontein the problem with her right breast recurred.
She was advised at the
Bayswater Clinic in Bloemfontein to make
an
appointment for a mammogram at the Universitas Hospital,
Bloemfontein. She however moved back to Jan Kempdorp before she could
arrange for a mammogram to be done.
10.
Back in Jan Kempdorp the plaintiff developed an unrelated kidney
problem for which she was referred to the Kimberley Hospital.
At the time the right breast had developed sepsis again and she
requested the doctors to attend to the breast as well. A certain
Prof
Theron was consulted and he then advised that she go for a mammogram.
11.
A local diagnostic radiologist performed a bilateral digital
mammography and the relevant portions of the report dated 5 November
2008 read as follows .
"There
is a tiny metallic
density
foreign
body in the
right breast
deep to the areola. ?Needle tip."
and
Comment:
Benign
breast changes. There is a small foreign body in the breast deep to
the right areola. ? Significance in relation to the patient
's
symptoms."
12.
Upon receipt of the mammography report the doctors at the Kimberley
Hospital concluded that an excision of the foreign body
be performed
at the Kimberley Hospital. Due to a long waiting period before the
operation could be performed and whilst experiencing
constant pain,
the plaintiff was eventually admitted to the Universitas Hospital in
Bloemfontein where an excision biopsy was performed
on 31 July 2009.
She was discharged on 3 August 2009 whereafter she experienced no
further problems with her right breast.
13.
The breast tissue containing the foreign body was preserved and
handed to the plaintiff. It is common cause that a dissection
of the
excised tissue was later performed by Dr Blanco of the Kimberley
Hospital in the presence of Dr Reynecke who attended on
behalf of the
plaintiff. It is also common cause that the foreign body was lost on
the dissecting table, never to be recovered.
14.
Both parties called expert witnesses as to the probable cause of the
repeated abscess formation within the right breast of the
plaintiff.
On behalf of the plaintiff the testimony of Dr BH Pienaar, principal
specialist and senior lecturer at the Department
of Surgery,
University of Pretoria, Steve Biko Academic Hospital was presented.
The defendant called as an expert Dr I Boeddinghaus,
a general
practitioner whose practice specialises in both benign and malignant
diseases of the breast. The defendant also called
Dr R Blanco, who in
terms of an expert notice and summary under Rule 36 (9)(a) and (b)
was to give evidence as an expert witness
in his capacity as a
general surgeon. Mr Motloung who appeared for the defendant indicated
however, that his evidence was not presented
as that of an expert but
merely related to the period that he treated the plaintiff at the
Kimberley Hospital. I allowed the evidence
to be led on this basis.
15.
It is convenient to deal with the evidence of Dr Blanco first.
Initially during examination-in-chief Dr Blanco testified that
he had
seen the plaintiff in the consultation department on her second visit
to the hospital when the cytology report (following
upon the fine
needle aspiration procedure) was still outstanding. At that time,
according to Dr Blanco, she presented with a painful
breast. The
impression was created that he had personal knowledge of the
plaintiff's condition and had in fact been involved in
the treatment
of the plaintiff. It must be remembered that this trial took place 15
years after the plaintiff's initial visit to
the hospital and 7 years
after her last, with the result - which is completely understandable
- that she could not testify as to
the exact dates of her hospital
visits or procedures or which doctors had treated her there, with the
exception of Prof Theron,
whom she mentioned by name.
16.
Dr Blanco proceeded to give evidence
inter
alia
on the
various procedures performed on the plaintiff at the hospital, the
high quality of the needles used during such procedures,
the
unlikelihood of a needle breaking off during such procedures and that
it was in any event not probable that a minute object
of metallic
origin as described in the mammogram report would cause the problems
experienced by the plaintiff. He in any event
disputes the existence
of a metallic object, contrary to his summary .
17.
During cross-examination however Dr Blanco, most astoundingly and of
his own accord, stated that he had never treated or seen
the
plaintiff before performing the dissection of the preserved breast
tissue. The basis on which his evidence was introduced was
thus at
the very least misleading. His evidence was of an expert nature
without having qualified himself as such. The question
is then - what
value can be attached to his evidence? The simple answer is - none.
The notices in terms of Rule 36 (9) (a) and
(b) make no mention of Dr
Bianco's qualifications (even if it did, it has no evidential value)
and he has not testified to his
qualifications at all. This failure
is fatal and his evidence relating to the matter at hand therefore
remains mere opinion evidence
which is irrelevant. See
Mkhize vs
Lourens
2003(3) SA 292 (T) at 299 C-G. In my view the issue of
the probable cause of the plaintiff's complaint can and should be
adjudicated
without having recourse to the evidence of Dr Blanco at
all.
18.
This then brings me back to the expert evidence properly before
court. Dr Pienaar and Dr Boeddinghaus hold divergent views of
the
cause of the plaintiff's continuous draining abscess. Dr
Pienaar is of the view that the condition was caused by the
tip of a
surgical needle left behind after an operation, while Dr Boeddinghaus
holds the view that the plaintiff presents with
a case of periductal
mastitis caused by her smoking habit. (Plaintiff admits to smoking a
packet of cigarettes a day since she
left school)
19.
The two experts do however agree
"that
a
foreign
body
that
is
left
behind
during
a
surgical
procedure
by
the
operating
team
constitutes
negligent
action
on
their
part"
and that the antibiotics given at the Kimberley Hospital were not
good enough to manage the infection which had set in. These points
of
agreement are contained in a joint minute of the experts. During
their evidence it also became clear that they agreed that it
is
improbable that a tip of a needle would have broken off during the
fine needle aspiration procedure, which was initially performed
on
the plaintiff to draw cells from the right breast for cytology
(essentially the testing of cells).
20.
I deal firstly with the evidence of Dr Pienaar who, in addition to
his regular duties, sits on a procurement committee which
regularly
inspects and assesses the quality of medical materials imported to
South Africa. His evidence was that with cost constraints
and other
prohibitions the quality of surgical material used by the various
Health Departments are often found to be inferior and
that breakages
occur. Breakages also occur due to improper handling of needles since
surgical needles also naturally have certain
weaker points. Be that
as it may, breakages of surgical needles are not uncommon, but it is
imperative once a breakage has occurred
during a procedure to first
attempt to visually establish the location of the broken piece and
remove it. If not possible, there
are other methods to extract a
metallic object, such as an electro-magnet or a screening x-ray
machine could be used to locate
the missing object. Should a foreign
body be left behind in the tissue of a patient it may delay healing
since infection could
set in.
21.
Dr Pienaar's evidence was further that the surgeon will usually know
when the tip of a surgical needle has broken since
it would be
difficult to proceed with a blunt needle. The broken needle would
normally be put aside and a new one used. In any
event there is an
absolute protocol to be followed to guard against any mistakes. All
instruments and swabs need to be counted
before a surgery, during the
procedure (depending on the length of the operation) and at the end
of the procedure. All needles
should be accounted for and be intact.
Should an instrument break during a procedure a note has to be made
of it. What was particularly
disturbing to him was the fact that none
of the theatre notes relating to the surgeries performed on the
plaintiff at the
Kimberley Hospital reflected that an
instrument and swab count had been done. In fact there was no theatre
report relating to the
open biopsy of 18 September 2001. According to
Dr Pienaar, in the medical world it can be accepted that if something
is not written
down it was not done. In sharp contrast hereto the
theatre report for the excision of the foreign body done at the
Universitas
Hospital on 31 July 2009, records that instrument, needle
and swab counts were done before, during and after the operation and
was signed by the theatre sisters in attendance.
22.
According to Dr Pienaar the reasons for developing a mass in the
breast are numerous, but for a woman aged 25 years the most
likely
cause would be fibrocystic disease (due to hormonal changes) which
could then develop into duct ectasia or periductal mastitis.
The
course of treatment would firstly be to send the patient for a sonar
(a mammogram not being advisable in a patient so
young), thereafter a
fine needle aspiration and depending on the result thereof, a biopsy.
23.
The open biopsy performed on the plaintiff on 18 September 2001
involved only part of the mass being removed, ie an incision
biopsy
as opposed to an excision biopsy where the whole mass is
removed. Because tissue is cut during the procedure it would
be
standard practice to use sutures in that area to contain bleeding.
Sutures would also be used in the subsequent excision operations
performed at the Kimberley Hospital.
24.
It is Dr Pienaar's evidence that sepsis after an operation is an
accepted and recognised complication. However should the problem
persist as happened
in casu,
a further meticulous work-up
should be instituted, looking for other causes
inter
a/ia
diabetes, cancer , tuberculosis and HIV. A microscopic
examination of the discharge fluid to identify the organisms
contained in
it, in order to prescribe the correct antibiotic, should
also be done. X-rays, sonars and finaly a mammogram should also be
done
in order to identify the cause of the problem. In Dr Pienaar's
view the fact that a mammogram was only ordered during 2008 speaks
of
a lack of care.
25.
According to Dr Pienaar, the x-ray taken at Universitas Hospital on
31 July 2009 , prior to the excision of the foreign object,
shows
what looks exactly like the tip of a
surgical needle broken off about 1 mm
from where the
tapering of the needle stops. He estimates the tip of the needle on
the x-ray to be between %mm to 1mm thick and
2 mm to 4 mm in length,
depending on the size of the surgical needle used. Since there is no
evidence of any other surgery performed
on the right breast of the
plaintiff (except for the removal of the foreign body) other than
that done at the Kimberley Hospital,
Dr Pienaar is of the opinion
that the needle tip left behind in the breast of the plaintiff
originated from the Kimberly Hospital
and most likely occurred during
the open biopsy of 18 September 2001 .
26.
He explains that it is a well known surgical fact that the presence
of a foreign body will prevent the resolution of a septic
process and
especially so where there is a sinus or fistula present. A foreign
body in either of these could be a major factor
in the healing
process. Bacteria could hide in the crevices of a foreign body and
particularly so in the irregular, uneven surface
where the break in
the needle occurred. The size of the foreign body does not matter
since even one or two microbes could cause
an infection. Dr Pienaar
explains that the foreign object and microbes could at times become
encapsulated by the surrounding tissue,
but sudden movement or a bump
against the affected area could release the microbes which would then
result in the sepsis experienced
by the plaintiff. This phenomenon
would also explain the periods of healing and rupture experienced by
the plaintiff.
27.
As stated above Dr Pienaar is of the view that the needle tip was
most likely left in the breast of the plaintiff during the
open
biopsy of 18 September 2001 since the sepsis and continuous draining
of the breast started occurring after this operation
. Had a sonar
been done when the sepsis recurred, it is extremely likely that the
sonar would have shown the foreign object long
before the mammogram
was ordered.
28.
Commenting on the opinion of Dr Boeddinghaus, that the ongoing breast
problem of the plaintiff was as a result of periductal
mastitis due
to smoking, Dr Pienaar is of the opinion that; (i) it is extremely
rare that periductal mastitis will cause a continuous
sinus; (ii) the
left breast would also have been affected had that been the case and
(iii) the excision of the foreign body
would not have resulted
in the healing of the breast since the plaintiff has continued to
smoke even after the excision of the
foreign body.
29.
Dr Boeddinghaus states that periductal mastitis is often incorrectly
referred to as duct ectasia as is reflected in the hospital
notes/records pertaining to the plaintiff. According to Dr
Boeddinghaus periductal mastitis is characterised by inflammation
around
the areola which often leads to abscess format ion. The
abscess bursts and leads to a continued leakage of puss which then
forms
a fistula. Periductal mastitis is a condition which flares up
and recovers with no underlying cancer or malignancy. It is
classically
seen in younger women and is strongly
associated with smoking.
In fact Dr Boeddinghaus' testimony is
that in her practice she's only seen the condition in smokers.
I
hasten to add that Dr Boeddinghaus testified that she does not see
the condition frequently and over the 15 to 16 years that
she has
dealt with diseases of the breast she has seen about 20 to 30 cases
of periductal mastitis.
30.
With periductal mastitis there are loads of inflammatory
cells and bacterial pathogens - specifically
gram negative
bacteria, which can only be treated with an antibiotic
specifically targeting gram negative
bacteria. The treatment
for periductal mastitis would be surgery to excise the affected
tissue and/or treatment with gram negative
antibiotics. Even with
such treatment however there is a high chance of recurrence should
the patient continue smoking.
31.
Duct ectasia on the other hand is a condition which occurs in older
women, and although outwardly it would appear to have similar
symptoms to periductal mastitis, for example a cheesy discharge from
the nipple and retracted nipples, excision of the offending
area and
antibiotic treatment would normally suffice. What should be done in
cases of periductal mastitis is that the patient be
counselled
against smoking, which leads to recurrence and which the Kimberley
Hospital apparently failed to do.
32.
Dr Boeddinghaus' view of the treatment received by the plaintiff at
the Kimberley Hospital can be summed up as follows: (i)it
is not
uncommon for periductal mastitis to be referred to as duct ectasia;
(ii)the operations performed were in accordance with
sound medical
practise even though sepsis recurred, since recurrence is in keeping
with the plaintiff's continued smoking; iii)
the antibiotics
prescribed by the Kimberley Hospital, even though ineffective against
periductal mastitis (it being gram positive
antibiotics) are not
necessarily a sign of negligent treatment since the correct
antibiotics would also not necessarily lead to
the resolution of the
condition; and (iv) she would also not have done a mammogram on the
plaintiff sooner since it is painful,
does not give much information
in the case of young women since their breasts have denser tissue,
and should therefore be used
with caution.
33.
As to the effect of a foreign body left behind in the breast of the
plaintiff, the opinion of Dr Boeddinghaus is that the foreign
body
would not have altered the course of the periductal mastitis. That
she had inserted even larger metal foreign bodies into
women's
breasts (during the course of treatment) without any problems. The
fact that the plaintiff's condition cleared up after
the excision of
the foreign body 1s, according to Dr Boeddinghaus, merely
coincidental. The fact that a large portion of tissue
was removed on
that occasion, coupled with the correct gram negative antibiotic
treatment is what according to Dr Boeddinghaus
led to the plaintiff
being free of sepsis for the last seven years. The condition may
however recur in future if the plaintiff
does not stop smoking.
34.
I have no hesitation in accepting the plaintiff's version of the pain
and suffering she had to endure over the years. Her lapse
in memory
as to the specific dates, duration of hospital stays and physicians
who attended to her 1s completely understandable
and is in any event
clarified by the hospital records and notes pertaining to her
treatment. What she has to prove in order to
be successful in her
claim is two-fo ld. Firstly, whether the foreign body was left behind
by the employees of the Kimberley Hospital
during one of the
procedures performed by them and secondly, whether the ongoing
problems with her right breast were caused by
the foreign body.
35.
According to the plaintiff the problems of inflammat ion, abscesses
and continuous draining of the right breast started after
the open
biopsy procedure of 18 September 200 1 and continued with periods of
flare-ups and recovery until the excision of the
foreign body in July
2009. Before this operation, no other person beside the employees of
the Kimberley Hospital performed any
procedure or worked inside her
right breast. She herself did not insert any foreign object into her
right breast.
36.
A foreign body of
"metallic
density"
was
found to be present in the right breast of the plaintiff
"deep
to the areola"
according to the mammography report of 2008.
The radiologist queried the possibility of it being a needle tip. Dr
Pienaar, with
his years of experience as a surgeon and knowledge of
the different types of needles used, expressed no doubt that what he
saw
on the x-ray of the plaintiff's right breast was a surgical
needle tip, even describing it as having broken off about I mm from
where the tapering of the needle stops. According to Dr Pienaar,
sutures are used when an open biopsy is performed, requiring the
use
of a surgical needle. A theatre report would have to be filled out.
Since no theatre report could be found in the Kimberley
Hospital
records the result is that none of the Kimberley Hospital employees
involved would be able to assert positively that a
needle tip had not
been left behind.
37.
Mr Motloung argued that since the foreign body disappeared on the
dissecting table and the nature thereof could not be confirmed
the
plaintiff has failed to make out a case that the foreign body
emanated from the Kimberley Hospital. I cannot agree with this
contention. The mammography report which indicates an object of
metallic density has never been disputed. No other plausible way
of
introduction of such an object into the breast of the plaintiff has
been suggested by the defendant. The evidence presented
by the
plaintiff and Dr Pienaar and pure logic dictates that the foreign
object on a balance of probabilities was the tip of a
surgical needle
left behind by the employees of the Kimberley Hospital during an
operation on the right breast of the plaintiff.
38.
What falls to be determined next is whether plaintiff has succeeded
in proving that the needle tip left behind in her breast
was the
cause of all her problems. In this regard there are two divergent
expert opinions. In such a case it is helpful to
look
at
the
approach adopted in
Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
SCA,
where
the
court
held
that:
".
. .
it
is
perhaps as
well
to
re-emphasise that
the
question
of
reasonableness
and
negligence
is one for
the court itself
to determine
on the basis
of
the
various,
and often
conflicting,
expert
opinions presented
.
As a rule that determination
will not involve considerations
of credibility
but
rather
the examination
of
the opinions
and
the
analysis
of
their
essential reasoning,
preparatory to
the
court's
reaching
its
own
conclusion
on
the
issues raised.
"
".
. .
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.
That
is
the
thrust
of
the
decision
of
the
House
of
Lords
in
the
medical
negligence
case
of
Bolitho v
City
and
Hackney
Health Authority
[1997]
UKHL 46
;
[1998] AC
232
(H.L.(E.) )
.
With the relevant
dicta in the
speech of Lord Browne-
Wilkinson
we
respectfully
agree.
Summarised,
they are to the following
effect.
[37]
The
court
is
not bound
to absolve a defendant
from liability
for allegedly
negligent
medical
treatment
or
diagnosis just
because
evidence
of expert opinion,
albeit
genuinely
held,
is that the treatment
or diagnosis
in
issue accorded with sound medical practice.
The
court
must be satisfied
that
such
opinion
has
a
logical
basis,
in
other
words
that
the
expert
has
considered
comparative
risks and
benefits
and has reached
"a
defensible
conclusion" (at 241
G -
242 B).
[38]
If
a
body of
professional opinion
overlooks an
obvious
risk which could have been
guarded
against
it
will not be reasonable,
even if almost
universally held (at
242 H).
[39]
A defendant
can properly
be held liable,
despite the support of a body of
professional opinion
sanctioning
the
conduct
in
issue,
if
that
body
of
opinion is not capable
of withstanding
logical analysis and is therefore not
reasonable.
However,
it
will
very
seldom
be
right
to
conclude
that
views genuinely
held
by a competent expert are
unreasonable.
The assessment
of
medical
risks
and
benefits
is
a
matter
of
clinical judgment
which
the
court
would
not
normally
be
able
to
make
without
expert
evidence
and
it
would
be
wrong
to
decide
a
case
by
simple
preference where
there
are conflicting
views
on either side,
both
capable of logical
support.
Only
where
expert opinion
cannot
be logically supported at
all will
it fail to
provide
"the
benchmark by
reference
to
which
the
defendant
's
conduct
falls
to be
assessed
" (at 243 A-E)."
39.
The opinion of an expert should also be based on the accepted facts
otherwise it would amount to no more than unsubstantiated
speculation. It is here that the problem with Dr Boeddinghaus'
opinion starts. She bases her diagnosis of the plaintiff's condition
on the fact that she was a young smoker who presented at her first
visit to the Kimberley Hospital with a lump in the breast, an
inverted nipple and nipple discharge. The fact is though that the
plaintiff did not have a nipple discharge. The relevant hospital
note
of 8 August 2001 states
"no
discharge".
The
following hospital note dated 22 August 2001 also states
"no
nipple
discharge".
The discharge from the right
breast started up only after the open biopsy of 18 September 2001 and
drained through the sub-areolar
area. The only reference to a
nipple discharge is to be found in the out-patient notes of 5 March
2002 which reads.
"Bly
dreineer
by
regter
tepel
uit
-
bloederig,
etterig.? Buis
ektasie.
Vra
Prof
Theron
om
te
sien"
However Prof Theron's note, on 16 May 2002 reads
"Recurrent
sepsis/abscess of
rt
subareolar
ectatic
ducts".
There is no mention of a discharge
through the nipple.
40.
The further problem 1s that Dr Boeddinghaus describes periductal
mastitis as a condition distinguishable from duct ectasia or
other
abscess formation in that it is characterised by the presence in the
breast tissue of large amounts of inflammatory cells
and a variety of
different bacterial pathogens not seen in duct ectasia or a
straightforward abscessed infection. These inflammation
cells and
bacteria present 1n cases of perdicutal mastitis would be visible
under a microscope. The cytological examination done
after the fine
needle aspiration procedure on the plaintiff showed only inflammation
cells. Whether or not such an examination
would reveal the presence
of bacteria of the type testified to by Dr Boeddinghaus has not been
traversed with either of the experts.
However after the open biopsy
performed on the plaintiff, a histology report was called for in
order to get a more comprehensive
analysis of the excised breast
tissue. This report, and it appears to be the only histology done,
from the South African Institute
for Medical Research, Kimberley
Laboratory, states that the histological sections show breast tissue
with florid duct ectasia.
The diagnosis reads
"Breast
biopsy
-
Florid duct ectasia
with
signs of
duct rupture, no
tumour found".
Dr Boeddinghaus'
explanation of the diagnosis being duct ectasia and not periductal
mastitis was once again that these terms are
often incorrectly used
interchangeably and that a diagnosis of periductal mastitis is not
purely histological. That the histological
finding of duct ectasia
and inflammation plus the clinical symptoms of the plaintiff point to
periductal mastitis.
41.
This explanation by Dr Boeddinghaus is in my view not satisfactory ,
firstly since one of the symptoms (nipple discharge) on
which her
clinical finding is made did not exist, at the very least not as a
pre-existing condition and secondly , it is difficult
to conceive of
the notion that the compiler of the histology report, which I think
it fairly safe to assume was a professional,
qualified in his/her
field (the name at the bottom of the report is given as Prof Beukes)
would misdiagnose the condition of periductal
mastitis, a condition
so markedly different in its cellular composition and
treatment , as duct ectasia.
42.
In fact none of the medical practioners who attended to the plaintiff
over the years have made the diagnosis of periductal
mastitis.
This diagnosis came to light for the first time in Dr
Boeddinghaus' report
dated 28 April
2015, which opportunistically
, in my view, prompted a
defence which was never medically indicated at the relevant
time of treatment.
43.
Equally unconvincing is Dr Boeddinghaus' explanation for the clearing
up of the condition after the operation for the removal
of the
foreign body. One of her reasons given was that a large chunk of
tissue had been removed at that stage - and therefore by
inference
that a complete excision of the affected area could have ensued.
There is however nothing in the notes of the Universitas
Hospital to
indicate that a large chunk of tissue had been removed. The operation
was in fact done with the help of a stereotactic
marker which was
used to pin-point the exact location of the foreign body.
There would in my view be no need, the purpose
of the operation being
to remove the foreign body, to excise any more tissue than what was
necessary to remove the foreign body.
44.
I have in the circumstances no hesitation in accepting the evidence
of Dr Pienaar above that of Dr Boeddinghaus. Dr Pienaar
is a vastly
experience medical specialist and lecturer with more than 20 years
experience in private surgical practice. He has
seen and treated
patients with breast problems for the last 30 years. His evidence was
clear, well-balanced, took into account
all the relevant
considerations and is founded on logical reasoning. Dr Boeddinghaus
on the other hand admitted to seeing relatively
few cases of
periductal mastitis over the course of her career. She could not
explain how smoking contributed to the condition
except for her
statement that there is a strong correlation between smoking and
periductal mastitis. Her diagnosis stands unsupported
by any of the
practitioners involved in the treatment of the plaintiff, or the
hospital records of the plaintiff. Dr Boeddinghaus'
refusal to
acknowledge any possible detrimental effect that a foreign body left
behind in the breast of the plaintiff could have
had, is to my mind a
clear indication of the fact that she is not an independent witness.
The view I hold of the lack of independence
of Dr Boeddinghaus, is
confirmed by her reluctance to concede , on the basis of her
diagnosis, that the employees of the
Kimberley Hospital
had misdiagnosed the condition as duct ectasia and had as
a result prescribed the wrong
antibiotics.
45.
In the circumstances I am of the view that the plaintiff has
succeeded in proving on a balance of probabilities that the recurring
problem of the right breast suffered by her from September 2001 until
July 2009 was caused by the presence of the foreign body,
which in
all likelihood was a needle tip, left behind during the open biopsy
of 18 September 2001.
46.
That brings be to the issue of costs. There is no reason why costs
should not follow the result, however there were two prior
postponements of this matter which counsel could not meaningfully
address me on. I directed that the attorneys file affidavits
in this
regard. What can be gleaned from these affidavits follows.
47.
The trial was initially set down for 11, 12 and 13 September 2012.
Prior thereto and on 15 August 2012, the plaintiff served
on the
defendant a notice in terms of Rule 36(10) informing that she intends
to tender the needle tip which was removed from her
breast in
evidence, offering inspection thereof and requiring the defendant to
admit same within ten days of the notice. No response
was forthcoming
from the defendant and the parties proceeded to trial where on 11
September 2012 the defendant's legal representatives
requested that
Dr Blanco inspect the needle point before the evidence of the
plaintiff's expert Dr Reynecke, be
presented
in this regard. What transpired
then was that the plaintiff produced not just
the needle tip, but the
preserved excised breast tissue in which the needle tip was encased.
Defendant's attorney explains that
they were taken by surprise since
the notice only mentioned a needle tip and not that it was still
encased in tissue. Defendant
objected to the production in evidence
of the tissue without first establishing the presence of a needle tip
therein and insisted
on a dissection of the tissue. This in turn
required arrangements to be made for the use of proper facilities at
the Kimberley
Hospital, which could not be done on that day, which
apparently was the only day that Dr Reynecke was available. In the
end the
trial was postponed to 25, 26 and 27 March 2013 with the
issue of costs to stand over for later determination.
48.
The plaintiff is of the view that the postponement was caused
by the defendant in that there was no objection to
the
Rule 36(10) notice and had the defendant called for an inspection of
the needle tip timeously, the postponement
would not have
been necessary. The defendant is of the view on the other hand
that the plaintiff has attempted a trial
by ambush, that they were
led to believe that the plaintiff was to present the needle tip
in evidence, which they had no
objection to, and that they were
entitled when presented with the piece of
tissue, to establish whether
the tissue contained the alleged needle
tip. 49. In my view the blame for the postponement on 11 September
2012 lies squarely at
the door of the plaintiff. The Rule 36(10)
notice states that
"die
Eiseres
van voorneme is
om
die
naaldpunt
wat
van
haar
bars
verwyder
is
as
getuienis
aan
te bied
en
die naaldpunt
ter insae
aanbied
by
die
kantore
van die Eiseres se prokureur
."
It
does not at all mention that the needle tip was still encased in
tissue. Defendant was entitled to assume that what was to be
presented in evidence was the needle tip. Defendant was also entitled
to object to the presentation of the tissue as being the
needle tip
removed from the breast of the plaintiff.
In
my view the plaintiff should bear the wasted costs occasioned by the
postponement on 11 September 2012.
50.
The dissection of the breast tissue took place on 27 February 2013.
Thereafter on 1 March 2013 the defendant delivered a notice
of
intention to amend the plea. The plaintiff's attorney maintains that
the proposed amendments would have effected substantial
changes to
the defence and that it would not have been possible for the
plaintiff, in the time remaining before the trial, to prepare
to meet
the new allegations therein contained or oppose the proposed
amendment or deal otherwise with the proposed amendment within
the
time limits prescribed by the Rules. To further complicate matters
the defendant had filed a request for further particulars
in terms of
Rule 21 on 25 February 2013, two days late. The upshot was that the
parties agreed that the trial enrolled for 25,
26 and 27 March 2013
be removed from the roll on 14 March 2013 and that the costs relating
to such removal be argued later .
51.
It is clear from the above that the removal from the roll of this
matter on 14 March 2013 was caused by the defendant's late
filing of
notices for which there can be no excuse since the trial was by
agreement postponed to the specific dates during March
2013. Whatever
costs have been occasioned by the removal from the roll should
therefore be borne by the defendant.
In
the circumstances the following orders are made:
a)
Judgment is
granted in
favour of
the
plaintiff
on
the
merits.
b)
The defendant is ordered to pay the plaintiff such damages
as
either agreed upon or the plaintiff may prove.
c)
The
defendant is
ordered
to
pay
the
plaintiff's
costs
for proving
her
case
on
the
merits,
inclusive
of
the
qualifying fees
of
Dr B Pienaar
and
the costs
relating to the
removal
of this matter
from the roll
on 14 March 2013, but excluding the costs
occasioned
by the
postponement
on 11
September
2012, for which costs the plaintiff is liable.
________________________
CC
WILLIAMS
JUDGE
For
Plaintiff :
Adv.C Botha
Elliot, Maris Wilmans &
Hay
For
Defendant:
Adv. S Motloung
Office of the State
Attorney