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[2017] ZANCHC 66
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Erasmus v MEC for Health: Northern Cape Government and Another (1342/2014) [2017] ZANCHC 66 (13 September 2017)
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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
NORTHERN
CAPE DIVISION, KIMBERLEY
Reportable:
YES
/ NO
Circulate
to Judges: YES
/ NO
Circulate
to Magistrates:
YES / NO
Case
number: JA 78/10
Case No:
1342/2014
Argued:
22/06/2017
Delivered:
13/09/2017
In the matter
between:
PATRICK GERT
ERASMUS
PLAINTIFF
And
THE MEC FOR HEALTH:
NORTHERN CAPE
1
ST
DEFENDANT
GOVERNMENT
DR CASPER
KRUGER
2
ND
DEFENDANT
JUDGMENT
MAMOSEBO
J
[1]
The dispute in this case emanates from the history given by the
plaintiff, Mr Patrick Erasmus, to his General Practitioner,
Dr Casper
Kruger, initially cited as the second defendant, in respect of the
symptoms with which he presented which led to a diagnosis
made by
employees of the first defendant, the MEC for Health, Northern Cape
Province. There are two irreconcilable versions. The
outcome of this
case will therefore hinge upon which version prevails regard being
had to the probabilities. At the commencement
of the trial the
parties agreed to separate the merits from quantum in terms of Rule
33(4) of the Uniform Rules of Court. The hearing
proceeded against
the MEC for health only since the dispute between the plaintiff and
the second defendant, Doctor Kruger, was
settled out of court and Mr
Erasmus withdrew the case against him.
[2]
The issue that falls for determination is whether the MEC (Kimberley
Hospital) was negligent, and if so, whether such negligence
can be
causally linked to the damages suffered by Mr Erasmus.
[3]
The following admissions were made by the MEC for Health:
3.1
The Provincial Department of Health (Kimberley Hospital) entered into
a contract with Mr Erasmus to
treat the gangrene on his left big toe;
3.2 It undertook to perform the
function with the requisite degree of care and skill expected from
their
profession;
3.3
It foresaw the possibility that Mr Erasmus may suffer damages if it
did not perform its functions with
the required degree of care and
skill;
3.4
That it was under a legal duty to provide Mr Erasmus with medical
services expected from personnel in
their profession; and
3.5
The personnel that treated Mr Erasmus acted within the course and
scope of their duties as employees
of the Provincial Department of
Health, Kimberley Hospital.
[4]
Mr Erasmus raised the following factors in an attempt to show
negligence against the Department. That it failed to:
amputate
his toe in order to prevent the spreading of gangrene; make proper
observations and take timeous steps to prevent the spreading
of
gangrene; provide adequate medical treatment to him and to start
earlier with the amputation intervention to prevent the spreading
of
gangrene.
[5]
Mr Erasmus was 71 years old at the time of his first medical
consultation and 76 years at the time of trial. He claims damages
suffered as a result of the amputation of his left leg above the knee
as a result of a breach of contract or based on delict. The
factual
background to the claim is as follows.
[6]
On 15 August 2012 Mr Erasmus consulted Dr Kruger at his private
practice with a septic ingrown toenail on the big toe of his
left
foot. The doctor treated him with some pain relief medication, an
injection and broad spectrum antibiotics and sent him home.
He had a
follow up visit to the doctor three months later
,
on 13 November 2012, still presenting with a septic hypertrophic
ingrown toenail (thickening of the nail) and the infection had
not
cleared. The doctor decided to remove the toenail to clear the
infection.
[7]
Dr Kruger placed an elastic band (tourniquet) at the base of the toe
to create a bloodless field, that is, to prevent him from
bleeding a
lot when removing the toenail. The use of the tourniquet was
unnecessary according to Dr Pienaar as that was not a delicate
operation that required its use to achieve a bloodless field. Dr
Kruger then applied a ring block by giving Mr Erasmus an anaesthetic
for the pain and extracted the toenail and subsequently tightly
bandaged the foot. There was lots of puss under the toenail according
to the doctor. Mr Erasmus maintains that Dr Kruger did not
remove the rubber band from the toe after the procedure, an
allegation
disputed by the doctor. According to Erasmus the
doctor only removed the rubber band after three days,
which is on 16 November 2012, when he
returned to the doctor’s surgery for the toe to be checked and
a change in the dressing.
Erasmus’ left foot remained bandaged
for the duration of the 3 days as advised by the doctor.
[8]
On 16 November 2012 the doctor noted that the toe was discolouring
and turning black. After treatment Erasmus was advised by
the doctor
to return on 19 November 2013. According to Dr Kruger on the latter
day the toe looked worse than on the 16
th
and he thought it could be gangrene. Erasmus continued to experience
excruciating pain. Dr Kruger prescribed more antibiotics,
but
no adrenalin, and advised him to come the following day with his
family.
[9]
On 20 November 2012 Dr Kruger diagnosed that the toe was gangrenous
and immediately referred Erasmus to Kimberley Hospital,
where he was
admitted, having made arrangements with Dr Bhyatt, Head of the
Surgical Department. A junior doctor saw Erasmus after
which he/she
consulted Dr Blanco, a Specialist Surgeon in the Surgery Department.
Dr Blanco’s instructions to the treating
doctor (intern) were
the following: (i) 48 hours of intravenous antibiotics; (ii) Await
demarcation and (iii) for amputation after
48 hours.
[10]
The amputation did not take place within 48 hours; instead Erasmus
was referred to Universitas Hospital in Bloemfontein where
more
medical tests were conducted and was detained from 30 November and
discharged on 10 December 2012. He was referred back to
Kimberley
Hospital with a directive that the amputation of the left toe which
was only carried out on 20 December 2012.
[11]
On 24 December 2012 Dr Swart of the Kimberley Hospital granted
Erasmus temporary discharge until 27 December 2012 at 07:00
to spend
Christmas with his family at home. Jennifer, his daughter, who
testified on his behalf, noticed maggots while cleaning
the affected
wound, as advised by the medical staff.
[12]
After the Christmas break Erasmus returned to Kimberley Hospital
where he was again referred to Universitas Hospital. Universitas
referred him back to Kimberley Hospital with the advice that a below
the knee amputation be performed, but with the possibility
of an
above knee amputation. Erasmus said: “
toe
sê hulle nee, ek moet terug Kimberley Hospitaal toe kom want
hulle het klaar die voet opgemors. Die toon is af en die
toon lyk
slegter as wat hy gewees het. So hulle moet hulle se gemors regmaak.”
[13]
Mr Erasmus’ son-in-law, Mr Neville Klaasen, testified that he
took his father-in-law, who was in possession of a doctor’s
referral letter, to hospital having been informed by him (Erasmus)
that he had to undergo immediate surgery. His father-in-law’s
left big toe appeared as depicted on the photos “D1” and
“D2” at pages 291 and 292. Adv Motloung, appearing
for
the MEC, objected to the use of the photographs. I considered
the fact that Erasmus had confirmed while testifying that
it was his
toe that was depicted on the photos taken on the day when he was
taken to hospital, 20 November 2012; the Rule 36(10)
notice was
served on the State Attorney on 10 January 2017 and it was clearly
stated therein that absent any objection to the use
of the
photographs within 10 days of receipt of the notice the photographs
will be admitted in evidence by mere production in court.
No
objection was filed by the State Attorney. I made the ruling
for Mr Klaasen to testify on the said photographs and overruled
the
objection.
[14]
Mr Klaasen stated that he had an altercation with one of the treating
doctors on 04 February 2013 complaining about the unreasonable
delay
for the amputation, which motivated him approaching the local
newspaper, Diamond Field Advertiser (DFA). The DFA published
an
article on the matter on 05 February 2013. A day or two following the
publication the left leg was amputated and his father
was discharged
from hospital on 11 February 2013.
[15]
From 31 January 2013 until he had his turn in theatre Erasmus was
placed on nil per mouth feeding and was on some of these
days only
allowed breakfast, the stated reason being that he was placed on the
waiting queue for theatre. Disconcertingly, on 04
February 2013 the
procedure was cancelled because the doctors ran out of theatre time.
[16]
Dr Conrad Hendrik Van der Merwe is a specialist diagnostic
radiologist in possession of an M Med degree whose credentials were
not disputed. He provided a report on the foot x-rays of Erasmus
after being placed in possession of a CD containing chest x-rays
and
two images of the left foot taken on 20 November 2012. He noted that
not only had the soft tissue swollen but there was also
a presence of
air surrounding the distil phalanx (at the tip of the toe) which was
visible in the soft tissue.
[17]
According to Dr Van der Merwe air should not have collected in the
affected tissues. This condition could have been brought
about by two
things: Firstly and more probably, wet gangrene because of the
vascular insult, that is, reduced blood flow which
caused dead tissue
with secondary infection by gas forming organisms. Secondly, gas
gangrene caused by a gas forming bacteria.
Dr Van der Merwe
explained: “
dry
gangrene on an x-ray normally will show contracted soft tissue around
the bone and not swelling with air.”
He disputed the reference to “radiological artefacts” as
argued by Dr MS Maseme, the MEC’s expert witness. According
to
Dr Van der Merwe there was no defect on the screen which made the
x-ray skew. The x-ray responded to the density of the tissue.
[18]
During cross-examination the following explanation by Dr Van der
Merwe is worth highlighting:
“
Counsel:
Do you see
anything there that indicates that it was [wet] gangrene?
Dr
Van der Merwe:
Well untreated wet gangrene especially in a patient with vascular,
peripheral vascular disease, will spread if not treated quickly.
It
will definitely spread into the rest of the foot because it is
effectively also an infection. So the infection will just –
the
bacteria will give off enzymes and it will grow and it will spread up
the foot. Therefore the gangrenous part will increase
in size.”
[19]
Dr Bastiaan Hendrik Pienaar, a General Surgeon, testified as the
expert called on behalf of Erasmus. When he wrote the
report he
had not met Erasmus and has no relationship or connection with him.
In the process of compiling his report he used hospital
records from
Kimberley and Universitas hospitals. The compact disc with x-ray
images was seen after the report was already compiled.
Dr Kruger’s
notes were also not available when the first report was compiled. Adv
Motloung severely and unjustifiably
attacked Dr
Pienaar’s report not only as unhelpful but also as misleading.
I do not share his criticism for the reasons that
would emanate.
[20]
Dr Pienaar explained gangrene as dead tissue. Dry gangrene starts
when the tissue becomes pale because there are no red blood
cells
that enter the blood vessels. The doctor distinguished between dry
and wet gangrene in order to arrive at the conclusion
that Erasmus
suffered from wet gangrene. He opined that the symptoms displayed by
Erasmus could not have been dry gangrene because
dry gangrene takes
weeks and months to develop; it causes very little pain; it does not
cause any smell; it is shrivelled or causes
the affected part to be
shrivelled and
does
not spread
. It can
auto-amputate.
[21]
In as far as wet gangrene is concerned: Dr Pienaar explained that it
is infective gangrene or gas gangrene (gas forming bacteria)
and
moves towards the centre of the body; is caused by a rapid shutdown
of the blood supply; the dead tissue continues to communicate
with
the rest of the body; it spreads; causes pain; causes gas in tissues
and causes infection which spreads fast. Some of the
organisms are
fast spreading while others can spread slowly but be aggressive.
Wet gangrene can be identified with swelling
or congestion, dead
tissue communicating with the rest of the body causing an
inflammatory response and pain as well as swelling
or redness.
[22]
Dr Pienaar explained further that if gas is observed on the x-rays it
is axiomatic that there is infection and its source must
be removed.
In this instance, the doctor holds the view that Erasmus had wet
gangrene on his toe and the toe should have
been removed as soon as
possible. Reference was made to within 24 hours or 48 hours or at the
most 72 hours. Had the toe been removed
earlier there would not have
been a need to amputate leg above the knee or even resort to the
“salami amputations”,
that is, perform more than one
amputation on a person.
[23]
In this instance, Dr Pienaar emphasised that the toe should have been
removed to avoid the above knee amputation because it
would have
stopped the spread of infection to the rest of the foot and leg.
X-rays, in his opinion, are taken to confirm or exclude
the presence
of gas. He maintains that the swollen toe had to be removed or
amputated even before Erasmus could undergo bypass
surgery that was
recommended by the Universitas because it was the source of the
sepsis. There were many factors pointing towards
immediate
amputation, namely; pain, smelly toe with pus, inflammation, swelling
and the presence of gas in the toe. He did not
come across any notes
or recording in the hospital records that could have been the reason
for not performing the amputation immediately.
The doctor refutes the
conclusion reached by the defendant’s side that it was dry
gangrene in light of the fact that the
toe was not shrivelled but
swollen.
[24]
Dr Pienaar was pertinently asked to deal with the aspect of vascular
status of Erasmus with particular reference to the Doppler
tests
(pulses on Erasmus’ feet). According to the doctor the
examination of arteries on a patient’s foot is an art
that has
to be learned. It is possible that an inexperienced doctor may miss
the pulse. The Doppler device used for Erasmus’
foot reflected
a monophasic flow; however, that would not have diminished Erasmus’
chances of healing. When asked to
comment on the presence of
maggots detected a few days after the amputation in the wound his
response was that a wound should be
free of maggots; except where the
maggots are used as part of therapy. He testified that, nevertheless,
there are only two centres
in the entire country that use maggot
treatment under a controlled environment and with very close
supervision and monitoring,
namely; the Universities of Pretoria and
Stellenbosch. If maggots are found in a wound in a hospital and not
in a controlled environment
it can only point to gross negligence.
[25]
In as far as the bypass surgery is concerned; Dr Pienaar said there
must be no focused sepsis in the patient and that amputation
of the
toe had to precede the bypass surgery. When tests were conducted in
Bloemfontein on 30 November 2012 there was a raised
white cell count
of 10.34 x 10ˆ and a C-reactive protein (CRP Quantitative)
36.0mg/l while the normal range is between 0 and
5, his cardiac
marker (NT-ProBNP) was also raised 972 ng/l when the normal upper
limit is 300. In his view Erasmus was not fit
for bypass surgery, an
opinion shared and so recorded by the Bloemfontein specialists: Dr RG
Botha and Dr Pearce (see para 28 below).
[26]
Flowing from Erasmus’ unfitness to undergo bypass surgery Dr
Pienaar was also asked to comment on the alleged refusal
Universitas
to treat Erasmus as shown on the form dated 10 December 2012 which
records:
“
REFUSAL
OF HOSPITAL TREATMENT FORM (RHT)
I,
Erasmus P, discharge myself from Universitas/National on my own
responsibility. Dr Opperman has explained to me:
1.
The nature of
the potential harm or risk that can ensue in taking this action;
2.
I appreciate and
understand the nature of the harm or risk;
3.
I nevertheless
choose to leave the hospital against the wishes of the attending
Doctor/Registered nurse;
4.
I hereby
indemnify the Department of Health of the Free State and hold it
blameless against all loss or damage or which I or any
other person
might sustain as a result of discharging myself against advice of
Doctor/ Registered nurse;
Registration number of the patient UM00613582.
Signed P Erasmus 10/12/12”
Erasmus
denied that he refused hospital treatment. The form does not record
that the content was interpreted and explained to him
in a language
that he understands. He is Afrikaans speaking.
[27]
On the aspect of the keeping of medical records Dr Pienaar emphasised
the practice in the medical fraternity that ‘
if
it is not written down, it hasn’t been done. If it hasn’t
been recorded, it hasn’t been done.’
There
was no entry on the aforementioned RHT form that Erasmus refused
bypass surgery. In fact, in his testimony, Erasmus
had maintained
that the Dr who was supposed to perform the bypass surgery was on
leave and would only return in the new year. He
therefore requested
to return to Kimberley. I accept Mr Erasmus’ explanation and
reject the contention that he refused hospital
treatment as he was
always willing to be transferred to Universitas for advanced surgery.
[28]
Dr Pienaar also commented that although the hospital records showed
that Erasmus was diagnosed with critical limb ischemia
as a reason
for his referral to Universitas he could not find symptoms of
critical limb ischemia except that Erasmus complained
of pain in his
left big toe. Interestingly, on the patient referral letter dated 28
January 2013 (plaintiff’s Bundle 3 page
111) under clinical
information there is a handwritten entry on the left hand side
“
#refuse
bypass ’12 amputation left toe @ Kimberley # now gangrenous
left foot (partial) dry
”
.
Under Management/
Treatment received appearing under the same head on the right hand
side it is stated:
*Not
for bypass according to Dr RG Botha and Dr Pearce.
(Own
emphasis)
[29]
According to Dr Pienaar and as it appeared in the Kimberley hospital
records there is no indication that Dr Blanco personally
saw Erasmus
on 20 November 2012 because the entry on the records “D W
Blanco”. “D W” is an abbreviation
for ‘discussed
with’. It may be taken that Dr Blanco gave the instructions
telephonically. As explained by Dr Pienaar
if Dr Blanco, as the
consultant, personally saw or examined Erasmus on that day the
registrar or the medical officer making the
entry in the hospital
records could have said: ‘
seen
by Dr Blanco’ followed by what Dr Blanco said or advised.’
[30]
As already stated Dr Blanco had advised that Erasmus receive
intravenous antibiotics for 48hours, that the operating doctor
should
await demarcation and the toe be amputated within 48 hours. This
advice by Dr Blanco was given despite the following as
seen at page
110 of plaintiff’s Bundle 1: the medical records:
30.1
“
Left foot
gangrene, positive sign, circled, blackening of first toe, demarcated
at base of toe”
.
According to Dr Pienaar, it did not make sense to await further
demarcation because the demarcation was there already.
30.2
Rest of foot
hyperemic slightly swollen.
In
Dr Pienaar’s view, this is not a sign of dry gangrene but a
sign of an inflammatory process and in Erasmus’ case
due to the
infection of the first toe spreading upwards to the rest of the foot.
[31]
Of significance, as opined by Dr Pienaar, is that it would have been
prudent for Kimberley Hospital to have amputated Erasmus’
toe
on 20 November 2012 or even up to 23 November 2012 before referring
him to Universitas for peripheral arterial diseases and
not to wait
for an entire month. Dr Kruger should not have used the ring block
and the local anaesthetic as it, having volume,
might have compressed
the arteries that supply blood to the toe. According to him, the
primary cause of the gangrene on the left
big toe was the application
of the rubber band coupled with the fact that it was left on Erasmus’
toe for 3 days. The
nursing records echo Erasmus’ pain
throughout his admission which started on the foot, then transferred
to the lower leg
and eventually to the upper leg. This translates to
the infective process spreading slowly upwards. Even if he could have
been
re-vascularised around 30 November 2012 he would in all
probabilities have ended up with a below knee amputation. Despite the
fact
that the toe was amputated on 20 December 2012 nevertheless by
07 February 2013 Erasmus had above knee amputation. Dr Pienaar
disagrees
with the assertion that Erasmus had critical limb ischemia.
According to Dr Pienaar had that been the case Erasmus would have
lost
his other leg by now. In fact, according to the peripheral
arterial evaluation conducted by the vascular unit on Erasmus at
Universitas
on 30 November 2012 the segmental pressure of his left
leg was better than the right leg.
[32]
When asked whether it could not have been Erasmus’ vascular
status that caused the gangrene Dr Pienaar explained:
“
It
was not the vascular status of Mr Erasmus that caused that toe to go
into gangrene. To my mind there is no indication that the
vascular
status of Mr Erasmus played a role in the gangrene of the left big
toe. This was purely isolated. It was purely
demarcated, it was
only the left big toe. He suffered immense pain during the three
days. The other toes are not affected by gangrene
at all. There’s
no other sign of gangrene. The other foot had no sign of gangrene.
And I could not find any indication that
he complained of pain in
either of his feet or legs prior to this, apart from the toenail that
was affected. If this was brought
[about] by his vascular status and
not by the rubber band I would have expected the same to have
happened to his right foot or
the remaining parts of his foot
.
Sorry, it’s not there anymore. Let’s say the right leg,
right foot.”
Essentially,
Dr Pienaar disagreed with the submission by Dr Maseme that the
peripheral vascular disease was the main cause of the
loss of limb by
Erasmus. Dr Pienaar was quick to also point out that Dr Maseme’s
report did not deal with the use of the
rubber band at all.
[33]
Referring to Dr Kruger’s notes at page 21 of plaintiff’s
Bundle 1, Dr Pienaar commented that already on 19 November
2012 when
Erasmus visited Dr Kruger’s rooms, the doctor wrote
:
“
query (?)
gangrene, gee kans”
(‘gee kans’ is Afrikaans for allow time). According to Dr
Pienaar Dr Kruger should have referred Erasmus to hospital
on that
day. However, he asked him to return the following day. The note of
20 November 2012 reads: ‘
follow
up. Gangrenous. Reël met Dr Bhyatt vir ? amputasie’
(
arrange with Dr
Bhyatt for possible amputation). Dr Pienaar was of the view
that the management of Erasmus at Kimberley Hospital
was negligent
hence the above knee amputation.
[34]
When Erasmus attended for the first time at Kimberley Hospital on 20
November 2012 at 17h30 the entry in the hospital records
show that
the left big toe was swollen. According to Dr Pienaar, this does not
fit in with dry gangrene. Morphine was prescribed
six hourly, it is
prescribed for patients suffering from severe pain.
[35]
After the amputation of the toe the following was recorded in the
hospital record 10/01/13: “#
Post
toectomy,
wounds,
+ slough. Mild necrosis.”
Dr
Pienaar explains “slough” as unhealthy tissue mixed with
bacteria which can also be described as solid pus.
There was a
mixture of dead tissue, dead bacteria and blood. This could mean a
contaminated wound. The entry that follows refers
to “mild
necrosis” which the doctor says can either be necrosis or not
:
there is no such thing as mild necrosis. Necrosis means dead tissue.
On 21 January 2013 following the entry on the hospital record
was
made: “(l) toectomy, wound necrotic, dry gangrene, 2
nd
and 3
rd
toes also seems septic. Plan to discuss with Bloemfontein. Dr du toit
at vascular, Bloemfontein. Transfer 25/01/13 for evaluation
”
.
According to Dr Pienaar the infection was spreading to the rest of
the foot at that stage which could have been stopped by amputation.
Dr Pienaar could not find any indication in the hospital records of
what the Kimberley Hospital staff did to improve the vascular
status
of Erasmus neither could he find any evidence in their records that
further x-rays of the foot and leg were taken particularly
with
Erasmus’ history of presence of gas on the left toe. In Dr
Pienaar’s view if blackening of the toe was caused
by a
vascular problem the demarcation would have been observed as an
irregular line and would never be a straight transverse line
as
depicted on photo D1. That demarcation line came about as a result of
the application of the tourniquet.
[36]
Dr Blanco (Rene Blanco Venent) was called as a witness by the MEC.
There was no Rule 36 (9)(a) or (b) notice filed in advance
by the
MEC
.
As a result I denied the defence permission to lead Dr Blanco as an
expert but confined him to the advice he provided to the doctor
on
duty.
[37]
The expert witness for the MEC was Dr Qebelo Simon Maseme whose
curriculum vitae was admitted by the plaintiff. Dr Maseme is
a
General Surgeon and used the Kimberley and Universitas hospital
records as well as Dr Kruger’s notes in his testimony.
[38]
Dr Maseme noted in his report that Erasmus was referred to and was
seen at the Casualty Department of Kimberley hospital by
Dr Marais on
20 November 2012. He was referred by a General Practitioner with a
problem of dry gangrene of the left big toe which
developed after the
removal of the ingrown toenail by Dr Kruger the previous week.
However, Dr Kruger’s notes did not
specify the type of
gangrene but only recorded that the left toe was gangrenous. Dr
Maseme obtained the information of “dry
gangrene” at the
left big toe from the first casualty notes by Dr Marais of 20
November 2012. Dr Maseme
,
however, made no reference in his report and during his testimony to
the use of a rubber band (tourniquet) by Dr Kruger during
the
procedure. It was only during cross-examination that he admitted to
not having been aware of the earlier use of the tourniquet.
He also
recorded that Erasmus’ legs were warm from the groin downwards.
However, as explained by Dr Pienaar, if the legs
were indeed warm, it
would go against the diagnosis of critical limb ischemia where the
dry gangrene of the left big toe was located.
[39]
The following remarks by Dr Maseme testifying in chief in respect of
the advice by Dr Blanco to the junior doctor are also
relevant:
“
Dr
Maseme
:
Firstly, I am not sure whether Doctor Blanco is a medical officer or
a consultant, but according to the sequence of the notes
it would
suggest that he might be a consultant.
Mr
Motloung
: ok
Dr
Maseme
: Or a
senior member of the Department.
Mr
Motloung
:
yes
Mr
Motloung
:
His suggestion for 48 hours of intravenous, is there anything that
you would like to highlight to the Court?
Dr
Maseme
: Well
from the two previous notes.
Mr
Motloung
:
yes
Dr
Maseme
: The
patient has dry gangrene.
Mr
Motloung
:
okay
Dr
Maseme
:
Therefore there was no need,
I
do not know how they, whether he saw the patient or not or this was
on history that he got from the junior doctors, I am not too
sure
,
but on the basis of the previous notes
a
patient with dry gangrene does not need antibiotics
and it has been noted that it had only demarcated. So I am not
too sure what the rational for that was.
Mr
Motloung
:
Okay
Dr
Maseme
: But
maybe he just wanted to give the patient the benefit of the doubt in
case there is infection. I cannot answer for him.”
According
to Dr Maseme, the clinical picture of Erasmus and his general
condition were in keeping with dry gangrene. Dr Maseme
testified that the gas observed on the tip of the left toe of Erasmus
was not relevant as the gas was on a dead toe
,
hence his remark. Dr Maseme added that he would have been concerned
if the air or gas was on the foot and that the presence of
gas in the
toe does not mean Erasmus had wet gangrene. As
there
was no clinical evidence of an infection
he would not entertain wet gangrene at all. Further,
he
would not even have ordered x-rays of the foot
given
the history of Erasmus. Dr Maseme says knowing that Erasmus had had
the ingrown toenail removal it must have precipitated
his vascular
condition. Dr Maseme’s explanation for the gangrenous toe
is that either Dr Kruger could have used adrenaline,
which we know he
did not, or he could have used a lot of fluid for that local
anaesthetic which increased the tissue pressure around
the vessels
which were very compromised and led to the occlusion of the vessel
and stopped the blood flow to the toe.
[40]
Like Dr Pienaar, Dr Maseme was asked to explain the difference
between wet and dry gangrene. He distinguished them as follows:
dry
gangrene occurs when the blood supply to the tissue is cut off, not
caused by an infection but normally due to some underlying
vascular
disease. Wet gangrene can be divided into two types gas forming or
non-gas forming. There is further clostridial , which
is very
aggressive and non-clostridial. According to Dr Maseme if wet
gangrene is left untreated it kills whereas dry gangrene
does not
kill, a person will just lose a limb. In wet gangrene there is
infection of the soft tissue. There is an invasion by organisms
which
cause gangrene. Wet gangrene spreads, as opposed to dry gangrene
which is confined to the dead tissue. When wet gangrene
spreads, it goes up the tissues causing more tissue damage as it
progresses. There will be a patch of necrosis and the limb will
be
dark. There will not be a definite demarcation. Intravenous
antibiotics are prescribed.
[41]
Dr Maseme explained that gas found in the distal part of the left toe
remained there because the dead toe was disconnected
to the rest of
the foot, hence there was no communication between the dead toe and
the rest of the foot. The doctor’s explanation
of the gas on
the toe was that it may have been an artefact that was caused by the
removal of the toenail and gas occupied the
space initially occupied
by the nail. Air could also have been introduced by the use of the
syringe on the toe. Dr Maseme went
on to explain a situation where a
dead toe is made wet through cleaning or a humid temperature and it
can contract bacteria through
putrefaction.
[42]
The explanation by Dr Maseme is that Erasmus’ procedure by Dr
Kruger precipitated the gangrene. More so that he had vascular
disease, the gangrene was preceded by claudication, that is pain
brought about by increased activity and when just lying in a hospital
bed it becomes rest pain. It would later develop into critical limb
ischemia where the pain will not go away unless the blood supply
in
the affected tissues or limbs is improved. In the opinion of Dr
Maseme amputation of the dead toe was not urgent but a
bypass was
necessary to prevent further tissue damage. According to the
doctor
since there
was no evidence of infection there should not have been a rush to
remove the toe
.
[43]
I am clearly confronted by two irreconcilable versions. The
pronouncement by Nienaber JA in
Stellenbosch Farmers' Winery
Group Ltd and Another v Martell Et Cie and Others
2003 (1) SA
11
(SCA) at para 5 is instructive:
“
To
come to a conclusion on the disputed issues a court makes findings on
(a) the credibility of the various factual witnesses; (b)
their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will depend
on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had
to experience or observe the event in question and (ii) the quality,
integrity and independence of his recall
thereof. As to (c), this
necessitates an analysis and evaluation of the probabilities and
improbabilities of each party's version
on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine
whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare
one, occurs when the court's
credibility findings compel it in one direction and evaluation of the
general probabilities in another.
The more convincing the former, the
less convincing will be latter. But when all factors are equipoised
probabilities prevail.”
See
also
Louwrens v
Oldwage
2006
(2) SA 161
(SCA).
[44]
In determining whether I accept the version of the plaintiff or the
defendant I weighed up the following:
44.1
It is common cause that Erasmus had pain on the left toe for which he
consulted Dr Kruger. While the case
against Dr Kruger was
settled and was not before me, I take judicial notice of the
settlement even though I was not privy to the
contents.
44.2 Dr Kruger used the tourniquet (rubber
band) to create a bloodless field. While Dr Pienaar expressed the
view that
the bloodless field was unnecessary and, in any event, the
fact that Dr Kruger omitted to remove the rubber band after the
procedure,
caused the interruption in the blood flow which caused the
gangrene on the left toe. Surprisingly, Dr Maseme having had the
hospital
records and Dr Kruger’s notes, and having consulted
with counsel before the trial,
made no reference to the use of the
rubber band in his report and in his oral evidence
. It was only
during cross-examination when confronted with the effect of the
rubber band on a toe that was tightly bandaged that
he opened up and
expressed an opinion.
44.3
Dr Maseme did not only omit the aspect of the rubber band which in my
view was crucial, but also did not notice
while perusing the hospital
records that
Erasmus
was on antibiotics from 13 November 2012 to 06 February 2013
.
The doctor’s impression was that the antibiotics was stopped
and only discovered about the use of antibiotics in court.
What
is further disturbing is the view by Dr Maseme that Mr Erasmus did
not require the toe amputation.
44.4
Logically, although Dr Kruger denied it, he (Dr Kruger) must have
noticed the “forgotten” rubber band
on the 16
November 2012
when Erasmus returned to him for a follow up with excruciating pain.
That is why on his note of 20 November 2012 he
made an inscription
that the toe was gangrenous because at that stage already it had
turned black and there was a clear demarcation.
44.5
If the toe was as depicted on photo D1 and D2 and clearly demarcated
why would Dr Blanco
,
not only the consultant but a General Surgeon, advice a junior doctor
to await demarcation if he had personally examined Erasmus?
In my
view the probabilities point to Dr Blanco having provided telephonic
advice and the receiving doctor made an entry of that
advice. I
reject the version that Dr Blanco saw Mr Erasmus in person.
44.6
It is not in dispute that Mr Erasmus had a vascular disease. However,
I am persuaded by the argument that had his
toe been amputated
immediately, at least within the 48 hours, the rest of the limb would
have been saved.
44.7
I further find that although the vascular disease needed attention,
the primary attention ought to have been paid
to the amputation of
the toe. I am basing my finding on the fact that urgency on treating
the vascular disease was over-emphasised
by Dr Maseme reiterating
that the toe was already dead and there was a need to save loss of
further limb due to vascular disease.
Almost five or six years later
all but the one limb which was amputated are still intact. This
confirms the submission by Dr Pienaar
and Van der Merwe that the
presence of gas in the left toe meant that it had wet gangrene which
necessitated immediate amputation.
44.8
I accept that Erasmus suffered from wet gangrene because his foot was
smelly, the gangrene moved up his foot and
leg, it produced gas,
caused rapid shut down of blood supply, there was communication
between the dead cells and the healthy part,
it spread to other parts
of the foot and leg, caused tremendous pain and caused infection. The
records clearly show how Erasmus
was continuously receiving
antibiotics. I disagree and reject the opinion by Dr Maseme that
Erasmus suffered from dry gangrene.
Firstly, the affected toe had
pain whereas dry gangrene causes very little pain, if any; does not
cause smell whereas Erasmus’
was smelly, the toe was not
shrivelled and, as testified to by both Dr Pienaar and Dr Maseme, the
dry gangrene does not
spread but confined to one space.
Erasmus’ gangrene spread upwards until his leg had to be
amputated above the knee.
While dry gangrene can take weeks or
months to develop, Erasmus’ toe turned black in 3 days and
gangrenous in 6 days.
44.9
It was disconcerting for me to, on more than one occasion, observe
that Dr Maseme was partisan to the defendant’s
case and had to
be reminded of his responsibility to the court as an expert witness.
See Jacobs and
Another v Transnet (Ltd) t/a metrorail and Another
2015
(1) SA 139
(SCA) at 148B – D where Majiedt JA, writing
for the unanimous court, pronounced:
“
[15]
It is well established that an expert is required to assist the
court, not the party for whom he or she testifies. Objectivity
is the
central prerequisite for his or her opinions. In assessing an
expert's credibility an appellate court can test his or her
underlying reasoning and is in no worse a position than a trial court
in that respect. Diemont JA put it thus in Stock v Stock[1981
(3) SA
1280 (A) at 1296F]:
An
expert . . . must be made to understand that he is there to assist
the Court. If he is to be helpful he must be neutral. The
evidence of
such a witness is of little value where he, or she, is partisan and
consistently asserts the cause of the party who
calls him. I may add
that when it comes to assessing the credibility of such a witness,
this Court can test his reasoning
and is accordingly to that
extent in as good a position as the trial court was.'”
It
is on the basis of the afore-mentioned that I find that the version
in respect of the medical expert opinion of the Dr
Pienaar as
corroborated by the plaintiff’s other witnesses is not only
more probable but also credible and reliable. I reject
the version of
Dr Maseme in as far as it conflicts or contradicts the plaintiff’s
version.
[45]
It must be borne in mind that the claim against the MEC is
compensation for damages suffered as a result of the amputation
of
his left leg above the knee and based on contract or alternatively,
on delict. The MEC has not pleaded contributory negligence.
[46]
In order for Erasmus to succeed in his delictual claim it is
necessary for him to prove the following elements: that there
was an
act or omission by the defendant; wrongfulness; negligence; damages
and a causal link between negligence and damages.
[47]
It is common cause that Dr Kruger referred Erasmus to Kimberley
Hospital on 20 November 2012. From that date he was in the
care of
the defendant. Dr Kruger had already telephonically discussed the
matter with Dr Bhyatt, Head of Surgery. It is further
common cause
that Dr Blanco was contacted for advice on the same evening and he
ordered amputation within 48 hours. The defendant
failed to
amputate Erasmus within the 48 hours and instead amputated him
exactly a month later, on 20 December 2012. Unquestionably,
it had to
take pressure and disgruntlement by a member of the family and
publicity by the local newspaper for the Kimberley Hospital
to
amputate Mr Erasmus. This conduct is unacceptable.
[48]
The MEC, represented by the Kimberley Hospital medical staff, were
expected to act reasonably and swiftly to safe Erasmus’
foot
and leg. In the aforementioned, particularly paragraph 44 (above), no
reasonableness and swift action can be discerned.
[49]
It is common cause that following Erasmus’ complaint of a
painful toe, he ended up losing his entire left leg above the
knee
through amputation. He is now confined to a wheelchair for the
remainder of his life.
[50]
Taking cue from what Holmes JA pronounced in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E – F:
“
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.
[51]
At the risk of repetition, it is necessary to reiterate that when Mr
Erasmus was admitted at the Kimberley Hospital on 20 November
2012,
the medical personnel already established that he had a gangrenous
left big toe which was already demarcated. They also knew
that it was
septic because intravenous antibiotics were prescribed by Dr Blanco
who also advised that the toe must be amputated
within 48 hours. In
fact, Dr Kruger had already placed him on antibiotics. It is
unquestionable that the Kimberley Hospital
did not foresee the
possibility of harm in failing to amputate the toe when through
reasonable diligence they should have. While
aware that the
amputation should have occurred within 48 hours they only carried it
out a month later, on 20 December 2012. This
is not the action of
a
diligens paterfamilias
.
[52]
Persuasive submission by Adv C Botha, appearing for Mr Plaintiff, was
that in assessing the failure to amputate within the
48 hours, I must
look at the following relevant factors: Erasmus was 71 years old; he
was suffering from vascular disease which
curtailed blood circulation
to his left leg and foot; upon admission he already had a
gangrenous big left toe which was infected;
not only his toe but the
rest of the left foot was swollen with cellulitis; and there was gas
in his left toe. All these factors
inclined towards immediate
amputation
,
which the Kimberley Hospital staff failed to do. I have no
doubt in my mind that the defendant was negligent in carrying
out its
duties based on the failure on its part to act reasonably under
the circumstances having foreseen the possibility
of harm.
[53]
What remains is the question of costs. The general principle is that
costs follow the outcome. There is no reason why
costs in this
case should not be borne by the defendant (the MEC) at High
Court scale on the merits, as taxed or agreed
upon between the
parties.
[54]In
the result the following order is made:
1.
The first
defendant, the MEC: Health, Northern Cape Government, is ordered to
pay all damages that the plaintiff, Mr Patrick Erasmus,
will be able
to prove in due course that was caused to the plaintiff by the
defendant’s failure to render adequate medical
services to the
plaintiff during the period of 20 November 2012 to 06 February 2013
that led to the loss of the left leg of the
plaintiff above the knee.
2.
The defendant is
ordered to pay the plaintiff’s costs on the merits on the
High Court scale, as taxed or agreed upon
between the parties, which
costs shall include:
2.1
The qualifying
fees of the following experts:
2.1.1
Dr BH Pienaar
2.1.2
Dr CH Van der
Merwe
2.2
The reasonable
travelling and accommodation costs/fees of Dr Pienaar and Van der
Merwe for preparation of reports, attending consultations
and the
trial.
2.3
The reasonable
travelling and accommodation of Dr Pienaar and Dr Van der Merwe for
attending the trial;
2.4
It is declared
that the witnesses of the plaintiff referred to in paragraph 2.1
above were necessary expert witnesses.
2.5
The reasonable
travelling and accommodation costs/fees of the plaintiff’s
legal representatives to consult with Dr Pienaar
and Dr Van der Merwe
in Pretoria for purposes of preparation of the expert summaries and
the trial.
2.6
The reasonable
costs of the plaintiff’s technician for providing visual
support in court.
3.
The defendant
will pay the above amounts into the following trust account of the
plaintiff’s attorneys:
Elliot Maris Wilmans & Hay
Standard Bank Trust Account
Account Number [0...]
Branch
Code 050002
_____________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the plaintiff:
Adv CH Botha
Elliot Maris Wilmans & Hay
Attorneys
For
the defendant:
Adv S Motloung
The Office of the State Attorney