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[2016] ZAFSHC 99
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Pane v MEC, The Department of Health, Free State (131/2013) [2016] ZAFSHC 99 (1 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 131/2013
In the
matter between:
B
PANE
Plaintiff
and
MEC,
THE DEPARTMENT OF HEALTH,FREE STATE:
Defendant
HEARD
ON:
1
& 2 MARCH 2016
DELIVERED
ON:
21 APRIL 2016
MOCUMIE,
J
[1]
The plaintiff instituted action against the Member of the
Executive Council of the Department of Health, Free State
(the MEC)
seeking payment in the sum of R3 000 000 (three million rand)
and costs of the suit. The action is defended by the
MEC.
[2] As
a precursor to the trial the parties agreed to a separation of the
issues: the merits from the quantum in terms of R33(4)
of the Uniform
Rules. The agreement was made an order of this court. In the minutes
of the pre-trial conference held between the
parties, the parties
also agreed on the main issue to be determined by the court: ‘whether
the employees of the defendant
were negligent by cutting the
plaintiff’s intestine and removing her womb.’ Shortly
before the trial commenced, the
plaintiff applied for an amendment of
her particulars of claim as she is entitled to in terms of rule
28(1-(10) of the uniform
rules.
[1]
Although highly opposed by the MEC, the amendment was granted in
respect of paragraph 5 of the particulars of claim.
[3] To
prove her case on a balance of probabilities, the plaintiff testified
and called a gynaecologist, Dr Thembi Khoale (Dr Khoale),
as a
witness. To rebut the plaintiff’s case the defendant called Dr
Marthinus Gerhardus Schoon (Dr Schoon) a specialist gynaecologist,
Dr
Mashokho Pearl Marokane (Dr Marokane) a medical doctor at the
hospital in 2010 and Mr Mojalefa Monyane (Mr Monyane) a legal
administration officer of the Department of Health, Free State.
[4] Ms
Boniswa Pane, the plaintiff, testified that she was a resident of Ha
Machabeng, Maseleng, Peolong, Qwa Qwa, Free State.
On the 23
January 2010, she suffered an incomplete miscarriage and was admitted
to Manapo Hospital Phuthaditjhaba (the hospital)
on the same day. A
uterine evacuation was done to clear up her uterus as is the normal
procedure in such cases. The next day, 24
January, she was however
discharged from hospital despite her still feeling pains around her
abdominal area, having a swollen stomach
and vomiting. She was
given medication, antibiotics, and told to come back if she did not
feel better.
[5]
She testified further that on the 1 February 2010 she suffered
from lower abdominal pains, backache, dizziness, nausea
and spotting
as recorded by the local clinic, Nthabiseng clinic (the clinic). The
clinic transferred her to the hospital.
On 2 February she was
re-admitted to the hospital. The hospital progress report shows that
she was admitted by Dr Manoto but was
treated by Dr Marokane. The
diagnosis reflected on the bottom of the report at page (1(a)) reads:
‘
perforated
uterus + bowel obstruction or urinary retention.
’
On 4
February, the plaintiff alleged that she was discharged by the
hospital despite still feeling sick and experiencing the same
symptoms, she alleged, she was discharged by the hospital.
[6]
She testified that on 10 February she was re-admitted to the hospital
with the same symptoms she displayed on 2 February. She
was operated
on the 11 February. When she regained consciousness she
was told that the doctors had removed her whole
uterus and inserted a
colostomy bag in which she will relieve herself. The colostomy bag
was said to be a temporary arrangement
until a specialist from
Australia came to South Africa to investigate how this could be
reversed.
[7]
She also testified that the colostomy bag caused her a lot of
discomfort and embarrassment as it leaked from time to time and
left
a foul smell in the process. Consequently her left her and her
children also found the condition unbearable. She
is currently
on state grant to make ends meet as she can no longer work as a
seamstress..
[8]
During cross examination she maintained that she was not given any
treatment on 2 February. She was challenged with the hospital
report
that had an inscription that on 2 February the doctor had taken her
for a scan, put her on a drip and gave her medication
including
voltaren as well as antibiotics to relieve the pain. She refused to
admit the correctness of such entry but was forced
to admit that she
was treated on 2 February. She denied that she consented to the
operation of 11 February which led to her whole
uterus being
removed. She indicated that the only operation she agreed to
was the explorative laparoscopy. But maintained
that even in
that respect, nothing was explained to her including the risks and
consequences of such operation. Worse that
if the doctors found
anything which could endanger her life; they could operate on her to
save her life, even without her consent.
She denied that, through the
Discovery process, she provided information and medical records in
her possession in piece-meal and
thus made it difficult for the
defendant to prepare for this case or plead appropriately.
[9] Dr
Khoale is a specialist gynaecologist, in the Free State, practicing
out of his own account. His medical track record
and expertise
in the area is not in dispute. He filed a report dated 29
October 2014.
[2]
In the
report he indicated that after considering the hospital notes as well
as some doctor’s notes and interviewing
the plaintiff, he came
to the conclusion that the hospital and its medical staff that
attended to the plaintiff in February 2010
were negligent.
[10] In his opinion:
‘
(a) The
patient had a miscarriage and was treated by uterine evacuation and
discharged the following day which is acceptable clinic
care.
(b) She was readmitted on the 2
nd
February 2010, and a diagnosis of [a] perforated uterus made but
amazingly she was discharged still sick as stated above.
(c) The doctor failed to see the
perforation of [the] uterus and bowel injury after the procedure.
(d) The standard of care was neglected
during her second admission as well as she should have been operated
on during that admission
but instead she was discharged again.
(e) Causation of harm was undetected
uterus perforation with resultant bowel injury which were not
detected and failure to act on
her second admission.
(f) If it was not for the above
omission to detect the perforation or act on the problem, the patient
would not be in a situation
that is now … to live [the] rest
of her life with [a] colostomy bag that gives problems and abdominal
bowel actions with
[diarrhoea] and constant smell …
(g) This is the
harm that has followed the substandard care of the patient.’
[11]
During cross examination he maintained that the failure to take steps
on 2 February to arrest the condition at that time led
to the
plaintiff’s re-admission on 10 February in the critical
condition she was in. He insisted that he could not
find any
consent form, which is alleged the plaintiff filled in authorising
the medical procedure adopted. He believed that
anyone who
treated the plaintiff on 2 February should not have discharged her in
the state she was in on 4 February. If the plaintiff
refused
treatment, the medical staff should have noted such and filled in the
prescribed form, Refusal of Treatment Form, in that
regard.
Thus apart from the nurses’ notes that she refused to be
treated and she agreed to a partial operation, explorative
laparoscopy did not exonerate the hospital.
[3]
[12]
He however conceded
albeit
reluctantly
that there was no record and evidence that the plaintiff was
discharged by the hospital on 4 February. He stated that
he made the
reasonable assumption that the plaintiff was discharged by the
hospital from the notes of the nurses which end on 4
December without
any reference to the plaintiff absconding or refusal to take
treatment; until her readmission on 10 February.
Although unusual of
the nurses, the fact remained that the hospital records do not
reflect or mention what steps were taken when
the plaintiff allegedly
refused treatment including having her sign a form to that effect.
Alternatively, according to the
normal standard procedure, the doctor
on duty noted the refusal of treatment and signing on the form; thus
the doctor signed on
her behalf.
[13]
Dr Schoon is a specialist gynaecologist and Head of the Clinical
Services, Pelonomi hospital. His medical qualifications and
expertise
in the relevant medical field is not in dispute. He testified that in
the absence of any formal discharge by the hospital,
the impression
that can be gained from the nurses and doctors’ notes is that
the plaintiff discharged herself or absconded;
that’s why she
was not operated on 2 February.
[14]
During cross examination, he however conceded that the hospital
records left an inexplicable gap between 4 February until the
plaintiff’s re-admission on 10 February when she was finally
operated on 11 February. He too, like Dr Khoale stated
that the
plaintiff should not have been discharged in the state she was in on
4 February. i.e. if she was indeed discharged by
the hospital. But he
maintained that in the absence of the original file, which
disappeared without any trace, no one could say
with certainty why
the plaintiff was not operated on 2 February except to assume that
she absconded. He also admitted that the
entry of 4 February in the
observation chart: the plaintiff’s low blood pressure and other
symptoms indicated that the plaintiff
was in no condition to be
discharged:
[15]
Dr Marokane is a medical practitioner with the relevant medical
qualifications obtained from the University of Free State.
She was
working at the hospital during 2010 and at the time of the incident.
She is currently based at Universitas where she is
continuing with
her studies at the University of the Free State. Her
qualifications and expertise in the medical field is
not in dispute.
[16]
She testified that she was part of the medical team on duty on 23
January 2010 when the plaintiff was admitted to the hospital.
But it
wasDr Akweyo who admitted the plaintiff. On that day the basic
uterine evacuation procedure was done. The next day,
24
January, the plaintiff was discharged by the same Dr Akweyo.
[17]
She testified further that on 2 February, the plaintiff was
re-admitted to the hospital. Due to the symptoms that the plaintiff
exhibited: a slightly low blood pressure and nausea, she suspected a
perforated uterus. She took her for a sonar and found a dark
spot
which was indicative of blood outside the uterus. She shared
her
prima
facie
opinion with the plaintiff and informed her that this meant that the
plaintiff had to undergo an explorative laparotomy to establish
whether her suspicion on her primary – diagnosis – was
correct and then take corrective steps including removing her
whole
uterus. The plaintiff told her that she did not want her whole uterus
removed until she has consulted her family. She however
prepared the
plaintiff for theatre for the explorative operation by putting her on
a drip. The nurses’ notes indicate that
the plaintiff
thereafter requested to be removed from the drip. It is not recorded
what happened thereafter.
[18]
Dr Marokane testified further that on 10 February the plaintiff was
admitted for the third time. Her condition was worse than
when she
first saw her on 2 February because it was not arrested then. The
plaintiff was taken to the theatre on 11 February. The
theatre report
reflects that the medical team responsible was her, Dr Marokane, as
the team leader/surgeon, Dr Khanyile as the
assistant and the
anaesthetic on duty
[4]
. During
the operation they discovered that the plaintiff’s condition
was critical and was a matter of life and death. As
the team leader,
she called Dr Moloi, the Superintendent in charge to request his
consent on behalf of the plaintiff as is standard
procedure under
those circumstances. Dr Moloi consented and the operation was
conducted which resulted in the plaintiff’s
whole uterus
removed and a colostomy bag being inserted to relieve herself
temporarily until reversed by a specialist from
Australia. The
plaintiff never returned to the hospital after her discharge on 11
February.
[19]
During cross examination, she denied that she did not explain the
prognosis of a perforated uterus and the possibility of removing
the
whole uterus to the plaintiff. She remembered that she and the
plaintiff conversed in their mother tongue, Sesotho, and understood
each other. She explained everything to the plaintiff on her second
admission, 2 February, after Dr Moekeletjie had attempted to
do the
same but had not succeeded. She could however not state in specific
terms what she told the plaintiff were the possible
risks she
anticipated before the plaintiff was wheeled into the theatre on 11
February. She maintained that the full or complete
hysterectomy was
the only option available as the medical team could not close the
plaintiff up first to seek her consent to operate
on her and open her
up again to operate on her. She was adamant that she made a conscious
decision between removing the septic
uterus and saving the
plaintiff’s life. And she chose the latter as her medical oath
demanded of her.
[20]
Mr Monyane testified that he was a legal administration officer at
the hospital where the incident happened. In essence he
confirmed
that the original file in this matter went missing sometime in
2013.The file could not be traced despite a diligent search
by him
and his team. The only documents available and relied upon were
received from the plaintiff. Cross examination did not elicit
anything new.
[21]
The issue of medical negligence revolves in most instances around
whether proper consent was obtained before any operation/procedure
could be embarked upon. Dr Khoale bemoaned the quality of the consent
forms used across the country and has even developed his
own, to
address all the necessary issues including the risks, foreseen and
not foreseen but likely, that are related to the medical
procedure
undertaken.
[22]
If this consent form is not properly explained before the operation
is undertaken, no matter the good intentions and oath of
the medical
practitioners - and proper consent was not obtained prior to a
procedure, the practitioner will be liable for whatever
happened
during that procedure adopted
[5]
.
Proper consent includes consent given after all the apparent risks
and the obvious steps that the medical team will take
in any
emergency have been explained to the patient
[6]
.
By appending his or her signature, the patient indicated that (s)he
understood what was explained to him or her and accepted
the risks.
In the event that the patient is in no condition or state of mind to
do so, his or her next of kin must be consulted
[7]
.
The
Law
[23]
In cases of this nature, negligence is a requirement for delictual
liability and the plaintiff must allege and prove that the
defendant
was negligent.
[8]
It is
not sufficient to allege negligence alone. The particular grounds of
negligence must be detailed.
[9]
It is an implied term of the contract that the medical practitioner
who undertakes the treatment of the patient will exercise the
reasonable skill and care of a practitioner in her or his field
[10]
.
In deciding what is reasonable, the evidence of qualified physicians
is of greatest assistance; however, what is reasonable under
the
circumstances is a matter for the court to decide.
[11]
Should the practitioner fail in his or her duty and the patient
suffer damages in consequence thereof, the practitioner is bound
to
compensate the patient for the damages caused by the breach of
contract.
[12]
If a plaintiff
relies on a breach of duty of care, (s)he must set out the facts that
could or should have been foreseen by the
defendant.
[13]
[24]
The onus rests on the plaintiff
[14]
to establish that a reasonable person (
diligens
paterfamilias
)
in the position of the defendant:
(i)
would
foresee the reasonable possibility of the conduct (whether an act or
omission) injuring another’s person or property,
and causing
that person patrimonial loss;
(ii)
would
take reasonable steps to guard against such occurrence; and
(iii)
that
the defendant failed to take such reasonable steps.
[15]
[25]
Whether a reasonable person would have taken steps to guard against
foreseeable harm involves a value judgment
[16]
.
Four useful considerations courts rely on are: (i) the degree or
extent of the risk created; (ii) the gravity of the possible
consequences; (iii) the utility of the actor’s conduct; and
(iv) the burden of eliminating the risk.
[17]
[26]
Both parties led evidence of experts to prove their respective cases.
The extent to which a court may rely on such evidence
has been dealt
with in numerous cases. In
Pricewatercoopers
Incorporated and others v National Potato Co-operative Ltd and
Another
[18]
the Court summed up the role of an expert as follows
[19]
:
'1. Expert evidence presented to the
court should be, and should be seen to be, the independent product of
the expert uninfluenced
as to form or content by the exigencies of
litigation.
2. An expert witness should provide
independent assistance to the court by way of objective, unbiased
opinion in relation to matters
within his expertise. An expert
witness should never assume the role of an advocate.
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5.
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be stated
with an
indication that the opinion is no more than a provisional one. In
cases where an expert witness who has prepared a report
could not
assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification, that
qualification
should be stated in the report.'
[27]
According to
Harms
[20]
:
‘
The
function of an expert is to assist the court to reach a conclusion on
matters on which the court itself does not have the necessary
knowledge to decide.’
[28]
Both Drs Khoale and Schoon, the two experts called by the parties,
were agreed that on 23 January the plaintiff was treated
and
discharged properly. They were also agreed that because of the
condition the plaintiff was in on 2 February, septic shock,
she could
and should not have been discharged on 4 February. The plan devised
by the medical team on 2 February should have been
implemented.i.e
she should have been operated on, based on the diagnosis. The experts
were also agreed that but for the inaction
on the part of the medical
staff on 2 February or shortly thereafter, the critical condition in
which the plaintiff found herself
in on 10 February would not have
arisen because the condition would have been arrested and attended to
appropriately. In other
words there would have been no emergency that
forced the medical team to operate on by removing her whole womb and
inserting the
coloscopy bag without her consent. But under the dire
circumstances the medical team found itself in on 11 February it had
to do
just that.
[29]
The experts also agreed that there was an inexplicable gap in
the progress chart or notes of the nurses on duty on 4
February, the
last entry was made at 05h55, until the plaintiff’s third
re-admission on 10 February which gave no definite
indication that
the plaintiff was officially discharged.
[30]
However Dr Khoale made the following observations: If the plaintiff
was discharged officially on 4 February a discharge form
would have
been filled in as was done on 24 January. The plaintiff and two
witnesses would also have signed the discharge form.
In this case no
such form could be found anywhere. He added that if the plaintiff
refused treatment on her second re-admission
on 2 February, she had
to be made to sign a Refusal of Treatment form (RTF). If she
refused to sign that form, the doctor
in charge ought to have signed
the RTF and made an entry of her refusal. He unrefutedly stated that
filling in the necessary forms,
the Discharge form and RTF is the
responsibility of the medical staff at all times. In this case it was
not done.
[31] I
have no doubt to accept these two experts’ evidence as none
indicated any bias. If anything both attempted to present
evidence as
neutral as they could but were also naturally inclined to agree and
support the contention of the party that called
them. But in essence,
they agreed on the major issues of the medical evidence they
presented and where they differed they substantiated
their opinions
reasonably. They even made concessions where necessary.
[32]
The plaintiff was in general a remarkable witness with a good memory.
She could remember details such as dates and times she
was admitted
and discharged and the diagnosis except her ‘feigned loss of
memory’ that she did not receive treatment
on 2 February until
she was referred to the hospital records which she had in her
possession that she in fact received treatment.
She could not explain
what actually transpired on 4 February after the entry
made by the nurses at 05h55 except to
say that she was discharged
from hospital. Yet, she could not say how was she discharged, by
which doctor or nurse and whether
she signed a form similar to the
one she singed on her discharge on 24 January when she was first
admitted. Worse, she could remember
very well that at some point
after the operation that went horribly wrong, she went to apply for a
state grant. When she made the
application the hospital records were
required. She then went back to the hospital and explained to one
nurse what she required.
That nurse gave her copies of the documents
in the hospital file. Yet again, on this critical aspect she feigned
loss of memory
on the name of the nurse who gave her such vital
information in the file at the hospital. Nor could she even describe
her or him.
I say feigned memory because as indicated earlier in this
judgment, the plaintiff had a remarkable good memory about
everything,
except these specific aspects which were raised by the
defendant as her case was based on them. Surely, her legal
representative
took her through her pleadings and possible scenario
which will be presented to her as indicated in the exchange of
pleadings including
these very aspects. I have no doubt to find
that, she is, disingenuously so, not an honest witness. Her
version on
its own is devoid of the truth, to say the least.
[33]
The two witnesses called by the defendant gave evidence as best as
they could under the circumstances and without reliance
on the
missing file and notes which were either stolen or destroyed as Mr
Monyane implied in his evidence in chief without necessarily
relying
on this as a defence.
[34]
In his heads of argument and in court Mr Mene submitted that there is
a variance between the plaintiff’s evidence in
chief, the
closing argument and her pleadings. In her evidence in chief, the
plaintiff confirmed in cross examination that her
case was based on
the horrible operation that went wrong on 11 February. Yet in her
pleadings she alleged without any details or
description that the
employees of the defendant were negligent. He submitted that in line
with the agreement in terms of R33 (4)
the case of the plaintiff is
based on the end result as set out in paragraph 12 of the amended
particulars of claim: whether the
employees of the defendant were
negligent by cutting the plaintiff’s intestine and removing her
womb. But she failed through
the evidence presented to prove that the
employees of the defendant were negligent during the performance of
the operation on 11
February. To the contrary both experts were
agreed that the operation was conducted properly and in accordance
with the emergency
situation that existed then. Mr Ponoana maintained
that there was no variance. The plaintiff proved her case on a
balance of probabilities.
[35]
Apart from the pleadings which I will refer to later, the evidence
presented by the parties is in essence similar. The plaintiff
was
re-admitted on 2 February and then went missing on 4 February. There
is no account of her whereabouts in the hospital records
or the
medical notes and reports from that date until her re-admission on 10
February. On 11 February she was operated on and her
whole uterus was
removed and she was fitted with a colostomy bag to relieve
herself.
[36]
Although according to all the witnesses including the two medical
experts there is nothing untoward or unprofessional that
the
defendant’s employees did on 23 and 24 January or even on the
10 and 11 February, it is relevant that reference be made
to what
transpired on 23 January until the plaintiff’s discharge on 24
January to draw some parallels between the two incidents
to establish
whether the defendant’s employees acted negligently during the
admission and treatment of the plaintiff, as
I do hereafter.
[37]
After the evacuation procedure was conducted, the plaintiff was
discharged on 24 January
albeit
with pains. Before her discharge, she, the doctor on duty and two
witnesses duly signed a Discharge form
[21]
as prescribed. She was given antibiotics and pain killers and was
advised to come back if she did not feel well. She went home.
[38]
On 2 February she returned to the hospital by reference of the local
clinic. According to the Admission report from the clinic
and the
hospital Progress Report discovered by the plaintiff, she displayed
the following symptoms: ‘lower abdominal pains,
backache,
dizziness, nausea and spotting’. The report also reflected her
blood pressure as lower than normal. She was in
what the experts and
Dr Marokane described as septic shock which is the state in which the
body gets into as a result of septicism
and may even lead to death if
not treated immediately. She was taken for sonar which depicted a
dark spot outside the uterus.
[39]
On one hand, the plaintiff maintained without any proof that she was
discharged by the hospital despite the serious condition
she was in.
On the other hand, the defendant maintained that she was not
discharged by the hospital but in all probabilities absconded
after
she was prepared by Dr Marokane for theatre to undergo the
explorative laparoscopy which she had agreed to on 2 February.
[40]
The test generally employed by courts in resolving factual disputes
in respect of two irreconcilable versions was clearly defined
in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell ET CIE and
Others
[22]
2003 (1) SA 11
(SCA) as follows:
‘
[5]
… To come to a conclusion on the disputed issues a court must
make 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 probability or
improbability 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 a court's credibility
findings compels it in one direction and its evaluation of the
general probabilities
in another. The more convincing the former, the
less convincing will be the latter. But when all factors are
equipoised, probabilities
prevail.’
[41]
Thus, the preference of one version over the other ought to be
preceded by an evaluation and assessment of the credibility
of the
witnesses, their reliability and the probabilities.
[23]
[42]
Mr Mene submitted that in the absence of the original file, the only
inference that this court must draw is that the plaintiff
absconded
from the hospital and only returned on 10 February in the serious
condition she was in which forced the defendant’s
employees to
remove her whole womb which they found septic once they had opened
her up for the explorative laparoscopy. They could
not sew her up to
ask for consent to do so. But instead sought such consent from the
Superintendent in charge as is permissible
under the Health Act
[24]
in such dire circumstances.
[43]
The following objective facts are not in real dispute:
43.1
The nurses’ records show that the plaintiff was properly
resuscitated on 2 February. Thereafter
Dr Moekeletjie and Dr Marokane
spoke to the plaintiff about ‘something’ and she refused
to listen to them. But then
agreed with Dr Marokane on 3 February to
do an explorative laparoscopy;
43.2
The plaintiff was then prepared for theatre by putting her on a drip;
43.3
However she requested to be taken off the drip despite her serious
condition;
43.4
There was no discharge form amongst the documents that the plaintiff
discovered as was the case
when she was discharged on 24 January;
43.5
The plaintiff could not remember who discharged her or even who gave
her the hospital file which
cannot be traced anywhere.i.e. despite
remembering vividly that she was discharged and told to come back if
she still did not feel
well.
[44]
As much as the defendant could have led evidence of more witnesses to
give a clearer and much better picture of what actually
transpired on
4 February after the last entry was made at 05h55, the only inference
that I can draw, based on the objective facts
set out above is that
on 2 February a diagnosis was made and the plaintiff was informed
about something which she refused to do.
A plan was
devised on the action to take. She only agreed to an
explorative laparoscopy. Based on her consent,
she was prepared for
theatre. There is nothing untoward that can be pointed to that the
medical staff did from 2 February after
preparing her for the
operation up until the last entry of 4 February at 05h05.
[45]
Between the version presented by the plaintiff and that by the
defendant, it is highly improbable and impractical for the medical
staff to diagnose, devise a plan to address and arrest the condition
and then discharge the plaintiff in the serious condition
she was in.
It defies logic and could simply not have happened.
[46]
Coming back to the amended particulars of claim. The negligence
complained about as pleaded by the plaintiff in the amended
particulars of claim is as follows:
‘
PAR
7
:
At all material times thereto, on the 11
th
February 2010, the surgical operation went horribly wrong, in that
the medical doctor, who performed the operation negligently
cut the
plaintiff’s intestine and had also not sought consent from the
plaintiff or anyone else.
‘
PAR
8
:
The Defendant employees did not inform the Plaintiff that they would
be cutting the intestines and completely removing the womb.
PAR
10:
At
all material times hereto, prior to the horrible operation, the
Plaintiff had not felt anything wrong with her intestines.
PAR
11
:
Despite the agreement reached between the parties as stated in
paragraph 9 above, the Defendant carried out the surgery in one
or
more of the following respects:
PAR
11.1
:
There was no informed consent sought from the Plaintiff to cut
neither intestine nor removal of her womb.
PAR
11.2
:
the Defendant’s employees failed or omitted to take reasonable
steps which any reasonable person ought to have taken to
guard
against harm, assault and injury to the Plaintiff’s body.
PAR
11.3
:
There was either no explanation provided to the Plaintiff about the
possibilities or risks involved or the process of the said
agreed
term to wit, the cleaning of the womb to remove the blood clot.
PAR
13
:
The Defendant’s employees, having realized their negligent
conduct, they then did a colostomy operation to the Plaintiff,
which
is also giving the plaintiff problems, inconvenience albeit serving
as a mechanism to relieve herself.’
[47]
From a reading of these amended particulars of claim, the plaintiff’s
case is based on the end result i.e. the operation
of 11 February.
The particulars of claim do not state in detail in what way the
defendant’s employees were negligent on 11
February. The
amended para 5 simply gives the historical background of what the
plaintiff described as the horrible operation of
11 February. This so
taking into account that the experts are agreed that there was
nothing untoward that the medical team could
have done under the
circumstances on 11 February but to save the plaintiff’s life
by removing the whole septic uterus.
[48]
As indicated earlier, regardless of the pleadings, the plaintiff on
her own version did not prove her case on a balance of
probabilities.
She could, expectedly so, not do so without being honest and telling
the truth about what actually happened on 4
February after 05h05. I
am bound by the objective facts to, ineluctably so, draw the only
inference that I have drawn that the
plaintiff absconded from the
hospital against the doctors’ orders and prescription for an
operation between 2 and 4 February
or as arranged. She created the
dire condition in which she ended up in because the condition was
left unattended between 4 February
and 10 February, 6 days. I can
find nothing more that the medical staff had to do beyond what they
did on 11 February. The action
they took on 11 February saved the
plaintiff’s life.
[49]
The issue of costs. Although this aspect was not argued, the general
rule is that costs follow the event. However, in some
suitable
circumstances the successful party may be deprived of its costs. In
this matter, considering the financial position of
the plaintiff
(plaintiff being a single and unemployed parent beset by health
problems and who struggles to make ends meet), would
amount to piling
Pelion upon Ossa. It would also be unconscionable to order an
indigent plaintiff who believed in her case on legal
advice to pay
the costs in an unsuccessful action against a state institution.
[50]
Having considered all the evidence, I am satisfied that the plaintiff
has failed to prove her case on a balance of probabilities.
Her
action ought to be dismissed.
[50]
In the result the following order is granted.
ORDER
‘
1. The
plaintiff’s action is dismissed.
2. No order as to
costs.’
___________
MOCUMIE, J
For the plaintiff:
Mr. M.J. PONOANE
Instructed by:
PONOANE ATTORNETS
5
th
Floor, Penthouse
Standard
Bank House
15
West Street Burger Street
BLOEMFONTEIN
For the defendant:
ADV B.S. MENE
Instructions by:
THE STATE ATTORNEY
11
th
Floor, Fedsure House Building
CHARLOTTE
MAXEKE STREET
BLOEMFONTEIN
[1]
Affordable Medicines Trust v
Minister of Health of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at 261
.
[2]
Page 83 of the
paginated papers.
[3]
Ibid page 5(1)(b)
of the paginated papers. Nurses Notes: Progress Report.
[4]
Theatre Report p 7 indicates the anaesthetic as Dr Osriel/Dr Magaga
[5]
S7(2)
of the
National Health Act 61 of 2003
.
[6]
Sibisi No v
Maitin
2014 (6) SA 533
(SCA) at para [49] - [50]
[7]
S7(1)(a)
of the
National Health Act above
.
[8]
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC) at para [17]
[9]
.
Honikman
v Alexander Palace Hotels (Pty) Ltd
1962 (2) SA 404
(C);
SA
Fish Oil Producers’ Association (Pty) Ltd; Shipwrights &
Engineers Holdings
(Ltd) 1958 (1) SA 687 (C).
[10]
Mitchell
v Dixon
1914 AD at 525, See also
Coppen
v Impey
1916
CPD 309
at 314 and
Oppelt
v Department of Health, Western Cape
above at para [107] - [108].
[11]
.
Streicher
v Van Vuuren
2000 (4) ALL SA 306
(A)
Oppelt
v Department of Health, Western Cape
above para [36].
[12]
Lillicrap,
Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd
1985 (1) SA 475
(A);
Mukheiber
v Raath
1999 (3) SA 1065 (SCA).
[13]
Beurain
h/a Toptrans Transport v Regering Van die RSA
2001
(4) SA 921 (O).
[14]
Van Wyk
Appellant v Lewis Respondent
1924
AD 438
at page 444.
[15]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-G. See also
Oppelt
v Department of Health,
Western
Cape
above
and
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431 (SCA).
[16]
Cape Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) at para [7]. See also
McIntosh
v Premier, Kwazulu-Natal and Another
2008 (6) SA 1
(SCA) at para [14].
[17]
Ibid
[18]
Pricewaterhousecoopers Incorporated and others v
National Potato Co-operative Ltd and another
[2015] 2 All SA 403
(SCA).See also
Schneider
& Others v AA & Another
2010
(5) SA 203 (WCC).
[19]
Ibid at 211E-212B.
[20]
Harms Civil
Procedure in the Supreme Court at page B266 para [B36.19].
See
also
Zeffertt,
Paizes & Skeen The South African Law of Evidence
at
330, citing the English judgment of
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
'Ikarian Reefer')
[1993]
2 Lloyd's Rep 68 at 81.
[21]
DV 1.
[22]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell ET CIE and
Others
2003
(1) SA 11 (SCA).
[23]
Louwrens
v Oldwage
2006
(2) SA 161
(SCA at para [14].
[24]
S7(1)(ii)
of the
National Health Act, above
.