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[2016] ZAFSHC 164
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Makgetla v MEC for Health: Free State Province (1054/2014) [2016] ZAFSHC 164 (29 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 1054/2014
In
the matter between:
PAULINA
MAKGETLA
Plaintiff
and
THE
MEC FOR HEALTH: FREE STATE
PROVINCE
Respondent
HEARD
ON:
6 MAY
2016
JUDGMENT
BY:
REINDERS,
J
DELIVERED
ON:
29
SEPTEMBER 2016
[1]
On 3 May 2015 a thyroid lobectomy operation (“the operation”)
was performed on Ms Paulina Makgetla at the Pelonomi
Regional
Hospital in Bloemfontein (“the hospital”). It is common
cause that, although the operation performed by Dr
Otto Carl Buchel
(“Dr Buchel”) was successful, Ms Makgetla sustained burn
wounds on her back during the operation.
[2]
Ms Makgetla issued summons against the Defendant claiming damages in
the amount of R 1 717 801,00 with interest.
It is averred
that the doctors in employ of the Defendant at the hospital breached
the duty of care owed to Ms Makgetla by not
exercising the degree of
care, skill and expertise that may reasonably be expected of them,
and that the burns occurred as a direct
result of the negligent
breach of the said duty of care. Ms Makgetla furthermore averred that
the functionality of her right arm,
hand and leg was also affected as
a result of the negligent breach of the said duty of care. At the
onset of the trial it was indicated
that the latter issue of
negligence was no longer pursued. An order in terms of Rule 33(4) was
granted and the trial proceeded
only in respect of the merits
thereof.
[3]
In presenting her case that the Defendant was negligent in causing
the burn wounds to her back Ms Makgetla, her daughter Ms
Motlagomang
Maggy Melk (Ms Melk), and a neurosurgeon Dr Percy Miller (Dr Miller)
testified.
[4]
Dr Miller testified that although he is a neurosurgeon and not a
specialist in the area of thyroid lobectomy (partial removal
of the
thyroid gland), he could comment on the burns sustained by Ms
Makgetla as these relate to diathermy burns which is a complication
that can occur in any kind of surgery. He explained that a diathermy
machine is an instrument used to control bleeding during an
operation
through an electric current. The current is earthed by a conducting
pad placed on a secured area of the patient’s
body. Contact
with fluids should be restricted to avoid an electric short circuit
causing burn wounds to a patient and strict preventative
protocols
must be adhered to. These include using the correct sterilising
solutions and placing special swabs on both sides of
the patient’s
neck to prevent blood from running down. He could not dispute that Ms
Makgetla did not bleed excessively during
the operation causing blood
to run down her neck. He could also not deny that all protocols were
observed during surgery.
[5]
It was explained by Dr Miller that it is common practice in neck
surgery to place an object like a vacolitre (plastic bag containing
intravenous fluid) between the shoulder blades of the patient to
extend the neck of the patient. He speculated that the vacolitre
used
on Ms Makgetla during the operation in this way might have been
excessively hot causing the burns. He could not dispute that
it was
not hot at all and in fact covered with a towel. Dr Miller could not
dispute that the electric cautery plate that was put
on Ms Makgetla
fitted her properly and had no defects, nor could he dispute that Ms
Makgetla entered the theatre clothed in dry
theatre garment. He
described the chances of sweat or urine from Ms Makgetla as possibly
causing a short circuit as “wildly
unlikely” to be the
cause. According to him the positioning of the patient should have
been with her head elevated and lower
body inclined downwards and
that a catheter should have been inserted to prevent the patient from
wetting herself during the operation.
He could however not dispute
that neither of these procedures are followed in thyroid lobectomy
operations. Dr Miller conceded
that the burns sustained by Ms
Makgetla was a very rare complication and his view on how the burns
were caused was purely speculative.
[5]
Ms Makgetla is a 67 year old pensioner who was referred to Dr Buchel
by one Dr van Rooyen. Dr Buchel consulted with her twice
prior to the
operation. On 30 April 2013 she was given a choice between having the
operation done or not, and chose to have it
done after having signed
the necessary consent forms. Ms Makgetla denied that possible
complications of the operation was discussed
with her. She confirmed
that she had emptied her bladder before going to the operation
theatre and also that her garment was not
wet when she was taken into
the operating theatre. According to her it was cold in the operating
theatre. Her first sensation upon
waking from the anaesthesia was
severe pains on her back. She complained but was not attended to
until much later when she was
informed of the burns and the wounds
were properly dressed. It was explained to her that it was in her
best interest that she be
discharged to avoid the risk of a bacterial
infection common to hospitals to the wounds. She conceded that the
hospital acted in
her best interest even post operational. The burn
wounds subsequently heeled completely whilst being treated by
employees of the
Defendant at the Universitas Academic Hospital in
Bloemfontein. Ms Makgetla made a favourable impression on me, and
even though
she felt aggrieved by what she perceived as the hospital
not giving her proper care, she could not dispute that the doctors
who
performed the operation on her took all the necessary precautions
expected of them to avoid burn wounds. Although she did not think
that they were negligent, she added that she also was not at fault.
[6]
The evidence of Ms Melk did not take the case for Ms Makgetla any
further as she merely testified to the complaints that she
raised
with the hospital following her mother’s operation and her
views on post-operative treatment that her mother received.
In fact,
she confirmed that the burn wounds were properly dressed and attended
to upon her visit to her mother in the hospital
shortly after the
operation was done. Even though Ms Melk impressed me as an honest
witness who clearly had her mother’s
best interest at heart,
she was not present during any consultations or the operation, nor
could she give expert evidence on the
proper wound care treatment
followed by employees of the Defendant.
[7]
The defendant called two witnesses. Dr Buchell testified that he
performed the operation on Ms Makgetla under the supervision
of one
Dr Coetzee. Ms Makgetla experienced medical problems associated with
her thyroid. It was enlarged and visible, and during
the first
consultation with her on April 2013 he gave her a choice in regards
to operational intervention or not, as the condition
was not life
threatening. He explained the procedure after she gave consent and
although he cannot recall exactly what it entailed,
he can recall
indicating that she would be discharged after three days and
explained that she might experience hoarseness of the
voice which
might recuperate after about six weeks. The precautions to avoid
injury to Ms Makgetla included that he checked whether
the sheets as
well as the patient was dry as he would not have proceeded with
surgery if this was not the case. It was confirmed
that her bladder
was emptied pre-operatively. She was washed with hibitane liquid,
specifically used for purposes of rapid evaporation
thereof. The
electric cautery plate was not defective, was correctly positioned
and properly fitted Ms Makgetla. All bony joints
were properly
covered as should be done to avoid contact with the metal plate and a
subsequent electric shortcut. The scrub nurse
placed pads on both
sides of Ms Makgetla’s neck. She did not bleed excessively as
he would have noted it. Although the room
temperature of the theatre
was not documented, it is generally quite hot as he is wet from the
shoulders down after having operated
for more than two hours.
Catheterisation is not indicated for the procedure. He could
specifically recall taking the room temperatured
vacolitre
from
the trolley of the anaesthetist, covering it in a towel and placing
it between the shoulder blades of Ms Makgetla. It was sealed
and did
not leak any fluids. It would have been unsafe to examine Ms
Makgetla’s back again for any wetness immediately
before
operating on her as it would have to be resterilized again to avoid
infection to the open wound. He can only speculate as
to what caused
the burn wounds as all protocols were followed. Dr Buchell made a
favourable impression on me as an honest witness
who made concessions
where needed.
[8]
Professor SJA Smit is the Head of the Clinical Unit at Pelonomi
Hospital. He testified that he satisfied himself after investigating
the incident that all standard clinical protocols in regards to the
operation on Ms Makgetla were followed in the avoidance of
electrical
burns by the operating doctors. In his 35 year career as a medical
doctor he could only recall two instances where such
burns occurred.
It is a very rare complication and so negligible that it does not
warrant explaining it to a patient. In his opinion
a catheter was not
warranted for the operation, and the positioning of Ms Makgetla
during the operation would not have been with
her head elevated.
Although he was not present during the operation, he trained Dr
Buchel and does not have any reason to question
his honesty in
adhering to the prescribed protocol. Dr Smit made a favourable
impression on me and I do not have any reason to
reject his evidence.
[9]
From the pleadings it is clear that Ms Makgetla based her delictual
cause of action thereupon that the employees of the Defendant
negligently breached their duty of care to her as a result whereof
she suffered burns on her back. It is trite that if a plaintiff
relies on a breach of duty of care, he or she must set out the facts
that could or should have been foreseen by the defendant.
See:
Beurain h/a Toptrans Transport v Regering van die RSA
2001 (4) SA 921
(O)
Furthermore,
the particular grounds of negligence must be detailed.
See:
SA Fish Oil Producers’ Association (Pty)Ltd v Shipwrights &
Engineers Holdings Ltd
1958 (1) SA 687
(C)
This
was not done. Nor did Ms Makgetla in her pleadings rely on a lack of
informed consent. As Mr Mene on behalf of the Respondent
submitted,
this aspect cropped up during evidence. Mr Gumle on behalf of Ms
Makgetla during argument submitted however that Ms
Makgetla does not
deny that she gave consent but rather avers that she was not given
adequate information to base her decision
of opting for the procedure
upon. He pressed hard upon me to accept the version of plaintiff that
she was not fully informed.
[10]
As a general rule parties are bound to their pleadings (
See:
Imprefed (Pty)Ltd v National Transport Commission
1993 (3) SA 94
(A)
)
as this defines the issues to be decided by the court. Even if I
would have entertained the question as to whether Ms Makgetla
was not
fully informed of the risks involved in the operation, Ms Makgetla’s
own expert witness could not dispute that the
risk of sustaining burn
wounds was extremely rare. Prof Smit testified that the risk of
sustaining such burns was less than 5%,
and since the risk was
negligible, there was no duty on the medical practitioners to warn
the patient of such a risk.
See:
Louwrens v Oldwage
2006 (2) SA 161
(SCA)
[11]
The issue to be decided by me is whether the burns suffered by Ms
Makgetla was as a direct result of the negligence of the
employees of
the Defendant in performing the thyroid lobectomy operation.
[12]
The test for determining negligence was formulated by Holmes JA in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 E-F
. It
entails that the plaintiff bears the onus to establish that a
reasonable person (diligens paterfamilias) in the position of
the
defendant:
(i)
would foresee the reasonable possibility of the conduct
(an act or omission) injuring another person or property,
and causing
that person patrimonial loss;
(ii)
would take reasonable steps to guard against such occurrence;
(iii)
that the defendant failed to take such reasonable step
See
also: Kruger v Carlton Paper of SA (Pty)Ltd
2002 (2) SA 335
(SCA)
[13]
From the evidence by the surgeons it is clear that electric burn
wounds to a patient during surgery is always foreseeable,
and
therefore protocols exist to avoid such an injury.
[14]
It is an implied term of the contract in cases of medical negligence
that the medical practitioner who undertakes treatment
of a patient
will exercise reasonable skill and care of a practitioner in his
field. It is incumbent on the court to decide what
is reasonable
under the circumstances.
See:
Streicher v Van Vuuren
2000 (4) All SA 306
(A)
[15]
All three surgeons shared the same view that what caused the burn
wounds sustainded by Ms Makgetla would be speculative. Mr
Ngumle
pressed hard upon me to reject the evidence of Dr Buchel that he took
pre-operative precautionary care in preventing injury
to Ms Makgetla
as, so he argued, there was no documented evidence as to such care
being taken. I can not agree with him. Dr Buchell
struck me as an
honest witness and a physician who takes pride in his work. I am
satisfied that Dr Buchell and all the other medical
personell
involved in the operation on Ms Makgetla, took all the reasonable
preventative steps expected of them to avoid burn wounds
to Ms
Makgetla.
[16]
In
an appeal against the dismissal of an action for damages suffered as
a consequence of paralysis of the left side of the patient’s
face caused by the allegedly negligent conduct of a surgeon, Marais
JA articulated as follows:
“
When
a patient has suffered greatly because of something that has occurred
during an operation a court must guard against its understandable
sympathy for the blameless patient tempting it to infer negligence
more readily than the evidence objectively justifies, and more
readily than it would have done in a case not involving personal
injury. Any such approach to the matter would be subversive of
the
undoubted incidence of the onus of proof of negligence in our law in
an action such as this.”
See:
Broude v McIntosh and Others
1998 (3) SA 60(SCA)
at 75.
[17]
I have already stated that Ms Makgetla impressed me as a witness.
Like the medical witnesses of the Defendant I have great
sympathy for
her.
Broude
supra
warns me not to infer negligence due to such sympathy. The Plaintiff
bore the onus to prove negligence of the Defendant on a preponderance
of probabilities. The evidence reveal none. Mr Ngumle on behalf of Ms
Makgetla did what he could to convince me otherwise. The
upshot is
that the claim stands to be dismissed.
[18]
The normal result is that costs should follow suit. Ms Makgetla as
mentioned is 67 years of age and a pensioner. She was fully
entitled
to have a court to pronounce on the reasons for her misfortune. In my
view she should not be burdened with the Defendant’s
costs
herein. In my discretion I intend to have each party to pay it’s
own costs.
[19]
Accordingly the following orders are issued:
1.
The
plaintiff’s claim is dismissed.
2.
Each
party to pay his or her own costs.
_____________
C
REINDERS, J
On behalf of
Plaintiff: Mr L.
Ngumle
Instructed
by:
Bahlekazi
Attorneys
Bloemfontein
On behalf of respondent:
Adv. B.S. Mene
Instructed
by:
State
Attorneys
Bloemfontein