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[2016] ZAKZPHC 68
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Smith v MEC for Health, Province of KwaZulu-Natal (3826/12) [2016] ZAKZPHC 68 (2 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
Case
No: 3826/12
DATE:
02 AUGUST 2016
In
the matter between:
Isabella
Brink Beyers
Smith
........................................................................................................
Plaintiff
And
The
MEC for Health, Province of
KwaZulu-Natal
...............................................................
Defendant
Judgment
Lopes
J
[1]
Mrs Smith, who was 79 years’ of age, was experiencing problems
with her left knee. Her doctor recommended that she
undergo a
complete knee replacement at Grey’s Provincial Hospital in
Pietermaritzburg. On the 4
th
May 2010 she was admitted to B ward at Grey’s Hospital and
underwent the knee replacement operation on the 5
th
May 2010. When the operation was complete, she was wheeled out
of the operating theatre and into the recovery room.
She asked
the attending anaesthetist for a drink of water. The
anaesthetist went into the nearby sluice room and decanted
what she
thought was a cup of water from a container. She then returned
to Mrs Smith and gave the cup to her to drink.
Mrs Smith then
‘glugged it down’ (as she put it). She immediately
reacted, and the anaesthetist quickly realised that
she had given Mrs
Smith a medicine cup of formalin to drink. The problem with
formalin is that it contains formaldehyde and
methanol, and is a
noxious and corrosive substance. Mrs Smith’s case is that she
has been injured and greatly affected by
the administration of the
formalin. On the 14
th
May 2012, she caused a summons to be issued out of this court,
initially claiming damages in the sum of R425 000. The action
finally started before me on the 13
th
June 2016.
[2]
The history of the conduct of this matter is as unfortunate as are
the facts of the case. The defendant pleaded on the 25
th
January 2013, and whilst admitting that Mrs Smith had undergone a
knee replacement operation at Grey’s Hospital, denied the
allegations of administering formalin to Mrs Smith. Despite the
efforts of Mrs Smith’s legal representatives in trying
to get
the action to trial, it was inordinately delayed. The history of the
matter, as conveyed to me by Mr
Ramdass
, who appeared for Mrs
Smith, is summarised as follows:
a)
Mrs Smith’s attorney enrolled the
action for a pre-trial conference before Poyo-Dlwati J on the 25
th
October 2014, but no representative of the State Attorney attended,
and the conference was adjourned to the 27
th
October 2014 for the State Attorney to appoint a representative.
b)
On the 27
th
October 2014, a local correspondent of the State Attorney appeared
and requested a one month adjournment of the pre-trial conference.
This was opposed, and Poyo-Dlwati J adjourned the conference to the
4
th
November 2014 and instructed the local correspondent that if she
could not attend to the matter, then a representative of the State
Attorney had to attend.
c)
On the 4
th
November 2014, and despite the instructions of Poyo-Dlwati J, an
articled clerk attended at the pre-trial conference, and the
pre-trial conference could not proceed.
d)
Poyo-Dlwati J then directed that a Rule 37
conference be held within two weeks and adjourned the pre-trial
conference to the 18
th
November 2014, directing that an attorney from the State Attorney’s
office appear.
e)
On the 18
th
November 2014, Advocate
Mthembu
appeared for the defendant. The pre-trial hearing was adjourned to
the 2
nd
December 2014 to enable the parties to finalise discovery and deliver
expert reports.
f)
On the 2
nd
December 2014 Advocate
Mthembu
appeared and recorded that the defendant would not discover because
there were no documents to discover. Mrs Smith’s legal
representatives recorded that they had obtained documents from the
Northdale Hospital (pertaining to consequential treatment Mrs
Smith
had received) and tendered the documents to the defendant.
g)
Poyo-Dlwati J then certified the matter
ready for trial, and dates were allocated in September/October 2015.
Mrs Smith’s attorney
was then notified that Advocate
Mthembu
was only available in November 2015.
h)
The matter was then set down for hearing on
the 2
nd
November 2015. Although the registrar was told to set the matter down
for four days, it was only set down for two days.
i)
By consent, the matter was then adjourned
to the 16
th
to 19
th
days of May 2016, in order to enable the defendant to obtain expert
reports. The defendant was directed to pay the wasted costs
occasioned by the adjournment, such costs to include the reasonable
consultation fees and travelling expenses of Mrs Smith’s
expert
and lay witnesses. Subsequently, only the so-called expert report of
Dr Wilson was sent to Mrs Smith’s attorney.
j)
On the 16
th
May 2016 the matter came before me in Pietermaritzburg. The
parties were attempting to negotiate a settlement, and for that
purpose the action was adjourned to Wednesday 18
th
May 2016. The matter was then adjourned on the 19
th
May 2016 to a date to be arranged with the Judge President. It
subsequently came before me in Durban on the 13
th
June 2016, and I heard the matter for seven court days, finishing on
the 23
rd
June 2016.
k)
On the 8
th
June 2016 (two court days before the trial started) a pre-trial
conference was held in my chambers. At that conference I
pointed out to the defendant’s legal representatives that a
letter dated the 5
th
October 2010 was contained in what was described as the ‘Plaintiff’s
Second Trial Bundle’. That letter
was addressed by both
the Specialist Anaesthetist and the Chief Specialist Anaesthetist at
Grey’s Hospital to Dr Bilenge,
who, I understand, was the Chief
Medical Administrator at the hospital. The letter set out some of the
circumstances surrounding
the administration of the formalin to Mrs
Smith. It was only at that stage that the defendant formally
admitted that the
anaesthetist who had attended to Mrs Smith on the
day in question had administered formalin to her. This
admission was made
by way of a formal admission of the contents of
paragraphs 6 and 8 of Mrs Smith’s particulars of claim.
The defendant’s
representatives also then recorded that Mrs
Smith had been treated for formalin ingestion and toxicity.
l)
Mr
Ramdass
complained that the defendant had never properly discovered. I
was handed a bundle entitled ‘Medical Notes Bundle of
Documents’ which contained what purported to be an expert
report by the defendant’s expert Dr Wilson, as well as hospital
and treatment notes and records. Far from being an expert report, Dr
Wilson had replied to a request that he answer 10 specific
questions.
Mr
Ramdass
recorded that those documents were sent to Mrs Smith’s attorney
under cover of a letter, and had not been accompanied by
a proper
discovery process. This was despite the fact that the medical
records had repeatedly been requested.
m)
An expert, Dr Coka, had been engaged by Mrs
Smith’s attorney on the 16
th
August 2013. To enable his expert notice and summary to be compiled,
Mrs Smith’s attorneys made repeated requests for correspondence
and medical records. Eventually the report of Dr Coka was
delivered on the 8
th
April 2014 without his having had sight of all the medical records.
n)
On the 19
th
May 2016 the Grey’s Hospital records suddenly surfaced.
No explanation for them not having been produced earlier was
given by
the defendant’s attorneys.
o)
On the 27
th
May 2016 and at the defendant’s request, Mrs Smith was required
to present herself to a gastro-enterologist and a psychologist.
Although Mrs Smith’s attorney objected to the lateness of this
notice and objected to the filing of any reports by the defendant’s
experts, Mrs Smith consented to an examination. On Friday 10
th
June 2016 at approximately 3.30pm reports were faxed to her attorney
by the defendant’s attorneys. Expert notices accompanied
the reports, but were not signed. The reports were apparently
provided by Dr Jozi and Dr Govindasamy. Attached to those
reports were photographs in black and white, the quality of which was
so poor that they were barely distinguishable.
p)
On the morning of the trial, the
defendant’s attorneys tendered coloured photographs of certain
investigations carried out
by Dr Jozi. Mrs Smith’s
attorney objected to the admission of those documents. No
application for condonation
for the late filing of them was delivered
by the defendant. Although Mrs Smith consulted with the defendant’s
clinical psychologist
on the 1
st
June 2016, by the time the trial started almost two weeks later, no
report had been delivered.
q)
An actuarial report had been delivered by
Mrs Smith’s attorney. The defendant’s attorneys had
informed Mrs Smith’s
attorney that there was no need to call
the actuary, and the defendant was invited to submit questions or
items for clarification
which could be dealt with by the actuary.
By the start of the trial no issues had been raised by the
defendant’s attorneys.
With regard to the medical records of
Grey’s Hospital, they were to be admitted by consent save for
the nursing records which
were compiled after the operation –
i.e. from the 5
th
May 2010 to the 9
th
June 2010 when Mrs Smith was discharged.
r)
Mr
Chetty
,
who appeared for the defendant, did not dispute any of these
allegations, and recorded that he had nothing to add.
[3]
Mrs Smith testified that she would turn 85 years of age in December
of 2016. The doctor admitting her to Grey’s
Hospital told
her that she would be in hospital for three days. She was given
an epidural anaesthetic for her knee replacement
operation, and after
the operation when she was wheeled into the recovery room, she told
the anaesthetist accompanying her that
her mouth was dry and that she
needed something to drink. The anaesthetist went off and
returned with a cup which she gave
to Mrs Smith. Mrs Smith
‘glugged’ it down. She then screamed out saying
repeatedly ‘You are killing me’.
She told the court
that the formalin which she had been given went up her nose and down
her throat and into her stomach. She told
those attending upon her
that it was burning her. Approximately half an hour later, she was
given some charcoal to drink.
Thereafter she vomited.
Eventually she was taken back to B ward were she started vomiting
again. At this stage her
nose, throat and stomach were burning
and painful, and she was nauseous and felt very sick. This
condition endured for most
of the first night and she spent a lot of
time vomiting and crying and in pain.
[4]
The next morning two doctors came to her bed, Dr P Marè and Dr
Bertie, looked at her and then left. At that stage
she was
still sore and very nauseous. She complained to both the
doctors who came to see her, but nothing was done.
She was not
given anything to eat initially, and was only able to eat about three
days later. When she tried to do so, it
was too sore and she
was unable to eat properly. Mrs Smith maintains that she still has
difficulty eating. She recorded that
when she was admitted to
hospital she had weighed 100 kilograms, but on discharge had weighed
only 77 kilograms. Her diet
during her stay in hospital had
consisted of watery oats and tea. She could not eat because she
felt nauseous all the time.
She recalled having undergone a
‘scope’ in the Northdale Hospital a long time after
ingesting the formalin, but she
had been told by the doctors that
they could not assist her. After being discharged from Grey’s
Hospital she lived on water
and bananas and had difficulty in keeping
anything down, even mashed bananas.
[5]
Immediately after ingesting the formalin she had been put on a drip
because she could not eat. She was discharged some
six and a
half weeks later on the 9
th
June 2010 and was told by the hospital staff that they could not
discharge her earlier because she had ingested the formalin. Mrs
Smith recorded that prior to going into hospital she had eaten out
regularly, eating steaks and curries and that she had enjoyed
her
food. Now she was unable to do that and lived on a diet of
bananas, samp, Cup-A-Soup, juice and coffee. She could
only
tolerate food which was soft and watery, like custard. She was
unable to eat steak because she would feel nauseous and
would choke
on the meat. In addition she was always very tired which she
put down to her loss of weight and her inability
to eat properly.
[6]
After her discharge Mrs Smith had visited Northdale Hospital for the
following reasons:
(a)
Between the third and fifth days’
after her discharge from Grey’s Hospital she had woken up at
approximately 3am with
a severe nosebleed. Her nose had bled
profusely, and the blood had come out ‘like long worms’.
She was
rushed to Grey’s Hospital. The staff ‘did nothing
much’ and sent her back to the Sunnyside Park Old Age Home
(‘the Home’) where she lived. She had then gone to
Northdale Hospital outpatients that night because the bleeding had
continued. At the Northdale Hospital outpatients a doctor had
plugged her nose to stem the bleeding. He had telephoned
the
medical staff at Grey’s Hospital and told them that they had to
attend to her. She was then sent to Grey’s
Hospital and
waited for admission prior to staying there for approximately three
days. She was told at Northdale Hospital
by a doctor that her
nosebleeds were caused by the ingestion of the formalin, and this
should have been dealt with at Grey’s
Hospital.That went on for
approximately a month.
(b)
To request them to help her keep her food
down. A gastroscopy had been performed and they said that there was
nothing they could
do for her, so she just gave up. At the Northdale
Hospital outpatients a doctor had plugged her nose to stem the
bleeding.
He had telephoned the medical staff at Grey’s
Hospital and told them that they had to attend to her. She had
been sent
to Grey’s Hospital and had waited for admission prior
to staying there for approximately three days. She was told at
Northdale
Hospital by a doctor that her nosebleeds were caused by the
ingestion of the formalin, and this should have been dealt with at
Grey’s Hospital.
[7]
Mrs Smith testified that she often recalled the incident and had
nightmares about it which left her crying. She had a
continual
fear of doctors and nurses standing around her, as she claimed had
happened in the recovery room when the incident occurred.
When
she thought about these things she experienced heart palpitations.
She had a continual feeling that she was going to
die, and she
believes that this feeds her nightmares. Mrs Smith said that prior to
the operation she had loved music and dancing
and going out.
She had played tennis, exercised by walking, and did painting.
She had now lost interest in all those
things and does not do any of
them.
[8]
She testified that she was unable to dine out now because she was
unable to keep her food down. She preferred to stay
in her room
most of the time, or walk in the garden at the Home. She does
not go to the functions in the Home because she
cannot eat, and she
has no interest in what goes on. The meals with which she is
provided at the Home are given away by her
because, although she pays
for them, she cannot eat them. She is compelled to buy her own
food such as tea, coffee, milk,
sugar and oats and soups out of the
remainder of her pension which is left after paying for the Home.
[9]
Mrs Smith also recalled that after she had been given the charcoal,
her teeth had gone black and her stools were black as well.
The
nurses were very worried about this. She had resolved that she
would never go back to Grey’s Hospital and had nightmares
about
the place. With regard to her pre-admission medical condition, Mrs
Smith testified that approximately 30 years ago she had
been
diagnosed with an hiatus hernia. She never really received
treatment for it because it did not bother her. Prior
to the
incident she had not had a problem for years. She was given asthma
medication in hospital, which puzzled her, because she
had never
suffered from asthma.
[10]
Mr
Chetty
put to Mrs Smith in cross-examination that upon her return to the
recovery room after the operation, a nurse had put a blood pressure
cuff on her arm, her blood pressure was checked, ECG pads were
attached to her, and she was given an oxygen mask because her oxygen
saturation levels were low. Mrs Smith denied having received
this attention and stated that the only thing that was done
was that
she was given a drip. Mrs Smith maintained that she had felt ‘funny’
when she entered the recovery room and
had said that she needed
water. She could not remember the anaesthetist, and could not
really remember the other people in
the recovery room. She did,
however, say that there was a nurse who was attending to the person
in the bed next to her, and
when she had screamed that nurse had told
her to keep quiet.
[11]
Mr
Chetty
suggested to Mrs Smith that the nurse who was assigned to her would
say that when Mrs Smith tasted the formalin she had stated
‘This
doesn’t taste right’. Mrs Smith denied this and
reiterated that she had screamed. She conceded
that she had
been given a white plastic cup, but she was not certain. It was
also suggested to her that she had sipped the
liquid, but Mrs Smith
dismissed this saying that she had drunk a big gulp because her mouth
was very dry. It was also put to Mrs
Smith that when she complained
of the contents of the cup, the anaesthetist had taken it away and
smelt it. This was denied
by Mrs Smith. Thereafter Dr
Bishop had attended upon her and she had been given milk to drink.
Mrs Smith denied that
she had been given milk and maintained that she
was only given charcoal and told to drink it within an hour.
[12]
It was suggested to Mrs Smith that the nurses had kept a record
during her stay at Grey’s Hospital, and there was nothing
in
the record to indicate that she had continuously complained.
Mrs Smith stated that if that was so, the records were wrong,
and
that she had complained to Dr P Marè all the time. She
maintained that she had complained about pain all the time,
and
queried why she had been kept in hospital for six weeks if there was
nothing wrong with her from the formalin which she was
given.
She laughed at the suggestion that she slept well in hospital and
recorded that she still does not sleep well.
With regard to the
suggestion that she had taken meals well, Mrs Smith recorded that she
had given her meals away in hospital and
eaten oats and water.
[13]
She maintained that she even had difficulty swallowing pills and had
to bite them into pieces, and that this difficulty persists
today.
Mrs Smith denied the suggestion that prior to the incident she had
suffered from reflux. She said she had had no reflux
and had
not suffered from asthma. Despite this they had given her
asthma pumps and she had thought it was a joke because
she had never
suffered from asthma. She confirmed that she had seen Dr Elder
and Dr Mohan in preparation for the trial.
[14]
The next witness was Karen Elizabeth Erasmus who told the court that
she had known Mrs Smith for about 26 or 27 years.
Mrs Smith’s
daughter was one of her best friends. She said that prior to
the incident Mrs Smith had been ‘the
life and soul of the
party’. She had run a florist shop and done flower
arranging at weddings and decoupage. She was
very artistic, had loved
ballroom and jive dancing and also taught dancing. She used to
attend dancing clubs with a relative
of hers.
[15]
Mrs Erasmus told the court that during or about 2008, when Mrs Smith
had to undergo two cataract operations, she had lived
with Mrs
Erasmus for about two weeks. During that time she ate
everything. When Mrs Smith had gone to Grey’s
Hospital
for the total knee replacement, Mrs Erasmus had intended to visit her
between 3 and 4pm after the operation. She
had received a call
from a lady at the hospital who asked her to please come and visit
Mrs Smith because she was not good.
The person on the phone had
repeated this and her anxiety alarmed Mrs Erasmus. She was led
to believe that something had
gone horribly wrong, and put on her
hazard lights and drove to Grey’s Hospital at what she
described was ‘quite a speed’.
As she did so Mrs
Erasmus thought that she would have to tell Mrs Smith’s
daughter that her mother had died. She said
that this was
brought on by the urgency in the voice of the lady who had phoned
her.
[16]
When Mrs Erasmus arrived at the hospital she found Mrs Smith in a
very agitated state in the ward. She told her that
they had
given her something to drink in theatre and it had burned her from
her nose to her stomach. Mrs Erasmus queried
what Mrs Smith had
said to her, and thought that Mrs Smith was simply confused after the
anaesthetic. She then noticed that
Mrs Smith’s teeth had
black flecks in them and realised that she had been given something
toxic. She had stayed with
Mrs Smith for quite a while that
evening because she was worried. All the time Mrs Smith was
complaining that her throat
was burning, and she was sweating
profusely. Eventually Mrs Erasmus left and she returned every day to
visit Mrs Smith.
[17]
She said that when she saw Mrs Smith on the 6
th
May 2010 her face was very puffy on the right hand side. Her
lip was droopy and she had spoken out of the side of her mouth.
She was not sure whether she had eaten, but remembered that she
looked unwell and was on a drip. A sister had explained to
Mrs
Erasmus that the puffiness and drooping of the right side of Mrs
Smith’s face was attributable to the fact that she had
suffered
a light stroke. Mrs Smith told her that she could not eat and
was battling to swallow, particularly any meat, and
that she was
giving her food away.
[18]
Mrs Erasmus arrived to take Mrs Smith home on the day when she was
discharged, and as Mrs Smith put her clothes on, she bunched
them in
front of her in order to show Mrs Erasmus how much weight she had
lost. Mrs Erasmus said that when she was admitted
to hospital,
Mrs Smith was what she described as ‘an XXX – a really
large lady’. Mrs Erasmus said that because
of the weight which
Mrs Smith had lost she had packed two rubbish bags with clothing
which she could no longer wear, and had given
them to charity.
She had then purchased other clothes in the thrift shop at the Home.
[19]
After Mrs Smith was discharged from hospital, Mrs Erasmus had visited
her approximately once a month. She said that Mrs Smith
was supplied
at the Home with a midday meal, but no breakfast or supper. She would
take Mrs Smith with her to the local Spar, where
she would draw money
from Mrs Smith’s ATM card which Mrs Erasmus kept for her.
At the Spar Mrs Smith would purchase
bananas, milk, white bread, tea
and cooldrink. Mrs Erasmus had also gone to visit Mrs Smith at
Northdale Hospital when she
had experienced bad nosebleeds. To
her knowledge this had occurred on about five or six occasions.
On one of the occasions,
she had spoken to a doctor at Northdale
Hospital, who told her that because of the formalin ingestion the
capillaries in Mrs Smith’s
nose had been burnt. This was given
as a reason for the nosebleeds.
[20]
Mrs Erasmus knew that Mrs Smith had an hiatus hernia, but said that
it had never bothered her although she had had it ‘all
her
life’. She described Mrs Smith as currently being a bitter lady
who does not have the joy which she had before.
She is a
recluse who stays in her room. She always finds her in her
bedroom or the toilet. Mrs Smith has got thinner
than she was
and was not the same person any more. She was very anxious.
After her discharge from hospital she had
vomited a lot, and the
hospital stay had distressed her, and she had never properly
recovered. Mrs Erasmus was aware that
Mrs Smith had not joined
the groups in the Home and had become introverted. She had a
continuing concern that she had ingested
formalin and had become
damaged beyond repair. In the hospital she had not known what
medicines had been administered to
her for the formalin ingestion,
and neither did the sisters in the ward. Mrs Erasmus had seen
some files lying at the foot
of Mrs Smith’s bed and she had
looked in them, and seen that there was a theatre file recording that
Mrs Smith had been given
formalin to drink. A sister or nurse
had come up to Mrs Smith’s bed whilst she was looking at them
and asked how Mrs
Erasmus dared to look at the files.
[21]
In cross-examination by Mr
Chetty
,
Mrs Erasmus said that at Grey’s Hospital she had spoken to the
sisters about Mrs Smith’s condition on more than one
occasion.
She had also spoken to a doctor about Mrs Smith’s condition and
he had said that he would take note of it.
She had never,
however, been there when a doctor was attending to Mrs Smith.
She said that when Mrs Smith was discharged,
she was happy to get out
of hospital. Mrs Smith had lost a lot of weight and maintained
on a daily basis that she vomited
and could only eat soft foods.
Mrs Erasmus had not taken food to Mrs Smith in hospital because she
knew she could not keep
it down.
[22]
The next witness for the plaintiff was Elmarie Judy Fynn Peters, a
qualified registered nurse with 19 years’ experience.
She
had worked extensively in the theatre environment in a supervisory
capacity as part of her hospital control duties. She
had
attended theatre on an almost daily basis whilst on duty. She
recorded that it was against the normal protocols of theatre
to give
a patient anything to drink in the recovery room. She testified
that formalin was a corrosive substance and that
she had had dealings
with toxic ingestions by patients. Her view was that damage
could still occur to Mrs Smith as a result
of her ingestion of
formalin in the form of oesophageal or stomach cancer. This can
happen in the latent period after the
ingestion of any corrosive
substance. In her view Mrs Smith would require ongoing
treatment and an annual gastroscopy and
that the fees for that would
be approximately R600 for the consultation, R3 500 for the
procedure, and R1 500 for the
hospital fees. She was also
of the view that Mrs Smith would need a dietician to advise her, and
would need four consultations
initially.
[23]
In cross-examination Ms Peters told the court that she had worked in
the emergency room and completed a diploma on the ingestion
of
corrosive substances which was part of her job. She had deduced
the increased risk of cancer from an article referred
to her, but did
not have personal experience of this because she had never followed
up on patients for long enough, mainly because
they do not live that
long. She could see from the medication recorded in the
hospital records what the condition was that
Mrs Smith was being
treated for.
[24]
Dr Kamal Mohan testified that he had qualified as a doctor in 1983,
and in 1992 had completed post-graduate studies in ear,
nose and
throat, and head and neck areas, at the University of KwaZulu-Natal
Medical School. He was a Fellow of the College
of Surgeons of
South Africa and a Fellow of the Sub-College of Enterology and Head
and Neck Surgeons. He had been practising
as an active ear,
nose and throat surgeon since 1992 and had treated patients for
injuries sustained as a result of the ingestion
of corrosive
substances. He had never treated a case of formalin ingestion
because it was very rare for the liquid to be
ingested. It was
used as a fixative for tissues which are sent to pathologists.
[25]
Dr Mohan had consulted with Mrs Smith in February 2016. She had
complained about the loss of her ability to enjoy
a meal, and
she had to resort to ingesting liquids and sloppy foods. She
still often vomited and could not finish meals.
Fruit and
cereal also presented a problem to her. She had described her
experience in Grey’s Hospital as ‘six
weeks of hell’.
Dr Mohan stated that he had examined a bundle of hospital records and
nursing notes, and had noted
that Mrs Smith was allergic to
Penicillin. She had been prescribed Amoxicillin, which was a
broad spectrum antibiotic which
was used for infections and taken
orally and absorbed in the gastric intestinal tract. It
belonged to the penicillin family
and he would definitely not have
prescribed it to Mrs Smith. Various side effects could have
occurred from the administration
of the Amoxicillin, including an
itchy rash, swelling and a severe reaction, and it could be
life-threatening if swelling of the
larynx and vocal chords occurred.
[26]
He examined Mrs Smith and found mucosal thickening of the posterior
nasal space which was a space hidden behind the nose and
not easily
seen without an endoscope. When he had examined these areas the
skin looked thicker and more scarred than normal.
He regarded
this as in keeping with an ingestion of a corrosive substance.
He said that this would initially have caused
a mucosal injury –
a burning of the skin, with scarring in due course. This
scarring can continue from the nasal cavity
down the throat and at
the back of the throat.
[27]
Dr Mohan was referred to the results of a barium swallow which he had
requested in order to evaluate Mrs Smith’s pharynx
and
oesophagus. Dr Mohan said that he was not sure what the doctor who
carried out the procedure was trying to say, and suggested
that he
may have been suggesting that there was no obstruction or stricture
or narrowing of the throat, etc. He did not see
the report as
excluding a problem with swallowing. In his view there was no
evidence of gastro-oesophageal reflux, although
an hiatus hernia was
indicated in the radiologist’s report.
[28]
Dr Mohan’s comment on the ingestion of the formalin was that it
was a toxic substance which could have been life-threatening
if much
of it had been swallowed and absorbed. He recorded that
formaldehyde was quite toxic, and although Mrs Smith may
have been
given milk and charcoal and vomited, these would not detract from the
effects of poisoning. The formalin ingestion
would have
resulted in discomfort during her stay in hospital, and her ability
to eat and swallow had become a serious problem
over a long period.
This would all have contributed to her weight loss and hampered her
recovery from major surgery.
He regarded it as irresponsible
behaviour on the part of the medical staff in the recovery room not
to have noticed that the liquid
was formalin before giving it to Mrs
Smith. He was also of the view that Mrs Smith was
psycho-socially affected by the ordeal.
[29]
Dr Mohan’s view of the nosebleeds suffered by Mrs Smith was
that it was probably that the nasal cavity areas were traumatised
by
the toxic substance, both in the ingestion and the vomiting out of
it. He agreed with the statement made to Mrs Erasmus
by the
doctor at Northdale Hospital that the capillaries in Mrs Smith’s
nose could have been burnt. Dr Mohan was of
the view that the
formalin could not only have damaged her skin but exposed very
friable capillaries which were well supplied with
blood. This
would explain the bleeding in the weeks after Mrs Smith’s
ingestion of the formalin. Dr Mohan was also
of the view that the
administration of Warfarin to Mrs Smith during her stay in hospital
could have contributed to the number of
nose bleeds.
[30]
Dr Mohan stated that Mrs Smith’s continued complaint, five
years’ after the operation, was that she experienced
continued
discomfort in trying to swallow. This had now become an issue
with her and eating meals remained difficult.
He said that the
initial ingestion of formalin would have been quite painful and
unbearable and would have taken time to overcome
in much the same way
as a burn would affect a person. He stated that the use of a
stomach pump was indicated and would have
been useful in preventing
further toxic damage and absorption by Mrs Smith. He recorded
that he was not aware of any studies
relating to the concentration of
formalin in this matter because the oral ingestion of it was a very
rare event. Changes
to the pulmonary function of persons
exposed to formalin fumes have been recorded. He regarded the
ingestion of the formalin
as being more concentrated than it would
have been if only the fumes were ingested.
[31]
Dr Mohan was cross-examined on the hospital records and nurses’
notes. He reiterated that there were instances
in the notes
where Mrs Smith complained of pain and discomfort. He did not
regard the nursing records recording that Mrs
Smith had been
‘tolerating orally well’ as reliable. That phrase
had been used to describe that Mrs Smith had
been eating well.
It was recorded in the notes that Mrs Smith had been given
pain-relieving medication. In addition
Dr Mohan referred to the
fact that there was no reference whatsoever in the nursing notes to
the formalin ingestion. He also
referred to the fact that
Morphine was administered to Mrs Smith on the days immediately
following her operation. This opiate
sedation would have given
her relief from whatever pain she was experiencing. Dr Mohan
stated that it was not routine for
a doctor doing ward rounds to read
the nurses’ notes. A doctor was more likely to have gone
by what the patient said.
Nurses were not required to record
everything, and only really need to record the important
information. Whilst he agreed
in cross-examination that he
could not say that Mrs Smith had endured ‘six weeks of hell’
there were numerous occasions
when she verbalised pain and
discomfort, and it seemed to him that the analgesic medication
administered to her indicated that
she had been in a fair amount of
discomfort for most of her stay.
[32]
Dr Mohan conceded that a patient experiencing reflux over a long
period of time may well have been left with scarring.
He also
agreed that reflux was a symptom of an hiatus hernia. The
plaintiff’s hernia was noted on the barium swallow
results, but
did not indicate any reflux of gastric fluids. With regard to
the findings of the barium swallow that there
were no obvious
swallowing difficulties evident, Dr Mohan said that this was
indicative of the fact that the passage of liquids
could travel
uninterruptedly down Mrs Smith’s throat to her oesophagus.
In his view the barium swallow had been done
in order to ascertain
whether there were any structural or other abnormalities in the form
of abnormal lesions, lumps or disease
which would have prevented Mrs
Smith from swallowing. What the barium swallow did not
establish was whether Mrs Smith was
able to swallow a meal. The
importance of the barium swallow was to eliminate strictures, tumours
of the throat, etc.
[33]
Dr Mohan stated that according to a pathology report made a few weeks
after the gastroscopy was done, there were areas of inflammation
(but
no tumours) found in Mrs Smith’s stomach. His view was that
this was not caused by helicobacter pylori in Mrs Smith’s
stomach. This is the bacteria which one would expect to find
where there are stomach or peptic ulcers. He regarded this,
however,
as outside his area of expertise.
[34]
Dr Mohan was of the view that Mrs Smith’s nosebleeds would have
healed naturally with the passage of time. Scar
tissue was laid
down in order to take care of the wound. Dr Mohan was of the
view that with the formalin passing through
the lips, mouth, throat
and going down to the stomach of Mrs Smith, he would have expected
tissue to have undergone some physical
reaction. He would also have
expected there to be a greater reaction in her throat. This is
because she would have tried
to cough or spit out the liquid and she
would feel it at the back of her nose. He pointed out that Mrs
Smith did indicate
that her entire throat and mouth felt burnt.
He was also of the view that with the ingestion of the formalin, her
natural
reaction would have been to push the liquid to the back of
her throat and it would not have had much contact with her tongue.
Any injury of her tongue would not have lasted for more than a few
days. Dr Mohan also regarded it as most unusual that there
would be nursing notes recorded at 2am on the 7
th
May 2010, and stating that the patient was ‘tolerating well
orally meals’. Dr Mohan also recorded that it was
possible for a barium swallow to exclude functional problems and look
normal, and yet the patient could have muscular problems.
The
presence of an hiatus hernia was asymptomatic in many patients.
[35]
Jean Ernest testified that she was a private consulting dietician.
(Mr
Chetty
recorded
that her status as an expert in her field was not disputed). She had
consulted with the plaintiff regarding her eating
problems, including
her inability to swallow or eat solids, indigestion, flatulence and
constipation. These complaints had
all started from the time
Mrs Smith had ingested the formalin and her digestion has never been
normal since that time.
[36]
When she consulted with Mrs Smith, her diet was very limited,
consisting of mashed bananas, milk, yogurt, tea and coffee.
This was therefore a carbohydrate concentrated diet. She
recommended a menu plan for Mrs Smith consisting of seven
different
breakfast and lunch options in a diet which consisted of
protein, and carbohydrates, and which was low in fat.
She also
recommended snacks in-between. The problem which Mrs Smith
experienced was that she was only able to eat soft foods.
It
was therefore necessary to blend whatever foods she intended to eat.
[37]
With regard to the costs of a proper balanced diet, Ms Ernest
recorded that a tin of Ensure cost R130, was available in different
flavours and would last for six servings. In addition Mrs Smith
could eat Futurelife cereal which was a high protein cereal
costing
R68. She was also in need of a good probiotic and a box of 20
of those (taken at the rate of two per day) would cost
R118. In
addition she recommended that Mrs Smith take multi-vitamin products
such as Vitathion which cost between R70 and
R80 for a box of 20.
She estimated Mrs Smith’s nutritional expenses to be
approximately R8 000 per month.
She noted the importance
of having a diet which was varied and was flavourful. She
recommended the purchase of what is referred
to as a ‘smoothie-maker’
manufactured by NutriBullet and available at a cost of R2 000.
In addition Mrs
Smith required to have a blender which would cost
R3 000.
[38]
Ms Ernest was cross-examined on the variety of meals which were
available to Mrs Smith at the Home. Ms Ernest stated
that these
meals are generally very standard but not many of them could be
blended in order to allow her to tolerate them.
Meals such as
bacon and eggs, or a cottage pie, could not be blended and retain any
appeal to the person who would have to consume
them. Ms Ernest
emphasised the need for food to look, taste and smell nice in order
for it to be appealing. She cited
the example of ice-cream and
fruit salad which could easily be blended and yet remain palatable
and look appetising. She
pointed out that in the six years that
Mrs Smith had been at the Home, they had made no effort to assist her
in providing a balanced
and appetising menu.
[39]
Dr Nirbernie Kumarason Elder testified that she was a clinical
psychologist who practised as a counselling psychologist and
a
neuro-psychologist and was registered as a clinical psychologist with
the Health Professions Council of South Africa. She
had
compiled an expert report which she confirmed. In consulting
with Mrs Smith she had looked at the cognitive areas of
attention,
concentration, memory processing and executive functions. She
had also looked at affective or emotional aspects
and had Mrs Smith
complete a Mental Status Examination. Dr Elder found that Mrs Smith
suffered from no cognitive deficits and regarded
her as what she said
was ‘a feisty old lady with an excellent memory’.
[40]
Dr Elder said that Mrs Smith carried a memory of being hurt, having
had to undergo repeated blood tests and not being told
precisely what
was happening to her. She had told Dr Elder a list of
post-traumatic problems and current problems suffered
by Mrs Smith
which Dr Elder articulated in her expert summary. Dr Elder said
that during the four hour consultation with
Mrs Smith, she had
observed all the social niceties. For her lunch, Mrs Smith had eaten
bananas. She had completed an MSE
psychometric test which is
designed to test whether a patient is malingering. She also
completed a post-traumatic stress
disorder check list.
[41]
In the view of Dr Elder, Mrs Smith had changed from an adventurous,
industrious person who interacted socially and flew around
the world,
into someone who had lost her meaning and purpose, and felt that
something terrible had happened to her. Her life
changed after
she was discharged from hospital, and she has not been able to eat
properly since then. She felt hurt and damaged
both physically
and psychologically. Dr Elder carried out a clinical enquiry
using psychometric testing and diagnosed Mrs
Smith in terms of DSM 5
(the Diagnostic and Statistical Manual of Mental Disorders).
She diagnosed Mrs Smith as suffering
from post-traumatic stress
disorder and that she fulfilled the criteria for a chronic
psychiatric condition. In her view
Mrs Smith was a ‘test-book
case’ of post-traumatic stress disorder. This included a
significant element of depression
with symptoms of worthlessness,
inadequacy, hopelessness, helplessness, being de-energised, failing
to use coping behaviours, weeping,
appetite loss and sleep
disturbance. She recorded, however, that Mrs Smith’s
inability to eat solid food was not due
to her depression.
[42]
Dr Elder was of the view that the prognosis of Mrs Smith recovering
from her condition was poor and said that she would never
recover the
years which she had lost in the interim. She did not see that
Mrs Smith’s quality of life would improve.
Dr Elder said that
every now and again she would see glimpses of Mrs Smith’s
pre-morbid condition when Mrs Smith grew orchids
and flew around the
world. She rated her impairment at the serious level in all
areas of functioning.
[43]
In Dr Elder’s view Mrs Smith required to undergo 24 sessions of
psychotherapy at R1 200 per session in order to help
her to deal with
her depression and nightmares. In cross-examination Dr Elder
stated that the purpose of the psychotherapy
would be to minimise Mrs
Smith’s suffering, but it would probably not restore her to her
pre-morbid condition. She
did not believe that Mrs Smith would
be cured because of the period of physical suffering and pain which
she had thus far endured.
Assurances to Mrs Smith that no-one
had actually intended to harm her, would be of no assistance in
restoring her emotional state.
She described Mrs Smith as
tending to have become a ‘social hermit’. In reply to
questions by the court Dr Elder stated
that the tests which she had
done in order to exclude the possibility of malingering were very
basic and clever tests which clearly
identify malingerers. She
did not think it was possible to circumvent that testing procedure,
and her view was that Mrs Smith
was not faking her condition.
[44]
Dr Sithembiso Cedric Coka testified that he had attained the MB ChB
qualification from the University of KwaZulu-Natal, and
had
thereafter completed a certificate in nephrology. He was
qualified as what is referred to as a Super Specialist Physician
and
Nephrologist. He had undergone special training in attending to
acute medical admissions to hospital, including gastro-enterology.
This process had given him a broad overview of all the medical
disciplines. He reiterated that he was not a
gastro-enterologist,
but a nephrologist. Over the last four
years he had dealt with the emergency treatment of formalin ingestion
at the rate
of two to three cases per year. He had trained in a
referral centre and accordingly seen cases from outside his immediate
area.
[45]
Dr Coka described formalin as a colourless, clear liquid with a
pungent and suffocating odour. It was a reactive agent
containing approximately 30 per cent formaldehyde, and 10 to 15 per
cent methanol. The ingestion of formalin would cause
irritation
of the pharynx and oesophagus with ulceration, and in the long term
the formation of strictures. The stomach and
duodenum would
suffer inflammation giving rise to gastritis and duodenitis
(inflammation of the duodenum, which was the first part
of the
intestine). In addition formalin ingestion could cause liver damage
and in severe cases kidney damage leading to renal failure.
The
onset of lactic acidosis which was the over-production of lactate,
could result in lethargy, drowsiness, a coma and even death.
If
splashed in one’s eyes it could cause irritation. It could also
cause severe damage, and inhalational injuries would result
in an
asthma-like picture.
[46]
Dr Coka said that there was an increased likelihood of chest injury
where formalin was ingested and then vomited up.
He said that
the preferred emergency measure was not to induce emesis (vomiting).
This was because there was a possibility
of further injury to the
upper areas of the throat and post-nasal pharynx damage. Dr Coka said
that the symptoms of formalin ingestion
would be an unpleasant taste,
burning in the mouth, chest and abdominal pain. It could result
in subsequent difficulties
with swallowing and could persist to the
extent that a patient could become anorexic. Nausea and
vomiting formed part of
this process.
[47]
Dr Coka described the best treatment as not making a patient vomit,
and giving them water/milk to drink. Dr Coka recommended
the
use of a nasal gastric tube in order to aspirate the formalin from
the stomach. This could be done after diluting the
formalin
with approximately 240 millilitres of water. Aspirating the
formalin in this way would prevent irritation in the
stomach as well
as protecting the nasal airways, mouth, etc.
[48]
Dr Coka was of the view that an upper-endoscopy was necessary in
order to assess the resulting injuries from formalin ingestion,
and
that this should be done within 24 hours of the ingestion. In
this way a doctor could visualise the oesophagus and stomach
and
small intestine and see and document any injuries. In addition a
laryngoscopy would visualise upper airway and vocal cord damage.
[49]
Dr Coka examined the medical records of Grey’s Hospital and
Northdale Hospital which had been made available to Mrs Smith’s
attorney. There was no indication of a gastroscopy within 24
hours, nor of an enterologist being called within 24 hours.
He
had consulted with Mrs Smith who told him she had undergone a
traumatic experience, and after being given the fluid had experienced
an immediate burning of the mouth, chest and stomach. She had
reported this and tried to spit out some of the contents.
With
regard to the administration of activated charcoal to Mrs Smith, Dr
Coka said that the recommended dosage was one gram per
kilogram of
body weight. In those circumstances Mrs Smith should have been
given 100 grams of activated charcoal. He
said that this should
have been done even if she had only taken ‘a sip’ because
that was an unquantifiable amount.
He regarded the
administration of charcoal as very important because it prevents
further absorption by the body of the formalin,
and the further
irritation of the mucosa. He viewed the delay of one hour and
40 minutes before the administration of the
activated charcoal as not
being acceptable. He said that this should have been
administered immediately, but the medical
staff would probably have
had to obtain the charcoal which may have taken some time.
[50]
With regard to the fact that a note had been made to obtain a blood
gas on the night following the ingestion of the formalin
by Mrs
Smith, Dr Coka said that this was a rapid tool which looks at the
acid-base status of a patient and their oxygenation and
carbon
dioxide levels. It can determine the presence of lactic
acidosis and this should have been done immediately.
The
equipment is available in all theatres and intensive care units.
[51]
Dr Coka also regarded the nursing records which depicted that Mrs
Smith had slept well throughout the night and was ‘tolerating
well orally’ as suspect. He said that Mrs Smith was
plainly not tolerating meals. Mrs Smith had been prescribed
Maxolon, which was an anti-emetic, and was not something one would
expect to be given to a patient who was ‘tolerating well
orally’. He would not have done so. He noted that
Maxolon was given in a 10 milligram dosage three times a day
or when
vomiting, and had been administered to Mrs Smith from the 6
th
to 9
th
,
the 13
th
to the 15
th
,
and the 20
th
to the 21
st
days of May of 2010. He regarded it as highly unlikely that
Maxolon would have been given to Mrs Smith if she was ‘tolerating
well orally’.
[52]
With regard to the notes of the 11
th
May 2010, which referred to Mrs Smith complaining of chest pains with
a tight chest and palpitations, Dr Coka said that although
she may
have suffered from burning pains after the ingestion of the formalin,
they were not likely to have precipitated a cardio-vascular
event.
Given the medication which Mrs Smith had been prescribed, he was of
the view that she had not had heart problems or
ischaemic heart
disease.
[53]
Dr Coka said that an endoscopy was indicated in cases of heartburn,
melena (the passing of dark stools), anaemia and epigastric
pain.
His view was that the endoscopy had demonstrated that her
oesophagus was normal, but that her stomach was mildly gastric
and
inflamed. Mrs Smith had presented with a fibrous, hard or
rigid stomach, and there was a concern about cancer,
which resulted
in a biopsy being taken. Dr Coka recorded that formalin
ingestion could cause bleeding in the upper gastro-intestinal
tract
and gastritis. With regard to the suggestion in the medical notes
that Mrs Smith had ingested 10 millilitres of formalin,
Dr Coka
opined that this was not a sip and what he described as ‘not a
negligible amount’.
[54]
Dr Coka stated that helicobacter pylori was positive with gastritis,
but required a ‘trigger factor’ and, formalin,
as a toxic
substance, could definitely have been the trigger factor.
Helicobacter pylori are organisms that exist in the gut of
one in
three persons, but can exist without causing any problems. Its
existence does not mean that it caused the gastritis found
in Mrs
Smith..
[55]
With regard to the other medication administered to Mrs Smith, Dr
Coka was of the view that she should not have been given
Amoxicillin
(an anti-biotic to treat the gastritis) if she was allergic to
penicillin. In addition, there was no point in
giving her an
antibiotic for two days and not completing the course. He
concluded from the medication and medical notes that
the attending
doctors were not convinced that Mrs Smith suffered from helicobacter
pylori which had been responsible for gastritis.
Dr Coka
conceded that the ingestion of a small ‘sip’ of formalin
was unlikely to have
occasioned
the result that Mrs Smith lost 23 kilograms in a month. As I
understood the suggestion by him it was that the quantity,
and
accordingly the injury, must have been greater.
[56]
Dr Coka was cross-examined on the fact that formalin is used as a
fixative for specimens which are kept in the liquid until
the
specimen can be analysed or tested. He was unable to explain
how body samples were preserved in a corrosive agent, but
opined that
tissue which had been removed from a body has no blood supply.
The effect of formalin on a specimen removed from
a body would give
different results from the tissue of a live person to which formalin
was administered. Dr Coka conceded
that the formalin would not
be as powerful as pure formaldehyde. He said, however, that the
fact that it may have been a
weaker solution did not mean that it
would not cause harm. Dr Coka accepted that strictures in the
oesophagus could be a
long-term sequelae of formalin ingestion and
that they would generally remain because they were constituted by
fibrous tissue.
Strictures could be indicated by difficulty
with swallowing and heartburn, and could be ascertained by the use of
a scope.
He accepted that there was no mention of duodenitis in
the scope report, but that gastritis had been present.
[57]
Dr Coka conceded that the administration of charcoal was a correct
treatment post-formalin ingestion, but that the dose given
to Mrs
Smith was approximately half of what she should have been given.
It should also have been given within 30 minutes.
Dr Coka opined that
damage which was done to a patient following formalin ingestion, such
as strictures or burning, could be remedied
if proper treatment is
given, and the initial damage was not too severe. It was
possible that one would not pick this up
on a scope because an injury
has been treated and repaired itself. He conceded that no
strictures were seen on the gastroscopy
done in 2010, although
gastritis was present and Mrs Smith’s stomach was rigid.
Dr Coka said that it was difficult
to be certain about this because
there were other factors which could have contributed to this, and
the whole of her stomach was
tubular or rigid.
[58]
Dr Coka was of the view that a barium meal should have been done in
2010 prior to Mrs Smith’s discharge from hospital,
but that it
was not done. There was nothing to indicate why it had not been
done. Under re-examination Dr Coka reiterated
that the effect
of formalin on living tissue was not the same as its effects on dead
tissue. With regard to the epistaxis suffered
by Mrs Smith, Dr Coka
was of the view that it was not the ingestion per se, but the fumes
from the formalin which may have precipitated
this. He said in
this regard that the Warfarin could have been an additive factor.
Dr Coka stated that noses do not
bleed spontaneously. There
must be an event which causes the nose to bleed but Warfarin could
have made it worse. There
must, however, have been underlying
damage.
[59]
After the plaintiff’s evidence had been led Mr
Ramdass
reiterated that it had been agreed that there was no need to call the
actuary to testify unless the defendant raised queries.
None
had been raised. The plaintiff’s case was then closed.
[60]
Mr
Chetty
then indicated that the defendant wished to have its own actuarial
report prepared which would be done as soon as possible.
He
would have to take instructions in this regard. He also wanted
to discover the original hospital records, (additional
to those
already before me) which he now had possession of, and he wanted to
have them admitted into evidence. In addition,
Dr Govindasamy
had examined the plaintiff, and the defendant wished to deliver an
expert report from Dr Govindasamy. As none
of these matters
could be done immediately, the defendant requested an adjournment of
the trial.
[61]
Mr
Ramdass
pointed out that the matter of the actuary had been raised in
opening, and nothing had been done until Mr
Chetty
made this application. He recorded that on the 18
th
November 2014, the defendant had been directed at the pre-trial
conference to obtain expert reports. On the 2
nd
December 2014 the matter was certified ready for trial on the basis
that the defendant would have all its witnesses available.
With
regard to hospital records, the plaintiff had made numerous requests
for the hospital records to be made available.
They were
initially told that the Grey’s Hospital records were missing,
and the plaintiff had obtained the Northdale Hospital
records
directly from the hospital. A request for proper discovery had
been made and had been raised in the pre-trial conference
where Adv
Mthembu
,
appearing for the defendant, had said that there was no discovery to
be made because there were no records. The medical records
before the
court had been delivered late and not under cover of a discovery
affidavit. The plaintiff’s representatives
had understood
at that stage that that constituted the complete hospital record with
the exception of the doctors’ administration
record which had
been produced on the 4
th
May 2010.
[62]
No explanation was proffered as to when the new hospital records,
which Mr
Chetty
wished to adduce, had become available. In addition, only an
application from the Bar had been made with no explanation as
to why
discovery had not been properly carried out previously. Mr
Chetty
conceded that with regard to the actuarial report, he could advance
no reason why the defendant should be entitled to breach the
agreement which it had concluded with the plaintiff. With
regard to the original records he conceded that no proper application
for condonation of the late discovery of those documents had been
made thus far. In addition, no proper application for
condonation of the late filing of an expert report of Dr Govindasamy
had been made. It did not appear that that report was
yet
available.
[63]
I considered the arguments advanced by the defendant for an
adjournment. In my view it was inexcusable that the defendant should
not have discovered properly and not produced proper expert notices
and summaries timeously. No explanation whatsoever had
been
given to me for the statement by Adv
Mthembu
that there were no records to be discovered. When Mr
Chetty
made the application, he had before him a bundle of documents which
clearly entailed considerably more than the documents which
had
already been used and handed up to me at the outset of the trial.
In my view it was simply unacceptable that the State
could conduct
litigation in this manner. Mrs Smith is currently 85 years of
age and was injured in May of 2010. Six
years had elapsed
during which the defendant had every opportunity properly to prepare
its case. That it did not do so demonstrates
that the
defendant’s case has been recklessly prepared. I had no
hesitation in dismissing all three of the applications by
the
defendant.
[64]
The defendant then led the evidence of the anaesthetist who
administered the formalin to Mrs Smith. She testified that she
was an
anaesthesiologist presently employed by the Albert Luthuli Hospital
in the anaesthetic department. She works in the
cardio-thoracic
anaesthesia unit and has been practicing since 2013 as a specialist
anaesthetist. In 2010 she was employed
by the Department of
Health as a Registrar at Grey’s Hospital.
[65]
She had been present on the 5
th
May 2010 and administered the anaesthetic to Mrs Smith when she had
undergone her knee replacement surgery. At the outset
she had
spoken to Mrs Smith and taken down her medical history. She
could not actually recall the consultation with Mrs Smith,
nor the
doctor who carried out the operation. After the operation
during which Mrs Smith was given a regional spinal anaesthetic,
Mrs
Smith was taken into the recovery room and placed on the various
monitoring devices. The anaesthetist said Mrs Smith
had
complained of nausea. The anaesthetist asked the nursing sister to
provide Mrs Smith with Maxolon which was given intravenously.
Whilst this was being administered Mrs Smith had stated that she had
a hernia, and felt nauseous. She said that a glass of
water
would settle her. After Mrs Smith was given the Maxolon, the
nurse arrived with water but the anaesthetist had discarded
it
because it was not needed.
[66]
The plaintiff had again asked for water and the anaesthetist went to
get it for her from a little room next to the recovery
room. In
the room was a sink, a tap and a liquid canister. As it looked
like a normal water canister she dispensed
the clear liquid into a
cup and gave it to the plaintiff to drink. The plaintiff took a
drink and stated that it had tasted
funny. The anaesthetist
said that she then took the cup away and had gone back to look at the
liquid canister and seen the
label in black writing ‘FORMALIN’
on it. She went back and told Mrs Smith what had happened.
She was not
sure of her words, but she recalled that she told Mrs
Smith that she had given her something which was not water. She
told
the attending nurse, who brought milk which was given to Mrs
Smith. This was about five to ten minutes after Mrs Smith had
ingested the formalin. After drinking the milk, Mrs Smith had
vomited, and the anaesthetist had asked her how she felt.
She
said she was fine and the anaesthetist asked her to open her mouth
and she looked inside. Everything seemed normal.
[67]
The anaesthetist then went and told Dr Bishop what had happened, and
he took over the management of Mrs Smith. She had
had no
further involvement with Mrs Smith, save for recording her notes of
what had happened, and going to see Mrs Smith in the
ward the next
day. She could not remember what sort of cup she had given to
Mrs Smith but stated that Mrs Smith had taken
‘a sip’.
She could not be certain how much formalin had been ingested by Mrs
Smith. She denied that Mrs
Smith had screamed and said that it
was burning her and that they were trying to kill her. The
anaesthetist said that Dr
Bishop had administered charcoal to Mrs
Smith and had ordered a blood gas to be done during the night.
This was to exclude
metabolic acidosis, and the blood gas was normal
and revealed that Mrs Smith was not acidotic. The blood gas had
been done
by the night doctor. On the next day she spoke to Mrs
Smith and made a note at 11.30am that she was still vomiting and
nauseous
and the anaesthetist topped up Mrs Smith’s epidural.
[68]
The anaesthetist conceded that the formalin she had given to Mrs
Smith was poisonous. She disagreed that it had a noxious
smell,
and also disagreed that it was a corrosive substance. She said
that the corrosive effect would depend upon the strength
of the
formalin. Dr Bishop had been the doctor on the floor and in
charge of all the theatres which were operating at the
time. He
had spoken to Dr Farina, who was the head of department, about the
incident. A report had been written by
Drs Bishop and Farina
approximately six months later. There had been no adverse
incident reporting mechanism in place as
a hospital protocol, and the
matter had simply been discussed at the end of the week in a meeting
with the other anaesthetists.
[69]
The anaesthetist conceded that although it was important in her
pre-operation notes to have recorded the weight of Mrs Smith,
she had
not done so. Initially she stated that her record of Mrs
Smith’s previous medical conditions had been obtained
from
her. However, when the medical expressions which she recorded
were put to her, she conceded that she must have looked
through her
notes and seen Mrs Smith’s previous conditions recorded in an
outpatient’s folder. She then said
she was not sure where
she had got the information from. The anaesthetist stated that
although she had examined Mrs Smith
clinically on the 4
th
May 2010, it had not been a full examination and she had not examined
her abdomen. Had she done so, and had epigastric tenderness
been evident, she would have recorded it. She would also have
recorded chest pains and gastric reflux if that had been complained
of by Mrs Smith. She conceded that these were relevant
questions to have put to Mrs Smith prior to her going into theatre.
[70]
The anaesthetist said that in the recovery room there was one member
of the nursing staff which was allocated to each patient
returning
from theatre. In cross-examination she said that she could not
specifically remember giving Mrs Smith Maxolon.
The
anaesthetist said that she had caused the water brought by the nurse
to be discarded because she thought Mrs Smith’s
nausea would
subside after she was given Maxolon. She conceded that nowhere in her
notes did she record that Mrs Smith had said
that she suffered from
an hiatus hernia and that water would have assisted her. She
stated that she was relying on her memory
for that statement.
She was however unable to recall how long after she had administered
Maxolon, she had given Mrs Smith
the formalin to drink. She had
noted that Mrs Smith had complained of a slight burning in the
throat. She had recorded
in her notes that Mrs Smith had been
given ten millilitres of formalin, but that that was just an estimate
by her. Although
she said it was her call to decide on the
medication to be given to Mrs Smith, she had given her milk in order
to try to minimise
the harm. She had had no experience at that
stage and did what she thought was best.
[71]
The anaesthetist stated that she had gone to visit Mrs Smith the next
day, but was unable to recall her reaction. The
only thing
which she did recall was that she felt relieved. She stated that she
had not treated Mrs Smith after Dr Bishop took
over, in order to
carry on her work in theatre. The anaesthetist stated that the
activated charcoal had been administered to Mrs
Smith before 1.45pm.
She could give no explanation for the fact that she had gone to get
the water for Mrs Smith as opposed
to the nurse having done so.
[72]
At this stage in the trial, the matter was adjourned to the next
court day. At the outset of that day’s hearing
Mr
Chetty
renewed his application for the admission of the hospital records
which did not form part of the documents given to the plaintiff
by
the defendant’s representatives. Mr
Ramdass
objected to the application. As no formal application had been
prepared and presented, and as Mr
Chetty
could advance no other reasons other than he had done previously, I
refused the application.
[73]
The evidence of the anaesthetist continued. She admitted that
in administering the formalin to Mrs Smith she had been
negligent.
She said that she had taken the formalin away from Mrs Smith when she
complained that it had tasted ‘funny’
but could not
recall whether she had tried to smell the liquid. Mrs Smith had
vomited immediately upon drinking the milk
which she gave to her.
She was unsure whether this was caused by the formalin or the Maxolon
which may not have been successful
in causing the nausea to subside.
(It appeared from her evidence-in-chief that she had discarded water
initially brought
by the nurse, because she believed that the Maxolon
was working and the plaintiff’s nausea had subsided.)
[74]
Dr David Gray Bishop testified that he was the head of anaesthetics
at Edendale Hospital in Pietermaritzburg during May of
2010. He
was a qualified specialist anaesthetist and a fellow of the College
of Anaesthetists. He had been working
as the Senior Registrar
in anaesthetics at Grey’s Hospital. On the day in
question he was co-ordinating the theatres
as the senior assigned to
that post. He was, in other words, the first port of call for
doctors who experienced problems
in theatre. He was called to
the recovery room and told that Mrs Smith had been given formalin to
drink. He was told
that she had taken one sip, and that she had
thereafter been given milk by a nurse. She had vomited after
consuming the milk.
[75]
Dr Bishop recorded that as formalin has no antidote, emergency
management of ingestion consists of dealing with what has been
ingested. He discussed the matter with the Chief Specialist of
Anaesthetics and his senior, Dr Farina. They agreed
on a
management plan. They elected not to use gastric lavage but
instead to administer activated charcoal. This comes
in the
form of black powder and looks and tastes like crushed charcoal.
It absorbs the poison which will thereafter be passed
by the patient.
[76]
Dr Bishop and Dr Farina felt uncomfortable with the idea of using
gastric lavage because it could precipitate one of a number
of events
for very little benefit. The charcoal treatment seemed the
appropriate one where only a small amount of formalin
had been
ingested. He conceded that formalin was corrosive and during
gastric lavage vomiting and aspiration could occur.
Dr Bishop
called the pharmacy from the recovery room in order to ascertain the
strength of the formalin which was used in the hospital.
He
then told the recovery room nurse to go and get the charcoal.
He conceded that patients struggle with the charcoal because
it is
difficult to swallow. He thought that Mrs Smith had done very
well under stress to drink the charcoal. He had
asked her to
drink it as quickly as possible, but within an hour. He said
she had done so well within the time. Dr Bishop
testified that after
Mrs Smith had consumed the charcoal she was kept in the recovery room
to see if the formalin had been absorbed
into her system. She
spent approximately three hours in total in the recovery room and was
then discharged to the ward.
[77]
Dr Bishop said that he had had no previous experience of formalin
ingestion. He stated, however, that the administration
of
incorrect drugs was a relatively common occurrence in hospitals
because, for example, 2 000 substances were given per week
in
the theatres at Grey’s Hospital, and drug error is a problem in
any hospital. Dr Bishop stated that he had informed
Mrs Smith
that she had been inadvertently administered formalin. He
discussed what it could mean and what they would do in
order to make
sure that she came to no harm as a result. He said that when he
told her she was co-operative and said she
understood and would do
what they asked her to do. He said that although Mrs Smith may
have outwardly protested when the
formalin was administered, she was
calm when he arrived about five minutes later. Dr Bishop
conceded that aqueous formalin
does have a strong smell. He
conceded that when he made his notes at 1.40pm, the charcoal had
already been given to Mrs Smith.
Dr Bishop stated that the
administration of milk would have had two benefits. It would
have diluted the formalin and when
she vomited it up, some of the
formalin would have come out. The milk would also reduce the
corrosive element of the formalin.
He stated that he had
nothing to do with the release of the documents to the defendant’s
attorneys, which had been handled
by the hospital’s medical
management. He said that prior to writing the letter which he
wrote together with Dr Farina,
he had had access to Mrs Smith’s
in-patient records and theatre records.
[78]
Sister Thasanee Govindasamy told the court that she had been a
registered nurse since 1996 and had worked in the recovery Room
at
Grey’s Hospital for ten years at the time of the incident.
She was responsible for organising and fetching patients
for theatre,
checking their pre-operative notes and ensuring that they recovered
post-operatively. She recalled the incident
when Mrs Smith was
administered formalin. She said that when Mrs Smith was wheeled
into the recovery room she was comfortable
but had complained of
nausea. The anaesthetist had ordered Maxolon to be
administered.
[79]
Mrs Smith complained of being thirsty and the anaesthetist left the
recovery room. She returned with a medical glass
and Mrs Smith
sipped the substance and said that it tasted funny. The
anaesthetist smelt it and realised that it was formalin.
Sister
Govindasamy described the anaesthetist as looking shocked, very
surprised and frightened. She immediately ordered
the
administration of milk to Mrs Smith which Sister Govindasamy obtained
from her own private store of milk which she kept in
a nearby fridge
for tea.
[80]
Sister Govindasamy denied that Mrs Smith had told them that it was
burning her and that they were killing her. The anaesthetist
left the recovery room and returned with Dr Bishop who ordered the
activated charcoal to be administered to Mrs Smith. Sister
Govindasamy maintained that Mrs Smith was given oxygen all the time
that she was in the recovery room because her oxygen saturation
levels had been low. She said that she had witnessed Mrs Smith
drinking the activated charcoal.
[81]
Under cross-examination Sister Govindasamy said that when the
formalin was initially administered to Mrs Smith all the other
medical staff present had gathered around her. She could not
explain why this would have happened if Mrs Smith had been calm
in
her reaction to the administration of the formalin, but contented
herself with saying that it was an open room, presumably intending
to
convey that others could easily have heard what was going on.
[82]
Sister Govindasamy accepted that it was her duty to have recorded the
administration of the formalin, because it was a negative
incident,
and the hospital protocols required that negative incidents were
recorded by two parties. She had no explanation
for the fact
that she had not recorded the incident in the notes on Mrs Smith’s
condition during the anaesthetic. She had
made a number of records
under the heading ‘Complications in Recovery Room’, but
none of them mentioned the administration
of the formalin. She
suggested that that had been done by a note made at the bottom of the
page by another nurse. That
note recorded that Mrs Smith had
been given formalin to drink inadvertently and a reference was made
‘see patients (sic)
notes for record’. The note continued
to state that Mrs Smith had received charcoal at 1.48pm, and was
signed by Sister Vessinger.
[83]
Sister Govindasamy then said that she had made a statement and had
informed Sister Ngcobo who was in charge of the recovery
room as well
as Sister Lehmena, and Sister Whittaker who were in charge of the
theatre. She understood that copies of her
report would have
been made available to the medical superintendent and the quality
assurance department of Grey’s Hospital.
She recorded
that she had only ever spoken to the defendant’s legal
representatives approximately two weeks’ before
testifying.
She had told them what she had written in the report. She did
not know what happened to the report she
had compiled. She was
also unable to comment on the fact that hospital records had
repeatedly been requested, but not been
forthcoming.
[84]
Sister Govindasamy was also cross-examined on the fact that she
maintained that Mrs Smith was comfortable, although she did
complain
of burning in her throat. She was not at any stage hysterical
or screaming. She could give no explanation
as to why everyone
would have gathered around her if this was the case. When
further cross-examined on this issue, Sister
Govindasamy stated that
the nurses in the recovery room treating other patients had never
left their patients but were aware of
what was happening and were
available to help. She conceded that, despite the fact that it
was the protocol not to give any
water to patients in the recovery
room, ‘a few sips’ were given.
[85]
In her evidence Sister Govindasamy maintained that she had gone off
duty at 12.45pm. At that stage she was working half-days.
When presented with the fact that the charcoal was only administered
at 1.48pm, long after she had gone off duty, she appeared
uncertain
as to whether or not she had been present when the activated charcoal
was given to Mrs Smith. She also suggested
that it was possible
that the entry recording the administration of the activated charcoal
had only been made at 1.48pm.
It was pointed out to her that it
was the evidence of Dr Bishop that the charcoal was administered to
Mrs Smith more than an hour
after the formalin ingestion. If
the formalin ingestion had been given at 12.10pm, it is unlikely that
the activated charcoal
would have been administered to Mrs Smith much
before 1.15pm. Sister Govindasamy then stated that she had
perhaps confused
the administration of the milk with the
administration of the activated charcoal to Mrs Smith.
[86]
Sister Govindasamy was adamant that the anaesthetist had in fact
smelt the liquid immediately after Mrs Smith had complained
about
it. She had immediately realised it was formalin. She
also said that the suggestion by the anaesthetist that
she had been
sent off to fetch water for Mrs Smith, was not true.
[87]
Sister Dududzile Ngcobo testified that she had been a professional
theatre sister for 24 years, and was employed at Grey’s
Hospital in the theatre post-operative area in May of 2010. She said
that the recovery room had five beds in it, and Mrs Smith
was placed
into the second bed when she arrived back from theatre. Sister
Ngcobo was assisting a patient who was in the third
bed. She
said that at some stage the anaesthetist had moved out of the bay
where Mrs Smith was, and returned with a medicine
glass and gave it
to Mrs Smith. Sister Ngcobo’s attention was drawn when
Mrs Smith stated ‘This tastes funny,
Doctor’. The
anaesthetist had then taken the medical cup, smelt it and moved away
from the bed and away from the patient.
At that stage Sister
Govindasamy had reported to her that the patient had drunk
something. Sister Ngcobo told Sister Govindasamy
to call the
consulting doctor who was Dr Bishop. He was in charge of all eight
theatres on the floor. Dr Bishop then arrived
and asked for a
script, and requested charcoal to be fetched from the pharmacy.
[88]
Sister Ngcobo denied that she had heard Mrs Smith saying that they
were killing her or that her mouth was burning. All
she heard
her say was that the drink she was given tasted ‘funny’.
Sister Ngcobo amplified this to say that Mrs
Smith had said that ‘it
doesn’t taste like water’. Sister Ngcobo said that when
Dr Bishop arrived, Mrs Smith
was given Maxolon and activated
charcoal. She had been talking to Sister Govindasamy, and Sister
Ngcobo could not remember any
unpleasantness.
[89]
In cross-examination Sister Ngcobo conceded that it may have been the
anaesthetist who had gone to fetch Dr Bishop, and not
a nurse as she
thought had been done. She said that her attention had been
attracted to Mrs Smith only when she complained
about the substance
she was given to drink. She could not recall anything which Dr
Bishop said to Mrs Smith. She could
also not recall whether the
Maxolon was administered before or after the formalin was ingested.
She then recalled that it
had been requested prior to Dr Bishop
arriving. She did not know which doctor had prescribed the
Maxolon, and she only remembered
Sister Govindasamy requesting it.
[90]
She said that Sister Govindasamy had gone off at 1.00pm. She said
that at no stage did she hear Mrs Smith complain that there
was
burning in her throat. Sister Ngcobo also said that water was
not usually given in the recovery room, and if patients
were thirsty
the staff would crush an ice-cube and put it on the patients’
lips to suck.
[91]
When it was put to Sister Ngcobo that Sister Govindasamy had said
that the nurses and staff had gathered around Mrs Smith,
Sister
Ngcobo agreed with this. She said, however, that it was an open
space, and there were people all around Mrs Smith, ‘but
not
against her’. She did not leave her patient in order to
go and assist Sister Govindasamy. She confirmed that
the
anaesthetist had reacted when she had taken the medicine cup from Mrs
Smith and smelt it. She described the anaesthetist
as having
been astonished.
[92]
Sharon Brenda Pule testified that she has been a registered nursing
sister for more than 15 years and had been employed at
Grey’s
Hospital in Ward B1. She did not remember the incident when
formalin was administered to Mrs Smith. She
confirmed, however,
that she had made various entries in the nursing records. She
confirmed that the nursing records which
were made at 3am were not
done at the patients’ bedsides but at the nursing station.
This was because they did not
wish to switch on the lights at
night-time and disturb the patients. She was unable to recall
specific events which had taken
place but was only able to testify
about what generally happened. She said that the kitchen staff
had administered meals
to the patients and they would also clear the
dishes away. She said that if a patient had not eaten a meal,
the other patients
would let the nurses know. She conceded that
it was commonplace that matters were not recorded by nurses.
[93]
Dr Douglas Paul Kinghurst Wilson testified that he was a specialist
physician in the Department of Internal Medicine at Edendale
Hospital
in Pietermaritzburg. He had been made a Specialist Fellow of
the College of Physicians in 1993 and was a Specialist
in Infectious
Diseases. His involvement in the action was to read the patient
notes and comment thereon. He had been
approached to do so by
the defendant’s legal services during October of 2015. He
had never examined Mrs Smith.
He had been given photocopies of
the patients notes relating to Mrs Smith’s medical admission at
the time she was administered
the formalin. He had been given
the complete records of Mrs Smith’s stay in hospital save for
an admission note to
B Ward, which was made on the 4
th
June 2010. He had not interviewed any staff.
[94]
Dr Wilson said that formalin was a substance which was widely used to
preserve specimens, and its purpose was to stabilise
and preserve
human samples to enable a histo-pathologist to cut slices and stain
them and examine them under a microscope.
He stated that a ten
per cent buffered solution such as that which was administered to Mrs
Smith would have consisted of formaldehyde
which had chemicals added
to it by the pharmacist preparing the solution in order to make it
less acidic. In certain
contexts it remained corrosive, but his
view that that was less so in a medical context, because it was
needed to preserve specimens.
He conceded that formalin could
cause damage to the gastro-intestinal mucosa, but that a buffered
solution was less likely to do
so. He was also of the view that
it could cause depression with impaired brain function and a coma.
In this regard
the molecules were very small and crossed membranes,
and that a significant exposure could cause profound system effects
throughout
the human body. He regarded ingestion as rare
because of the alarming odour and irritant effect of formalin.
He said
that by sniffing it, one could clearly tell that it was
formalin.
[95]
Dr Wilson’s information regarding the effects of the formalin
ingestion upon Mrs Smith had been exclusively obtained
from the
medical records. He confirmed that the purpose of the blood gas
which was taken was to determine whether or not
Mrs Smith had
suffered a metabolic acidosis. The blood gas results were in
the normal range and he concluded that the exposure
was not very
large otherwise metabolic acidosis would have developed. He
opined that it was unlikely that Mrs Smith could
now suffer from
acidosis because the formalin molecules would have broken down, and
as time passed, become less harmful.
[96]
Dr Wilson maintained that a key symptom of a corrosive injury is
pain. He was reassured by the entry on the 6
th
May 2010 that Mrs Smith was ‘tolerating well orally’. His
focus was on the fact that there was no pain in her mouth.
His
view was that if the mucous membranes in her mouth had been stripped
away by the formalin she would have been in pain because
the nerve
endings would have been exposed, as they would have been with a
chemical burn. Dr Wilson maintained that the likelihood
of the
formalin burning the whole of Mrs Smith’s mouth depended on the
speed of swallowing, and there would have been burning
if the
exposure had been significant. He said that if Mrs Smith had
‘gulped’ down the formalin he would have
expected there
to have been mucosal injuries in her mouth, particularly those parts
involved in swallowing and the voluntary muscles
in the pharynx.
He said that no injuries were noted and the nursing report that the
plaintiff was ‘tolerating well
orally’ was reassuring.
[97]
Dr Wilson had looked at the notes of the gastroscopy conducted on Mrs
Smith on the 18
th
May 2015. The endoscopy was indicated for heartburn, malena
(black stools) anaemia (low haemoglobin) and epigastric pain.
It had been carried out by Dr S Abraham who had recorded that it was
a difficult endoscopy, without saying why. It recorded
that Mrs
Smith’s oesophagus was normal as was the oesophageal/gastric
junction (basically where the food pipe meets the stomach).
[98]
The endoscopy report also recorded that Mrs Smith had mild gastritis
but her stomach was tubular and rigid and a biopsy had
been taken.
Dr Wilson was of the view that gastritis could be caused by a number
of things. The fact that Mrs Smith’s
stomach was tubular
and rigid was an alarm bell because something was changing the nature
of the stomach wall, and making it less
flexible and bendy and
distensible. Such rigidity could often be caused by cancer or a
lymphoma or helicobacter pylori.
This was a transmissible
bacteria which existed in about a third of persons. The
symptoms are non-painful and the bacterial
sequelae are
controversial. It is difficult to establish cause and effect
with helicobacter pylori. If treated however, the
symptoms will
improve.
[99]
Dr Wilson said that if Mrs Smith’s oesophagus had been damaged,
the endoscopy would have noted that her oesophagus was
eroded like a
chemical burn – the lining would look abnormal. With an
extensive burn, one would have expected to have
seen microscopic
changes. Scarring and malignancy could also cause strictures in
the digestive tract, which would become
narrowed by a ring of hard
tissue. This could be a long-term consequence of exposure to
formalin. Strictures were,
however, a common finding on
endoscopy reports. Dr Wilson was of the view that the endoscopy
report gave him comfort that
extensive harm had not been done to Mrs
Smith. Dr Wilson was of the view that the ingestion of formalin was
unlikely to cause helicobacter
pylori. He also found it
reassuring that there was a non-specific gastritis present.
[100]
Dr Wilson also said that there was no ulceration of the lining of the
stomach. He was puzzled by the fact that Mrs Smith’s
stomach was found to be rigid, but thought that was likely to be due
to long-standing gastritis. He was of the view that
Mrs Smith’s
heart had not been affected by the ingestion of the formalin, and
that the doctors attending upon her had done
a good job to avoid a
worsening of her pre-existing ischemic heart condition. The
records revealed an echocardiogram (a scan
of the heart), which
showed her heart to be normal. This was despite some slow
atrial fibrillation, an abnormality, which
was recorded in the
pre-operative notes.
[101]
Dr Wilson was asked to comment on troponin levels found in Mrs Smith
five days after the ingestion of the formalin.
He said this was
a screening test for myocardial ischemia, and was normally done in
response to chest pain in order to test for
a myocardial infarction.
Mrs Smith’s reading fell within the range compatible with
possible myocardial damage.
Dr Wilson said it was important to
know the trend of the troponin levels. He regarded the result
as being within the slightly
concerning range but could detect no
trend. It was compatible with long-standing or underlying heart
disease. He noted
that in a report also done on the 10
th
May 2010, Mrs Smith’s creatine kinase, a marker of myocardial
damage was recorded as being low, which was a good thing. Dr
Wilson
concluded that the various tests did not indicate heart problems, but
regarded the results as slightly raised without a
trend suggesting a
long-standing problem and not an acute problem. He accordingly
concluded that this had nothing to do with
the ingestion of the
formalin.
[102]
Dr Wilson concluded that it was unlikely that Mrs Smith’s heart
would have been the cause of her complaints of chest
pain. The
endoscopy report of Dr Abraham had flagged heartburn as an indication
for the procedure, and Dr Wilson felt that
heartburn may well have
been the cause of the chest pains. The heartburn could have
been a result of a chronic ongoing reflux.
He recorded that
reflux was a transient phenomenon and accepted that an hiatus hernia
may not cause problems to a patient for a
considerable period of
time.
[103]
Dr Wilson conceded that Mrs Smith may have experienced burning in her
digestive tract. That, however, would have depended
upon the
formalin concentration which had a low PH level and would accordingly
have burned the food pipe. He was unable to
opine on the ten
per cent buffered solution. Burns would have been evident from an
endoscopy only if they were extensive and deep.
He conceded
that problems with a person’s food pipe would cause difficulty
in swallowing.
[104]
When asked whether he could explain why Mrs Smith had been admitted
for a three day procedure on the 4
th
May 2010, and was
only discharged on the 9
th
June 2010, Dr Wilson was of the
view that two elements were playing out:
(a)
the treatment for atrial fibrillation and
the administration of Warfarin which takes time to work; and
(b)
she was waiting for an echocardiogram –
in this regard he noted that on the 1
st
June 2010 she was still on the waiting list to undergo this
procedure.
[105]
Dr Wilson stated that Warfarin inhibits the manufacture of clotting
proteins by the liver and as a consequence blood takes
longer to
clot. This was administered to Mrs Smith to prevent a stroke.
He said that this could be administered on
an outpatient basis, but
when a patient was in hospital already they would tend to keep the
patient there. Dr Wilson referred
to the echocardiograms which
were contained in the medical notes bundle of documents. He
said that these were tracings of
electrical activity of the heart and
were extraordinarily helpful as a diagnostic test for cardiac
disease. They had confirmed
the atrial fibrillation and provide
a clue that the patient has a problem conveying electrical impulses
from the atria to the ventricles
of the heart. This showed her
heart was not normal. It was compatible with ischemic heart
disease and the medication
which she was taking on admission.
These tests had enabled Dr Wilson to conclude that the plaintiff’s
heart had not
been affected by the formalin ingestion.
[106]
Dr Wilson recorded that the administration of the activated charcoal
was essential in order to treat Mrs Smith for the formalin
ingestion. He said that the published guidelines also
recommended the drinking of milk. He said that he had never
previously experienced an ingestion of formalin. Dr Wilson stated
that formalin was a harmful substance because it contained
formaldehyde
which was dissolved in water and stabilised with
methanol. He said that both formaldehyde and methanol were
dangerous substances.
Although he did not seem to be certain,
he stated that the buffering of the formalin in the solution used in
the hospitals was
done by a benign chemical to raise the PH level of
the formalin and make it less acidic, and less corrosive.
Ultimately he
was unable to comment on the formaldehyde concentration
in the formalin.
[107]
Dr Wilson emphasised that he was not a bio-chemist and he understood
formalin to contain chemicals which have the potential
to be
harmful. He said that formalin ingestion was very rare and had
not been studied in a structured way, and it was accordingly
difficult to make decisions about the harm it could cause. Save for
stating that the ingestion of formalin could cause metabolic
acidosis
and harm, Dr Wilson was unable to comment on the effects of formalin
on living tissue as opposed to tissue which had been
removed from the
body. His focus in examining Mrs Smith’s report had been
on the injuries which she had sustained.
He accepted that Mrs
Smith could have experienced burning in her throat, caused by the
formalin. He also agreed that the
dosage of activated charcoal
given to Mrs Smith should have been higher in accordance with the
recommended guidelines. It
should also have been given within
an hour. He accepted that a medical emergency had been created
when Mrs Smith was given
the formalin and that the activated charcoal
would have limited any complications.
[108]
In reply to the suggestion that Mrs Smith should have been given a
gastroscopy within 24 hours of the ingestion of the formalin,
Dr
Wilson said that from a medico-legal perspective it would have been
helpful if it had been done immediately. He thought,
however,
that it would have been a bit invasive to have done it immediately
without alarming symptoms. He accepted that pharyngeal
mucosal
damage could be caused by the formalin, but stated that in the
absence of ongoing and alarming symptoms, he could understand
why an
ear, nose and throat surgeon had not been consulted immediately.
In response to the suggestion that it would be difficult
to ascertain
injuries unless a gastroscopy is done immediately, Dr Wilson opined
that in the absence of severe pain and injuries
it was reasonable not
to carry out a gastroscopy immediately. Although he conceded
that gastritis could have been caused
by the formalin, his view was
that the presence of helicobacter pylori was ‘a smoking gun’
in that regard. He
viewed the ingestion of formalin as one of a
number of possible explanations for Mrs Smith’s chest pains.
Helicobacter pylori
was a pathogen (an organism which can cause
disease), but there was only an outside possibility that the formalin
contributed to
Mrs Smith’s gastritis.
[109]
Dr Wilson stated that nosebleeds are common, and the administration
of Warfarin could have made them heavier. There
was a remote
possibility that the formalin had been responsible for the
nosebleeds, but he did not regard this as probable.
[110]
He was of the view that recurrent reflux could occur, but even bad
reflux would not necessarily result in scarring which could
be due to
many factors. Dr Wilson accepted that the use by the nursing
staff of the phrase ‘tolerating well orally’
was
unreliable at best. With regard to formalin Dr Wilson stated that the
PH component was likely to burn tissue and the methanol
could cause
renal failure or a coma. He was sceptical at the suggestion
that Mrs Smith may have suffered a stroke, suggesting
that the
swelling to her face could have caused the apparent droopiness
witnessed by Mrs Erasmus. Dr Wilson said that a stroke
was
caused when one of the arteries supplying oxygen or glucose to the
brain is blocked or bursts. The presence of ischemic
heart
disease and atrial fibrillation was also a factor causing strokes.
He said it was rare for a stroke to involve one
side of the face
without involving the limbs. It would at least involve an arm.
[111]
With regard to the profuse sweating which Mrs Erasmus said she saw,
Dr Wilson was of the view that this could have been brought
on by
anxiety and been the activation of a sympathetic nervous system.
He said that this would have been a fairly extreme
medical condition
and was not recorded in the medical records. Dr Wilson’s
attention was drawn to the dramatic increase in
Mrs Smith’s
pulse rate as recorded in the medical notes at about the time the
formalin was ingested. He said the formalin
could have been
responsible for this. He regarded her weight loss of 23
kilograms in approximately five week as being extreme
and not
normal. He said this was normally only seen where heart
patients retain water and diuretics are used to help funnel
the
liquid through urine. Dr Wilson agreed that it was inappropriate to
administer Amoxicilin to someone who was allergic to penicillin.
Although a rash would normally emerge, more severe symptoms could be
a drop in blood pressure and a swelling of the tongue.
It was
potentially, but rarely, fatal.
[112]
With regard to the endoscopy Dr Wilson thought that if scarring still
existed five years after the incident, he would have
expected it to
have been much worse. He regarded the onset of her nosebleeds
after discharge from hospital as being worrying
but it was not
uncommon for Warfarin patients to bleed. He said that given the
time lapse between her ingestion of formalin
and the nosebleeds, Mrs
Smith should have healed and if she was ulcerated, she would have
complained.
[113]
With regard to the time period which Mrs Smith said that was told she
would spend in hospital, Dr Wilson said that three days
for an
elderly lady for a complete knee replacement seemed very quick.
The evidence was that she was mobilising well in the
ward and there
is no suggestion by the physiotherapist that she should be
discharged. In addition there was chest pain and
the time taken
to organise an echocardiogram and endoscopy. (I note that in the
doctors’ notes contained in the Medical Notes
Bundle of
Documents, there are entries by the physiotherapist from the 12
th
May 2010 onwards, indicating that Mrs Smith was mobile, and by the
21
st
May 2010 Dr Bertie recorded that Mrs Smith was moving well, and that
they should aim to discharge her on the 24
th
May 2010. These records were not dealt with by counsel during the
trial).
[114]
Mr
Chetty
then renewed his application (now for the third time) that the
defendant’s discovery affidavit be allowed to be supplemented
by the addition of the outpatient records of Mrs Smith. This
was supported by an affidavit by a director/manager of the
defendant’s legal services department. Paragraph 5 of
that affidavit stated that the issue of liability was conceded
during
or about the 27
th
May 2016. The trial was then accordingly set down to proceed
only on the issue of quantum. I pointed out to Mr
Chetty
that this was simply untrue. A concession had been made at the
pre-trial conference in my chambers on the 8
th
June 2016 that the formalin had been administered to Mrs Smith.
No admission was made that that had been done negligently.
[115]
In addition, the supporting affidavit averred that a discovery
affidavit was completed by a legal administrator and officer
of the
defendant, but that there was no indication that it had been
delivered to Mrs Smith’s attorney. The founding
affidavit
then records that it was only once it was apparent that the issue of
liability was conceded, that it was agreed that
the trial would
proceed on the allocated dates on the issue of quantum. This
statement is not a true representation of the
facts.
[116]
The suggestion which is contained in paragraph 8 of the affidavit is
that Mrs Smith had attended Grey’s Hospital for
some years’
prior to the incident. It was then alleged that these records ‘
had
become of critical importance in dealing with the issue of quantum
’.
This is disingenuous insofar as it tends to suggest that those
records were not previously important.
[117]
Similarly, the suggestion in sub-paragraph 9.2 that ‘
when
the issue of liability was conceded, consideration was given to
whether the plaintiff’s present condition arose solely
out of
the ingestion of formalin or whether her medical condition, was
pre-existing. This required consideration of the plaintiff’s
outpatient records at Grey’s (sic) Hospital. It was, with
respect not anticipated by the Applicant, that these records
would be
necessary, and given the late concession of liability and the early
set-down of the trial in respect of quantum, the records
were only
received on the 15
th
June 2016.
’ In my view this
paragraph is also disingenuous. Mrs Smith’s medical
records were important from the outset.
There is no suggestion
that the trial was to have proceeded on the basis of liability only,
and that the quantum would be dealt
with as a separate issue, and
later. The repeated requests by the plaintiff for discovery
from the defendant, which was not
denied by the defendant’s
legal representatives, and the production of an actuarial report are
ample evidence of the fact
that Mrs Smith’s attorney always
regarded the issue of quantum as important and something which would
be dealt with at the
hearing.
[118]
In the remainder of the founding affidavit, no proper explanation was
proffered for the lack of discovery, or the non-production
of the
necessary records. In addition, no explanation was given as to
why Advocate
Mthembu
represented that there were no documents
to be discovered. In his address on the application Mr
Chetty
conceded that the non-production of the records would inevitably lead
to an adjournment of the trial. He accepted that the
plaintiff,
who was approaching 86 years’ of age, would be prejudiced by
the delay. He submitted, however, that the
documents had a
direct bearing, and related specifically to the matter in hand.
He submitted that it was crucial in the interests
of justice that
medical records reflecting Mrs Smith’s pre-existing conditions
be admitted. In the absence of such
documentation, a fair
finding could not be made.
[119]
After pointing out the obvious problems which were contained in the
founding affidavit, a further affidavit was produced on
the 23
rd
June 2016, in order to attempt to undo the misleading aspects I have
referred to above. The excuse was made that the defendant’s
legal representatives were busy with the trial and the deponent did
not have an opportunity to discuss with them the matters raised
in
the affidavit. It appears that it was only after the deponent
had deposed to the original founding affidavit, that he
was shown the
minutes of the pre-trial conference which was held in my chambers.
A concession was then made in the supplementary
affidavit that the
issue of liability was not in fact conceded.
[120]
In my view this application and the supplementary affidavit, came too
late in the day, and to have granted it would have occasioned
too
great a prejudice to Mrs Smith. As stated in dismissing the
other applications, Mrs Smith has waited six years to be
able to tell
her side of the story. The conduct of the defendant’s
legal representatives in not properly preparing
the defendant’s
case is inexcusable. (In this regard I point out that Mr
Chetty
had only become involved in the matter shortly before the 16
th
May 2016). I accordingly dismissed the application.
[121]
The defendant then called Margaret Rose Naicker, a medical technician
employed in the histology laboratory at Grey’s
Hospital.
She has a National Diploma in histological techniques and is the
supervisor of the histological laboratory.
She recorded that
formalin was used by the laboratory for all tissue samples in order
to ensure that they do not putrefy.
The formalin in the
recovery room would have been obtained from the laboratory, and it is
sent to them by a company in Johannesburg.
The formalin is made
of formaldehyde gas that is dissolved up to 40 per cent in methanol,
which was a stabiliser. Ten per
cent of that 40 per cent is
mixed with a phosphate buffer to create the buffered formalin used by
the hospital.
The
defendant then closed its case.
[122]
Mr
Ramdass
submitted that there had, eventually been a clear concession of
negligence by the anaesthetist. He submitted that Mrs Smith
had
immediately complained of burning and suggested that the staff were
killing her. It is clear from the evidence that there
was a
flurry of activity by the recovery room staff in order to treat Mrs
Smith. She had spent about two and a half hours
in the recovery
room when it was normal to spend only 30 minutes. The ingestion
of milk by Mrs Smith immediately induced
vomiting, and she was then
required to endure the administration of activated charcoal for
approximately an hour. When Mrs
Smith was admitted to the ward
she was clearly ill. This is confirmed by Mrs Erasmus who
records that Mrs Smith was sweating
profusely, in pain and crying.
A further telling factor was the phone call made to Mrs Erasmus by an
anxious nurse.
She had instilled such a sense of fear into Mrs
Erasmus that she had driven to the hospital with her hazard lights
on, and thought
that something might have happened which would cause
Mrs Smith to die. Mrs Smith maintains that she did not eat for
approximately
three days and was kept on a drip during that time.
Five days later, she developed chest pains and abdominal and
epigastric
pain. Mr
Ramdass
submitted that the doctors must have been of the view that the pain
was severe because they thought it was coming from her heart.
They treated her by conducting various tests in order to determine
the cause of the problem.
[123]
On the 18
th
May 2010 Mrs Smith was given a gastroscopy. We know that the
procedure was a difficult one because the report says so.
The
presence of gastritis (inflammation of the stomach) was noted.
A gastroscopy is normally indicated for epigastric pain,
heartburn
and malena and upper gastrointestinal bleeding. That Mrs Smith
had been bleeding was confirmed by the drop in her
haemoglobin after
the operation from 9.8 to 8.6.
[124]
Mr
Ramdass
queried why the plaintiff was detained in hospital for five and a
half weeks when the original admission was anticipated to be
three
days. When Mrs Smith was discharged from hospital she had lost
23 kilograms in weight. She had given a very vivid
and visual
description of her weight loss to Mrs Erasmus. Approximately three
days after her discharge from hospital Mrs Smith
experienced severe
nosebleeds. These were so bad that she was rushed to hospital
and shuttled between Grey’s Hospital
and Northdale Hospital.
One of the doctors at Northdale Hospital points to the formalin
ingestion as having damaged Mrs Smith’s
nasal tissues, leading
to the nosebleeds. Eventually there was a cauterisation of the
blood vessels in Mrs Smith’s
nose to prevent any further
bleeding.
[125]
Mr
Ramdass
submitted that it was significant that there was no report of the
administration of the formalin by Sister Govindasamy. It
was
her duty to have done so and she kept records, but not indicating the
formalin ingestion. Mr
Ramdass
pointed to the fact that the nursing records indicated that Mrs Smith
was on a full ward diet. However the truth was that
she had
lived on bananas, milk, tea, soup, etc. She could not tolerate
solids and even her bananas and medication had to
be mashed.
[126]
Mr
Ramdass
submitted that it was significant to compare the pre-formalin Mrs
Smith with the post-formalin Mrs Smith. The greatest impact
upon her is what it has done to her both emotionally and
psychologically. She is assisted by Mrs Erasmus, purchasing the
items she needs to eat, and the list testified to by Mrs Erasmus
demonstrated the condition in which Mrs Smith currently finds
herself. Both Mrs Erasmus and Dr Elder painted a picture of a
lady who formerly enjoyed life, dancing, running a florist
shop,
etc. Mrs Smith has now been reduced to a recluse who does not
join her fellow residents for meals or activities and
no longer
visits restaurants. Dr Mohan testified that she was now denied
a basic human need – eating normally.
Dr Elder’s
evidence, which was not disputed, was that Mrs Smith suffers from
post-traumatic stress disorder and depression.
Her
post-traumatic stress disorder is chronic and untreatable. She
had lived with it thus far and will have to do so for
the rest of her
life. Intellectually and cognitively Mrs Smith is fine, but she
has been severely psychologically damaged.
She has lost the
enjoyment of being able to enjoy a normal meal, the activities she
previously participated in of painting, dancing,
floral arranging,
etc and lives in constant anxiety and fear of being returned to
hospital.
[127]
Mr
Ramdass
submitted that Mrs Smith was a credible witness and that her evidence
had the ring of truth. There is no doubt that formalin
is a
corrosive substance which injured her. Her initial reaction was
to tell the recovery staff that the formalin was burning
her.
Mr
Ramdass
emphasised the fact that Mrs Smith continues to have problems
swallowing and an inability to tolerate normal food. He submitted
that the hospital staff had attempted to downplay and minimise the
effects of the formalin on Mrs Smith. This could be seen
in
their description of the fact that Mrs Smith had only consumed ‘a
sip’ of the formalin. Given the fact that
Mrs Smith had
not eaten or drunk anything from the night before, she would clearly
have been thirsty when emerging from the theatre.
Indeed, Dr
Bishop’s note says so. Mr
Ramdass
queries why Mrs Smith would have been given water for nausea and what
prompted the evidence of Mrs Smith reporting a hiatus hernia
as a
reason for wanting water. There is no evidence of this in the
retrospective record compiled by the anaesthetist.
[128]
Mr
Ramdass
submitted that the evidence of Sister Govindasamy was unreliable
because she had not recorded the incident as she should have done.
She admitted that she bore an obligation to do so, and had not done
so. In addition she maintained that she had left at 12.45pm
which, on any version, was prior to the administration of the
activated charcoal to Mrs Smith. On what basis did she then
testify that she had been present when the activated charcoal was
drunk by Mrs Smith? The only explanation she had given
was that
she could have confused this with the ingestion of milk.
[129]
Mr
Ramdass
criticised the nursing staff notes which were clearly inaccurate.
He said that absolutely no reliance could be placed on
the repeated
phrase ‘tolerating well orally’ especially when those
notes had been made in the middle of the night alongside
other notes
recording that the patient had slept well throughout the night.
[130]
Mr
Ramdass
submitted that Dr Wilson’s evidence could not be relied upon
because he had never interviewed the plaintiff and never seen
the
Northdale Hospital records. The ambit of his investigation was
too narrow. The fact that certain questions had
been directed
to Dr Wilson, which he had answered, and that that had formed the
basis of his expert summary was a blinkered approach.
When one
compared, for example, his evidence to that of Dr Coka, Dr Coka had
experience of formalin ingestion. He was much
better placed to
be able to opine on the consequences of formalin ingestion. Mr
Ramdass
submitted that Dr Wilson appeared to rely heavily on the fact that
the formalin which was ingested was a buffered solution and
not an
undiluted solution. What we do know is that the plaintiff
experienced nausea, vomiting, pain, a sore throat and pharyngeal
mucosa injury. Dr Wilson’s report gives no real
explanation for these complaints. He regarded the presence of
helicobacter pylori as the ‘smoking gun’ for the
gastritis found in Mrs Smith. Dr Coka testified that although
helicobacter pylori exists in many persons, in Mrs Smith’s
case the virulence of it was triggered by the formalin,
and this had
never been challenged in evidence. Mr
Ramdass
submitted that Dr Wilson attempted to explain Mrs Smith’s chest
pains in terms of myocardial damage, but did not actually
deal with
the impact of formalin on her chest pains, and did not exclude that
the formalin could have caused the chest pains..
[131]
With regard to the damages suffered by Mrs Smith, Mr
Ramdass
advanced only three claims, past and hospital expenses of R5 000,
future hospital and medical expenses of R705 118 and
general
damages of R300 000. He recorded that Mrs Smith abandoned her
claim for past medical expenses because she had no vouchers
to
substantiate them. The claim for future medical expenses was set out
in the actuarial summary delivered in respect of Nielan
Kambaran. The
defendant had raised no queries about this and insofar as the
individual items were justified in the evidence, the
future medical
expenses were proved. Ms Peters had motivated the need for
annual consultations with a private gastro-enterologist,
an annual
gastroscopy, consultations with the dietician, both the need for four
initial consultations and four more per annum.
This was never dealt
with in evidence by the defendant. In addition Ms Ernest had recorded
the need for food supplements and a
food blender. Mr
Ramdass
conceded that no evidence had been led regarding the costs of the
treatment for dysphagia and the psychology consultations.
[132]
With regard to general damages Mr
Ramdass
referred to a number of cases, mostly
relating to motor vehicle accident incidents. Ms
Ramdass
submitted that an award of general damages to Mrs Smith required that
her loss of weight, stay in hospital, pain and suffering,
vomiting
and gastritis all needed to be taken into consideration. An
award of R250 000 was appropriate for her post-traumatic
stress
disorder and depression alone. Mr
Ramdass
submitted that an amount of R340 000 would be a proper
compensation for her general damages.
[133]
With regard to costs, Mr
Ramdass
submitted that a punitive order of costs was warranted because there
should have been an admission of the ingestion of the formalin
in the
plea. Denial had caused unnecessary costs and delays. The
defendant had been requested to make that admission
as early as 2013
and there was no reason for it not to have been made. He
submitted that as a mark of this court’s
disapproval of the
manner in which the defence had been conducted, a punitive order of
costs was appropriate. This was evidenced
by the total lack of
proper preparation by the defendant, its desire continually to
adjourn the matter and not deal with records
which had not been
discovered. In addition, no explanation had been offered for why that
was not done.
[134]
Mr
Chetty
submitted with regard to the factual injuries suffered by Mrs Smith,
her mere say-so could not be relied upon to prove them.
He
submitted that the evidence of damage was simply not there, because
Mrs Smith had not been injured. As she had suffered
no
gastro-intestinal injuries she was not entitled to payment. Mr
Chetty
submitted that Dr Coka did not conclusively say that her
gastro-intestinal problems were caused by the formalin. The
gastro-enterologist
had found no strictures and no injuries. In
addition Dr Coka had likened the injuries of Mrs Smith to those which
could have
been imposed by gastric reflux brought on by a condition
which Mrs Smith had had before the operation – i.e. the hiatus
hernia.
Dr Mohan testified as to evidence of scarring, but he
had not concluded that there was any damage to Mrs Smith’s
oesophagus.
Although no evidence had been produced to rebut the
finding of a post-traumatic stress disorder there was only one case
which had
dealt solely with that issue –
Potgieter
v Rangasamy
[2011] JOL 27633
(ECP).
The plaintiff had sustained injuries in that case but an award was
made of R75 000 for post-traumatic stress
disorder. Mr
Chetty
submitted that this was an appropriate award which could be made in
this case.
[135]
Mr
Chetty
stressed that it was rare that formalin was ingested and R100 000
would be suitable compensation for the general damages which
she had
suffered. This was particularly so because for example, the
nosebleeds, Warfarin had been explained as a contributing
factor.
[136]
Mr
Chetty
recorded that the costs of the November 2015 adjournment had been
reserved as had the costs of the hearing in May 2016. He
recorded that at the November 2015 hearing, the costs of the
adjournment were tendered by the defendant. He pointed out that
at that stage the plaintiff had no expert report from Dr Elder or any
actuarial report.
[137]
Mr
Chetty
queried
why Dr Coka’s travelling costs from Richards Bay should be paid
as a Pietermaritzburg doctor should have been consulted.
In
addition, Ms Peters did not really contribute and was not an expert
and those costs should accordingly not be allowed.
He also
submitted that the evidence of the dietician had been unnecessary
because if there were no gastro-intestinal injuries,
a dietician was
not appropriate. With regard to the scale of costs, Mr
Chetty
conceded that the defendant’s conduct of the action was not as
it should have been. With regard to the costs of the
16
th
May 2016, Mr
Chetty
recorded that the matter had been adjourned to enable Mrs Smith to
consider an offer.
[138]
In reply Mr
Ramdass
pointed out that Dr Coka had been instructed whilst he was still
practising in Pietermaritzburg at St Anne’s Hospital.
He
had only subsequently moved to Richards Bay. He stated that Mrs
Smith had made it clear that her chest pains and gastro-intestinal
symptoms were due to the formalin she had ingested. The
gastroscopy had showed a normal oesophagus but the scarring evident
in the procedure could not have been caused by reflux because Mrs
Smith had not suffered from reflux due to her hiatus hernia.
[139]
Mr
Ramdass
submitted that the evidence of Ms Peters was important because she
testified as to the cost of the annual visits to the enterologists.
A
dietician’s evidence had been important because it was clear
that Mrs Smith was not able to eat properly and normally after
the
ingestion of formalin.
[140]
It is now common cause that the anaesthetist negligently administered
formalin to Mrs Smith. I am required to decide:
a)
what consequences ensued as a result of the
administration of the formalin;
b)
the amount of damages, if any, to which Mrs
Smith is entitled to be paid.
[141]
In assessing the evidence of the various witnesses;
a)
I found Mrs Smith to have been a good
witness. There is no doubt, in common with all the witnesses who
testified to what happened,
that the intervening six year period did
not assist in ensuring an absolutely accurate recollection of all the
events. Thus, for
example, Mrs Smith may well have been mistaken
about the precise treatment administered to her in the recovery room,
whether she
was given an oxygen mask immediately, whether she was had
her heartbeat monitored, whether she was given milk, etc. I have no
doubt,
however, about her recollection of her immediate reaction to
the formalin. Her evidence in this regard has the ring of truth.
b)
Mrs Erasmus was also a good witness,
despite the fact that she may have confused the date upon which she
had observed Mrs Smith’s
drooping face, and was told that Mrs
Smith had suffered a mild stroke. Her description of the
circumstances under which she was
summoned to hospital was most
convincing, and underscored the seriousness with which the hospital
staff viewed the condition of
Mrs Smith at that stage. Coupled with
this was her evidence that Mrs Smith was in a very agitated state
when she first visited
her, and that she was complaining of burning
in her throat and was sweating profusely. (Dr Wilson described this
as ‘a fairly
extreme medical condition’).
c)
Dr Mohan was a specialist ear, nose and
throat surgeon, having practised as such since 1992. He had treated
patients for the ingestion
of corrosive substances, but not for
formalin ingestion. He examined Mrs Smith, and had viewed the
hospital records and the record
of her gastroscopy. He had little
doubt that the difficulty in swallowing and damage to her nasal
passages was as a result of the
ingestion of formalin. I have no
reason to doubt his evidence.
d)
Dr Elder’s evidence was very
significant because she diagnosed Mrs Smith as having ‘classic’
symptoms of post-traumatic
stress disorder as a result of the effects
of the formalin. The fact that she tested Mrs Smith for the
possibility of malingering
was very significant. Even more
significant was the fact that her evidence in this regard was in no
way challenged or disputed.
Im my view she was an excellent witness.
e)
Dr Coka was the only expert witness who had
previously dealt with cases of formalin ingestion. His training had
qualified him as
a Super Specialist Physician. His evidence confirmed
the probability of the correctness of Mrs Smith’s complaints
about being
unable to swallow, the burning sensations in her nose and
throat, chest pains and gastritis. His view that the treatment
administered
to Mrs Smith was too little, and given too late,
supported his view of the damage to Mrs Smith. He also confirmed that
the nosebleeds
from which Mrs Smith suffered would not have been due
to the Warfarin alone, and that the formalin was probably a trigger
for both
the nosebleeds and the gastritis. I viewed him as an
excellent witness.
f)
The remaining witnesses for Mrs Smith dealt
with her diet and the cost of various foods and items she would need
in order to maintain
a balanced lifestyle. I have no criticisms of
any of them, and no reason not to accept their evidence.
g)
The evidence of the anaesthetist and the
attending sisters in the recovery room contribute mainly to the
admitted negligence. There
is no doubt that their recollections have
been dimmed by the passage of time. The anaesthetist remembered very
little of the incident,
save for the administration of the formalin
and the fact that Mrs Smith complained of her hiatus hernia (as a
reason for wanting
water) and allegedly acted very calmly throughout.
This did not accord with the probabilities. The complaint about Mrs
Smith’s
hiatus hernia is not recorded in the notes made by the
anaesthetist shortly after the incident. The anaesthetist’s
evidence
in this regard was not corroborated by the attending
sisters. The probabilities overwhelmingly favoured the version that
Mrs Smith
had reacted as she said she did.
h)
Dr Bishop spoke to the treatment given to
Mrs Smith initially in the recovery room, where she was kept for
three hours because of
the incident. He related the dosage of
activated charcoal which he had prescribed for Mrs Smith, and the
administration of it.
He had never thereafter examined Mrs
Smith, and had only been contacted in October, 2015. He did not
witness the ingestion of the
formalin, and had no previous experience
of dealing with formalin ingestion. I have no difficulty with
his evidence insofar
as it relates to his own involvement in the
matter.
i)
Dr Wilson testified as an expert, having
been approached by the defendant’s attorneys in October, 2015.
He accepted that the
ingestion of formalin could have caused damage
to Mrs Smith, but opined that it was unlikely to have been
responsible for the gastritis,
or her problems with swallowing, or
the nosebleeds. However, Dr Wilson conceded that formalin could
cause damage to the mucosa,
but was of the view that a buffered
solution would be less likely to do so. His view of the endoscopy
report was that it indicated
that Mrs Smith had not suffered
extensive harm. He attributed her chest pains to a pre-existing
ischemic heart condition, or heartburn
as a result of recurrent
gastric reflux. He thought that the sweating witnessed by Mrs Erasmus
was a result of anxiety on the part
of Mrs Smith.
Notwithstanding
the opinions of Dr Wilson:
(i)
He never consulted with, or examined, Mrs
Smith.
(ii)
He had no previous experience with the
ingestion of formalin. For this reason, perhaps, he downplayed the
excessive sweating witnessed
by Mrs Erasmus, dismissing it as a
nervous reaction. He also downplayed the nosebleeds from which Mrs
Smith suffered. In doing
so, he completely ignored the evidence of
Mrs Smith that the blood had emerged ‘like long worms’
from her nostrils.
These were clearly not normal nosebleeds which she
was experienced.
(iii)
He accepted that Mrs Smith could have
experienced burning in her throat.
(iv)
He accepted that the dose of activated
charcoal should have been higher, and should have been administered
sooner than it was.
(v)
He accepted that the administration of
Amoxicilin was inappropriate.
(vi)
He regarded Mrs Smith’s weight loss
as extreme and not normal. This would normally only occur where heart
patients were treated
with diuretics.
In
my view Dr Wilson testified on the basis that his function was to
provide possible explanations for Mrs Smith’s complaints
on any
other basis than that they were brought on by her ingestion of
formalin. In saying this I do not in any way intend to suggest
that
he was being disingenuous in his evidence. He admitted, in reply to a
question from me, that no one had explained to him the
role of an
expert in testifying. I had asked the question because it seemed
clear to me that that had not been done.
[142]
Mrs Smith’s particulars of claim list the following
consequences suffered by her as a result of her ingestion of
formalin:
a)
enduring pain and suffering;
b)
remaining in hospital for six weeks longer
than she should have done;
c)
severe epistaxis;
d)
severe vomiting, abdominal pain and
diarrhoea;
e)
the inability to enjoy a normal diet;
f)
further surgery for the epistaxis;
g)
a significant weight loss;
h)
that she had to undergo a gastroscopy;
i)
that she has become depressed and does not
find life enjoyable anymore;
j)
that she will require future hospital and
medical treatment for both her physical condition and her continuing
altered mental state.
[143]
There is no doubt that Mrs Smith has been left with a very severe
disability as a result of the ingestion of the formalin
– that
is, her inability to eat properly. In this regard:
a)
Her evidence was that from the outset, she
was placed on a drip because she could not tolerate the intake of
normal food. Thereafter,
she has had to live on a diet of food which
has been reduced to a semi-liquid state. She endured, and continues
to endure, bouts
of vomiting if her diet is not controlled.
b)
Her evidence was supported by that of Mrs
Erasmus. She not only testified to Mrs Smith’s condition in
hospital, but also to
the fact that thereafter she has assisted Mrs
Smith on a monthly basis to purchase the food supplies she needs.
c)
The only evidence which may be regarded as
countering this, is that of the nurses’ records, containing the
oft-repeated phrase
‘tolerating well orally’. The
evidence revealed that the nurses do not have anything to do with the
serving of meals
in hospital, nor with the removal of plates, etc,
afterwards. They appear to rely on what may be told to them by other
patients
as to whether a particular patient is eating properly. Some
of the records are made at 2 or 3am, and, as I understood the
evidence,
patient notes are gathered up and the entries are made in
the nursing station. This can hardly be a satisfactory method of
recording
what has actually happened some seven or eight hours
previously.
d)
Although Dr Wilson regarded the nurses’
notes in this regard as reassuring, he accepted that the notes were
‘unreliable
at best’. This was also the view of Dr Mohan,
whilst Dr Coka described the notes as being suspect. Dr Coka did so
because
Mrs Smith had repeatedly been prescribed Maxolon (an
anti-emetic) whilst in hospital, and he opined that this would not
have been
done if Mrs Smith had been ‘tolerating well orally’.
e)
Mrs Smith’s evidence with regard to
all her complaints is substantially supported by the evidence of Dr
Elder to the effect
that Mrs Smith was not malingering. Indeed, no
suggestion that she was doing so was pertinently raised, despite Mr
Chetty’s
closing submissions that she had not been injured.
[144]
I was also left in no doubt that the nosebleeds from which Mrs Smith
suffered after leaving hospital had their origin in damage
caused by
the formalin. Although the administration of Warfarin may have
contributed to the quantity of bleeding, I am satisfied
on the
evidence before me, that it was not the primary cause.
[145]
It is more difficult to be certain about the cause of the chest pains
and the gastritis, but in my view it has been established
on a
balance of probabilities that the formalin was primarily responsible
for those complaints. Mrs Smith was adamant in her evidence
that she
had not suffered from reflux as a result of her hiatus hernia. There
was no evidence to contradict this. Indeed, I regard
the references
to Mrs Smith’s hiatus hernia by the anaesthetist to have been
an inaccurate reconstruction, based upon the
pre-admission notes of
Mrs Smith and done probably to attempt to explain the anaesthetist’s
breach of protocol in seeking
to administer water to Mrs Smith.
[146]
Having regard to the evidence of Ms Peters, Ms Ernest, and the
actuarial report, Mrs Smith had established her entitlement
to
damages for future medical and other expenses in the sum of R 550
741. I have arrived at this figure as follows :
Actuarial
calculation
: R705118
Less
: Items 1, 2 and 7 of the actuary’s
calculation – not proved :
R188
620
R516
498
Add
: (1) gastroenterology consultation 2 993 (2)
R5 000 for operation procedure and hospital fees
(all
at the same present values used by the actuary) 26 250 (3)
Nutribullet smoothie-maker 2 000
(4)
Blender
___ 3 000
TOTAL:
R550 741
[147]
The quantification of any claim for general damages is always a
difficult decision, with previous awards serving mainly as
a guide.
Ultimately I have to award an amount which I find to be fair and
reasonable. I have considered all the cases referred
to me by
counsel. Whilst they are helpful, the particular circumstances of
this case must be borne in mind. I have no doubt that
Mrs Smith
endured a thoroughly unpleasant stay in hospital, accompanied by
pain, discomfort and the very real fear of what the
future might
bring. Since then she had to suffer the pain and distress involved in
the nosebleeds with a further return to hospital
and an operation.
Then there is the matter of her inability to swallow and the
post-traumatic stress disorder brought about by
the whole experience.
Her future is bleak, and her advancing years will no doubt contribute
to her fears and inhibit the prospect
of a proper recovery.
[148]
In my view justice would be served were Mrs Smith to be awarded the
sum of R 340 000 for pain and discomfort, loss of
the amenities
of life and her disability in being unable to lead a full and happy
life. Although Mrs Smith’s Particulars
of Claim only
sought general damages In the sum of R300 000, the parties have
agreed to an amendment of that amount to R340 000
(without
conceding the appropriateness of such an award).
[149]
With regard to the question of costs, it is in my view appropriate to
award Mrs Smith her costs on an attorney and client
scale. I do so as
a measure of displeasure at the defendant’s conduct and the
conduct of his/her attorneys in defending the
action in the manner
which they did, as I have set out in detail in this judgment.
I
accordingly make the following order:
The
defendant is ordered to pay to the plaintiff:
a)
the sum of R 890 741;
b)
her taxed or agreed costs, calculated on
the scale as between attorney and client, such costs to include all
costs which were reserved
in the action (save for the costs of
adjourning the matter from the 16
th
May 2016 to the 18
th
May 2016, and the 19
th
May 2016 where the parties will each bear their own costs).
Dates
of hearing: 13
th
, 14
th
, 15
th
, 17
th
,
20
th
, 21
st
and 23
rd
days’ of
June 2016.
Date
of judgment: 2
nd
August 2016.
For
the plaintiff: Mr R Ramdass (Instructed by Siva Chetty and Company).
For
the defendant: Mr Chetty (Instructed by The State Attorney).