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[2016] ZAGPPHC 816
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Amos v MEC for Heath and Social Development and Another (35178/10) [2016] ZAGPPHC 816 (8 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO: 35178/10
DATE:
8/9/2016
In the
matter:
MARK
AMOS
PLAINTIFF
and
MEC
FOR HEALTH AND SOCIAL
DEVELOPMENT
1
st
DEFENDANT
PREMIER,
LIMPOPO PROVINCIAL
GOVERNMENT
2
nd
DEFENDANT
JUDGEMENT
KEKANA,
AJ
1. The
Plaintiff was involved in a quad bike accident on Sunday 12th August
2007. The Plaintiff attended at Tzaneen Medical Clinic
for medical
treatment. He was referred to the Letaba Provincial Hospital as the
Plaintiff did not have a medical aid facility.
The
Plaintiff sustained an open fracture of the left radius and ulna as a
result of the accident.
2. On the
day of admission at Letaba Hospital, Dr Lourens attended to Plaintiff
by performing a debridement of the wound, suturing
some of the cuts
and applying a backslab plaster of paris cast which covered half of
the arm and the rest of the arm having been
covered with bandages.
3. In his
particulars of claim in paragraph 8, Plaintiff alleged the medical
staff were negligent in their management of the Plaintiff
in one,
more or all the following respects:-
"8.1
They failed to perform adequate radiological investigations on the
Plaintiff's left forearm pre and post operatively and thereby
failed to adequately assess the true nature and extent of the
Plaintiff's condition;
8.2
They failed to make an adequate diagnosis of the Plaintiff's
condition and inter alia, failed to timeously diagnose pathology to
the Plaintiff's left elbow and wrist;
8.1
They failed to adequately reduce the multiple fractures sustained to
various anatomical areas of the Plaintiff's left forearm;
8.4
They incorrectly reduced
the multiple
fractures to
the Plaintiff's
left
forearm,
and
failed
to
appreciate
and correct
the
disturbed
anatomy
of
the
Plaintiff's
left forearm;
8.5
They
failed
to
adequately fixate
the Plaintiff's
forearm post-operatively;
8.6
They
failed
to procure
the
services
of
an
orthopaedic surgeon
timeously alternatively
at
all,
in
the circumstances
where
they
could
and
should
have done so;
8.7
They failed to
refer
the
Plaintiff to an
alternate,
adequately
equipped
and
staffed
health
care
facility in circumstances
where
they
could
and
should
have
done
do;
8.8
They failed to assess, diagnose and surgically treat the
Plaintiff with the degree of skill, and expertise with which they
could
and should have done so in the circumstances; and
8.9
They failed to procure the Plaintiff's informed consent to any
of the surgical procedures performed on him".
4. It is
trite law that in order to succeed in a delictual claim, a claimant
would have to prove the following: causation, wrongfulness,
fault and
harm.
5. A
successful delictual claim entails the proof of a causal link between
the Defendant's actions or omissions, on the one hand,
and the harm
suffered by the Plaintiff on the other hand. Legal causation must be
established on a balance of probabilities.
6. The
Plaintiff called as his expert witness Professor Van der Jagt an
orthopaedic surgeon, who has been practising as such form
1993.
Professor Van der Jagt consulted with the Plaintiff on 10
th
February 2011.
7.
Professor Van der Jagt testified that his opinion is based on the
facts and the data he ascertained from the clinical and medical
records of the treatment and management of the Plaintiff's injuries
from Letaba Hospital and investigations and examination which
included the radiological examination performed on 10
th
February 2011.
8.
Professor Van der Jagt testified that Plaintiff sustained a
dislocation of his elbow as well as a compounding fracture of the
distal and of his left radius and ulna.
9.
Professor Van der Jagt testified that, despite the surgical
procedures performed on the Plaintiff, the Plaintiff was left with
a
chronically dislocated left elbow and a markedly restricted range of
movement of that elbow and a chronic non-union of his distal
radius
fracture.
10. In
his testimony, Professor Van der Jagt conceded that the k wires
can be used as a method of stabilising. However, he
testified that
given the severity of the injury sustained by the Plaintiff, which
was compound in nature, the treating doctors
should have used the
plates and screws to stabilise the hand.
11.
Defendant appointed Professor Vlok, to review the clinical records of
Letaba Hospital. Professor Vlok did not examine the Plaintiff.
The
two experts, after discussing the medical and clinical records from
Letaba Hospital, they prepared joint minutes, setting out
areas and
their views on the matter.
12. In
their joint minutes, the experts agree that if the management of the
Plaintiff's injuries were beyond the level of skill
of the treating
doctors, the Plaintiff should have been referred to an appropriate
tertiary facility. The experts agree that from
the records and also
relying on Professor Van der Jagt's examination, which they both
concede was conducted some 4 years ago, that
the Plaintiff has a
residual chronic elbow fracture-dislocation as well as an established
non-union of his distal radius on the
same side.
13.
Plaintiff's testimony was that he was never provided with sufficient
information on the risks and complications that could be
encountered
during the procedures and the healing process.
14. Dr Du
Preez, testified for the Defendant. He testified that he worked in
Letaba Hospital's Orthopaedic Surgeon from 1980 to
2005. Dr Du Preez
also testified that Dr Williams was employed full time as a Principal
District Surgeon at Letaba Hospital. Dr
Williams has since retired
and he is now living in Australia.
15. Dr Du
Preez stated that Plaintiff's injury was serious in that he sustained
an open fracture of the radius and ulna and a dislocation
of the
elbow. Dr Du Preez further stated that Plaintiff's injuries were what
is referred to as "a bag of bones" which
is impossible to
fix until you have stabilised it.
16. Dr Du
Preez on the 15th August 2007 after consultation with Dr Williams,
performed a close reduction procedure, using k
wires to
immobilise the fracture. On the 16th August 2007, on examination of
the Plaintiff, he noticed that the wrist was medially
displaced.
17. Dr Du
Preez advised Dr Williams of the outcomes of the surgery. On 22nd
August 2007, he assisted Dr Williams when he performed
corrective
surgery. Dr Williams performed an open reduction of the ulna and
daragh procedure, using the k wires.
18. Dr Du
Preez, stated under cross-examination that the plates and screws
could not be used as the Plaintiff's wound was septic.
19. Dr
Myburgh, is another doctor who treated Plaintiff whilst he was
admitted at Letaba Hospital. Dr Myburgh testified that at
the time
the Plaintiff was operated, he was a general practitioner with only
two years' experience as a medical doctor.
20. Dr
Myburgh carried out the procedure to reduce the ulna and radius,
after consultation with Dr Williams.
21. Dr
Myburgh testified that he explained the risks associated with the
procedure to be carried out to the Plaintiff. He also stated
that the
standard consent form they use in hospital, does not have a part
where such could be recorded.
22. Dr
Myburgh collaborated Dr Du Preez's testimony that Plaintiff's wound
was septic and therefore they used the k wires.
He further
stated that Plaintiff was on a continued treatment of cloxacillin,
which is an antibiotic.
23. Dr
Myburgh consulted with Plaintiff again on 01
st
October
2007, and he found that the left elbow is still dislocated and there
was non-union of the left wrist.
24. On
the 15th October 2007, Dr Myburgh consulted with Plaintiff and
replaced the backslab with a new one. Dr Myburgh stated under
cross-examination that Plaintiff's fracture was bad and could not
possibly be fixed, especially given the challenge of sepsis.
25. The
question that I am called to adjudicate upon is firstly whether the
medical doctors charged with the care of the Plaintiff
ought to have
reasonably foreseen a danger that his hand will be deformed. The
second question is what steps would a reasonable
medical doctor have
taken to guard against this foreseeable harm.
26.
Plaintiff's counsel in her argument referred the court to the case of
Goliath
v
MEC for
Health,
2015
(2) A
SA
97
(SCA).
In this
matter, the court stated that some incidents occur in circumstances
where the evidence of the alleged negligence of the
defendant is not
easily available to be the plaintiff but is, or should be, to the
defendant. The court stated that to hold a medical
practitioner
negligent simply because something went wrong would be impermissibly
reasoning backwards from effect to cause. The
court then dealt with
the maxim of
res ipsa loq
and came to the conclusion that the maxim was not a
magical formula but merely a permissible inference which the court
may employ
upon all the facts which appears to be justified. It is
usually invoked when the only known facts relating to negligence
consist
of the occurrence itself where the occurrence may be of such
a nature as to warrant an inference of negligence. It was also stated
that the defendant against whom the inference of negligence is sought
to be drawn, may produce evidence in order to explain that
the
occurrence was unrelated to any negligence on their part.
27.
Plaintiff's counsel argued that the inference that can be drawn in
this matter is that on a balance of probabilities a patient
with a
badly broken arm does not leave a hospital with a deformed arm of
which every single bone that was broken at the outset
is still
broken. She also argued that the
contention by Defendant that Plaintiff's accident
caused
the deformity can simply not be entertained.
28.
Plaintiff's counsel further argued that if one accepts Defendant's
version that further operations could not be undertaken due
to
sepsis, then why was the Plaintiff discharged when the most effective
treatment would have been an intravenous application of
the
medication and the risk of further damage to the radius and ulna that
has not been adequately fixated was a real and imminent
danger. She
argued that, that in itself amounted to negligence.
29.
Plaintiff's counsel submitted that on a balance of probabilities, the
Plaintiff has discharged its burden of proof and the court
should
find in his favour.
30.
Defendant's counsel in his argument stated that the Plaintiff and
Professor van der Jagt appear to be making an assumption of
negligence on the part of the Defendant's servant based on the
outcome of the operation. To them the fact that the arm is deformed
and has limited functionality denotes negligence. He submitted that
amounted to reasoning backwards from effect to cause which
is
impermissible.
31.
Defendant's counsel argued that the test is whether or not the
conduct of the doctors who operated on the Plaintiff fell belowthe
standard of a reasonably competent practitioner in the field of
orthopaedics.
32.
Defendant's counsel submitted that the only cogent criticism which
Professor van der Jagt could level at the manner in which
the
procedure was carried out, was the failure to insert plate screws
instead of k-wires and the failure to refer Plaintiff to
a tertiary
facility.
33.
Defendant's counsel also submitted that the dislocations on both the
wrist and the elbow were attended to by firstly a close
reduction and
later open reduction. A backslab held the arm in place. He argued
that all this procedures were done under the supervision
of a
specialist orthopaedic surgeon, Dr Williams.
34.
Defendant's counsel argued that in order for the Plaintiff to succeed
in discharging the onus which he bears, he has to point
out that what
the treating doctors did was sub-standard. He submitted that it has
to be borne in mind that a medical practitioner
is not expected to
bring to bear upon a case entrusted upon him the highest possible
degree of professional skill, but to employ
reasonable skill and
care.
35.
Defendant's counsel conceded that the refusal of Plaintiff's
treatment on 16
th
August 2007 does not appear to have
played any adverse role in the outcome of the operation.
36.
Defendant's counsel argument that at the end, the cause of deformity
of the Plaintiff's arm is the accident. Plaintiff has failed
to show
what the interventions are which the doctor failed to implement.
37. The
general rule is that he who asserts must prove. Thus in a case like
this, Plaintiff must prove that the damage that he has
sustained has
been caused by the Defendant's negligence. The failure of a
professional person to adhere to the general level of
skills and
diligence possession and exercised at the same time by the members of
the branch of the profession to which he or she
belongs would
normally constitute negligence
(Van
Wyk
v
Lewis
1924 AD 438
at 444).
38.
I
n
Rankisson
& Son v
Springfield
Omnibus
Services
1964 (1)
SA
609
at
616
D
,
the
court held that the degree of
persuasiveness required of the defendant will vary according to
the
general probability or improbability of his explanation. If he offers
an explanation which, if true, would
reflect
an occurrence very rarely and exceptionally encountered in the
ordinary course of human experience, very much
more would be required
of him by way of supporting facts than if he offered an explanation
which found a ready echo in the daily
routine of life.
39.
Plaintiff's case is centred on the evidence of Professor van der
Jagt, an expert orthopaedic surgeon. The correct approach to
the
evaluation of medical evidence is the one laid down by the Supreme
Court of Appeal in
Michael
and
Another
v Linksfield
Park
Clinic
(Pty)
Ltd
and
Another
[2001]
ZASCA;
2001
(3) SA
1188 (SCA)
(Linksfield)
where it held that although it has often
been said in South African cases that the governing test for
professional negligence is
the standard of conduct of the
reasonable practitioner in the particular professional fields,
that criterion is not
always itself helpful to finding the answer.
That being so, what is required in the evaluation of such evidence is
to determine
whether and to what extent their opinions advanced are
founded on logical reasoning.
40. I
have evaluated Professor van der Jagt's report and his evidence
passes the reasonable and logical requirement for the acceptance
of
expert evidence. Professor van der Jagt's finding were supported by
the radiological investigations done on the Plaintiff's
hand.
Professor van der Jagt conceded that the k-wires can be used to
stabilise the fracture in an open and closed reduction procedure.
However, Professor van der Jagt opined that when the treating doctors
discovered that the wound was septic, they should have opted
for
external fixation or even refer the Plaintiff to a tertiary facility.
Professor van der Jagt also testified that according
to his
experience, tertiary facility in this instance, Pietersburg Hospital,
would be more equipped to deal with the serious and
compound fracture
sustained by the Plaintiff.
41. On
the other hand, I have evaluated the evidence of Dr Du Preez and Dr
Myburgh. Ifound that both doctors were credible witnesses.
I also
found that Dr Du Preez and Dr Myburgh believed that the procedures
and treatment they performed on the Plaintiff was good,
especially
because they consulted with a resident orthopaedic surgeon, Dr
Williams, whom they held in high esteem. Both doctors
conceded that
when the first operation did not go well, they engaged Dr Williams,
who performed the corrective surgery.
42. In
Mitchell
v Dixon
1914
AD
519
at
525,
the Appellate Division noted that this standard does
not expect the impossible of medical personnel:
"a
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he is bound to employ reasonable skills and care; and he is
liable for the consequences if he does not".
43. The
key point is that negligence must be evaluated in light of all the
circumstances. This means that we must not ask what would
exceptionally competent and exceptionally knowledgeable doctors have
done, we must ask what can be expected of the ordinary or
average
doctor in view of the general level of knowledge, ability, experience
skills, diligence possessed and exercised by the
profession, bearing
in mind that a doctor is a human being and not a machine and that no
human being is infallible. Practically
what we must ask is was the
medical professional's approach consonant with a reasonable badly of
medical opinion? With a medical
specialist, the standard is that of
the reasonable specialist.
44.
Having regard to the evidence led by the Defendant, it is very clear
in my mind that Dr Du Preez and Dr Myburgh employed the
reasonable
professional skill given their level of knowledge, ability and
experience. It is also clear in my mind that they referred
the
Plaintiff to Dr Williams, an orthopaedic surgeon, who is a specialist
in that field.
45.
Professor van der Jagt and Professor Vlok, who I regard as the peers
of Dr Williams, questioned the status and the level of
expertise of
the various doctors who treated Plaintiff. They are also agreed that
if the management of the Plaintiff's injuries
were beyond the level
of skill of treating doctors, the Plaintiff should have been referred
to an appropriate tertiary facility.
46. Dr Du
Preez and Myburgh, including the hospital records, testified that the
patient continued to be treated as an outpatient.
Dr Myburgh's
testimony is that on the 01
st
October 2007, almost two
months after the operation, Plaintiff's elbow was still dislocated
and a non-union was visible on his
left wrist.
47. On
the 15
th
October 2007, Plaintiff was seen again at Letaba
Hospital and on his own accord, he requested a new backslab. Dr
William was still
a resident orthopaedic surgeon and there is no
record that he managed the Plaintiff, even though Dr Du Preez and Dr
Myburgh stated
that Plaintiff's fracture was serious.
48. The
question is to be asked is whether the approach by Dr Williams, a
specialist orthopaedic surgeon is consonant with a reasonable
body of
medical opinion. Dr Williams failed to evaluate comparative risk and
benefits of the treatment he recommended. In the circumstances
Dr
Williams did not take any reasonable precautionary steps that he knew
should and could have been taken.
49. The
Plaintiff had to prove negligence on a balance of probabilities. He
had to show that the doctor treating him should probably
have acted
differently according to the reasonableness standards set out.
50. On a
balance of probabilities, the Plaintiff has succeeded to discharge
its burden of proof.
51.
In the result, I make the following order:-
a.
Defendant to pay Plaintiff's proven damages;
b.
Defendant to pay Plaintiff's costs of suit on party and party scale,
including the qualifying fees
of Professor van der Jagt.
_______________________________
KEKANA,
AJ
ACTING
JUDGE OF THE HIGH COURT OFSO
GAUTENG
PROVINCIAL IVISION,
PRETORIA
Attorneys
for the Applicant/ Plaintiff: Levin Tatanis Incorporated
Attorneys
for the Respondent/ Defendant: The State Attorney