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[2016] ZAGPPHC 1134
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Glynwood Hospital Operating Company and Another v Kilmister (75711/13) [2016] ZAGPPHC 1134 (10 November 2016)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
10/11/2016
CASE
NO: 75711/13
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
GLYNWOOD
HOSPITAL
OPERATING
COMPANY
EXCIPIENT/1
st
DEFENDANT
DR
JOHANNES SAMUEL
FREDERICK
BRINK
EXCIPIENT/2
nd
DEFENDANT
and
MALCOLM
LEOTNARD KILMISTER
RESPONDENT/PLAINTIFF
EXCEPTION
-
JUDGMENT
KHUMALO
J
[1]
The 1st Defendant has taken an Exception to certain paragraphs of the
Plaintiff's particulars of claim as amended, on the ground
that they
lack the necessary averments to sustain a cause of action.
[2]
The salient facts
are that the Plaintiff, Mr M L Kilmister has instituted an action for
damages against 1st Defendant, Glynwood
Hospital Operating Company, a
registered private hospital, the excepting party, and Dr JFS Brink,
the 2nd Defendant, ("Dr
Brink"), a cardio vascular and
thoracic surgeon. I continue to refer to the excepting party as the
1st Defendant, alternatively
"the hospital" and the
Respondent as the Plaintiff for the sake of convenience.
[3]
Dr Brink assisted
by nursing personnel in the employ of the 1st Defendant performed a
surgical procedure on the Plaintiff on 23
July 2012 upon Plaintiff's
admission at the hospital. An independent practicing cardiologist
based at the hospital had referred
the Plaintiff to Dr Brink. The
surgery performed was an open heart operation for a triple bypass
that involved the undertaking
of an arterial transplant and the
insertion of a temporary pacemaker.
[4]
At the end of the
surgical procedure the nursing personnel noticed that a ray tex
swab was missing apparently left in the Plaintiff's
body and brought
it to Dr Brink's attention. In its amended particulars of claim, the
Plaintiff alleges that:
[8.6]
Dr Brink, despite having been informed, failed to have any further x
rays taken so as to determine whether the ray-tex
swab had been
misplaced and left within the body of the Plaintiff.
[8.7]
The nursing personnel also failed to take any further steps as
to
alert the management
of the said hospital of the swab still retained in Plaintiff's body,
as such an incident could have serious
consequences.
[8.8]
Post operation
radiological examinations were also performed on Plaintiff, as
instructed by Brink, where after Brink informed the
Plaintiff that a
swab had been detected in his chest that would have to be surgically
removed.
[8.11]
Brink informed the Plaintiff that
as
a result of the retained swab,
infection
had set in and Plaintiff experienced severe operative pain and shock
due to further surgery and infection and also received
further
conservative medical treatment.
He
was discharged from the hospital on 19 August 2012.
[9]
The 1
st
Defendant unlawfully breached
its obligations
in
terms of the agreement entered into with Plaintiff
and
cumulatively therewith unlawfully breached its legal duty of care
towards the Plaintiff
in
being negligent in one
or more or all of the following respects:
[9.1]
The nursing personnel
failed
to take reasonable steps to inform the management of the hospital
that a swab had been retained in Plaintiff's body
subsequent
to the surgical procedure performed on 23 July 2012, well
knowing
that
such failure
would result therein that despite being aware of the risk that the
plaintiff had been exposed to,
if
not disclosed, would lead to the deterioration of the Plaintiff's
medical condition.
[9.2]
Failed to inform the
Plaintiff that there had not been a complete retrieval of all
surgical swabs used during the surgical
procedure,
so as to appraise
Plaintiff of the risk that he is exposed to and to grant him the
opportunity to take an informed decision as to
further medical
advice.
[9.3]
The
nursing
personnel elected to remain silent as
to
the risk that Plaintiff was exposed to with the retained swab in his
body and therefore associated themselves with
the
failure by the 2nd Defendant to take adequate preventative steps for
removal of the retained swab.
[5]
He further has
alleged that:
[6.3]
at time of admission to the hospital the plaintiff, acting in his
personal capacity and the duly authorized employees of the
hospital
acting within the course and scope of their employment and in the
execution of their duties with the hospital, entered
into a verbal,
alternatively tacit agreement.
[6.4]
The terms of the verbal, alternatively tacit agreement entered into
between the parties were that the plaintiff, against the
payment,
would receive medical management and treatment from the nursing
personnel at the hospital, pertaining to his admission
and that all
such medical management and treatment rendered by the said nursing
personnel, will be rendered with the necessary
care, skill and
diligence as can reasonably be expected from the nursing personnel in
similar circumstances.
[11]
As a result of the
negligent conduct of 1st and 2nd Defendants the Plaintiff had to
undergo surgery for removal of the retained
swab which caused the
Plaintiff to have contracted infection and Plaintiff still suffers
from chronic pain and discomfort.
[11]
As a result of the wrongful and negligent conduct of the 1st and 2nd
Defendants
the Plaintiff suffered damages in the amount of R1 230 000.00
[6]
The 1st
Defendant's excepts to the formulation of the Plaintiffs cause of
action based particularly on the following two specified
grounds,
First
Ground,
[7]
That a cause of
action as formulated by Plaintiff in its amended particulars of claim
against 1
st
Defendant, is premised,
inter
alia,
upon an
averment:
[7.1]
at paragraph 8.5. that:
"At
the time of the surgery the Second Defendant was informed by one of
the nursing personnel in the operating theatre, that
a raytex swab
was
missing,
as
confirmed
by the Hospital Records (a copy of which
is
annexed hereto
as
Annexure
"A".
[7.2]
In furtherance of formulating his claim, Plaintiff proceeds to allege
at paragraph 9.1. that 1st Defendant's liability arises
from:
"The
nursing personnel having
failed
to take reasonable steps to inform the management
of
the hospital that
a
swab had been retained
in Plaintiff's body subsequent to the surgical procedure performed on
23 July 2012,
well
knowing that such failure would result therein that despite being
aware of the risk that the Plaintiff had been exposed to,
if not
disclosed, would lead to the deterioration of the Plaintiff's medical
condition.
[7.3]
Also, in paragraph 9.2. that:
Failed
to inform the Plaintiff
that
there had not been
a
complete retrieval of
surgical swabs used during the surgical procedure, so
as
to appraise Plaintiff
of the risk that he
is
exposed to and to
grant him the opportunity to take an informed decision
as
to further medical
advice"
[8]
Accordingly, 1st
Defendant contends that on Plaintiffs own pleaded version,
the
acts and/or omissions he complains about, with specific reference to
the involvement of the 1st Defendant
viz-a-viz
its nursing personnel,
transpired
or occurred
ex
post
the
actual conduct ostensibly giving rise to the apparent damages
suffered by the Respondent, i.e. the retained raytex swab.
[9]
Further, that in
the circumstances, no causal nexus exists between the damages
allegedly suffered by the Plaintiffs and the
commissio
and/ or
omissio
by and on behalf of
the 1st Defendant and its nursing staff, as alleged by the Plaintiff.
Therefore the Plaintiffs amended particulars
of claim fail to
disclose a cause of action as against the 1st Defendant, in
consequence to which no possible evidence to be led
by the Respondent
in due course can disclose a cause of action.
Second
ground,
[10]
1st Defendant contends that Plaintiff, in its amended particulars of
claim pleads:-
[9.1]
at paragraph 9.3 that:
"The
nursing personnel elected to remain silent as to the risk that
Plaintiff was exposed to with the retained swab in his
body and
therefore associated themselves with the failure by the Second
Defendant to take adequate preventative steps for removal
of the
retained swab."
[11]
And to that extent
the Plaintiff pleads:
[11.1]
at paragraph 8.3 of its amended particulars of claim that
"At
the time of surgery the Second Defendant was informed by one of the
nursing personnel in the operating theatre that
a
raytex swab was
missing, as confirmed by the hospital records,
a
copy of which
is annexed hereto
as
Annexvre A"
[12]
1st Defendant
declares firstly that by virtue of Section 56 (6) of the Nursing Act
33 of 2005, (as amended) read together with the
Regulations published
thereunder in the government Gazette, a professional nurse is
expressly prohibited by statute from examining
any patient for the
purpose of making a diagnosis, save for referring such observations
to a registered medic I practitioner; that,
[13]
In the premises
the 1st Defendant argues that its nursing staff discharged any and
all obligations it had towards the plaintiff
in accordance with the
relevant statutory duties read together with the applicable scopes of
practice and good standards expected
from the 1st Defendant and its
nursing staff.
[14]
Wherefore it
alleges that Plaintiff's amended particulars fail to disclose a cause
of action as against the 1st Defendant, in consequence
of which no
possible evidence to be led by the Plaintiff in due course can
disclose a cause of action.
[15]
It was argued further on behalf of the 1st Defendant that
a
professional nurse does not conduct surgical procedures and can
therefore not have left a surgical and /or swab and or a foreign
object in the body of the Plaintiff.
Further
to the aforesaid, a professional nurse does not have the relevant
authority to refer a patient for x-ray examination as
is pleaded by
the Plaintiff. 1st Defendant surmises' that the obligations as
pleaded by the Plaintiff can only be performed on
the express
instruction of a medical professional. The Plaintiff has failed to
establish that the attending medical professional,
which in this case
was the Second Defendant, was employed by the 1st Defendant.
Applicable
law
[16]
Rule 18 (4) of the Uniform Rules of the High Court provides that
every pleading shall contain a clear and concise statement
of the
material facts upon which the pleader relies for his claim, defence
or answer to any pleading, with sufficient particularity
to enable
the opposite party to reply thereto.
[17]
It is a basic principle that the facts set out as to constitute a
cause of action (the premise for the relief sought) must
be such that
the relief prayed for flows from them, and can properly be granted.
Otherwise the summons will be excipiable as disclosing
no cause of
action; see
Trope v
South African Reserve Bank and Another
1992
(3) SA 208.
[18]
The Plaintiff, having specified the remedy it seeks, the facts
pleaded must support that remedy, there being a nexus between
the
relief sought and the conduct it is alleged begets the claim.
Basically it means the cause and the action must interrelate,
factually and legally.
[19]
It is also a basic principle that there should be a consistency of
allegations of fact, a greater degree of particularity being
required, more so, since non- compliance with Rule 18 amounts to an
irregular step; see Rule 18 (12).
[20]
The 1st Defendant's first ground of exception that its nursing
personnel's
acts
and/or omissions complained about took place after the actual conduct
allegedly giving rise to the apparent damages suffered
by the
Plaintiff, i.e. the retained raytex swab, had occurred.
[21]
The Plaintiff has
in its particulars alleged
that
as a result of the negligent conduct of
1st
Defendant and Dr Brink
the Plaintiff had to undergo further surgery for removal of the
retained swab which caused the Plaintiff
to contract infection. The
Plaintiff still suffers from chronic pain and discomfort which had
resulted in the Plaintiff suffering
damages in the stated amount.
[22]
At the same time
Plaintiff states in his particulars that he had to undergo further
surgery due to a raytex swab having been left
in his body by Dr
Brink. Besides the inconsistency of the alleged facts, the stated
failure to report transpired after the incident
has arisen, therefore
it was not in consequence of the alleged omission that Plaintiff
suffered the alleged mishap. Even if the
omission happened prior, it
should be borne in mind that an omission per se is not
prima
facie
wrongful. As in
determining liability the relevant question to ask would be whether
the 1st Defendant's (through its nursing personnel)
alleged
conduct/omission caused, or materially contributed to the harm
sustained by the plaintiff.
Minister
of Police v Skosana
1977
(1) SA 31
(A) 34-35. It is for the Plaintiff to allege sufficient
facts to justify the conclusion of wrongfulness. The wrongfulness of
failure
to report being determinable from the facts alleged in
support of the alleged legal duty. The facts alleged in support of
the alleged
legal duty represent the high-water mark of the factual
basis on which the Court will be required to decide the question. If
those
facts do not prima facie support the legal duty contended for,
there is no reason why the exception should not succeed as lacking
averments necessary to sustain the action.; see
Lilicrap,
Wassenaarand Partners v Pilkington Brothers
1985
(1) SA 475
(A) 496 in fine-497A;
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992
(1) SA 783
(A) 801C
[23]
Now, Plaintiff 's
connection of the nursing personnel's omission or failure to report
with the damages he suffered due to having
to undergo another
operation to remove the swab is fallacious. For the nursing personnel
to be liable for Plaintiff having to undergo
another procedure or
contract an infection, their duty is supposed to have arisen prior or
when the swab was left in the body of
the Plaintiff which is the
cause of Plaintiff suffering damages. The allegation therefore that
the 1st Defendant is liable as a
result of its nursing personnel's
conduct is factually and legally not justifiable from the alleged
facts and therefore lacks merit
and cannot be sustained, which makes
the claim against the 1st Defendant excipiable; see International
Shipping Ca (Pty) Ltd v
Bentley
1990 (1) SA 680
(A) and Bayer Soth
Africa (Pty) Ltd v Frost
1991 (4) SA 5
59 (A).
[24]
Furthermore, the
hypothetical negligent conduct of the 1st Defendant's employees
referred to, is in contradiction to Plaintiff's
assertion that the
nursing personnel in fact had reported the missing swab to Dr Brink
who incidentally also arranged far the post
operation x-rays and
notified the Plaintiff of his observation. The medical officer was in
charge of Plaintiffs surgical procedure,
managing the operation as a
result the person responsible and qualified to deal with the problem.
Consequently there are no sufficient
facts to justify either a
conclusion or an inference that the nursing personnel's conduct was
wrongful and resulted in the damages
suffered by the Plaintiff.
[25]
Generally, for
liability to arise, there must be a causal link between the
Defendant's conduct and the Plaintiffs loss. Such causal
link
("causation") has two elements: factual and legal.
Factually, the Supreme Court of Appeal (SCA) has accepted that
the
conditio must be
a
sine qua non of the
loss; Axiam Holdings Limited v Deloitte
&
Touche
(30312004)[2005] ZASCA 61;
[2005] 4 All SA 157
(SCA) (1 June 2005),
or "but-for"
test, as the one to be applied and has consistently stated that the
causation element involves a second aspect,
legal causation or
remoteness of damage, which is not concerned with causation so much
as with restricting the causal effect of
the defendant's conduct.
Various tests for legal causation have been suggested but the
Appellate Division has opted for a flexible
umbrella criterion, which
determines the closeness of the link according to what is fair,
reasonable and just; see Cape Town Municipality
v Paine
1923 AD 207
at 216-17.
[26]
In related
circumstances the damages should have resulted from the conduct of
the 1st Defendant vis-a-vis its employees (nursing
personnel), agent
or any other person for whose actions the 1st Defendant is legally
responsible. The Plaintiff has failed to establish
a causal nexus
between the damages allegedly suffered by the Plaintiff and the
omissio
by
and on behalf of the 1st defendant (its nursing personnel). The
conduct allegedly
giving rise to the Plaintiff's apparent damages in
casu
is limited to
the extent of Dr Brink's conduct for whom neither the 1st Defendant
nor its nursing personnel carry responsibility.
[27]
The second
exception is taken against the allegation
that
the nursing personnel elected to remain silent as to the risk that
Plaintiff was exposed to with the retained swab in his body
and
therefore associated themselves with the failure by Dr Brink to take
adequate preventative steps for removal of the retained
swab."
In
Lillicrap,
Wassenaar and Partners
at
4961
-
4978
it was held that:
"It
is trite law that, to succeed in such a claim, a plaintiff must
allege and prove that the Defendant has been guilty of
conduct which
is both wrongful and culpable; and which caused patrimonial damage to
the plaintiff (eg
Van
der Walt
(op
cit para 2at 2). What has been placed in issue by the Appellant is
whether, on the facts pleaded, the appellant's conduct was
wrongful
for the purposes of delictual liability, and whether the damages
alleged to have been suffered, are recoverable in a delictual
action."
[28]
On this point,
Plaintiff seem to have lost sight that the already mentioned fact
that nursing personnel perform auxiliary/ secondary
functions under
the guidance and expertise of the medical officer. They therefore
cannot be expected to take decisions and take
over the control or
functions of a medical officer, going beyond what they are legally
bound to do in terms of the statutory functions.
These set out the
standard of diligence required of the profession. Nurses are
therefore incapable of deriving a responsibility
for actions or
situations beyond their control. The Plaintiff has failed to allege
sufficient facts to justify the conclusion that
their conduct was
wrongful in the delictual sense.
[29]
It is the
applicable principle that for purposes of deciding an exception the
court is obliged to take the pleadings as they stand,
assuming the
truth of the allegations contained therein. However the principle is
limited in operations to allegations of fact
and could not be
extended to inferences and conclusions not warranted by the
allegations of facts; see
Natal
Fresh Produce Growers Association v Agroserve (Pty) Ltd
1990
(4) SA 749.
[30]
According to the
particulars the nursing personnel reported the missing swab to Dr
Brink, the medical officer responsible for Plaintiff's
surgical
procedure and in charge of the operation therefore qualified to deal
with the problem. In line with his responsibility
Dr Brink instructed
for
post operation
radiological examinations to be performed on Plaintiff,
and
duly advised the Plaintiff of the swab in his body.
[31]
The conduct of the
nursing personnel conforms to the statutory requirements that govern
their practice, the
Nursing Act, Act
33 of 2005 (as amended) read
together with the Regulations GNR.2598: Regulations relating to the
scope of practice of persons who
are registered or enrolled under the
Nursing Act, 1978 published thereunder in the Government Gazette.
Their observation was brought
to the attention of the medical
officer. The taking of measures for the removal of the swab is
outside the nursing personnel's
scope of work. Therefore to find that
Dr Brink conduct should be attributable to the nursing personnel or
that the nursing personnel
by their conduct associated themselves
with the failure by Dr Brink to take adequate preventative steps for
removal of the retained
swab when they are not qualified or duty
bound to do so and thereafter find the 1st Defendant liable, is
preposterous. Such a conclusion
is not warranted by the facts or in
law. In such instance the court is not obliged to stultify itself by
accepting allegations
of fact that are so divorced from reality that
they cannot possibly be proved; see
Natal
Fresh Produce Growers Association SA
at
749.
[32]
Mr Bezuidenhout
moved for the particulars of claim to be set aside and that the
Plaintiff be granted leave to deliver amended particulars
of claim
contrary to what 1st Defendant sought in its notice of motion, which
is for the Plaintiff/ Respondent's claim as against
the 1st Defendant
to be dismissed with costs. It however is correct that in accordance
with the relevant statutes read together
with the applicable scopes
of practice and good standards expected from the 1st Defendant's
nursing personnel, and what is pleaded
by Plaintiff in his
particulars of claim, no further evidence probable to be led by the
Plaintiff in due course, might possibly
disclose any cause of action
arising from the conduct of the nursing staff. The 1st Defendant's
nursing staff accordingly discharged
all the obligations it had
towards the Plaintiff.
[33]
Under the
circumstances the following order is made:
[33.1]
The Exception is upheld.
[33.2]
The Plaintiff is granted leave to amend its particulars of claim as
against the 1st Defendant within 20 days from date of
this order
[33.3]
The Exception is upheld with costs,
_______________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the
Applicant:
ADV W J BEZHUIDENHOUT
Instructed
by:
Whalley and Van der Lith Inc
Tel:
011 336-9581/2/3
Ref:
V Van Staden
For
the
Respondent:
S JOUBERT SC
Instructed
by
RoNTGEN RoNTGEN INC
Tel:
012 481-3555
Ref:
DK M RoNTGEN SR/R9680