About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 342
|
|
Potgieter v Member of the Executive Committee for Health and Social Development:Limpopo and Another (22956/2011) [2012] ZAGPPHC 342 (7 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT)
Case
Number: 22956/2011
DATE:07/12/2012
In
the matter between:
ANDRE
POTGIETER
........................................................................
1
st
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COMMITTEE
….......................
1
st
DEFENDANT
FOR
HEALTH AND SOCIAL DEVELOPMENT:
LIMPOPO
DR.
A.J.
MAHMOOD
............................................................................
2
nd
DEFENDANT
JUDGMENT
FABRICIUS
J,
1
.
This
is an action for damages in delict against the Defendants as a result
of Plaintiff’s treatment and management by the
medical staff
which he received at the Mokopane Hospital {in Potgietersrus) during
April 2008 and thereafter. There is also another
Provincial Hospital
in Mokopane, by the name of Voortrekker Hospital.
2
.
Plaintiff
alleges that the Defendants negligently breached their legal duty
which they had to him as a result of a doctor/patient
relationship
which existed during the relevant periods. It is his case that the
medical staff had a legal duty to carry out their
duties towards him
with such skill and care and diligence as could reasonably be
expected of medical staff in their particular
position.
3.
In
accordance with the provisions of Rule 33(4), I granted an order
separating the issue of liability and causation from the issue
of the
quantum of Plaintiff’s claim. The trial therefore proceeded on
that basis.
4.
There
were a number of interruptions during the trial which I will deal
with when I address the question of costs. It is common
cause that
Plaintiff was stabbed in the stomach near his navel on 31 March 2008.
A general practitioner Dr W. Els attended to him
on the same day and
diagnosed a non-penetrating injury to the abdominal wall. The wound
was septic, and Dr. Els gave Plaintiff
a tetanus injection as well as
antibiotics and pain medication.
His
stab wound did not improve and became red and inflamed. He
accordingly went to the Voortrekker Provincial Hospital on 11 April
2008 complaining of. inter alia, pain in the area of the stab wound.
He was seen by a doctor who assessed this wound to be clean,
and
antibiotics and pain medication was again given. The stab wound still
did not improve and accordingly he attended at the Mokopane
Hospital
on 15 April 2008 with abdominal pain and nausea. It was noted that
the area of the stab wound was healing but that it
was inflamed and
sometimes drained watery fluid. The rest of his abdomen was tender to
palpation but soft. X-rays of the chest
and abdomen were taken, and
an abdominal sonar was done and the results were reportedly normal.
The sonar was not before court.
The Second Defendant was consulted
and he advised Plaintiff to return to the out-patient department some
six days later i.e. on
21 April 2008. No medication was considered
necessary on 15 April. Plaintiff was unable to do so on that day, but
he attended the
Mokopane Hospital on 22 April. According to his
evidence the area of the stab wound was getting worse and was more
red and inflamed
than before. Anti-inflammatory medication was given
as well as pain medication and he was instructed to return to the
out-patient
department the next day. On 23 April 2008 he attended the
Mokopane Hospital again and was seen by a doctor. He could not
remember
whether he saw the Second Defendant on that day, although
Dr. Mahmood was sure that he did see him. Nothing seems to turn on
this
however. His temperature on that day was 35,6
C and the area of the stab wound was
very erythematous and tender.
He
was admitted to the hospital and placed on intervenous antibiotics.
His white cell count and C-reactive protein and serum were
elevated.
5.
On
24 April his abdomen was noted to be tender with “cellulitis”
and he was assessed to have an “acute abdomen”.
He was
informed that he had to undergo an emergency laparotomy operation to
see whether there was any injury in the abdominal cavity
or bleeding.
He was accordingly taken to a theatre later that afternoon where the
Second Defendant performed this laparotomy on
him. This turned out to
be non-therapeutic as the stab wound had not penetrated into the
abdominal cavity and no abnormalities
were found. On 4 June 2008
Second Defendant removed slough from the stab wound, but according to
him the stab wound was never explored
or debrided and no samples were
ever taken of the watery fluid and or pus that was draining from the
stab wound either. Postoperatively,
cellulitis of the abdominal wall
persisted and it spread to the right groin/ scrotal area, right flank
and chest wall with draining
pus. On 30 April Plaintiff was
discharged on oral amoxicillin. Inflammation of his abdominal wall
persisted for several months
with purulent drainage from the original
stab wound, and separate sinuses which developed in the right groin
and above his pubic
area. According to his evidence pus also started
to drain from the laparotomy wound and an abscess later formed in
this wound.
This happened despite numerous visits by Plaintiff to the
Mokopane clinic for wound care and multiple courses of antibiotics
prescribed
and given to him.
6
.
On
16 June 2008, Plaintiff testified that he awoke that morning with his
right shoulder and arm paralysed, a condition subsequently
diagnosed
as idiopathic brachial neuritis. The limb remained completely
paralysed for about a year, whereafter the motor function
gradually
returned, although not completely. An expert surgeon was called on
behalf of Plaintiff and testified that he had been
left with
permanent decreased power of all the muscle groups of his right arm
and shoulder girdle with wasting of muscles. His
evidence in general
was uncontested by the Defendants. Professor Warren testified that
although the cause of idiopathic brachial
neuritis was largely
unknown, it was associated with trauma and ongoing trauma-related
sepsis. He was of the view that the likelihood
was, on balance of
probabilities, that this complication was related to the deficient
management of Plaintiff’s abdomen,
and that he would not have
suffered this condition had his cellulitis and sepsis been
efficiently and properly treated at the Mokopane
Hospital. I will
return to other aspects of Professor Warren’s evidence
presently. In December 2008 Mr Potgieter developed
an abscess in his
laparotomy wound above the umbilicus. The abscess burst open at one
stage and he observed what appeared to be
a shiny object in the
abscess area of the laparotomy wound. He saw Dr. J. D. Vorster, a
general practitioner in Mokopane, on the
same day. Dr Vorster
discovered a surgical needle in the laparotomy wound, approximately 7
to 8 cm in length, which he removed
by means of a pincet. This
evidence was also not challenged and Second Defendant testified that
he accepted it. He added however
that this particular needle had
never been used at the Mokopane Hospital and obviously, he then
denied that he had left it in the
wound.
Dr
Vorster immediately noted the fact that he removed the needle from
the wound, and this note is contained in a letter of 11 December
2008
which he handed to Plaintiff immediately after he had removed the
needle. Plaintiff was eventually referred to the Steve Biko
Pretoria
Academic Hospital for his idiopathic brachial neuritis. He developed
an abscess in his right groin area which was removed
surgically at
this hospital whereafter a skin graft was performed to cover the
area. He also later developed an abscess to his
neck which had also
to be surgically removed at the same hospital, but Professor Warren
testified that he did not consider this
abscess to have been
connected with the other injuries or their consequences.
7.
As
a result of the above facts which I have just summarised, Plaintiff
relied on 6 grounds of negligence to establish liability
on the part
of the First and Second Defendants. I will refer to these and will
also, having regard to Defendants’ amended
plea and the
relevant pre-trial minute, mention which grounds were contested or
not:
7.1
during Plaintiff’s out-patient
visits on 15 April 2008 and 22 April 2008, the medical staff at the
Mokopane Hospital, including
the Second Defendant, did not attach the
necessary significance to the inflammation at the site of the stab
wound. The initiation
of appropriate antibiotic therapy and local
wound care measures were accordingly delayed; (This was not
contested)
7.2
the administration of the
anti-inflammatory agents namely diclophenac and indomethacin, i.e.,
Voltaren and Indocid on 22 April 2008,
was highly inappropriate in
the circumstances, and promoted the septic process in his abdominal
wall; (This was not contested)
7.3
the abdomen was not correctly assessed
on 24 April 2008, which led to an unnecessary laparotomy being
performed on him;
7.4
the doctors and nursing staff at the
hospital should have explored and/or drained and/or debrided the
infected stab wound, particularly
given the negative laparotomy
findings on 24 April 2008, or at any stage thereafter, the first
debridement only being done more
than 2 months later by the Second
Defendant on 4 June 2008;
7.5
a surgical needle was retained during
the unnecessary laparotomy operation of 24 April 2008;
7.6
Second Defendant and the medical staff
at the Mokopane Hospital failed to microbiologically characterise
Plaintiff's sepsis, resulting
in the antibiotic therapy that was
prescribed and administered being empirical and not necessarily
appropriate. (This was not contested).
8
.
The
above mentioned facts were not in issue, but obviously what was
disputed was that they disclosed negligence on behalf of the
Defendants, having regard to their respective positions, duties and
experience. There is also no dispute about the fact that an
incisional hernia, which later required repair, was caused by the
laparotomy performed on Plaintiff. There was also evidence by
Professor Warren that the development of kidney stones was promoted
by Plaintiffs immobility and general poor health resulting
from his
treatment at the mentioned hospital. Despite having been notified of
Plaintiffs case concerning the needle left behind
in the operation
wound of the lapatrotomy, Defendants’ case, as it unravelled
for the first time at the trial in this context,
was that the type of
needle found in the wound was not used at the Mokopane Hospital at
all, and that all needles were in any event
properly accounted for
This part of Defendants’ case was never pleaded, and no
documents were discovered by Defendants supporting
this version. It
ought to have been relatively straight forward to have discovered
such documents relating to which needles were
ordered/ bought/ paid
for by First Defendant in this particular context during the relevant
time. Despite receiving the summary
of Professor Warren’s
evidence on 2 November 2012, and being forewarned at the pre-trial
conference of 7 November 2012, Defendants
decided not to give notice
of, and make use of the services of an independent expert when the
trial commenced on 19 November 2012.
When this topic arose during the
evidence of Second Defendant I ruled that he could give factual
evidence about his involvement
and treatment of the Plaintiff, but
could not give opinion evidence which contradicted that presented by
Professor Warren. My reason
was that Plaintiff would have been
unfairly prejudiced had I allowed that evidence which, whatever it
was going to be, had never
been put to Professor Warren for a debate
in any event.
9.
In
Mkhatswa v Minister of Defence
2000 (1) SA 1104(SCA)
par 23
the
Supreme Court of Appeal
reiterated that whether or not conduct constitutes negligence
ultimately depends upon a realistic and sensible
judicial approach
to
all the relevant facts and circumstances that bear on the matter at
hand. In the present context there is no doubt that the proper
standard, that the particular medical personnel has to be held to, is
not the highest level of competence: it is a degree of skill
that is
reasonable having regard to the general level of skill and diligence
possessed and exercised at the time by the members
of the branch of
the profession to which the practitioner belongs. See: Van Wyk v
Lewis,
1924 AD 438
at 444; Blyth v Van den Heever,
1980 (1) SA 191
(A) at 221 A;
and
Castell v de Greef
1994 (4) SA 408
(C) at 415 J to 416 E.
In the
context of the laparotomy that was preformed unnecessarily according
to Professor Warren, I wish to quote from Castell v
de Greef supra at
5111 to 512 B:
“
It
must not be overlooked that, even if it were to be shown that the
defendant's decision, involving as it did a clinical judgement,
turned out to be the incorrect one, it would not necessarily follow
that on this account he was negligent. Indeed, a practitioner
is not
to be held to be negligent merely because the choice he made or the
course he took turned out to be the wrong one The test
remains always
whether the practitioner exercised reasonable skill and care or. in
other words, whether or not his conduct fell
below the standard of a
reasonable competent practitioner in his field. If the 'error ' is
one which a reasonably competent practitioner
might have made, it
will not amount to negligence. If it is one which a reasonably
competent practitioner would not have made,
it will amount to
negligence.”
In
this context Professor Warren testified that the average specialist
surgeon should not have preformed this operation. The clinical
signs
present at the time did not warrant such
10.
Before
I turn to specific evidence given by Plaintiff, Professor Warren and
Second Defendant, it is necessary to mention that it
is common cause
that at no stage during Plaintiff’s treatment did Second
Defendant make any clinical notes whatsoever. Those
that were
presented to court were notes made by a clinical assistant on his
instructions. The reason was that he had simply been
too busy. It
also immerged that Second Defendant would easily have seen and
treated a few thousand patients since 2008 and, that
he obviously had
to rely on such notes when he gave evidence. All the hospital records
and the contemporaneous notes made by the
various doctors in respect
of their clinical observations and treatment of Plaintiff were
examined and analysed by Professor Warren.
His evidence was founded
on logical reasoning largely based on facts which were not an issue,
and having regard to the experience
and expertise, and the absence of
any conflicting expert evidence, I am satisfied on a balance of
probabilities that it is safe
to accept his evidence. See: Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3)
SA 1188
at par 36 - 39 in the context of how an expert’s
evidence is to be analysed
11
.
Professor
Warren could not find any indications of what had changed between the
23
rd
of April, when Plaintiff was seen at the Mokopane
Hospital, and the 24
th
when the laparotomy was done.
Furthermore, by 24 April it was more than 3 weeks after the
infliction of the stab wound, and if
the stab wound had in fact
penetrated the abdominal cavity causing injury or bleeding, it would
have been unimaginable that such
an intra abdominal injury could be
present with out surfacing at an earlier stage. He also said that it
was necessary to explore,
drain or debride the infected stab wound,
particularly given the negative laparotomy findings on 24 April. One
such ideal opportunity
presented itself when the laparotomy was done
and nothing abnormal was found. Whilst the patient was under
anaesthetic, the stab
wound could have been explored and debrided.
There was no evidence that this was ever done prior to 4 June. As far
as the needle
was concerned, Professor Warren also said that the only
possibility, given the evidence, was that it was left behind during
the
laparotomy operation. No other medical procedure had been
necessary or had been done in the area of the laparotomy wound
subsequent
to this operation and until 11 December 2008 when the
needle was found.
The
only reasonable and practical inference therefore in my view is that
the needle must have been left behind during the laparotomy
procedure. The nurse who assisted Dr. Mahmood during this operation
also testified that such needle had never been used at the
Mokopane
Hospital and that the needle count had in any event been perfect.
Second Defendant again testified that all medical supplies
and
instruments were obtained by the hospital from a so called depo.
Voortrekker Hospital is also a provincial hospital, and Dr.
Vorster
testified that such needle was in fact used by him at such hospital.
It is therefore not that inconceivable that the particular
needle
would have emanated from the same depo. Second Defendant and Sister
Mathakala clearly had a personal interest in avoiding
liability for
their employer and themselves in this case. No documentation in this
context was discovered by First Defendant as
I have said, and no
reasonable possibility or even probability was put forward by the
Defendants whatsoever as an alternative for
the logical inference
that the needle was left behind during the laparotomy operation.
Having regard to the approach that a court
ought to take where
irreconcilable versions surface during the trial as set out in SFW
Group Limited and Another v Martell CIE
and Others
2003 (1) SA 11
(SCA) at par 5, and also taking into account the lapse of time since
2008 and factors such as failing memory, the attending to
of
thousands of other patients, the evidence of Dr Vorster, and using
sound logic and practical reasoning, I must find that the
needle had
indeed been left behind during the laparotomy operation.
12
.
Mr.
Phashane on behalf of the Defendants had no real answer when
confronted with this type of reasoning and the relevant facts.
In
fact, in his heads of argument, he conceded that the needle had been
left behind by the medical staff at this hospital. As far
as the
laparotomy was concerned, Second Defendant testified that he was of
the view at the time that the operation was necessary
to save the
patient’s life. As I have said, Professor Warren disputed this,
and testified that there were no objective criteria
at all justifying
such a view. It can by no means be said that factors relevant to a
"sudden emergency” scenario were
present at the time.
Plaintiff himself had not been of that view either. I therefore find
that the Plaintiff has proven the grounds
of negligence relied on.
As
far as the costs of the action are concerned I need to make the
following observations: on the first day of the trial, the 19
th
of November, Defendants’ counsel indicated that for a number of
reasons the Defendants was not ready to proceed. There was
no
substantive application for a postponement presented to me. When I
indicated that it would be unlikely that I would grant a
postponement, I was informed that Defendants’ counsel had been
instructed to withdraw from the trial. I then indicated that
I was
inclined to see this as a ruse, and that I would consider making
appropriate punitive cost orders against the First Defendant
and/or
its officials. The case was then postponed to the second day to give
the First Defendant an opportunity to consult other
lawyers if
necessary and or to consider its position. The trial then proceeded
on the second day on the basis that the First Defendant
had
considered its position and wished to proceed. It also emerged later
that Defendants’ counsel had consulted with his
client at least
a week before the trial and was quit able to present a proper
defence. On the Wednesday Professor Warren was not
available due to
prior commitments at the University. The trial lasted until Friday
the 23
rd
of November. As far as the costs of the 19
th
are concerned, it is clear that First Defendant’s conduct was
completely unacceptable, and directly aimed at disrupting the
due
process of the court by way of unacceptable ruse/ strategy. For
present purposes I accept the assurance by Defendants counsel
as did
Mr. Stroh SC on behalf of Plaintiff, that he was not part of such
stratagem to force a postponement. To express my extreme
disapproval
First Defendant is ordered to pay the costs for 19 November 2012 on
an attorney and own client scale. The remainder
of the
costs
are to be on a party and party scale except in so far as for the 21
st
of November (the Wednesday) Plaintiff must pay his own costs.
14.
The
following order is therefore made:
14.1
The First and Second Defendants are
jointly and severally declared liable for payment of the Plaintiff’s
proven or agreed
damages arising from the treatment of the Plaintiff
at the First Defendant’s Mokopane Hospital during the period 15
April
2008 to 30 April 2008;, and the consequences of such treatment
referred to in the judgment.
14.2
The Defendants are ordered to pay the
Plaintiff’s taxed costs relating to the trial of 19 to 23
November 2012, on the High
Court scale, excluding the wasted costs of
Wednesday, 21 November 2012 from 10h40 until 16h00 which costs are to
be paid by the
Plaintiff.
14.3
The Plaintiff’s taxed costs to be
paid by the Defendants jointly and severally, referred to in
paragraph 2 above, are to include:
14.3.1
the wasted costs occasioned by the fact
that the matter did not proceed on Monday, 19 November 2012, such
costs to be paid by the
Defendants, jointly and severally, on an
attorney and own client scale, including the costs of two counsel;
14.3.2
the cost of two counsel;
14.3.3
the reservation and qualifying fees of
Professor Warren including his travelling and accommodation costs
relating to the 21
st
and 22
nd
November 2012;
14.3.4
the cost of obtaining the medico-legal
report of Professor Warren;
14.3.5
Dr. W. Els and Dr. J. D. Vorster are
declared necessary witnesses in respect of their attendance at court:
Dr. W. Els on Tuesday
20 November 2012 and Dr. J. D. Vorster on
Monday 19 November and Wednesday 21 November 2012.
JUDGE
HJ FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT