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[2009] ZAGPPHC 259
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Baloyi v Minister of Health Gauteng Province (29632/04) [2009] ZAGPPHC 259 (22 July 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 29632/04
DATE:
2009-02-06
DATE:22/07/2009
In
the matter between:
S
BALOYI
................................................................................................
Plaintiff
and
MINISTER
OF HEALTH GAUTENG PROVINCE
…...............
1st
Defendant
CONNIE
KUBU
..........................................................................
2nd
Defendant
JUDGMENT
POTTERILL
A J: The plaintiff is claiming damages from the first and second
respondent arising from medical negligence on 8 November
2001 at the
Tembisa Hospital. The second defendant had in the course and scope of
her employment with the first defendant, administered
physiotherapy
to the plaintiff, which resulted in alleged burn wounds to his back.
As a result of the burn wounds, he sustained
the following injuries
and I repeat from the particulars of claim,
"1.
Suffering chronic back pain, constant irritation and itching in the
burn scar.
2.
Being unable to walk straight and having a bent back.
3.
Suffering impotence due to pain and back deformity, and
4.
Being unable to work and obtain income."
The
quantum and merits are by agreement between the parties separated and
the only question the court has to decide is whether the
second
defendant had in fact negligently burnt the plaintiffs back resulting
in the injuries as alleged above.
It
was also agreed between the parties that the medical records from
Tembisa Hospital are not in dispute and that they purport to
be what
they are.
The
defendants closed their case without presenting any evidence.
The
plaintiff testified that he had worked for Avis as a driver and was
involved in an accident in 1997. He was then fired from
Avis. He had
been receiving physio treatment at the hospital for two to three
months prior to the second defendant allegedly burning
him. He had
this physio treatment because of pain on his back. Despite having
this treatment, he had no problems walking, no back
deformity or no
stomach problems or suffering from impotence. He even on a part-time
basis worked for Nestle, carrying heavy loads
of condensed milk. On 8
November all that changed when he attended for a scheduled physio
appointment. The normal procedure was
that Connie, the second
defendant, would rub ointment on his back, let him lie on his stomach
with arms outstretched, adjust the
lights quite close to his back and
let him lie there for 30 minutes. On this fateful day, however, she
let him lie there for an
hour and a half. No other patients or
physios wanted to utilise this room at that time, he had no button to
press to call for help
and the door to this room was open. He no
longer had the job at Nestle and was selling products. After the
physio he went to the
place he was selling at and the rain caught
him. His wife instructed him to take off his wet clothes and this is
when she discovered
the burns on his back. She showed him in the
mirror and they then immediately went to the family physician, Dr
Makhote. Dr Makhote
then treated his back for these burn wounds on
that date, being 8 November, as well as on 9, 10 and 11 November
2001. On 11 November
2001 he received a letter from Dr Makhote
referring him to Tembisa Hospital for treatment, as the burn wounds
were not healing.
He stated that Dr Makhote was his physician for
many years and he wouid be able to inform the court about his pain.
Dr Makhote
treated these burn wounds by draining the blisters and
applying ointment and bandaging the wounds.
He
testified that prior to 8 November 2001 he could walk properly, he
had no bending to any side of his back or stomach and it was
only
after the burn that he had picked up all these medical problems. The
plaintiff in cross-examination admitted that he went
to the hospital
initially because, as he put it, “of the shifting of the
bones”. He could also not deny that on 3 October
2001 at
Tembisa Hospital he was diagnosed with scoliosis, which is the
medical term for the bending of the back or the shifting
of the
bones, as he put it. In fact, in Bundle A1 he is diagnosed with
"severe scoliosis." On 4 October 2001 the remarks
on page 3
of Bundle A goes further, stating that there is a progressive bending
of the torso to the left side, the abdomen is bending
towards the
left side and his back has severe scoliosis. When confronted with his
medical records, the plaintiff had to admit that,
as he put it, that
had in fact had shifting of the bones. He was therefore sent to a
physio due to him having the pre-existing
condition of severe
scoliosis. In view of the medical documents, the plaintiff and his
wife's evidence that he had no medical problems
pertaining to his
back and stomach before going to the physio on 8 November 2001, is
simply not true. It is not their version that
the problem was
exasperated by the burning, but that the burning caused the back and
stomach bending. From the objective medical
records their version on
the causation of the medical condition is rejected as unreliable and
untrue and his claim set out in paragraph
6.1, 6.3 and 6.4 has not
been proven. Even this, if at best for the plaintiff there was a
negligent burning of his back, there
has been no evidence whatsoever
to prove that the burning caused the medical problems complained of.
The plaintiff has not proved
causation and no damages can be granted
for negligence in the air.
The
next question is whether in fact there was a burning of his back to
sustain the claim set out in paragraph 6.1.1. The plaintiff
and his
wife testified that he was burned on 8 November 2001. Dr Makhote
testified that has he treated him for these burn wounds.
Dr Makhote
does not in Exhibit C, his clinical notes, remark that the wounds
were due to physio treatment, although he testifies
that from the
form of the burns he did think it to be from physio lamps. Although
the plaintiff is adamant that he did not see
Dr Makhote after 11
November 2001, Dr Makhote on a letter dated 4 September 2006 (five
years after the incident) states that he
treated the patient from 8
November to 26 November 2001, a severe discrepancy. The objective
medical records show that despite
the would- be referral (also not
noted on the clinical record of Dr Makhote) for the hospital to treat
these wounds that were not
healing, the plaintiff only goes to the
hospital on 3 December 2001, 21 days later. For wounds oozing and not
healing, this is
improbable. What is more probable is the medical
records reflecting that he had a pressure sore on his lumbar area and
he saw the
surgeon for this on 7 October 2001. He was in fact treated
on a Sunday at Tembisa Hospital for a septic wound on his lower back.
On the probabilities it is thus more probable .that he had a pressure
sore and/or septic wound prior to 8 November 2001 and not
a burning
on 8 November 2001.
The
evidence pertaining to the burning is also improbable. Tembisa
Hospital is a hospital with many patients, patients are booked
for
specific times, as confirmed by the plaintiffs appointment card. How
could he be forgotten for an hour and a half? This is
just not
probable. How could he feel no pain when he was burning blisters? He
was transported home, went to attend to his business,
and his wife
only discovered the burns thereafter; this is not probable. The
evidence pertaining to how the burn occurred is furthermore
not
probable due to the fact that he says that even if there is no button
that he could push, he could move from the bed if he
felt that
something was burning him. The door was open, he could ask for help.
I
therefore find that pertaining to the burning itself, the plaintiff
has not proved on a preponderance of probabilities that in
fact he
was burned and I reject his evidence as being improbable. Accordingly
the claim as set out in paragraph 6.1.1 has also
not been proven.
ORDER
Accordingly
the plaintiffs claim is dismissed with costs.
APPEARANCES
NOT RECORDED