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[2015] ZALCD 70
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Ivanova v Department of Health: KwaZulu-Natal and Others (D695/14) [2015] ZALCD 70 (29 December 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Reportable
Case
No: D695/14
In
the matter between:
DR
LUBKA IVANOVA
Applicant
and
THE
DEPARTMENT OF HEALTH: KWAZULU-NATAL
First
Respondent
ANAND
DORASAMY
N.O.
Second Respondent
THE
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
Third Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH
IN
KWAZULU-NATAL
Fourth Respondent
Heard:
08 May 2015
Delivered:
29 December 2015
Edited:
18 January 2016
Summary:
Review – misconduct – reinstatement when employee already
reached retirement age on date of order - w
here
an employee is unfairly dismissed he or she suffers a wrong and the
dictates of fairness and justice require that such a wrong
be
appropriately redressed. Restoration of the
status
quo ante
where appropriate provides the fullest redress – misconduct –
alleged acts of negligence not proved
.
JUDGMENT
CELE J
Introduction:
[1]
The Applicant brought an application to have an arbitration award of
the Second Respondent (“the Commissioner”)
to the effect
that her dismissal by First Respondent (“the Department”)
was substantively and procedurally fair, be
reviewed, set aside and
substituted in terms of section 145 (2) of the Labour Relations
Act,
[1]
(“the Act”).
The application was opposed by the First and Fourth Respondents as
the erstwhile employers of the Applicant.
Factual Background
[2] The Applicant is a
qualified medical practitioner. She came to South Africa from
Bulgaria in 1992. In Bulgaria she held the
position of a specialist
in surgery and orthopaedics. Upon arrival in South Africa she
registered with the HPCSA as a medical practitioner
working in
government services. She worked in various public hospitals in South
Africa since 1999 but commenced at G J Crookes
Hospital, in
Scottsburg in September or October 2010 as a Medical Officer grade 3.
[3]
GJ Crookes Hospital (“the Hospital”) is a district
hospital with the doctors who work as medical officers of different
grades. There are no specialists or surgeons. Patients who require
urgent major surgery are transferred to other public service
hospitals. On 2 June 2012, a Saturday, the Applicant was on duty,
having started a 12 hour shift at 08h00 which was scheduled to
end at
20h00. The Applicant was the day doctor on first call, meaning that
in the event of a patient arriving in the casualty department
requiring emergency attention and treatment, she would be contacted
first to attend to the patient. The Applicant also had to attend
to
her normal duties as a medical officer on 2 June 2012.
[4]
On 2 June 2012 at approximately 16h30 a Mr JH Grobler (“Mr
Grobler”) was involved in a very serious motorbike accident.
Mr
Grobler sustained multiple traumatic injuries. The lower extremity of
his left leg was hanging “
from
strings”
as
a result of a severe open compound fracture. The wound associated
with the fracture of Mr Grobler’s left femur was bleeding
profusely. His friend, a Mr JJ Odendaal (“Mr
Odendaal”) arrived at the accident scene. He attended to the
injured Mr Grobler by applying two belts as a tourniquet to stop the
bleeding.
[5] The emergency rescue
services (“the EMRS”) staff arrived at the accident scene
to find the tourniquet on. They also
put a cervical collar on Mr
Grobler’s neck, placed him on a trauma board, and recorded in
their “
Patient Report Form”
that the “
leg
was mangled”
, that a “
tourniquet was put on by a
bystander”
and that the leg “
was partially
amputated”
. Mr Grobler had serious compound grade 3C
injuries to his left leg. He was a poly trauma patient, meaning that
he suffered from
a multiplicity of serious injuries.
[6]
The EMRS staff also put up an intravenous line infusing ringers
lactate to support Mr Grobler's circulation. Mr Grobler was
taken to
GJ Crookes by the EMRS staff where he was admitted at a minor
operating theatre (MOT) in the casualty department at approximately
17h50/18h00 of 2 June 2012. The Applicant was contacted to assist
with Mr Grobler’s case and she came to attend to him at
the
MOT. The nature of the examination conducted by the Applicant on Mr
Grobler is part of the bone of contention in this matter.
Subsequent
to examining the wound on Mr Grobler’s left leg, The Applicant
concluded that there was a major vascular injury
requiring
intervention and assistance by a vascular surgeon. Such a referral to
a specialist would be in accordance with Advanced
Trauma Life Support
Principles. There were nurses who attended to him as well and they
packed the wound with gauze and applied
a pressure bandage. The
tourniquet was left in place to prevent bleeding from a major vessel.
Mr Grobler was talking at the time.
His Glasgow Coma Scale score was
recorded as 15/15.
[7]
At about 18h30 the Applicant telephonically discussed the situation
and condition of Mr Grobler’s left leg with a
Dr Wella an
orthopaedic surgeon at Port Shepstone Hospital as GJ Crookes Hospital
had no surgeons or specialists that could assist
the Applicant.
Dr Wella recommended the Applicant discuss the case with a
vascular surgeon at Inkosi Albert Luthuli Central
Hospital. It is the
practice to transfer patients once stabilised to hospitals where
appropriate specialist treatment is available
and again this practice
is recommended in life-threatening cases particularly in a situation
where the patient was first treated
in a district hospital where the
necessary resources and skills might be lacking.
[8]
Ms Buddan was the hospital Radiographer. There is also a dispute
between the parties on whether the
Applicant
made any arrangements for an X-ray examination of Mr Grobler. The
nurses complained to the night matron, NM Dlamini that
the Applicant
refused to send Mr Grobler for X-ray examination. At about
19h00/19h10 Matron Dlamini had a discussion with the Applicant
about
the issue of the X-rays. The Applicant frequently left the MOT to go
and talk on the telephone. Arrangements were then made
for Mr Grobler
to be taken to the X-ray department. Mr Odendaal and friends of
Mr Grobler assisted to take Mr Grobler to the
X-ray Department.
A porter also assisted by carrying the oxygen bottle. Mr Grobler was
moved from the trauma stretcher to the X-ray
bed by Ms Buddan,
assisted by Mr Odendaal. It was difficult to move Mr Grobler as
he was a big and hefty person. The X-ray
examination started but
could not be completed as Mr Grobler complained of difficulty in
breathing. An attempt was made to telephonically
report to the
Applicant the worsening condition of Mr Grobler. Ms Buddan succeeded
in making contact with the nurses VS Ngcobo
and L Mkhize who
immediately went to the X-ray Department.
[9]
At approximately 19h45, The Applicant received a call on the second
phone in the casualty Department and was informed of the
deterioration of Mr Grobler’s condition in the X-ray Department
where after she also immediately went to the X-ray Department.
The
Applicant was still on the phone with Dr Mukhendi when she received
this call. The Applicant saw the nurses wheeling Mr Grobler
back to
the MOT. This was at about 19h50/20h00.
Ms
Buddan also came to the minor operating theatre with the X-rays that
she was able to complete prior to Mr Grobler’s condition
deteriorating in the X-ray Department. Ms Buddan showed The Applicant
the X-rays that she completed. Not all the X-rays were completed.
There was no chest X-ray.
[10]
More doctors came to the MOT to attend to Mr Grobler, including Drs
Mncwango, Mbhele, Mqadi who was the Acting Medical Manager.
Dr Mqadi
entered the minor operating theatre a few minutes later and on
realising that one of the two intravenous lines was not
running set
up a third line in Mr Grobler’s right foot. In the end there
were three intravenous lines. Mr Grobler’s
condition
deteriorated further and after he complained that he could not
breathe Dr Mqadi attempted a few times to intubate Mr
Grobler. She
failed and Dr Mbhele later intubated the patient successfully. Chest
compressions were also done by Drs Mqadi and
Mbhele. Attempts to
resuscitate Mr Grobler failed and he was certified dead at
approximately 21h00. According to a post-mortem
report Mr Grobler
died of multiple injuries.
[11]
The Applicant was subsequently charged by the Department with
misconduct in relation to the events of 2 of June 2012. The charges
raised by the Department against her were that:
“…
It is alleged that
on the 2
nd
of June 2012 while performing your duties in Outpatient/Casualty
Department you were negligent in the following:-
·
Failed
to do a full standard examination of a patient in an emergency by the
name of Mr J Grobler registration no.: 12024/12 received
from EMRS at
17h50 who was complaining that he had a difficulty in breathing, and
in your notes you recorded that the chest was
clear.
·
Failed
to examine the wound and stop the bleeding even when the doctor from
Inkosi Albert Luthuli Central Hospital insisted that
you do so.
·
Insisted
that the nurses should check the bleeding wound without even
arresting bleeding and you left the patient with a tourniquet
in situ
without proper precautions.
·
Informed
the patient’s friends that you did not know what to do and you
phoned other doctors which was the first sequence
in your patient
examination.
·
Initially
refused to do X-rays in a patient with polytrauma suggested by the
nurses until you were eventually convinced by the night
matron.
·
Further
failed to request/insist on a (BSU) bedside unit for a polytrauma
patient.
·
When
the patient’s situation got complicated in X-ray department,
the radiographer called you, you cut the call and did not
inform them
on the immediate care.
·
Allowed
nurses to go alone to the critically ill patient in X-ray with
respiratory distress.
·
When
the nurses arrived in minor operating theatre with a distressed
patient you did not help at all or resuscitate the patient.
·
When
the X-rays were received you failed to recognise fractured ribs,
pneumothorax and surgical emphysema which the patient would
have
benefitted from insertion of intercostal drain.
·
By
such actions you conducted yourself in an improper and unacceptable
manner, and contravened the code of conduct for the public
service.
…”
[12]
In an internal disciplinary hearing the Applicant was found guilty of
the charge in relation to all the allegations of negligence
as it
appear in the charge sheet and summarily dismissed. The Applicant
thereafter referred a dispute, with the assistance of the
South
African Medical Association, to the Third Respondent. Conciliation
failed to resolve the dispute where after the matter was
referred to
arbitration. The Second Respondent arbitrated in the dismissal
dispute between the First Respondent and the Applicant
and he found
that the reason for dismissal as given by the chairperson of the
disciplinary hearing and the procedure followed were
fair. He then
confirmed the dismissal.
Doctrine
of effectiveness
[13]
In opposing this application the First and the Fourth Respondents,
hereafter referred to as the Respondents, submitted that
the order
sought by the Applicant is not capable of being given effect to as
the Applicant reached age 65 years on 12 March 2015.
It
is trite that, in terms of the Government Employees Pension.
[2]
Act,
[3]
the age of retirement is 60 years and 65 years in
respect of government employees. Upon the arbitration award being
reviewed and
set aside, if the Applicant is successful, she seeks to
have an order of reinstatement. By reinstatement the Applicant
contended
that the Court
is
entitled to reinstate a dismissed employee whose employment has been
found to be substantively unfair subject to retirement of
the
employee on her normal retirement date. The Applicant has not asked
the Court to extend her employment beyond her retirement
date.
[14]
The submission by the Respondents is that
a
question that had to be answered was whether the Applicant has
established the effectiveness of the order she sought as the
Respondents
said that it was inconceivable that the Court could
pronounce an order in her favor post her retirement age.
They
said that the Court’s order in favor of the Applicant would
legally not be given effect to as the Applicant had reached
her
retirement age and that therefore the court lacked jurisdiction to
pronounce on the relief sought which in law was not sustainable
as
the court order cannot be effected.
[15]
It is now trite that this Court must require the employer to
reinstate or reemploy the dismissed employee as a primary remedy
when
the Court finds that the dismissal is substantively unfair. The norm
is to order reinstatement or reemployment and the denial
of the
primary remedy should occur only as an exception.
[4]
Where an employee is unfairly dismissed he or she suffers a wrong and
the dictates of fairness and justice require that such a
wrong be
appropriately redressed. Restoration of the
status
quo ante
where appropriate provides the fullest redress. Court held in
Equity
Aviation Services (Pty) Ltd
[5]
that section 193 (1) (a) confers a discretion on the
commissioner or court to determine the extent of retrospectivity of
the reinstatement and that the only limitation is that reinstatement
cannot be fixed at a date earlier than the actual date of
dismissal.
Reinstatement can be ordered from the date of dismissal but there is
accordingly, no limitation up to when it can take
effect. The
doctrine of effectiveness raised by the Respondents is therefore not
a valid defense to this application.
The
merits of the review application
Evidence
[16]
Evidence of witnesses on the medical attention given to Mr Grobler
from the time of his arrival at the MOT, when he was taken
to do the
x-rays examination and back to the MOT depends on the evidence of Mr
Odendaal, Nurse Ngcobo, Nurse Mkhize, Dlamini (the
matron), Dr Mqadi,
Dr Mncwango and the Applicant. I prefer to give an outline of the
evidence given by Nurse Ngcobo, Mkhize, Matron
Dlamini Dr Mncwango
and the Applicant. The evidence of the Respondent was essentially
that not much was done by the Applicant to
Mr Grobler and that she
moved about with the file making telephone calls. In particular,
Nurse Ngcobo said that on arrival at the
MOT Mr Grobler’s
left
leg was covered in bandages but the bandages were soaked and blood
was seeping through the bandages. The Applicant
instructed
the night shift team that had just come on duty to wrap up the leg in
bandages and gauze, a process called packing. The
Applicant was asked
if she was not going to open up the wound and see what was going on
and suture the wound at that time but the
Applicant declined to do so
and they continued to bandage the leg, concealing the bleeding at
that point, which had not stopped.
They just concealed the
bleeding. They put up a second drip, that is, a second line because
the patient initially came in with
a line that the EMRS people had
put up. The two running lines put up were of Ringer’s Lactate
and Voluven for increasing
the blood pressure.
[17]
Nurse Ngcobo said that she
asked
the Applicant if she was going to arrange for the patient to do the
x-rays examination but the Applicant said that it was
not necessary.
The Applicant took the file walked away saying she was trying to
transfer the patient. When Matron Dlamini came
up the nurses told her
that the Applicant refused to arrange for the x-ray examination.
Matron Dlamini convinced the Applicant
and the Radiographer was
called to come to hospital. Nurse Ngcobo said that she was however
not there when Matron Dlamini spoke
to the Applicant. Nor was she
there when the Applicant telephoned the Radiographer. The Applicant
arranged for all the
blood units for the patient to be transfused. T
he
x-ray personnel phoned to let the nurses know that the radiographer
was available for the patient to be brought up to the x-ray
room and
the patient was taken up to the x-ray examination room on the fourth
floor. At that time the patient was not stable and
there was no
active bleeding visible. Then Nurse Ngcobo received a call from the
x-ray personnel reporting that the patient was
restless as he could
not breathe. The patient had crashed on the x-ray table, meaning his
saturation was getting worse. Soon after
Nurse Ngcobo received the
call she went up to the Applicant who was on another telephone line,
to informed her of the status of
the patient. The Applicant scolded
her for the interruption while she was busy on a call.
[18]
Nurse Ngcobo, said that nurse Blose, nurse Mkhize and herself then
went up to X-Ray room to find that Mr Grobler was already
on the
stretcher. The patient said that he could not breathe. He was
twisting and turning on the stretcher bed and the leg wound
was then
bleeding
as
blood was seeping through the bandages
.
His
condition had drastically changed. The nurses simply took the
stretcher and went down back to the MOT. On their way down, they
met
the Applicant who was on her way up and then she followed the nurses
who were carrying the patient. When they got to
MOT, they
connected the patient to the cardiac monitor. By then his oxygen
saturation level had dropped as well as his pulse and
the blood
pressure. The Applicant stood by the door and she then walked out.
Nurse Ngcobo started telephoning for Dr Mncwango who
had been busy
with a Caesarean action and Dr Mbhele who was to come on night duty.
When she tried to telephone Dr Mqadi and Matron
Dlamini, the
switchboard personnel said he had already informed them and they were
on their way down. She said that when a patient
started experiencing
breathing problems, it was practice to call other doctors to come and
assist.
[19]
She said that b
y
the time the doctors came down, the patient’s condition had
deteriorated and that was when they started the cardio-pulmonary
resuscitation (the CPR) process. Dr Mncwango opened up the wound on
the left leg and was trying to suture it whilst others were
doing
compressions and bagging the patient, Dr Mqadi and Dr Mbele were
alternating, trying to intubate the patient by putting up
an
endotracheal tube to help him breathe. To do compressions, nurses and
doctors took turns because Mr Grobler was of big built
and they were
getting tired with the compression. Nurse Ngcobo said that the
Applicant was in the room with the rest and she at
one point did the
compressions. Dr Mbele was finally able to put up the endotracheal
tube for the patient. The CPR was done for
some time but when doctors
stopped it, they pronounce the patient dead. As a result of the
incident of 2 June 2012 she wrote two
statements, one on 3 June 2012,
the Matron’s Report and the second on 21 June 2012 the incident
Report. The incident report
was in the main, in line with the
evidence given by Nurse Ngcobo. The Matron’s report read thus:
“
A
48 year old male was brought in by EMRS with friends with history of
being involved in a motorbike accident. Patient was
taken to
minor OT. Dr Ivanova was informed on arrival. On
patient’s arrival, vital signs were 97,
BP,
pulse was 112; temperature, 32.6; HB, 12.3; GM, 10.6mmol.
Doctor came in, ordered bloods, X-Rays, opened the wound and
packed
the wound and said to take patient to X-Rays. Catheter was put
in and the IV lines. Patient came into casualty
with them.
We got a call from X-Ray because patient collapsed and was brought
back to minor OT. Patient’s vitals
dropped, pulse down to
40 beats per minute, pulse Oximeter had no reading. CPR was
commenced because patient started gasping.
CPR commenced at
20:25. Dr Mqadi, Dr Mbele, Dr Mncwango were called to
assist. Dr Mbele tried to intubate but
failed. Dr Mbele
put it in at 20:30 and oxygen was given via ambubag. Dr Mqadi
ordered one dose adrenalin at 20:30,
one amp IVI, second dose as
pulse dropped from 109 to 35 beats per minute, given at 20:40.
Third dose of adrenalin, one amp
was given, IVI at 20:50.
Patient become asystolic from 20:55. Patient certified dead at
21:00. Family was informed
and Scottburgh Police Station was
informed.”
[20]
Nurse Mkhize also testified and in some respects confirmed the
evidence of nurse Ngcobo. Upon her arrival at the MOT at about
18:00,
she said that she observed patients and reported her findings to the
Applicant. Then she went to check if there were any
suturing pegs,
stuff to do the stitches since she had noticed blood and so thought
she was to check that quickly but could not
find anything. She
went to where they kept such stuff, a place called CSSD. She was then
aware that there were injured patients
who needed medical attention.
One of those was Mr Grobler who was receiving attention from the day
shift staff and the paramedics.
When she left the MOT, there were two
nursing sisters and the paramedics who were busy with Mr Grobler’s
left limb that was
injured or bleeding. They were hands on because
they were putting gauze and bandages over the limb, packing on the
bleeding left
limb. They were with the Applicant who was giving
instructions. She was standing behind them telling them to
bandage. On
her return to the MOT nurse Mkhize continued doing the
observations because it was normal when the patient was critically
ill or
injured to keep continuous observation, to continue checking
the BP, the sugar levels, the temperature and oxygen saturations. So
she did that, continuously re-checking and recording.
[21]
When the doctors Mqadi, Mbele and Mncwango arrived at the MOT, the
Applicant was either there or she was busy with the telephone
calls
because she used two phones. There was one phone in MOT she
used and she moved again to use the one which was in the
casualty
department. The Applicant said that she was trying to make a transfer
of the patient. Nurse Mkhize was not sure who the
Applicant told
about the transfer but she ended up knowing that the Applicant was
transferring Mr Grobler because nurse Mkhize
answered one of the
calls and she spoke to a male doctor who said he was calling from
Chief Albert Hospital and wanted to speak
to the Applicant. When he
was told that the Applicant was busy on the other phone the doctor
told nurse Mkhize to pass a message
to the Applicant that she was to
stabilise and suture the patient but not to send the patient because
he might die on the way.
Nurse Mkhize went to the Applicant and
told her what the doctor had said. The Applicant did not suture the
patient. At no stage
did she see the Applicant touching the wound of
Mr Grobler.
[22]
A catheter was fitted on the patient and nurses checked the urine and
they suggested to the Applicant that an X-Ray examination
be booked
for him because there was an obvious injury on the left limb but then
nurses thought the doctor had to know if there
were any other or
injuries which were not obvious but she refused,
saying
the x-rays were not necessary
as
there was an obvious injury. She said that nurses were suggesting a
chest or skull or spine x-ray and one of the nursing sisters
reported
the refusal to a night matron because the patient was complaining of
chest pains as he was still talking. Later the Applicant
filled the
x-ray forms and the patient was taken by the porters and by Mr
Grobler’s friends. She had no memory of who authorized
that the
patient be taken at that time for the x-ray examination.
[23]
Nurse Mkhize said that as soon as the patient was taken away, she
went to the casualty department to continue with the work
because
there were other patients waiting to be seen by the doctors due to
the emergency. So while she was busy with those
patients, a
call was received from the x-rays department saying that the
patient’s condition was getting worse. Nurse Mkhize
said that
she did not go up to fetch Mr Grobler but he was brought back to MOT
and she left the casualty for the MOT. When she
was cross-examined,
it came to light that at the disciplinary hearing, she had said that
she also went up to fetch Mr Grobler.
She said that the Applicant
later came to join them at the MOT. Other doctors also arrived and a
lot took place to help the patient.
[24]
Doctors Mqadi and Mbele assisted by intubating the patient, then they
did the examination and then Dr Mncwango opened the left
limb,
removed the bandages while nurse Mkhize was holding that limb. Dr
Mncwango first asked Nurse Mkhize to prepare a sterile
suture tray
for him. She did and then upon his instruction she open and remove
all the bandages and everything. Then he asked her
to hold Mr
Grobler’s left limb that was badly injured, for the doctor who
started to clean the wound and then sutured it.
The rest of her
evidence has similarities to that of nurse Ngcobo.
[25]
As a witness Matron Dlamini said that she received a report from a
nurse whose particulars she could not recall and in the
course of the
rounds she was taking she met the Applicant at MOT and suggested to
her that it would assist Mr Grobler if the x-ray
examination were
conducted on him. The Applicant said nothing and merely took out some
forms, which Matron Dlamini assumed were
for an x-ray examination
request, and completed them. Matron Dlamini said that she thought
that she heard the Applicant saying
that she was busy with the
transfer arrangements for Mr Grobler but she said that she could be
mistaken about the source of that
information as it might have come
from someone else.
[26]
The Radiographer Ms Buddan testified and she said that Thulani, the
Hospital Switchboard Operator, called her on her cellular
telephone
at about 18h31 telling her that the Applicant needed her to do an
emergency x-ray examination on a patient. So she left
home and came
to the Hospital at about 18h55 where she switched on the machines,
then called down to casualty and the Applicant
answered the phone.
She asked the Applicant if she could send the patient up for x-rays
but the Applicant said that the patient
was involved in a motorbike
accident, was unstable and could not come up. Ms Buddan asked her if
she wanted a portable x-ray or
if Ms Buddan was to come down. At that
stage she did not know whether it was a child or adult patient.
Neither did she know what
x-rays were needed. The Applicant said no
the patient would come up but that she had another patient for Ms
Buddan to do in the
meantime. That patient came up and x-rays were
taken and then Ms Buddan called down to casualty again to see if the
patient was
ready to come up and the nurse that answered said that
the patient was stable and they would send him up. The patient came
up with
his relatives and a porter pushing the oxygen cylinder.
[27]
She
said that Mr Grobler was quite a big sized patient but had to be
moved onto the x-ray table. She explained to him where
he was
and that they were going to do some x-rays and then she started
taking x-rays. After she took a few of the lot they normally
took,
she went to process them and then came back from the dark room to
carry on. She could hear him becoming restless and groaning
and
moaning and so she went over to see what problem there was. He kept
telling her that he could not breathe. So she checked to
see if the
oxygen was working and found it fine as it was on. She told him that
she was going to call casualty to come and get
him. When she
telephoned the line was busy. She asked the switchboard to put her
through to the Applicant’s cellular telephone
which he did.
When the Applicant answered the phone, Ms Buddan told her that her
patient was going into respiratory distress, but
before she could
even get to respiratory distress, the call got cut. She quickly
phoned casualty again and told whoever picked
up the phone that the
patient was going into respiratory distress and they need to come up.
The nurses came up. Ms Buddan
and the nurses moved Mr Grobler
back from the x-ray table onto the stretcher and they took him down
to MOT.
[28]
She picked up the x-rays that she had processed and took a few
cassettes down to finish up the rest when the patient got stable
for
the portable machine and she went after them. When she got down, she
gave the x-rays to the Applicant, telling her that the
patient
crashed on the table and so she did not complete the x-rays and there
were cassettes to complete the x-rays when the patient
was stable.
Then she waited. She said that the bedside unit (BSU) was not the
ideal to use for Mr Grobler due to his body size.
The use of the BSU,
she said, depended on which parts of the body were to be x-rayed and
the radiation dose that might be needed.
The BSU machine at G J
Crookes could only do a trauma series on children and not on adults.
So
for Mr Grobler, she would only be able to get a femur, the left tibia
or fibula, the cervical spine and the chest. She would
probably not
be able to get the pelvis and the chest because of his quite big
size. She would still have to take the cassettes
to the dark room for
processing. She had brought along the x-ray plates and had just left
them in the MOT because she was waiting
for the doctors to stabilise
the patient. There was a viewing box facility close by for the
doctors to view the plates. She was
not aware of any doctors that
looked at the plates as she was waiting outside.
[29]
Dr Mncwango testified and confirmed receiving a call from the
Applicant who asked him to come and assist her by intubating
a
patient. She indicated to him that the patient was still talking. He
then met Dr Mqadi who had arrived to assume night duty and
told her
of the request by the Applicant. Both met near the reception area and
they proceeded to the MOT. He arrived first at t
he
patient who was still talking, complaining about the shortness of
breath and about pains. Without talking to the Applicant, he
went to
the lower limbs of the patient and started to
suture
the left limb assisted by nurses. At that stage he did not consider
intubation to be necessary as the patient was still talking.
Dr Mqadi
soon joined in and he heard her listening to the chest and calling
for the tube to begin intubating and resuscitation
on the upper torso
of the patient. Dr Mbele also arrived to join them and he helped Dr
Mncwango with the suturing. He later released
Dr Mbele to go and
assist Dr Mqadi with compression and with CPR. As they were working
on the patient the Applicant stood with
folded hands some 1.5 metres
from the patient. At
about
40 to 45 minutes later, the other doctors called off the
resuscitation of the patient and pronounced him dead. So he
had
to stop what he was doing.
[30]
He said that if he had been the first doctor to attend to that
patient he would allow the nurses to do what they often did,
that is,
to take vital information, that’s his blood pressure,
temperature, sugar, saturation, to inserted the IV lines and
sometimes to take blood samples. They call a doctor once they had
done that but if he were there on arrival, of the patient he
was
going to issue orders for the gathering of such vital information. He
would then conduct a very quick secondary survey, that
is, to check
from head to toe just to see where the main problems were. Then he
would do quick secondary survey, to check if the
patient had a patent
airway and whether he was breathing. In this case he was talking so
he had patent airways and was breathing.
The next step is to check if
the patient was bleeding and if so to stop it but if that is
difficult assistance of other doctors
is then called for to stabilize
the patient. Blood is then taken from the patient for examination and
classification of the patient.
Once the patient is stable a
radiographer is called to do x-ray examination. Once there are
results of the x-ray and blood examination,
then a discussion of the
patient with other doctors from the tertiary or regional hospital may
be done to elicit advice. If the
doctor spoken to accepts the
patient, an ambulance is called to transfer the patient. If an urgent
transfer is called for a helicopter
is called for.
[31]
In addition to the common cause facts, the Applicant testified and
said that it was at 18h10 that she arrived at MOT and by
that time Mr
Grobler had been at the Hospital for some 30 minutes without a doctor
attending to him as she had been busy with a
caesarian action. Nurses
and paramedics were attending to him. From the history given to her
the
patient
was
ejected from motorbike as a result of which he sustained high
velocity injury. She inspected the patient and found that there
was
an injury on his left lower limb of what was mangled and crushed with
two belts applied of proximal part of the leg to make
a
tourniquet.
Two intravenous lines were running and h
e
had a cervical collar to support the cervical spine. Due to the
compound open fracture of the femur, there was extremely possible
vascular injury impinging the artery or the wind passage, meaning
that a major vessel was probably damaged. She considered that
immediately consultation with vascular surgeon or surgeon with
experience had to be conducted because there was a life threatening
injury.
On
clinical examination of the patient, his vital signs were blood
pressure, 86/36 on the record, oxygen saturation, 97 percent,
pulse,
118. She however clarified that her notes were extremely short as she
had intention to complete them a little later. But
she did not have
time due to the demise of the patient and she had to fill the form
for the death and an order for the patient
to be sent to the
pathologist. She could not find the file of the patient on the next
day as it vanished and she could not put
her notes in it.
[32]
She
removed the cervical collar to examine the patient. His Glasgow coma
scale, GCS, was 15/15 which meant that the patient’s
opening
his eyes, his motor function and his verbal function, were all five,
five, five, meaning he communicate with ease, and
was not confused.
She spoke to the patient who showed understanding of his whereabouts.
She
found that the patient’s chest was clear after she elevated his
white shirt and listened to the chest with the middle
axillar line in
both the left and the right sides of the chest using a stethoscope.
She examined both lungs and the cervical spine
because there could be
extreme injury and after removal of the cervical spine collar, she
noticed that the patient did not have
cervical spine injury, however
she did order the X-Ray of the cervical spine because cervical spine
and chest X-Ray were part of
the
Advanced
Trauma Life Support Manual principles,
with
acronym ATLSM, that was very essential for management of trauma
patients.
[33]
She said that she used a
stethoscope
to listen to the heart sounds and found
them
normal. That was reference to S1 and S2 in her report she was reading
from. Her report referred to no peritoneum tenderness
which she said
meant that the patient did not have abdominal injury, what can be
very common in that type ejection from the motorbike.
There was
no clinical notice for rupture of spleen or rupture of the liver or
blunt abdominal injury involving intestines, which
can happen in
those conditions. To determine this, she did the palpation of
the abdomen and after that she did the auscultation,
to notice that
the sound of bowels was present. The patient
did
not complain about any respiratory problems. She authorized blood
transfusion as the patient was in heavy hypovolemic shock,
meaning
that he lost about two and a half litres of blood. The nurse left and
returned immediately with blood and transfusion was
done.
To
support the airways she ordered the oxygen mask because she
determined that there was no reason for endotracheal intubation of
the patient at the time. His oxygen saturation was 97 percent
and his respiratory rate was 24 per minute.
[34]
She advised the paramedic and the day nurses to pack the wound with
gauze.
She
said that she prescribed 2g of Ranzol, tetanus toxoid and pethidine
as painkillers. That prescription was not recorded
in her notes
that she read from but she said that such could be found in the
records of the nurses. Also, she put in a urinary
catheter to check
the urine output because it was important to see whether the patient
responded to the infusion of the fluids
and to see that the amount of
urine was adequate. With a lot of blood that was lost by the patient
it could not be anticipated
that blood pressure would immediately
rise but she was satisfied that what was done was extremely good
resuscitation with IV fluids,
with both the left and the right arm.
After
examination on the patient, she went to the main casualty at about
18h30 to telephone Ms Buddan. She did not want to
speak in
front of the patient about his condition. She took an x-ray form from
the cupboards in the cubicles and filled it to request
chest x-ray,
cervical spine x-ray, x-ray of the tibia and x-ray of the femur. She
tried to speak to Ms Buddan but due to MTN connectivity
problems, she
was unable to get through to her and the switchboard operator
undertook to find Ms Buddan for her. She also
called
the lab technician who had to be called from home and she was able to
speak to him. He was to come and take blood tests for
the
HB and
to determine what was the patient’s level of haemoglobin, what
is called the
f
ull
blood count and urea and electrolytes with acronym FBC, U & E
.
The results bearing the time 19h35
indicated
the sodium as 132; Kalium 3, urea 102; it was normal urea. There was
some creatinine. Then, HB, was 10.3 which meant that
the patient
reacted negatively as a result of loss of blood.
It
was at 18h55 that Ms Buddan telephoned her, having arrived at
Hospital from her home. She
told
Ms Buddan that the patient was not stable enough to be sent to the
x-ray department because he was still in shock, due to the
big
hemorrhage
he
suffered.
[35]
She said that they could not keep cases such as of Mr Grobler in G J
Crookes Hospital. There was also an instruction from ATLSM
course
that every practitioner who examined a suspected vascular injury
should immediately have to draw the attention of a vascular
surgeon
or at least a surgeon of such patient. She then telephoned Dr Wella
an O
rthopedic
Surgeon
of
Port Shepstone Hospital, which was their Regional Hospital.
Dr Wella told her to
discuss the case with the vascular surgeon in Inkosi Albert Luthuli
Hospital. She telephoned Inkosi Albert
Luthuli Hospital
to speak to Dr Govender
but he was not available and it was said that she was to call back
after an hour.
At
that stage she went back to observe the patient and noted that there
was no significant change in his condition as he was with
good
respiration, he had two IV lines, and he had two oxygen masks. At
about 19h10 she telephoned the maternity ward for assistance
from any
available doctor but none was available as they were still busy with
caesarean action.
[36]
At
about 19h15 the Applicant communicate with Dr Govender and she
explained the nature of the injury that there was a possibility
of
vascular injury, that the left lower limb was also some transection
in the posterior part of the calf, meaning that there was
surely
vascular injury of the tibia being a fracture. She said that
the tourniquet was put on at about 16h40. Dr Govender
told her that
she was going to admit the patient but she said that the Applicant
was rather to discuss the condition of the patient
with ICU trauma
unit also at Inkosi Albert Luthuli Hospital. She then
returned
to the side of the patient so as to check the oxygen saturation which
was 96/97. Blood transfusion was ongoing, and the
patient was not in
respiratory distress. His respiratory rate was 24, so she simply told
the nurses to continue with resuscitation
of the patient and returned
to casualty room from where she made a call to Inkosi Albert Luthuli
Hospital at 19h30. She
spoke
to Dr Mukendi a trauma doctor, who asked her different questions
about the patient, about his x-ray results of the HB which
was not
yet done. He also asked about the blood gas analysis which she was
not sure if it had been done. She discussed with him
regarding the
tourniquet, saying there was a vascular injury, that the leg was
mangled and crushed and he said that when the patient
stabilised, he
would be admitted at Inkosi Albert Luthuli Hospital for amputation.
He specifically said that the tourniquet
was to be left in place and
they were to stabilise the patient and that the patient could be
transferred for management.
[37]
Without the Applicant being told of it, the patient was taken to the
x-ray department.
She
received a call from her private telephone and the call was simply
cut without her knowing who was on the other side. Then s
he
received another call from a second extension telling her that the
patient deteriorated in the x-ray department. She was surprised
because she had just checked the patient who was fine. She was still
talking to Dr Mukendi and she told him that the patient had
deteriorated and she then immediately went to the x-ray but could not
walk fast and she came across the nurses wheeling the patient
back to
MOT. She could not walk fast because she
had
some operation in her right knee a couple of years ago and a Baker’s
cyst was removed from her knee under general anaesthesia.
She could
see that the patient was breathing with difficulty and had tachypnea
and dyspnoea meaning that the patient was fast breathing
and
irregularly. The oxygen saturation was dropping and she decided to
intubate the patient. She then immediately made a
call to Dr
Mncwango for
assistance
as the patient had a big neck and she anticipated a very difficult
intubation. She
told
the nurses to prepare the set for intubation.
[38]
Dr Mncwango arrived and he walked past and he queried why intubation
was to be done to a patient who was breathing or talking.
She could
not understand him. Dr Mncwango considered that the patient did
not need intubation because he was talking and
breathing or something
like that. Dr Mqadi entered immediately and she heard this
conversation. Dr Mncwango said something about
the bleeding and he
went immediately to the leg where he removed the dressing. He
started to suture. She tried to explain
to Dr Mqadi that the patient
was breathing with difficulty. However, Dr Mqadi considered the
advice of Dr Mncwango that the
patient did not need intubation and
she was talking Zulu language with the nurses. She did not take
in consideration the
request of the Applicant.
[39]
Ms Buddan brought the developed x-ray photos to the Applicant and
said that the x-rays were incomplete. The Applicant reviewed
the
x-ray of the femur, the tibia, cervical spine and cervical spine with
open mouth. The chest x-rays were not there. Ms Buddan
took the
envelope with the x-rays away with her. CPR was performed for
approximately half hour after the doctors came to the MOT.
That
was the time for the intubation and this was approximately from 20h30
to 21h00 when the patient demised. Ms Buddan later brought
the x-rays
inside the MOT and put them in the cupboard but as she was leaving
the Applicant told her that the patient had passed
away. She left the
Hospital at approximately 23:30 and she was on duty on the next day
also. As she had been on night call
on 31 May and on 1 June,
she said that she was totally devastated. Six weeks later she was
served with a copy of the charge sheet
and the chest x-ray results
from which she discern that the patient had pneumothorax, meaning
that some air was able to penetrate
into the lungs cavity, possibly
as a result of a broken rib. She conceded that she did not think of
using the bedside unit to x-ray
the patient but she maintained that
there was no one to blame for the belated discovery of the
pneumothorax.
Evaluation
[40]
It remained common cause that the Applicant was found guilty and
dismissed by the Respondent after a properly convened disciplinary
hearing. The Respondent had then to prove the fairness of the
dismissal. What is to be determined is whether any of the acts of
negligence alleged in the charge sheet were proved by the Respondent
through its evidence. This matter depends on the probabilities
of the
evidence led. For a proper consideration of the review application it
is prudent to firstly set out the facts found proved
by the totality
evidence led.
Facts
found proved
[41]
The following are facts found proved in this matter either because
they were not disputed or if disputed, were not very seriously
contested:
Ø
It
was at 18h20 on 2 June 2012 that the Applicant arrived at the MOT and
Mr Grobler was presented to her. It was not at 17h55 as
the
Commissioner found in his award.
[6]
Mr Grobler was talking at the time and was breathing normally. His
Glasgow Coma Scale score was 15/15 and his vital signs were
also
continuously recorded and observed on monitors. Except for Mr
Grobler’s blood pressure which was low, all other vital
signs
remained under control and stable. The tourniquet on his left leg
minimised bleeding from the injury that was packed with
gauze.
Ø
The
Applicant prescribed scheduled drugs to be administered as medical
treatment on Mr Grobler. She also ordered blood tests to
be carried
out and that blood transfusion was to be done for him. She ordered
that Mr Grobler be catheterized and it was done.
Ø
At
about 18h30 the Applicant contacted Ms Buddan, who was at home to
make arrangements for Mr Grobler to be x-rayed. She also
called
the laboratory technician who had to be called from home to come and
take blood tests for Mr Grobler.
Also,
at about 18h30 the Applicant telephonically discussed the situation
and condition of Mr Grobler’s left leg with
a Dr Wella an
orthopaedic surgeon at Port Shepstone Hospital as GJ Crookes Hospital
had no surgeons and/or specialists that could
assist Mr Grobler. She
was referred to
a
vascular surgeon at Inkosi Albert Luthuli Central Hospital.
Dr Govender, a vascular surgeon was unavailable at the time;
Ø
It
was acceptable practice for Medical Officers to consult specialists
in their own hospitals, or other hospitals for advice in
cases with
complicated life-threatening injuries. It was also the practice to
transfer patients once stabilised to hospitals where
appropriate
specialist treatment was available and again this practice was
recommended in life-threatening cases particularly in
a situation
where the patient was first treated in a district hospital where the
necessary resources and skills were often lacking.
The Applicant was
a Medical Officer.
Ø
The
Applicant kept a constant check on Mr Grobler who was still
hypovolemic and being administered fluids through two intravenous
lines and blood transfusion was ongoing. He had not yet stabilised.
At about 19h00 Ms Buddan telephoned to report that she had
arrived at
the Hospital and was ready to do Mr Grobler’s x-rays. The
Applicant informed her to wait as he had not yet stabilised.
Instead
another patient was sent to the x-ray department in the meantime for
x-rays. At about 19h00 Matron Dlamini had a discussion
with the
Applicant about the issue of the X-rays. The nurses had complained to
her saying that the Applicant refused to send Mr
Grobler for X-rays.
By then the Applicant had already asked Ms Buddan at
approximately 18h30 to come to Hospital for x-rays.
Ø
The
Applicant again left the MOT at approximately 19h15 to contact Dr
Govender who after being told of the situation advised the
Applicant
to contact an ICU/trauma unit. The Applicant returned to the MOT and
instructed the nurses to continue administering
fluids and blood to
Mr Grobler and to continue to support breathing by way of oxygen
mask. At approximately 19h30 the Applicant
left the MOT to contact Dr
Mukhendi, the trauma specialist, and she discussed Mr Grobler’s
condition. Dr Mukhendi advised
The Applicant not to remove the
tourniquet and to leave it in place due to the vascular injury.
Ø
At
approximately 19h40 Ms Buddan contacted the minor operating theatre
enquiring about Mr Grobler’s condition. One of the
nurses
informed her that Mr Grobler’s condition was stable enough for
the x-rays to be taken. Without the Applicant’s
knowledge and
instruction the nurse then made arrangements for Mr Grobler to be
taken to the x-ray department. Mr Odendaal and
friends of Mr Grobler
assisted to take Mr Grobler to the x-ray Department. A porter also
assisted. The porter carried the
oxygen bottle. At the x-ray
department Mr Grobler was moved from the trauma stretcher to the
X-ray bed by Ms Buddan, assisted by
Mr Odendaal. It was difficult to
move Mr Grobler, being a big person. Some x-rays were taken of
Mr Grobler and needed to be
processed.
Ø
Whilst
Ms Buddan was processing the x-rays in the dark room, Mr Grobler, for
the first time, started complaining about respiratory
problems and
his condition then changed drastically. He was twisting and turning
on the x-ray bed. Ms Buddan attempted to contact
the Applicant
telephonically to inform her that Mr Grobler’s condition was
deteriorating but was unsuccessful as the line
was cut. At that stage
the Applicant was not aware that Mr Grobler was in the x-ray
Department and had no idea of his deteriorating
condition as she was
discussing his case with Dr Mukhendi on another telephone line. She
informed Dr Mukhendi of the complication
and then proceeded to the
x-ray department only to come across nurses wheeling Mr Grobler back
to the MOT as Ms Buddan had succeeded
in making contact with them.
The Applicant followed them. Mr Grobler was reconnected to the
monitor and resuscitation measures
were resumed on him. The Applicant
soon left the MOT to telephone other doctors to immediately come to
assist her. She spoke to
Dr Mncwango and described the problem asking
him to come and assist with the intubation process.
Ø
Doctor
Mncwango met Dr Mqadi and he told her of the report he received from
the Applicant. Though Dr Mncwango was about to knock-off,
he and Dr
Mqadi rushed to the MOT.
Ø
Dr
Mncwango entered the minor operating theatre and expressed a view
that it was not necessary to intubate Mr Grobler given
that he
was still able to talk. He went straight to the left leg of Mr
Grobler and began to remove gauze and sutured it. Dr Mqadi
soon also
came in and attended to the upper torso of Mr Grobler. She began with
the intubation process which gave her difficulties.
In the meantime
Dr Mbhele had arrived and he went to assist Dr Mncwango but when
seeing the difficulties in the intubation process
went to assist with
it. He succeeded. By then the patient was restless, saying he could
not breathe. The doctors began with cardio-pulmonary
resuscitation.
The whole process took about 30 minutes but at the end of it, at
about 21h00 Mr Grobler was certified dead.
Ø
Mr
Grobler had seven broken ribs with pneumothorax, surgical emphysema
and haemothorax.
The
review test
[42]
The law governing the test for review has become trite. Simply stated
the question is whether
the
decision reached by the Commissioner is one that a reasonable
decision – maker could not reach.
[7]
Of interest, in
Herholdt
v Nedbank Ltd
[8]
the following was stated by the Supreme Court of Appeal concerning
the review of CCMA arbitration awards:
“
In summary,
the position regarding the review of CCMA awards is this: A review of
a CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a
defect in the conduct of the proceedings to
amount to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the inquiry
or arrived at an
unreasonable result. A result will only be unreasonable if it
is one that a reasonable arbitrator could
not reach on all the
material that was before the arbitrator. Material errors of
fact, as well as the weight and relevance
to be attached to
particular facts, are not in and of themselves sufficient for an
aware to be set aside, but are only of any consequence
if their
effect is to render the outcome unreasonable.”
[43]
Paragraphs 13 to 21 of the Labour Appeal Court decision in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA &
Others
[9]
also provide an essential guide for a review test. I shall however,
refer only to paragraph 21 which reads:
“
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail
to arrive at a reasonable decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable
outcome (see Minister of Health and Another v
New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC)).
But again, this is considered on the totality of the evidence not on
a fragmented, piecemeal analysis. As soon
as it is done in a
piecemeal fashion, the evaluation of the decision arrived at by the
arbitrator assumes the form of an appeal.
A fragmented analysis
rather than a broad-based evaluation of the totality of the evidence
defeats review as a process. It
follows that the argument that
the failure to have regard to material facts may potentially result
in a wrong decision has no place
in review applications.
Failure to have regard to material facts must actually defeat the
constitutional imperative that
the award must be rational and
reasonable – there is no room for conjecture and guesswork.”
[44]
A proper enquiry therefore simply turns on whether the factual
conclusions reached by the Commissioner in the award are reasonable
in the light of the evidence before him or her. If so, it is
the end of the probe. If not, and there is a glaring discrepancy
between the evidence presented and the conclusion reached by the
commissioner then the award is unreasonable.
[10]
Grounds for review
[45] When summarised the
grounds for review are that the Commissioner issued an unreasonable
award by misconstruing evidence led
at arbitration in relation to:
§
Mr
Grobler having complained that he could not breathe when he was
examined at about 18h20;
§
The
results of the chest x-rays and what the Applicant could possibly
know thereabout;
§
The
Applicant informing Mr Grobler’s friends that she did not know
what to do and that she phoned other doctors which was
the first
sequence in her patient examination;
§
The
Applicant
initially
refusing to do X-rays on a patient with poly-trauma suggested by
nurses until she was eventually convinced by the night
matron;
§
Mr
Grobler’s condition getting complicated in the x-ray
Department, Ms Buddan calling the Applicant who cut the call and did
not inform them on the immediate care;
§
The
decision at 19h40, taken by an unidentified nurse, to take Mr Grobler
to the X-ray Department;
§
The
Commissioner being bias against the Applicant;
§
Ignoring
the Applicant’s discretion in the treatment of Mr Grobler;
§
The
alleged failure to do a full examination;
§
The
alleged failure to check the bleeding wound;
§
The
use of
the bedside unit;
§
The
alleged
failure by the Applicant to assist when Mr Grobler arrived back in
the minor operating theatre.
[46]
In opposing this application the First and Fourth Respondents
contended that t
he Applicant did
not prove on the balance of probabilities that the Second Respondent
committed any irregularity for the reasons,
inter alia, that:
·
The
Applicant
failed
to do a full standard examination of Mr J Grobler she received from
EMRS at 17h50, who was complaining that he had difficulties
breathing
and yet the applicant reported in her notes that the chest was clear;
·
The
chief post-mortem report recorded that Mr Grobler suffered from
fractured ribs, air and blood in the chest cavity. The Applicant
ordered x-rays and did not view them until some 1 and a month later;
·
The above
is inconsistent with Applicant’s allegations that she examined
the patient by use of a stethoscope, the Second Respondent
correctly
and reasonably held that in all factors considered if indeed the
Applicant examined the patient’s chest then it
‘would
have been clear that not everything was right.
It
is thus inconceivable that a patient report form would record that Mr
Grobler did not have respiratory problems in light of the
post mortem
report and the fact that by the Applicant’s own admission, Mr
Grobler had an abrasion on the side of his body,
consistently in the
rib area;
·
U
nder
cross examination, the Applicant was asked why the bedside unit was
not used and her answer was that it did not come to her
mind and she
did not think of using the bedside unit. The Applicant further
conceded that had the bed side unit been used, the
chest injuries
would have been picked up, identified and the necessary intervention
would have been made. By all accounts the Applicant
further conceded
that the patient had a bruising on his chest and nobody could have
missed that and the Applicant missed it because
she did not use the
bed side unit;
·
The
Applicant could not give a proper account of what she exactly did for
the patient except spending what appeared to be an inordinate
time
seeking advice from other doctors and spent quite some time on the
telephone. The above rightfully gave Mr Odendaal an impression
that
nothing was being done for Mr Grobler and same is consistently
corroborated by the evidence of the nurses that they had to
beg the
Applicant to submit Mr Grobler for X-Rays which she admitted she
later relented to albeit after a considerable amount of
time;
·
What
appears on the Applicant’s affidavit is the recordal of times
of examination in an attempt to convince the court that
she was at
all times material vigilant in monitoring and examining Mr Grobler
and yet she also admitted that she was constantly
seeking advice from
what appears to be quite a number of doctors. A glaring contradiction
is found herein. When did the Applicant
find time to examine and seek
advice from other doctors and more especially in a case of being
asked ‘many questions’
by Dr Mukhendi which it can then
be inferred that the Applicant spent a considerable amount of time on
the telephone with the said
doctor. She displayed an adverse
ineptitude by failing to exercise duty of care;
·
It
is certainly an incredulous excuse by the Applicant in alleging that
she was not aware that the patient was taken to x-ray when
she
herself agreed after being convinced that the patient be taken for
x-rays and having completed an x-ray form. The Second Respondent
correctly held that the Applicant did not give clear instructions to
the nurses in respect of managing the patient;
·
What
is crystal clear to the Second Respondent is that indeed the
Applicant failed to stabilize the condition of Mr Grobler;
·
The
Applicant failed to exercise duty of care and failed to take control
of the situation. Therefore the decision of the Second
Respondent is
not reviewable as no other arbitrator could reasonably come to a
different conclusion as that of the Second Respondent
and that the
Applicant failed to prove irregularity and that such irregularity led
to an unreasonable conclusion.
[47]
It has correctly been submitted by the Applicant that there was no
evidence that Mr Grobler complained about having difficulty
in
breathing up until he was taken to the x-ray room. None of the
witnesses of the Respondents testified to the contrary. The first
time the issue of a breathing problem arose was when Mr Buddan came
out of the darkroom. Surely a patient with a breathing problem
would
not normally be removed from the life supporting system in order to
take him to the x-ray room. The unknown nurse who authorised
taking
Mr Grobler to the x-ray room would have assumed that the patient was
then stabilised, meaning he had no breathing problems.
A finding by
the Commissioner suggesting that Mr Grobler already had a breathing
problem is not supported by evidence.
[48]
The Commissioner found that the Applicant negligently failed to give
Mr Grobler medical treatment. Yet, while Mr Grobler was
connected to
the monitor he was given medical treatment that only a doctor could
prescribe. He received blood transfusion and the
only evidence on
record is that it was ordered by the Applicant. S
he
put in a urinary catheter to check the urine output because it was
important to see whether the patient responded to the infusion
of the
fluids and to see that the amount of urine was adequate. The Matron’s
report submitted by Nurse Ngcobo, which the
Commissioner did not even
consider, bears reference to these findings when it says:
“…
.
Doctor
came in, ordered bloods, X-Rays, opened the wound and packed the
wound and said to take patient to X-Rays. Catheter
was put in
and the IV lines…”
[49]
The Applicant was said to have acted negligently by not suturing the
injury on the left leg. She had two options either to
suture the
injury or to pack it with gauze and she went for the latter.
Thereafter there was no active bleeding. She used her medical
discretion on what was best for the patient. If the Applicant was as
none participant in treating Mr Grobler as testified to by
witnesses
of the Respondents, it becomes difficult to understand how she
prescribed all the treatment given to Mr Grobler. I am
accordingly
bound to find, as I do, that witnesses of the Respondents have been
very stingy with the truth on the role played by
the Applicant in the
treatment of Mr Grobler.[50] The arrival of Ms Buddan at Hospital is
yet another pointer to the truth. It
remained common cause that soon
after the Applicant was presented with Mr Grobler she asked the
switchboard to call Ms Buddan and
the Laboratory Technician to come
to the Hospital, they duly responded. This was around 18h30. To say
that the Applicant called
for a radiographer but did not want to have
x-ray examination conducted is devoid of any logic. There is no
evidence of what else
Ms Buddan did in Hospital so as to suggest that
she was not called for the x-rays. Ms Buddan’s evidence was
that she was
called from home at the instance of the Applicant and
once she arrived at Hospital the Applicant informed her that Mr
Grobler was
not stable enough to be taken up for the x-rays. In this
regard her evidence materially supported that of the Applicant.
Again,
witnesses of the Respondents lied about the attitude of the
Applicant on the taking of the x-rays. The fact that the Applicant,
at some stage found Mr Grobler not fit to be taken to the x-ray room
must not be construed as a refusal to have x-ray examination
conducted.
[50]
It remained common cause that, while the Applicant set up a stage for
Ms Buddan to take x-rays on Mr Grobler, the Applicant
formulated an
opinion that time for that was not yet opportune. She expected Mr
Grobler to respond positively to the treatment
given to him by being
medically stable. She then left him to respond positively to this
treatment and went to make consultative
telephone calls. Anyone
outside of Hospital experience who did not know and understand
the limitations
within which medical officers at this Hospital worked
might be excused for thinking that the Applicant spent unnecessary
time on
the telephone. With the condition in which Mr Grobler
presented himself, the Applicant was medically and legally bound to
consult
specialist doctors.
[51]
The transferring of Mr Grobler to the x-ray room is another important
development in this matter. It was clearly done without
the consent
and authority of the treating doctor, the Applicant. The very
important life supporting systems that were put to stabilise
Mr
Grobler had to be removed from him to wheel him away from the MOT. No
sooner had this been done than did he react negatively.
It is not
surprising that the identities of those nurses who were involved in
this unauthorized conduct suddenly became a secret.
They were
confronted with a reality that the Applicant was all along correct in
restricting the movement of Mr Grobler until he
would be stable
enough. Those nurses are the ones responsible for the complication in
Mr Grobler’s health. There was no basis
for holding the
Applicant responsible for allowing nurses to go alone to the
critically ill patient in the x-ray room. She did
not even know about
that movement of nurses. Those nurses were confronted with having to
correct their own mischief of disrespecting
a doctor’s
instruction to first stabilise the patient.
[52]
The evidence of Ms Buddan is essential in describing the condition of
Mr Grobler. As she came from the dark room she found
him twisting and
turning. That had never happened before. Clearly therefore by moving
Mr Grobler from a bed in the MOT to a stretcher,
wheeling him up to
the x-ray room and removing him from the stretcher to an x-ray bed
caused a movement of his thoracic cage which
had been damaged during
the accident. The movement of Mr Grobler exacerbated his medical
condition. That was precisely what the
Applicant sought to avoid by
delaying the x-ray examination. Even the packed gauze was probably
disturbed by the twisting and turning
re-opening the wound.
[53]
When Ms Buddan attempted to telephone the Applicant the telephone
line was cut even before she could speak and reveal her identity.
The
problem with telephone lines was a common feature of the Hospital.
There is no evidence on record that the Applicant deliberately
and
rudely cut the line. The Commissioner’s contrary finding in
this regard is a clear example of a grievous misdirection.
[54]
Once Mr Grobler was wheeled back to the MOT, he was in a hysterical
condition which needed an urgent intervention. He complained
about
his inability to breathe. The Applicant saw this condition. She was
held to blame for doing nothing to rescue the situation.
It is common
cause that she went out to telephone other doctors to come to her
assistance. Her explanation was that the patient
had a thick and
short neck which would make
endotracheal
intubation difficult.
What is lacking in the evidence is whether the nurses could not
assist her in holding the patient to a proper
position for her to
insert a laryngoscope into the mouth of the patient and be guided by
it to insert the breathing tube and keep
it in place so that oxygen
could then be pumped directly into the wind pipe and to the lungs.
Placing a wrestles patient into a
proper position for intubation is
notoriously difficult. It might very well be unfair and improper to
hold it against the Applicant
that she did not immediately initiate
intubation before other doctors arrived to help her. After all, Dr
Mncwango avoided intubation
on his arrival at the MOT and he went for
something that was hardly urgent. He was called to assist with
intubation and not to
suture the wound. Also, Dr Mqadi tried to
intubate with no success until the intervention of Dr Mbhele. Neither
Dr Mqadi nor Dr
Mncwango was disciplined for their failures.
[55]
Ms Buddan conceded that she had not processed the chest x-rays when
the condition of Mr Grobler took a turn for the worse.
At that time
and until Mr Grobler died therefore, there were no chest x-rays
available for the Applicant to examine. This is yet
another gross
misdirection in the findings of the Commissioner. The chest x-ray
examination was conducted but the results thereof
were in the
cassettes that Ms Buddan was yet to process.
[56]
The Applicant was held to blame for failing to request a bedside
unit. The evidence was never clear as to when it was opportune
to use
this unit. With hind sight it became clear that Mr Grobler was not to
be move about until he stabilised. This allegation
could have merits
had Mr Grobler first stabilised. The Applicant would then be faced
with an option of either sending him up to
the x-ray room or tell Ms
Buddan to come down to the MOT to do the examination there. In
respect of the x-rays taken by Ms Buddan,
the chest x-rays were
processed after Mr Grobler had died. She might probably have done the
same thing with processing the x-rays
for the bedside unit. Therefore
blaming the Applicant was mere conjecture.
[57]
The Applicant is said to have told the patients’ friends that
she did not know what to do. A closer examination of what
the
Applicant did evinced convincingly that she knew what she was about
and was on the right tract until her plan was changed by
nurses who
misjudged the situation.
[58]
The findings I have made indicate with no doubt that the Applicant
was never proved to have acted negligently in treating Mr
Grobler.
The Commissioner failed to have regard to the material facts in this
matter. He also failed to evaluate facts presented
at the hearing
with the consequence that he came to conclusions that were
unreasonable in justifying his decision. No meritorious
submissions
have been made in assailing the procedure followed at the
arbitration. However, this award cannot stand. It has to
be reviewed,
set aside and substituted.
[59]
The following order shall issue, taking into account the fairness of
the costs order, being mindful of the trouble unnecessarily
caused to
the Applicant in this matter:
1.
The
arbitration award of the Second Respondent in this matter is
reviewed, set aside and substituted with a finding that the dismissal
of the Applicant by the First and Fourth Respondents was
substantively unfair.
2.
The
First and Fourth Respondents are directed to reinstate the Applicant
to her employment with effect from the date of her dismissal
with no
loss of income and benefits that she would ordinarily be entitled to
but for the dismissal, subject to the retirement of
the Applicant on
her normal retirement date, that is at the end of March 2015.
3.
The
First and the Fourth respondents are ordered to pay the costs of this
application, the one paying the other to be absolved.
_______
Cele
J
Judge
of the Labour Court of South Africa.
APPEARANCES:
For
the Applicant: Mr G van der Westhuizen
Instructed
by MacRobert Inc, Durban
For
the Respondents: Mr S Giba
Instructed
by the State Attorney, Durban, KZN.
[1]
Act Number
66 of 1995.
[2]
See
Konono
MEC for the Department of Education Eastern Cape Province and Others
(278/2011) [2013] ZAECGHC 105 (1 October 2013).
[3]
Act Number
21 of 1996.
[4]
See
Numsa
v Henred Fruchauff Trailers (Pty) Ltd
[1994] ZASCA 153
;
1995 (4) SA 456
(AD) and
NCBAWU
v MF Woodcraft (Pty) Ltd
[1997]
1 BLLR 43 (LAC).
[5]
Equity
Aviation Services (Pty) Ltd v CCMA & others
[2008]
12 BLLR 1129 (CC).
[6]
See para 13.2 under analysis in the
award.
[7]
Sidumo &
Another v Rustenburg Platinum Mines
(2007)
28 ILJ 2405 (CC).
[8]
[2013] 11 BLLR
1074
(SCA) at [25].
[9]
(2014) 35 ILJ 943
(LAC).
[10]
See also
Nampak
Corrugated Containers (Pty) Ltd v Commissioner for Conciliation,
Mediation and Arbitration & Others
2009 (30) ILJ 647 (LC).