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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

    CASE NO CA 161/2019

    Date Heard: 04/09/2020

          Date Delivered: 18/09/2020

In the matter between:

ANDILE SAKI                                                                              APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL                        FIRST RESPONDENT

OF THE DEPARTMENT OF HEALTH, EASTERN CAPE

GOVERNMENT

THE MEDICAL SUPERINTENDANT, LIVINGSTONE                SECOND RESPONDENT

HOSPITAL               

JUDGMENT

NAIDU AJ:-

INTRODUCTION:

[1] This is an appeal against the judgment of magistrate V Reddy delivered on 1 February 2019. The Plaintiff had instituted action against the First and Second Respondents, in respect of damages he had suffered as a result of medical negligence in the treatment of his injuries by employees of the First Defendant under the management and control of the Second Respondent.

BACKGROUND

[2] It is common cause that on 21 February 2015, the Appellant had attended upon the Livingston Hospital Casualty Department at approximately 21h15, to receive treatment for a wound that he had sustained as a result of him accidently walking through a glass door at his residence;

[3] The Appellant suffered a 10 centimeter incisional laceration to his right upper thigh and an abrasion to his left palm.

[4] It is not disputed that he was treated by employees of the Second Respondent, namely nursing sister Jonkers and Dr Magillies. His wound was cleaned and stapled closed. A bactigrass dressing was applied and he was advised to attend a day clinic fourteen days later for removal of the staples.

[5] On 5 March 2015, the Appellant attended upon the Gcebera Day Clinic, Walmer, Port Elizabeth.

[6] Upon examination of the wound the medical personnel at the clinic discovered that the wound had become infected. An examination revealed that a large shard of glass was still in the wound and had to be removed. It was not disputed that the Appellant’s wound measured some 10 centimeters. Photographs depicting the shard of glass recovered from the wound clearly show that it was longer than 10 centimeters.

[7] The shard of glass was removed and the wound cleaned. The Appellant was provided with medication and he subsequently recovered fully. It was not disputed that the Appellant had to endure severe pain and suffering as a result of the wound having become infected.

[8] The Appellant thereupon instituted civil action in the Regional Court, Port Elizabeth on 6 September 2016, against the Respondents for damages in the sum of R400 000.

[9] His claim was dismissed by the court a quo.

THE APPELLANT’S CASE

[10] The Appellant pleaded that the Respondents’ employees, namely the medical personnel at Livingston Hospital, were under a legal duty to administer nursing and hospital care, treatment and supervision to him with the necessary skill, care and without negligence. He pleaded in the alternatively that the Appellant, upon his admission to Livingston Hospital on 21 February 2015, entered into an oral agreement with the Second Respondent in terms whereof the First or Second Respondent would provide and render medical treatment to him for the treatment of his injuries with due care, skill and without negligence.

[11] The Appellant averred that the Respondents’ employees had acted wrongfully, unlawfully and negligently in failing to take the necessary steps to ensure that the wound was properly assessed and cleaned, and to ensure that all debris, and specifically the shard of glass, had been removed.

[12] The Appellant averred furthermore that as a result of the abovementioned negligence of the medical personnel at Livingston Hospital who attended to his injuries on 21 February 2015, his wound became infected, septic and, inter alia, caused him severe pain, suffering and temporary disability.

THE RESPONDENTS’ CASE:

[13] Although the Respondents did not deny in their plea that the shard of glass as depicted in the photographic evidence had been removed from the Appellant’s wound at the clinic, they blew hot and cold regarding this issue during the trial.

 [14] However, in argument before us Mr Dala, who acted for them, wisely in my view, did not persist with this contention as it was manifest, on a conspectus of the evidence as a whole, that the shard of glass was discovered in the wound on the Appellant’s right thigh by the medical personnel at the Gqebera Day Clinic on 5 March 2015. He argued, however, that even if the shard had emanated from the Appellant’s wound, the non-detection of same was not as a result of negligence on the part of the Respondents’ employees who treated the Appellant at Livingston Hospital on the evening of 21 February 2015.

[15] The Respondents further did not deny that secondary infection had set into the Appellant’s wound. They did, however, deny that such infection was as a result of any negligence on the part of their employees. 

FINDINGS OF THE COURT A QUO

[16] In evaluating the Appellant’s claim, the magistrate surmised that the essential dispute between the parties was whether the piece of glass had emerged from the wound sustained by the Appellant.

[17] The magistrate, relying on an article in the ‘’Medical News Today’’ - which evidence was not presented by any of the parties at the hearing of the matter - deduced that as a local anaesthetic had been applied to the Appellant’s wound, he would not have felt, or had been aware of the attending nurse Jonkers’s treatment and exploration of the wound.

[18] She held further that the Appellant had provided no reasonable explanation for not having returned to the Hospital if he had indeed been in pain and his wound had not healed.

[19] She was furthermore of the view that the Appellant’s expert witness, Dr Solomons’s opinion that the dimensions of the shard of glass which was discovered at the clinic compelled an inference of negligence on the part of nurse Jonkers, was based solely on the doctrine of res ipsa loquitur. She accordingly attached minimal weight to his evidence. She similarly attached minimal weight to the evidence of the Respondents’ expert witness, Dr Walsh, who opined that it was possible that a piece of glass may have been lodged in the tissue and would have been rejected by the body.

[20] The magistrate was of the view that the Appellant’s testimony to the effect that he had noticed at the Gcebera Clinic that the wound was oozing and that the glass was still inside the wound and had broken through the stitches, was a clear indication that the shard had emanated from the tissue and not from the wound.

[21] The court a quo was satisfied that nurse Jonker had indeed explored the Appellant’s wound and that the shard of glass had concealed itself in the tissue at the time she had examined the wound. The magistrate found that this was in line with the definition of a “penetrating wound”. Accordingly, due to this concealment, nurse Jonkers would not have noticed the shard. The latter had in the circumstances thus acted as a reasonable nursing sister with the necessary application of experience and skill in attending to the Appellant’s wound. There was consequently nothing further she could have done.

[22] She consequently found that the Appellant had failed to discharge the onus of satisfying the court that the servants of the First and Second respondents had been negligent when they treated him, and dismissed the Appellant’s claim, with costs.

THE LEGAL PRINCIPLES APPLICABLE:

[23]The general rule is that he who asserts must prove. Thus in a case such as this, a plaintiff must prove that the damages that he has suffered has been caused by the defendant’s negligence. The failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence.[1]  

[24]In Castell v De Greef 1993 (3) SA 501 (C) at 512A-B: Scott J held: ‘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 reasonably competent practitioner in his field’.[2]

[25] A surgeon is in no different a position to any other professional person (Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 488C). It has been pointed out that a ‘medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care.[3]

DISCUSSION:

 [26] It is indeed lamentable that the magistrate made a baseless factual finding that ‘’the piece of glass was exiting from the tissue not from the wound.’’ It is indiscernible what the magistrate’s ratio was in drawing such a conclusion without any factual basis. The undisputed evidence was that the shard of glass was removed from within the Appellant’s wound and had actually caused the rupturing of some of the stitches. The magistrate clearly erred in drawing the conclusion that the shard of glass had concealed itself in the tissue and was hence undetectable to the attending nurse.

[27] The magistrate further erred in accepting as a fact that a local anesthetic was administered to the Appellant, that such anesthetic had the effect of desensitizing the wound, and that the Appellant would consequently not have been aware of the treatment that was being administered to him by nurse Jonkers. She erred in relying on an article from an unsubstantiated source to provide a basis for drawing such conclusion. There was no factual basis for this finding, and in the event, there was no evidence to suggest that even if such local anaesthetic had been administered, the Appellant would not have been conscious of the treatment administered to him. According to the Appellant the medical personnel did not explore his wound.

[28] The magistrate further held that nurse Jonkers could not detect the shard of glass as it had ‘’concealed’’ itself in the tissue area of the thigh and accordingly could not be retrieved by her at the time she had examined the Appellant and explored the wound. This conclusion is in my view manifestly untenable. From the evidence it is clear that nurse Jonkers was unable to provide a reasonable explanation for the glaring omission in the hospital records of her claim that she had explored the wound. During her testimony nurse Jonkers consistently stated that to her recollection the Appellant had suffered a superficial laceration to the skin.

[29] Having regard to the sheer size of the shard  and the uncontested evidence of Doctor Solomon that it is highly improbable that a shard of that size could have been concealed in Appellant’s thigh (having regard to his slender build), the inescapable conclusion is that the wound had not been adequately explored. The magistrate’s conclusion in this regard can accordingly not be supported.

[30] The magistrate further appeared to have reasoned that the fact that the doctrine of res ipsa loquitur is not applicable to medical negligence cases was decisive of the issue of negligence. This was clearly a misunderstanding of the correct legal position.

[31] In Cecilia Goliath v Member of the Executive Council for Health for the Eastern Cape 2015(2) SA 97 (SCA),[4]  Ponnan JA upheld the view that doctrine of res ipsa loquitur must not be viewed as a presumption of law, but that it is merely a permissible inference which a court may draw if justified upon consideration of all the facts. A court must accordingly adopt a common sense approach in evaluating the evidence as a whole.

[32] The burden of proof on the Plaintiff can never shift. At the end of the trial, after all the evidence relied upon by either side has been called and tested, the judge has simply to decide whether on the balance of probabilities the defendant was negligent, and that that negligence caused the plaintiff`s injury.[5]

[33] Determining issues such as negligence in medical negligence cases, should not be done in a piece meal manner. A trier of fact, in adjudicating upon causation, must have due regard to the conspectus of the evidence placed before the court as a whole. The doctrine of res ipsa loquitur is merely a facet of the inquiry and cannot be construed to be the sole determining factor upon which a Plaintiff or Defendant’s case succeeds or fails. The enquiry will always be whether, having regard to all of the evidence in the case, the Plaintiff has discharged the onus of proving, on a balance of probabilities, the negligence averred against the Defendant. [6]

[34] It is trite that in civil proceedings it is not necessary for a Plaintiff to prove that the inference that he asks the court to draw is the only reasonable inference, it suffices for him to convince the court that the inference that he seeks is the most readily apparent and acceptable inference from a number of possible inferences.[7]

[35] In this matter, at the close of the Appellant’s case in the court a quo, there was sufficient evidence to evince a reasonable inference of negligence. It was common cause that the Appellant was treated by employees of the Respondents and that on 5 March 2015 an eight centimetre by three centimetre shard of glass was removed from the wound of the Appellant, and that the wound had become infected as a result of such shard remaining in the wound after it had been sutured by way of surgical clips.

[36] To counter such an inference the Respondents, inter alia, led the evidence of nurse Jonkers who submitted that she had assessed the wound, had determined that it was a superficial laceration to the thigh and had indeed explored same to assess the depth and size. Having regard to the dimensions of the shard of glass removed from the Appellant’s wound and having regard to the undisputed fact that the Appellant curiously was unable to explain the omission in the hospital records confirming her exploration of the wound, the probabilities in the circumstances compel the inference that the wound was not explored as alleged.

[37] Further it was not disputed, as per the evidence of Dr Solomons, that the Appellant is a slender person. Consequently the amount of subcutaneous tissue between the skin and the muscle below would have been very thin, and the extracted shard of glass, with the dimensions eight centimetres by three centimetres, should thus have been easily visible. The fact that it was not detected and removed ineluctably points to an inference that the wound was not properly explored and cleaned.

[38] Nurse Jonkers claimed that the attending physician, doctor Neil Magilies, who was called to assess the wound, was satisfied and gave instructions for the wound to be sutured by staples. Dr Magilies was not called by the Respondents to adduce confirmation that Appellant had been attended to with the necessary reasonable care, assessment and treatment. While this omission would normally by itself not be sufficient to justify an adverse inference, in circumstances where the contemporaneous notes of the nursing sister are irreconcilable with her claim that she had explored the wound, it certainly points to a lacuna in the Respondents’ case.

[39] The opinion of medical experts is central to the determination of the required level of care and whether there was a breach of it. The requirement in evaluating such evidence is that expert witnesses must support their opinions with valid reasons. Where proper reasons are advanced in support of an opinion, the probative value thereof is strengthened.[8] It has further been held that it is not the mere opinion of the expert witness that is decisive but his ability to satisfy the Court that, because of his special skill, training and experience, the reasons for the opinion which he expresses are acceptable.[9]

[40] Dr Solomons was called as an expert witness by the Appellant. The conclusions he drew were that of an expert medical practitioner. His opinion that a shard of glass removed from the Appellant’s wound could not have been missed if a proper assessment and exploration of the wound had been performed was not disputed. In my view the court a quo thus erred in suggesting that the doctor had ‘’…merely given an opinion regarding the shard of glass, more on the basis of res ipsa loquitur. The weight attached by the court to the expert opinion is minimal.’’

[41] The Respondents’ expert, Dr Walsh concurred with Dr Solomons, that it would indeed have been negligent for employees of the Respondents to have missed the shard of glass in Appellant’s wound. Dr Walsh’s medical report provided no reasonable explanation as to how it was possible that nurse Jonkers did not detect the shard if indeed she had explored the wound. When confronted with the fact that the shard of glass actually emanated from the wound, she sought to suggest that the shard had perhaps been concealed in the tissue. There was, however, no factual basis for this conjecture.

[42] Dr Walsh further agreed with Dr Solomons that it was indeed probable that the shard of glass in the wound had indeed caused the infection of the wound.

[43] Having considered all the evidence, I am of the view that it is more probable than not that nurse Jonkers failed to explore the Appellant’s wound properly in order to check for any foreign objects lodged therein. The fact that she had regarded the wound as being superficial, in my view, explains her failure to record that she had explored the wound. This was such an important issue in the context of the treatment administered to the Appellant that it was no surprise that she was unable to proffer a reasonable explanation for this omission. And of course, it begs the question as to why it would have been necessary (or for that matter even possible) for her to explore a superficial wound, which according to her had only penetrated the skin. I am thus satisfied Respondents’ employees who treated the Appellant at Livingston Hospital were negligent and that it was that negligence which directly resulted in the Appellant’s wound becoming infected and causing him pain, suffering and disfigurement.

[44] I am accordingly satisfied that the Appellant had discharged the onus of proof resting upon him on a preponderance of probabilities.

THE ISSUE OF QUANTUM:

[45] In determining the question of an appropriate damages award, I take cognizance of the fact that the Appellant’s injury had not been caused by the employees of the Respondents.

[46] Mr Van de Linde SC, counsel for the Appellant, inveigled the court to utilize the Goliath case (supra) as a benchmark in determining the appropriate quantum for damages in the circumstances due to the absence of comparable precedents. In Goliath the plaintiff was awarded damages in the amount of R250 000-00.

[47] It is axiomatic that the Appellant had to endure the pain and suffering of a shard of glass in his thigh as from 21 February 2015 until when it was removed on 5 March 2015, together with the pain and suffering from the associated infection.

[48] The Appellant testified that he had suffered severe pain and distress pursuant to his treatment at Livingston Hospital. His leg was swollen and he was unable to ambulate without the assistance of crutches. He was further unable to sleep because of pain. This was corroborated by the Appellant’s sister Siphokazi Simayele. He recovered from his wounds through the effluxion of time after the shard of glass had been removed from the wound at the Gcebera Clinic.

[49] The Appellant further testified that whilst the size of the scar on his thigh has not affected his day to day living, he has become self-conscious of it and is reluctant to wear short pants in public.

[50] In Goliath the plaintiff had undergone a seemingly routine hysterectomy for a fibroid uterus at the Dora Nginza Hospital in Port Elizabeth on the 8 April 2011. Pursuant to the operation she suffered from a severe abscess of the wound, which necessitated further surgery. The surgery was not attended to timeously due to the untimely rupturing of the abscess. She was consequently discharged. It transpired that a medical swab had been left behind during the hysterectomy. She had to endure pain and suffering for a period of approximately three months before the medical swab was finally removed.

[51] While Goliath and the present matter both concern the mislaying of a foreign object in a wound, this is as far as the similarities go in respect of the comparisons in terms of pain and suffering. The sequelae in Goliath were manifestly more serious and the award in that case does not provide a comparable template for the award of damages in this matter. Having had due regard to the degree of the pain and suffering and disfigurement caused by the negligence of the Respondents’ employees mentioned above, I am of the view that general damages in the sum of R80 000 would be fair and reasonable. In addition, the Appellant has also proved special damages in the sum of R9 500 for future medical expenses.

[52] In the light of the above, I make the following Order:

            (1) The appeal is upheld, with costs;

            (2) The order of the court below is set aside and in its stead there is substituted the following order:

‘Judgment is granted in favour of the Plaintiff against the Defendants for:

(a)  Payment of the sum of R 80 000-00 in respect of General Damages;

(b)  Special Damages in respect of future medical costs in the amount of R9 500-00;

(b) Interest on the said sums at the legal rate a tempore morae;

(c) Costs of the suit, including qualifying fees of Dr D Solomons.

__________________________

V NAIDU

ACTING JUDGE OF THE HIGH COURT

I AGREE,

__________________________

J E SMITH

JUDGE OF THE HIGH COURT

Counsel for appellant:                         Adv. H. Van Der Linde (S.C.)

Attorneys for appellant:                       Netteltons Attorneys 

                                                               118A High Street

                                                               Grahamstown

Counsel for respondent:                      Adv. I Dala

Attorneys for respondent:                   State Attorneys

                                                                c/o N.T. Vuba Attorneys

Suite 3-6, First Floor

Fidelity Building

87 High Street

Grahamstown

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