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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO.: 2018/2016

Reportable:  YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

 

TEBOGO JOSEPH KOBOYATAU                                          Plaintiff

 

and

 

MEMBER OF THE EXECUTIVE COUNCIL FOR

HEALTH AND SOCIAL DEVELOPMENT OF

THE NORTH WEST PROVINCE                                            Defendant

 

CORAM: PETERSEN ADJP

 

Date judgment reserved:  06 November 2023

 

The judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 22 July 2024 at 12h00.

 

 

ORDER

 

The plaintiff’s claim is dismissed with costs, such costs to include those costs consequent upon the employment of two counsel, on a party and party scale.

 

JUDGMENT

 

PETERSEN ADJP

 

Introduction

 

[1]             The plaintiff, a 29-year-old male educator by profession, was admitted to the Gelukspan District Hospital (‘Gelukspan Hospital’) on 28 June 2014, for stab wounds he sustained to his left upper thorax and left upper arm. The claim for damages arose from medical treatment received by the plaintiff from the date of his admission on 28 June 2014 which traversed to at least 21 July 2014 at the Mafikeng Provincial Hospital (‘Mafikeng Hospital’).

 

[2]             He instituted an action against the defendant in his nominal capacity as the Member of the Executive Council for Health and Social Development of the North West Province (‘the MEC’) based on the treatment received at both Hospitals as aforesaid.

 

[3]             The MEC defended the action and contended that by and large, the care that was administered complied with what was reasonably expected of its medical staff.

 

[4]             At a pre-trial conference held on 10 September 2021, the parties agreed that the issue of liability which encompasses the issues of negligence and causation be separated from the quantum in terms of Rule 33(4) of the Uniform Rules of the High Court. The trial proceeded on this basis.

 

Synopsis

 

[5]             The plaintiff relied on the oral expert testimony of three (3) witnesses – Dr Edeling (neurosurgeon), Dr Botha (specialist physician) and Dr Nicolau (specialist cardiothoracic surgeon). The defendant relied on factual and expert evidence. The factual oral testimony of the defendant included the evidence of three (3) of the attending medical practitioners, Dr Motsei (medical doctor and Clinical Manager at Gelukspan Hospital); Dr Sekuila (specialist general surgeon at Mahikeng Hospital); and Dr Kazumba (anaethetist). The oral expert testimony relied on by the defendant included that of Professor Kota (specialist surgeon); Dr Nyoka-Mokgalong (specialist anaethetist) and Dr Ntimbani (neurosurgeon).       

 

[6]             The defendant further delivered three (3) expert reports of Dr Tsela (specialist surgeon); Dr Pienaar (principal specialist and general surgeon) and Dr Kamolane (radiologist), who were not called to testify at the trial.

 

Background

 

[7]             The specific factual background implicit in the common cause facts are as follows. The plaintiff was stabbed in the left upper arm and left upper chest. He was attended to at Setlagole Clinic on 28 June 2014. On arrival at Setlogole Clinic his blood pressure was 91/52 mm/hg (millimetres of mercury). A nursing sister attended to the plaintiff and put up an intravenous infusion of 1000ml (millilitres) of Ringer’s lactate solution. The wounds were sutured, and an ambulance was summoned. The plaintiff was ultimately transported to the Gelukspan Hospital by ambulance. He arrived there at 18h35, on 28 June 2014.

 

[8]             On arrival at Gelukspan Hospital, the blood pressure of the plaintiff was 76/47 mm/hg²; and he was hypotensive and hypovolemic. The attending doctor at Gelukspan Hospital, Dr Motsei, examined the plaintiff and recorded the following entry in the Hospital notes: “Smells alcohol, intoxicated, sleeping, restless”. The stab wound to the left chest measured 4cm and the stab wound to the left upper arm 3cm.

 

[9]             The Hospital records suggest that since the plaintiff was sleeping and restless a chest X-ray (CXR) could not be taken. From the time of the admission of the plaintiff at 18h35 on 28 June 2014 at Gelukspan Hospital, he was only assessed again by Dr Motsei at 06h15 on 29 June 2014, after which a chest X-ray was processed at 07h00. The chest X-ray revealed a haemothorax of the left chest. As a result, Dr Motsei inserted an Intercostal Drain (“ICD”) tube. The ICD drained 2 litres of blood over the ensuing two (2) days.

 

[10]         On 01 July 2014, the plaintiff complained of chest pains and a dry cough. The doctor who examined him on the said date recorded that the plaintiff was “haemodynamically stable”; that he was apyrexial (absence of a fever), with no breathing sounds audible on the left lung. It was further observed that the ICD was not swinging or bubbling, and physiotherapy was requested. A repeat chest X-ray was also requested. On review of the chest X-ray it revealed an opacity on the left lower lobe, and that the left lung had not fully expanded. The underwater seal of the ICD was changed, and the drain was left in place.

 

[11]         On 02 and 03 July 2014, the plaintiff was examined by another doctor at Gelukspan Hospital and there was no change in the clinical status of the plaintiff. As a result, prophylactic antibiotics were ordered on 3 July 2014 and administered. The plaintiff was next examined on 5 July 2014. He still complained of chest pain, decreased air entry on the left lung was noted and his oxygen saturation was at 93%. The treating doctor ordered that the plaintiff be placed on supplementary oxygen following low oxygenation and ordered a further X-ray to be done. The X-Ray revealed a mediastinal shift to the right side. The plaintiff was as a result referred to Mafikeng Hospital on 05 July 2014.

 

[12]         The plaintiff was examined on admission in the Casualty Department at Mafikeng Hospital. An assessment of the plaintiff revealed his temperature to be 38⁰C, his pulse 117bpm, blood pressure 115/66 mm/hg, oxygen saturation 94% and that he was pyrexic (he had a fever). An X-ray confirmed the left hemothorax and opacity. The ICD was swinging. Further intravenous antibiotics and fluids were administered, and he was admitted to a ward.

 

[13]         On 9 July 2014, the plaintiff received a blood transfusion as he was hypovolemic. He remained stable. On 10 July 2014, on examination by a doctor, the plaintiff had no chest pain, no dyspnea, no cough and he was apyrexial (had no fever). The ICD was draining bloodstained fluid and was swinging. The plaintiff was examined daily from the date of his admission at Mafikeng Hospital until 21 July 2014 when a thoracotomy was performed in theatre.

 

[14]         The pre-operative checklist reflects that the plaintiff signed a consent form for the thoracotomy. The vitals of the plaintiff immediately prior to the thoracotomy demonstrated that he had a temperature of 36⁰C, a pulse rate of 91, respiration of 18, and that his blood pressure was 106/73 mm/hg.

 

[15]         The left haemothorax was evacuated during surgery. Other than the evacuation of the haemothorax and minor adhesions noted, the lung was able to expand. The plaintiff was intubated, manually ventilated with bag mask oxygen and transferred to ICU after surgery. In ICU, the plaintiff was connected to a ventilator. Whilst in ICU, his oxygen saturation suddenly dropped to 65% on fractional inspired oxygen of 100%, and the plaintiff appeared clinically cyanosed. He had no palpable peripheral pulses and his heart rate dropped to below 60bpm. The plaintiff’s pupils were 4mm dilated and not responding to light. The plaintiff had suffered cardiorespiratory arrest.

 

[16]         Cardio-Pulmonary Resuscitation (“CPR”) commenced, and atropine was immediately administered intravenously. The intervention was successful and the plaintiff’s oxygen sats elevated to 94%. The plaintiff was placed on mechanical ventilation and sedated. Since the plaintiff suffered a ruptured urethra, an open placement was done of a suprapubic catheter. The plaintiff was transferred from the ICU to a general ward on 22 July 2014. The plaintiff remained on a ventilator throughout. However, on 23 July 2014 he was transferred back to ICU for haemodialysis which treatment lasted from 23 July 2014 to 02 August 2014.

 

[17]         On 7 August 2014, a tracheostomy was performed and closed on 22 August 2014. The plaintiff was admitted for further management in a general ward and discharged on 31 August 2014. Between 3 September 2014 and 18 September 2014, the plaintiff attended follow-up check-ups for the post thoracotomy and tracheostomy.

     

The pleadings

 

The plaintiff’s cause of action

 

[18]         The cause of action of the plaintiff is essentially formulated in paragraphs 5 and 7 of the Particulars of Claim. This must be considered against the aforesaid background facts and the evidence adduced in relation thereto.

 

[19]         The essence of the pleadings are as follows. The medical personnel of the Gelukspan and Mafikeng Hospitals involved in the examination, treatment and the rendering of advice to the plaintiff upon his attendances and admission to the Hospitals, undertook to examine the plaintiff and to render such medical examinations, care, treatment and advice to the plaintiff as was reasonably required in the circumstances. They were under a duty of care to render medical care, treatment and advice to the plaintiff with such skill, care and diligence as could reasonably be expected from medical practitioners and nursing staff with reasonable and appropriate knowledge of the initial management and treatment of patients presenting with stab wounds. This included the need for prompt identification of the plaintiff as a trauma inflicted patient requiring treatment accordingly, which required prompt recognition of the plaintiff as a patient presenting with stab wounds which required emergency treatment. The medical staff should have recognized the need for medical specialist intervention and timeous intervention of such medical specialist treatment and management when so identified. The medical staff had to take    proper and adequate measures to prevent wound infections. This should have included proper and adequate management and treatment of the plaintiff after initial emergency medical treatment and intervention, and proper and adequate post-operative management and treatment of the plaintiff.

 

[20]             The condition of the plaintiff as alleged at paragraph 5 of the Particulars of Claim is said to have been caused solely because of the negligence of one or more or all of the medical and/or nursing personnel at the Gelukspan and Mafikeng Hospitals. The medical staff are said to have been negligent in one or more or all of the following respects:

 

(i)              The delay to correctly and properly manage and treat the plaintiff’s haemothorax which presented with profuse bleeding from his left chest;

 

(ii)             the failure to treat the plaintiff’s traumatic haemothorax as a medical emergency;

 

(iii)           the failure to perform a chest x-ray examination of the plaintiff as soon as reasonably possible after his presentation with a stab wound to the chest with profuse bleeding from the external surface, relying on an approximate twelve-hour delay, some fourteen to sixteen hours after the plaintiff sustained his stab wound;

 

(iv)           the failure to timeously recognize that the plaintiff presented with excessive bleeding in his chest cavity and to manage and treat him aggressively as a result;

 

(v)             the failure to remove the clotted blood from the plaintiff's pleural space as soon as reasonably possible;

 

(vi)           the failure to observe the plaintiff's increasingly respiratory dysfunction and to ensure emergency medical intervention; the delay in inserting the ICD;

 

(vii)          failure to timeously observe that the ICD was not functioning;

 

(viii)         the failure to timeously recognise that the blood in the plaintiff's chest had clotted and that such clotting blocked the ICD;

 

(ix)            the failure to timeously identify the clotting of the plaintiffs ICD, which prevented adequate drainage of the plaintiff’s pleural space, which contributed to the consequent difficulties experienced of a retained and organised hemothorax with loculation and fibrosis;

 

(x)             the failure to implement adequate and proper management in order to prevent infection of the plaintiffs haemothorax;

 

(xi)            the failure to timeously consult a cardiothoracic surgeon to intervene in the plaintiff's treatment;

 

(xii)          the failure to place more than one tube, alternatively, large diameter tubes in the plaintiff's chest and/or to perform an early thoracotomy;

 

(xiii)        the failure to manage and treat the plaintiff appropriately in order to prevent cardiorespiratory arrest;

 

(xiv)        and the failure to implement proper medical management and treatment in order to prevent hypoxic ischemic brain damage.

 

 The Amended Plea of the MEC

 

[21]         The defence of the MEC as set out in the Amended Plea is essentially that the plaintiff was intoxicated and severely hypotensive on admission to Gelukspan Hospital, was uncooperative and obstructive and interfered with the ICD after it was inserted at 07h00 on 29 June 2014. That the medical staff attended to the non-functional ICD, and functionality was restored. The plaintiff’s medical condition was stable at Gelukspan Hospital and did not warrant any emergency thoracotomy. That it was consequently appropriate for the plaintiff to await his turn for the semi-elective procedure, which was ultimately performed on 21 July 2014. The MEC further pleaded that the plaintiff had no urine output due to persistent hypotension resultant in renal impairment. The plaintiff had a possible urethral catheter to drain urine and the rupture of the urethra during the insertion of the catheter was unforeseen. That a cardiorespiratory arrest is a common complication associated with a thoracotomy. The plaintiff was appropriately treated with intravenous antibiotics and anti-hypotensive therapy. The Mafikeng Hospital did not have a resident cardiothoracic or appropriately qualified general surgeons and was dependent on sessional visiting surgeons. The sessional visiting surgeons perform surgical procedures according to the degree of urgency to save lives. The availability of surgeons triaging patients plays a role in selecting the preference for surgical procedures. The plaintiff was in a stable condition with no life-threatening symptoms and was therefore classified as a non-emergency case. The plaintiff was attended to daily by the nursing and medical staff.

 

The evidence

 

[22]         I propose to deal with an overview of the oral testimony in sequence of the attending medical practitioners, followed by the medical evidence on causation and then the evidence on negligence, rather than the sequence in which the evidence was presented by the plaintiff and defendant respectively. This will be done against the detailed summary of the evidence by Counsel in their heads of argument. Lastly, I propose dealing with the expert reports of the defendant which were not retracted or disavowed. Notably no joint minutes were prepared by any of the overlapping experts.

 

The attending medical practitioners (Gelukspan and Mafikeng Hospitals)

 

Dr Motsei

 

[23]         Dr B.E. Motsei commenced his shift at Gelukspan Hospital at 08h00 on 28 June 2014 until 08h00 on 29 June 2014. On 28 June 2014 at 18h35 he was provided with a referral letter from Setlagole Clinic, describing the plaintiff as seriously ill, with shortness of breath, being weak, bleeding (hemorrhaging) and requiring oxygen. In particular, he was aware that internal bleeding was suspected at Setlagole Clinic. Upon examination he found the plaintiff to be hypovolemic and recorded in the Hospital notes that the plaintiff smelt of alcohol, was intoxicated and was sleeping.

 

[24]         He noted the plaintiff’s chest wound to be about 4cm. He was mindful of the fact that the plaintiff, presenting with a stab wound to the chest, required an X-Ray to verify the extent of the internal bleeding. However, this could not be achieved as the plaintiff was “restless”. In oral testimony, outside of what he recorded in the Hospital notes, Dr Motsei sought to explain what was implied by the word “restless”, namely that when he tried to touch the plaintiff he was moving around, which rendered it ‘not possible to do an X-ray’.

 

[25]         Following his examination of the plaintiff on 28 June 2014, Dr Motsei recorded the following in the Hospital notes “For chest x-ray when awake”. This he explained in his oral testimony implied that when he tried to examine the plaintiff “he would be jumping around and not sitting still so that we can (sic) properly do a, so that we can (sic) properly do an examination on him. That was what I meant by being restless”. He further elaborated that: “Yes, not really jumping out of bed you know while on the couch or the examination couch,…. Moving around not really sitting still so that he can (sic) be properly examined”. He added that “he was basically being unco-operative”. According to Dr Motsei the plaintiff would not take instructions, and “that is why we could not even do an X-ray…” The cardio-vascular system of the plaintiff was normal when he examined him.

 

[26]         Dr Motsei further testified that since the blood pressure of the plaintiff on admission to Gelukspan Hospital was 91/52 mm/hg, which was abnormally low, he put up an intravenous (IV) drip. The reason for the infusion of IV fluids was to improve the blood pressure of the plaintiff, which had further lowered to 76/47 mm/ hg. He then left the plaintiff to rest a while to reduce his state of intoxication, before the chest X-ray was done.

 

[27]         Dr Motsei testified that after his examination of the plaintiff on 28 June 2014, as he was in Casualty, he did not return to check on the plaintiff until the next morning, 29 June 2014 at 07h00. He was only contacted in the morning when the plaintiff was bleeding on the affected area, swollen and “unable to cough”. Neither did he contact any of the attending nurses to enquire about the plaintiff's wellbeing. According to Dr Motsei, he expected the nursing staff to call him “should there be any changes”. Dr Motsei readily conceded that the nursing staff failed to carry out an instruction on 28 June 2014 to obtain a full blood count of the plaintiff subject to the availability of a technician. The instruction to obtain a full blood count was to check the plaintiff's dynamic status, to determine, amongst others, the extent of the bleeding and to correct same accordingly. He also recorded in the Hospital notes that he required the plaintiff’s urea and electrolytes to be checked, since excessive bleeding necessitated checking the hydration status of the plaintiff. He admitted that the Gelukspan Hospital was geared to deal with emergencies such as the plaintiff in respect of obtaining full blood counts (laboratory tests); and X-ray examinations on an urgent basis.

 

[28]          Dr Motsei confirmed that an entry in the Hospital records at 06h15 on 29 June 2014 (presumably by a professional nurse) reflects that no X-ray was taken despite an entry that X-rays were ordered on the morning of 29 June 2014.

 

[29]         According to Dr Motsei he inserted an ICD at approximately 07h00 on 29 June 2014 because of the restlessness of the plaintiff the previous evening, 28 June 2014. He did, however, agree with Dr Nicolaou’s evidence that it is not uncommon to insert ICD’s in such circumstances, which has happened on battle fields where X-ray machines are not available, and that even paramedics are trained to do so.

 

[30]         Dr Motsei did not see or attend to the plaintiff after his examination at 07h00 on 29 June 2014 until 17h02 on 5 July 2014 when he was contacted by Dr Setshogoe on 5 July 2014. Dr Setshogoe informed him that the plaintiff’s condition was not improving. He was complaining of chest pain, the lung had shifted to the right side of the chest when “compared to the last X-ray” taken. He then advised that the plaintiff be transferred to Mahikeng Hospital.

 

[31]         Under cross-examination, Dr Motsei testified that he could not insert the ICD tube as the plaintiff was moving around and he could have caused more damage. He admitted that there is no recordal that the plaintiff was uncooperative. Despite recording on 28 June 2014 that the plaintiff was to be taken “For chest x-ray when awake”, Dr Motsei denied that the plaintiff was sleeping. Dr Motsei instead sought, many years later, to expound on his entry in the Hospital notes to mean or convey, that in the absence of the plaintiff being physically touched he would fall would asleep naturally. On physical contact with the plaintiff for the purpose of examining him, he would start to move around restlessly.

 

[32]         According to Dr Motsei, he was in the Casualty Department and not the ward and that he could not say when the plaintiff woke up during the evening of 28 June 2014, for X-rays to be taken, as ordered. Dr Sekuila testified that it is standard procedure once a haemothorax is identified by chest X-ray that an ICD would be inserted immediately to drain the blood from the chest. Failing the insertion of an ICD, oxygen saturation will decline which could become life-threatening as clotting may be a potential danger. Clotting could result in unwanted infection.

 

Dr Sekuila (general surgeon)

 

[33]         According to Dr Sekuila, at the time of the plaintiff’s admission at Mafikeng Hospital, he would be called to assess patients by the only surgeon at the Hospital at the time, Dr Sithole, and assist in theatre where necessary. He saw the plaintiff for the first time on Friday 18 July 2014 and assessed the plaintiff to determine his suitability for surgery. At that time, a decision had already been made by Dr Sithole and his team that the plaintiff required a thoracotomy. They, however, had to wait for an opening in ICU to do the procedure. He found the plaintiff suitable for surgery and explained the surgical procedure to him. Since the plaintiff’s condition was stable, it was decided to treat his condition as an elective procedure. The plaintiff consequently signed a consent form on 18 July 2014 in the following terms:

 

“I the undersigned, hereby consent to the performance of and understand the nature, risk and possible consequences about the procedure doctors who perform the above may, within the reasonable scope thereof carry out additional or alternative measures including general anaesthesia, considered necessary”.

 

[34]         Dr Sekuila performed the thorachotomy on the plaintiff on the same date. The procedure commenced at 09h15 and ended at about 10h45. He recorded his notes at 11h00. He does no calls on a weekend unless called out. Under cross-examination, he testified that he did not see the plaintiff over the weekend, but that the anaesthetist, Dr Kazumba and Dr Lopez did.

 

[35]         The plaintiff takes no issue with the thoracotomy performed by Dr Sekuila as it does not fall within any of the grounds of negligence relied upon by the plaintiff.

 

Dr Kazumba (anaethetist)

 

[36]         Dr B Kazumba an anaesthetist at Mafikeng Hospital testified that he has been administering anaesthesia since 2006. Since his employment at Mafikeng Hospital he has only administered anaesthesia in theatre. In the main Dr Kazumba’s evidence in is that in the plaintiff’s case, there was a serious anaesthetic risk as only one lung was functional. He classified the thoracotomy to be performed on the plaintiff on the anaesthetic chart as “ASA3”, which is a serious and high-risk grading. He administered the anaesthesia to the plaintiff, and he was present when Dr Sekuila removed clots from the plaintiff’s lung, which was compressed.

 

[37]         Dr Kazumba testified that he personally took the plaintiff to ICU after the surgery as he was not allowed to breath on his own, and he retubed the plaintiff. Upon arrival in ICU a report was given, and he connected the plaintiff to a ventilator to enable him to breathe. That is when his role ended.

 

[38]         Under cross examination, it was put to Dr Kazumba that according to Professor Koto the plaintiff's cardiorespiratory arrest after the surgery was most likely due to a migrated tube during transportation from theatre to ICU. Dr Kazumba disagreed with the contention. Notably, Professor Koto in cross examination accepted that he had no basis to dispute Dr Kazumba’s evidence in this regard.

 

Causation

 

Dr Edeling (Neurosurgeon for the plaintiff)

 

[39]         Dr Edeling testified on behalf of the plaintiff on the issue of causation. Without derogating from his evidence, the salient aspects are as follows. Following an interview with the plaintiff and his brother (Anthony Koboyatau) on 5 April 2018, and having considered the Hospital records, he concluded that more than two years following the events of 2014, the plaintiff remains with permanent disability. The evidence of Dr Edeling on the factual background sketched above need not be repeated. The essence of his evidence is that post thoracotomy, the procedure was complicated by a post-operative cardiorespiratory arrest when the plaintiff’s heart stopped beating, leading to a loss of breath caused by the absence of blood circulation.

 

[40]         The plaintiff’s cardiorespiratory arrest is said to have been further complicated by acute renal failure (kidney failure) following a lack of blood and oxygen flow to the kidneys. This cardiorespiratory arrest according to Dr Edeling further gave rise to multiple cerebral infarctions (dying of areas of brain tissue). Dr Edeling therefore opines that the plaintiff’s kidneys and his brain developed ischemic damage meaning that after all organs in the body suffered hypoxic ischemic damage causing physical damage to the brain with impaired brain function. This physical damage to the plaintiff’s brain was caused by hypoxia (insufficient oxygen in the blood circulating through the brain) and ischemia (an insufficient amount of blood circulating through the brain).

 

[41]         The plaintiff as result suffers from disorders in respect of cognitive and executive mental functioning as well as neuropsychological and neuro behavioral disorders. He further suffers from permanent visual impairment and partial incontinence.

 

[42]         Dr Edeling ultimately concluded that the plaintiff’s brain damage occurred between the commencement of the operation and the time when he started to talk after the removal of the “tubes”. After the thoracotomy was performed and upon the plaintiff’s arrival in ICU his oxygen saturation dropped, he had no pulses, his pupils were slightly dilated, and he had a cardiorespiratory arrest. On his evidence, when the thoracotomy was performed twenty-three (23) days after the plaintiff was stabbed “...his body was in trouble, there was heart trouble, lung trouble, circulatory trouble and there was sepsis. Now all of those adverse events would have stressed and impaired his homeostasis and his normal physiology, it would have reduced his capacity to deal with any other shock or problem.” In the result Dr Edeling concluded that "they had weakened him progressively over a period of twenty-three days ...”

 

[43]         Dr Edeling concluded that the plaintiff sustained permanent brain damage as a result of his cardiorespiratory arrest following the thoracotomy, which was aggravated by the subsequent periods of inadequate oxygenation and blood pressure. According to Dr Edeling he found some evidence that before the thoracotomy the plaintiff's physiology was threatened but “it came right”.

 

[44]         Notably, according to Dr Edeling the plaintiff’s brain was not having an easy ride until the thoracotomy, but it was able to recover from those threats and the irreversible damage caused to the plaintiffs brain occurred directly after the thoracotomy. The plaintiff's brain damage is now of a permanent nature with no potential for any further recovery. “The same thing that caused brain damage, inadequate circulation to the brain ... ” caused renal failure. The plaintiff's urethra rupture was “due to some handling of the urethral catheter.”

 

[45]         Dr Edeling did not find any evidence of any pre-existing neurological or pathological condition or disability. With reference to the conclusions in the report of the defendant’s neurosurgeon, Dr Ntimbani and Dr Edeling agreed with Dr Ntimbani that the plaintiff’s memory impairment is related to multiple cortical infarcts due to probable secondary brain injury following hypoxia from the chest trauma haemothorax.

 

[46]         Under cross examination Dr Edeling conceded that his field of expertise is as a neurosurgeon and not a neurologist or radiologist for that matter and could not express an opinion on causes of cardiorespiratory arrest. He further conceded that there were what could be termed errors of judgment in the choice of medical treatment rendered to the plaintiff. He deferred to Dr Botha, a physician, on the issue of negligence.

 

Dr Ntimbani (neurosurgeon for the defendant)

 

[47]         Dr Ntimbani testified on behalf of the defendant on the issue of causation. According to Dr Ntimbani, he had an interview with the plaintiff who was accompanied by his brother, in Setswana. In a nutshell his evidence was that from a neurosurgical perspective the resultant infarct and memory problems are not as a result of negligence from a medical practitioner. This follows from the conclusion in his report that the “Resultant infarct and memory problem are not as a result of negligence from the medical practitioner” is related to the surgeon who performed the thoracotomy on the plaintiff. In this regard the causation conclusion of Dr Ntimbani coincides with that of Dr Edeling.

 

[48]         In cross-examination the plaintiff reiterated that it is not pleaded nor suggested by the plaintiff that the thoracotomy performed by Dr Sekuila caused the plaintiff’s cardiorespiratory arrest and the resultant outcome.

 

Negligence

 

Dr Botha (specialist physician)

 

[49]         According to Dr Botha, since the stab wound measured 4cm and on perusal of the Hospital notes and the plaintiff was bleeding profusely, presenting with low blood pressure upon admission to Gelukspan Hospital, it is unsurprising that twelve (12) hours post admission, he presented with a haemothorax. The plaintiff therefore bled throughout the night.

 

[50]         Dr Botha isolates the ICD as the main issue in the matter. To this end, he opines that since a haemothorax was already present in the chest, the ICD was not swinging to drain blood and there were no bubbles, suggesting that the ICD was non-functional. Notwithstanding this, the ICD was not re-inserted, or a larger ICD inserted. He, however, testified that once the ICD stopped draining it served no purpose.

 

[51]         The crux of Dr Botha’s evidence, against the ICD not draining blood, is that the plaintiff was very sick, which was exacerbated by an approximately three weeks wait before the thoracotomy on 18 July 2014. The plaintiff was therefore a high-risk patient for a procedure like a thoracotomy and in consequence he went into cardiorespiratory arrest and developed brain damage.

 

[52]         When the mediastinal shift was identified on an X-ray performed on 5 July 2024, Dr Botha opines that this was a very bad sign. According to Dr Botha the “first prize” would have been to refer the plaintiff to a bigger centre (Hospital) for specialist management, and to have a thoracotomy performed. Since this did not happen in time, he opines that this was substandard and clearly unacceptable. When the plaintiff was eventually transferred to Mafikeng Hospital, he was a very sick man and an anaesthetic risk which rendered the prospects of having a cardiac arrest “manyfold higher”. In Dr Botha’s opinion this should have been foreseen right from the start.

 

[53]         Dr Botha went on to describe the “number of mishaps or mistreatments or mismanagements” as culminating in the plaintiff being rendered a very sick man who then needed a thoracotomy. Included in the mishaps or mistreatments, he testified that the fact that X-ray examinations were not performed immediately after the plaintiff’s admission to the Gelukspan Hospital is a very serious omission and a very substandard form of treatment, in the face of an “absolute life-threatening situation”. He opined that the fact that the plaintiff survived is a miracle. Dr Botha referenced the fact that ICD’s are sometimes inserted on accident scenes or battlefields by paramedics as a lifesaving procedure. He further opines that the plaintiff having been left for twelve hours before an x-ray was obtained was “a horrendous blunder” which is negligent in his opinion. According to Dr Botha, the blind insertion of an ICD would have made a huge difference to the plaintiff. The fact that the plaintiff was intoxicated according to Dr Botha, is of no consequence. It did not imply that he should not have received emergency treatment.

 

[54]         Dr Botha agreed with Dr Tsela that an urgent chest X-ray should have been performed upon admission at Gelukspan Hospital. The diagnosis of a haemothorax which was only confirmed twelve hours after the injury, led to a delay in instituting the correct management of the haemothorax by the insertion of the ICD, which is a medical emergency.

 

[55]         Dr Botha also agreed with Dr Tsela that the delay of the diagnosis and appropriate management with the plaintiff remaining persistently symptomatic and with the ICD not functioning, that specialist consultation with definitive management should have been instituted which could have prevented the unfortunate complications and long-term ongoing sequelae that the plaintiff suffered.

 

[56]         Dr Botha also agreed with Dr Nyoka-Mokgalong, the anaesthetist employed by the defendant), that early definitive intervention to evacuate the clotted haematoma from the left haemothorax would have prevented the development of cardio-respiratory complications and neuropsychological sequelae the plaintiff is suffering from.

 

[57]         Dr Botha further agreed with Dr Pienaar, the surgeon employed by the defendant, that the medical staff at Gelukspan Hospital did not manage the plaintiff according to the accepted standard of care when he presented with haemorrhagic shock by failing to perform an immediate chest X-ray to insert an ICD. He agrees that the failure to perform follow up X-rays and to act accordingly is regarded as grossly substandard care on the part of the staff at Gelukspan Hospital. In addition, he agrees that the failure of the staff at Gelukspan Hospital to refer the plaintiff to a provincial Hospital during the period 1 to 5 July 2014, must be regarded as grossly substandard care.

 

[58]         Dr Botha also agreed with Dr Pienaar that the failure of the staff at Mafikeng Hospital to urgently address and treat a retained and infected haematoma from 5 July 2014 until 21 July 2014 led to all subsequent events and the current condition of the plaintiff. Dr Botha ultimately agreed with Dr Pienaar that the conduct of the employees at the Gelukspan and Mafikeng Hospitals cannot be defended.

 

[59]         Dr Botha disagreed with the conclusion of Professor Koto that cardiorespiratory arrest is a common complication of a thoracotomy. According to Dr Botha incidents of cardiac arrest after a thoracotomy must be very low, and therefore he “totally” disagreed with Professor Koto.

 

[60]         Under cross examination Dr Botha did not dispute that in his report dated 7 December 2014, he commented that “the delay in the correct management of the hemothorax with profuse bleeding from the left chest led to the subsequent difficulties and complications.” and that a hemopneumothorax would be inevitable. Dr Botha conceded under cross examination that there was an error of judgement on the part of the medical personnel not to refer the plaintiff to theatre early for a thoracotomy.

 

Dr Nicolau (cardiothoracic surgeon)

 

[61]         Dr Nicolau, employed by the plaintiff, testified that a mediastinal shift is a serious medical issue which results in respiratory dysfunction, which increased the incidence of infection. Dr Nicolaou testified that 90% of chest stab wound patients will suffer minor sequelae and can be treated easily with an ICD and that approximately 10-12% of those patients will require an intervention as well-documented in international literature, and in his experience. According to Dr Nicolau, in the case of patients bleeding profusely with residual clots, as with the plaintiff, one can attempt another ICD but once there is clotting in the chest the blood cannot drain no matter how big it is. This necessitates a thoracotomy, and if a thoracotomy is performed early the prognosis is excellent. The plaintiff would have fallen into this category of patient; and since he was not taken to theatre early, he suffers from the current sequelae.

 

[62]         Dr Nicolau opined that cardiorespiratory arrest following a thoracotomy is very uncommon especially in a young patient such as the plaintiff where the chances of death was less than 1%. With reference to his database Dr Nicolaou stated that with all thoracotomies (including the removal of lungs) the mortality rate is approximately 3%. In his opinion, if a thoracotomy is performed in the first few days it is a very simple approach.

 

[63]         Dr Nicolau stated an obvious fact in South Africa, that sadly intoxication in trauma is very high to the extent that Hospitals deal with such incidences on a regular basis. Therefore, he opines that there is no reason not to treat a drunk (intoxicated) patient properly. The fact that the plaintiff was short of breath and with later confirmation of a mediastinal shift, Dr Nicolaou concluded that there was no doubt in his mind that at this point the thoracotomy should have been performed.

 

[64]         Dr Nicolau went on to testify that once there is a long delay in treatment, the clot “almost becomes a banana peel over the lung”. Therefore, the plaintiff's elevated diaphragm and the compromise of the left volume of the plaintiff's thorax was one of the complications of the delayed thoracotomy. The plaintiff developed empyema, (a development of pus in the chest) which posed a high risk of infection and required clearing out to avoid long-term sequelae. In his opinion the thoracotomy was necessary but performed too late.

 

[65]         Dr Nicolau opines that the sepsis in the plaintiff's chest cavity identified on 5 July 2014 was probably there for some sixteen days until the thoracotomy was performed. Antibiotics he testified are effective, but not in the case of the plaintiff which could never be cured by antibiotics unless one drains and allows the lung to take up its space. He explained that if one collapses a lung, it produces secretions which become thick and tacky which obstructs the airflow to the lung which is a “balloon”. A collapsed lung full of secretions could enter the normal airway once a thoracotomy is performed, which can culminate in mucous clogging, sepsis and bleeding into the airway causing respiratory obstruction. Dr Nicolau references the drop in the plaintiff's oxygen saturation to 65% on the ventilator, to opine that there must have been some form of obstruction in the plaintiff's airway.

 

[66]         Dr Nicolau disagreed with the allegation in the defendant’s plea that the entry of 5 July 2014 in the Hospital records at Mafikeng Hospital that the plaintiff looked acutely ill, did not constitute an emergency. In essence, the entry of a drop of the plaintiff's haemoglobin to 8 suggested that he bled more in consequence of which he would have become hypotensive, that is suffering of low blood pressure which would affect renal function.

 

[67]         The defendant points out that on 13 April 2021 when Dr Nicolau interviewed the plaintiff he obeyed and understood all commands and could easily discuss his problem. He concluded that the plaintiff was managed inappropriately, resulting in complications. During cross-examination, he conceded that Dr Motsei treated the plaintiff appropriately, but maintained that he should have transferred him to a higher-level Hospital “as soon as he noticed that the X-ray remained abnormal”. He conceded during cross-examination that it was an error of judgment for the doctor not to seek further advice and repeated that Dr Motsei managed the case well in all principles except initially. On this score, the plaintiff points that it was put to Dr Nicolau in cross-examination that he would concede the delay in performing the thoracotomy was due to bad judgment, which he confirmed, but stated that this should not have happened. This the plaintiff submits constitutes negligence on the part of the Hospital’s medical and nursing personnel which is essentially the plaintiff’s case.

 

Dr Nyoka-Mokgalong (specialist anaethetist)

 

[68]         Dr Nyoka-Mokgalong did not interview the plaintiff but relied on the fact that interviews with the plaintiff by Drs Edeling, Botha and Ntimbane indicated that he could follow instructions. Dr Nyoka-Mokgalong acknowledged that the plaintiff having been stabbed with a knife, predisposed him to infection. Dr Nyoka-Mokgalong noted that the plaintiff was appropriately put on antibiotics at Gelukspan Hospital, and on arrival at Mafikeng Hospital, on intravenous antibiotics.

 

[69]         Dr Nyoka-Mokgalong noted that the Hospital records reflected that the plaintiff had a haemothorax, had a fever, was complaining of left chest pains, and the haemothorax was not improving; and that the doctor on 5 July 2014, recorded that “The patient looks acutely ill, and the blood pressure was ¹¹⁵/66.” Therefore, the plaintiff had to be stabilised before being taken to theatre.

 

[70]         In evidence in chief Dr Nyoka-Mokgalong testified that the plaintiff was not haemodynamically stable to undergo anaesthesia for a thorachotomy, which would explain why it was necessary to wait until 21 July 2014. In elaborating, Dr Nyoka-Mokgalong testified that an anaesthetist had to ensure that the plaintiff would be able to withstand the thoracotomy, and all patients with a history of alcohol use, have to be properly assessed. She further testified that anaesthetists use the American Society of Anaesthetists (“ASA”) classification for grading of patients for surgery and the plaintiff was classified as ASA3 by Dr Kazumba.

 

[71]         As an ASA 3 patient, Dr Nyoka-Mokgolong testified, that in anaesthesia, when one starts ventilating a patient that is hypovolemic or hypotensive, positive pressure ventilation is used to push air into the lungs, which in turn compresses all the blood vessels that return blood to the heart. In the present case, Dr Nyoka-Mokgolong testified, the inferior vena cava of the heart was affected, since it could not get enough blood to the heart. In her opinion therefore, cardiac output (a depressed heart) was the problem with the plaintiff suffering cardiac arrest, and not a dislodged tube. In particular, she testified that the acidosis might have been the cause of glycolysis (an anaerobic ventilation), which depressed the plaintiff’s heart resulting in an inability by the heart to pump properly to transfer oxygen to the organs. Cardiac arrest, especially in ICU, causes global hypoxia resulting in global suffering (the whole brain) because there is no oxygen “to the body”.

 

[72]         Dr Nyoka-Mokgalong, however, conceded under cross examination that if the plaintiff was fit enough to undergo anaesthesia between 1 and 5 July 2014, and a thoracotomy had been performed during that period, the plaintiff would not have developed a mediastinal shift. To this end, Dr Nyoka-Mokgalong confirmed her conclusion in her second report “... that early definitive intervention to evacuate the clotted haematoma from the left haemothorax would have prevented the development of cardiorespiratory complications and the neurological sequelae the plaintiff now suffers from”.

 

[73]         Dr Nyoka-Mokgalong testified that the delay in performing the thoracotomy was unprecedented. But all notwithstanding, that State Hospitals have budgets, and it does not matter what the condition of a patient may be or whether such a patient requires immediate “massive” surgery at another Hospital, a transfer will not happen if the budget does not allow for it.

 

Professor MZ Koto (general surgeon)

 

[74]         Professor Koto, a general surgeon who trains specialist general surgeons, with respect, sought to usurp the role of the Court on the competence or otherwise of the experts employed by the plaintiff. He attempted to opine that the plaintiff’s experts were not specifically qualified in a specific field to venture an opinion, inter alia, on issues of traumatic surgery and anaesthesia. What needs to be reiterated is that it remains the duty of this Court to make that assessment. More specifically Professor Kota sought to discount the opinion of the vascular surgeon employed by the plaintiff, Professor Pantanowitz. According to Professor Kota, a vascular surgeon does not get involved in traumatic lung injuries and since in the present case there is no indication or report that there was a vascular injury, no vascular surgeon was involved.

 

[75]         The evidence of Professor Kota summarized to its relevance to the present matter is that once a haemothorax has clotted, it is no longer an emergency. In that case he opines there are several interventions available to treat the haemothorax, which may include blood thinning medication (thrombolytic medication) which would ultimately dissolve the clots. Professor Koto added that physiotherapy could help. According to Professor Kota, once a haemothorax is identified without any signs of infection, a surgeon would not operate but “just leave it”.

 

[76]         Professor Koto testified that an X-ray confirms what "you already know almost because usually the haemothorax is a clinical diagnosis, how do we diagnose it, there will be history of trauma like in this patient is a stab and then when you listen to the lungs air entry will be decreased on that side and when you tap on the chest wall we can call that percussion it will be dull”. At basic level, medical students are taught to make this diagnosis and that is why there is no “immediate hurry” to perform an X-ray. Professor Koto’s attention was drawn to the opinion of Dr Tsela, that in view of the plaintiff’s clinical presentation an urgent X-ray should have been performed. Professor Koto eventually conceded that a chest X-ray should be done immediately but that must be assessed on individual merits. Professor Koto opined that the most likely diagnosis of the plaintiff upon his admission to Gelukspan Hospital even without an X-ray was a haemothorax. Professor Koto further opined that 95% of similar patients to the plaintiff can be treated with an ICD alone without the need for a thoracotomy. This is because the blood is liquid and the use of an appropriate size ICD before clotting, which is when a problem arises, which necessitates surgery.

 

[77]         Under cross-examination, Professor Koto testified general surgeons are trained not to refer a patient like (the plaintiff on admission) for an X-ray since they often die in X-ray, particularly with a blood pressure of 76/47 mm/hg. He also testified under cross-examination that the decision to start antibiotics at Gelukspan Hospital was correct to mitigate against infection, even though antibiotics do not completely prevent infection. He also opined that the reason for transferring the plaintiff to Mafikeng Hospital was correct, since the clot draining had stopped. Professor Koto under cross-examination opined that whatever treatment that was administered, had to be given time to work. This on average takes a few days; and on average, if you take all patients that have a clotted haemothorax who are referred to higher centres, the time is around a week in Hospital.

 

[78]         Professor Koto testified that daily or frequent x-rays should have been performed at Gelukspan Hospital to ensure that the ICD was still in place and to ensure that the blood is draining. Failure to do so would be substandard treatment. With reference to the entry after the performance of the second X-ray examination there was opacity of the plaintiff’s lower lung lobe and that his left lung was not fully expanded. Professor Koto stated that opacity means that there is still blood, but the question arises if the blood is not coming out. Therefore, it is likely that the blood is clotted and impeding the lung from fully

expanding. When Professor Koto was referred to the testimony of Dr Motsei that he would have made immediate arrangements to transfer the plaintiff to Mafikeng Hospital after the second X-ray on 1 July 2014, he testified that he was not surprised.

 

[79]         From a treatment perspective, however, the first port of call would be to insert an ICD, which in many cases would drain the clots before a decision is taken to decorticate. The rationale being that if a haemothorax is identified on X-ray the blood must be evacuated to prevent infection with a potential threat to a patient’s life and to prevent trapping of the lung. Professor Koto reiterated that there was a significant volume of blood in the plaintiff’s pleural space.

 

[80]         Professor Kota, under cross examination, went on to explain that in instances where an ICD was no longer draining and the blood in the pleural cavity starts to clot, it can become organised (fibrosis) if it is left for too long. Fibrosis being like a plaster cast on the lung which reduces the oxygen capacity of the lung resulting in breathing problems.

 

[81]         The gist of Professor Koto’s evidence is that the first indication in the Hospital records that the plaintiff’s lung was not improving, was on 5 July 2014, when a further chest X-ray was done confirmed a clotted haemothorax. In his opinion, therefore, there was no need to rush the plaintiff to theatre as that may have been harmful. The attending surgeon, Dr Sithole, was therefore correct to prescribe antibiotics. Professor Koto testified that the opacity first identified on 1 July 2014 may have been present on 30 June 2014 already.

 

[82]         Professor Koto accepted, with reference to the entries in the Hospital records at Gelukspan Hospital between 1 and 5 July 2014, that there were no entries indicating that any medical doctor tried to correct the ICD that was not “swinging”.

 

[83]         Professor Koto accepted that there appeared to be a lot of clotting pushing the lung to the other side, with reference to the entry on 5 July 2014 of mediastinal shifting to the right, which did not improve when compared to the X-ray of 1 July 2014. Professor Koto explained that if the shift was too much it would obstruct venous return to the heart and lungs and could drop the patient’s blood pressure. This is when “empyema” becomes dangerous because of pressure and if nothing is done it could ultimately kill the patient.

 

[84]         Professor Kota discounted the evidence of Dr Botha, that “when the thoracotomy procedure was eventually performed, more than three weeks after haemothorax the (plaintiff) was a compromised patient….and that, that contributed to the cardio respiratory arrest.” He testified that a period of three weeks before performing a thoracotomy is not unusual and added with the condition of the plaintiff being stable throughout, that the surgical procedure was therefore not prolonged. The prolonged period of three weeks he surmised had nothing to do with the cardiac arrest post-surgery. According to Professor Koto there is no local or international literature that supports the opinion of Dr Botha.

 

[85]         At the outset of the cross-examination of Professor Koto, his attention was drawn to the entry in his report that “…once a haemothorax is clotted very few interventions may help, and what is required is surgery…” which would be decortication and evacuation of the haematoma. In that regard, it was put to Professor Kota, that Drs Botha and Nicolau agreed with him that a thoracotomy was necessary.

 

The experts not called by the defendant and whose reports were not disavowed or retracted

 

Dr Tsela

 

[86]         According to Dr Tsela the plaintiff’s clinical presentation upon admission to Gelukspan Hospital which included breathlessness, progressive swelling of the chest, profuse bleeding from the chest wall wound and hypotension suggested a clinical diagnosis of a haemothorax. This accords with the evidence of Professor Kota.

 

[87]         According to Dr Tsela the plaintiff’s clinical presentation upon admission to Gelukspan Hospital which included breathlessness, progressive swelling of the chest, profuse bleeding from the chest wall wound and hypotension suggested a clinical diagnosis of a haemothorax. This accords with the evidence of Professor Kota.

 

[88]         In his opinion an urgent X-ray should have been performed. With the diagnosis of the haemothorax 12 hours after the injury, led to a delay in the correct management of the haemothorax which required the insertion of an ICD, as a medical emergency. Due to the delay in inserting the ICD and excessive bleeding into the chest, the plaintiff developed blood clots which later led to poor and subsequent malfunctioning of the ICD. The haemothorax remained in the plaintiff’s pleural space for approximately three (3) weeks before the thoracotomy, resulting in the haematoma becoming organised and the plaintiff developing a superimposed infection which further compromised his clinical state.

 

[89]         The delay in the correct management of the haemothorax which required the insertion of an ICD, was a medical emergency. Due to the delay in inserting the ICD and excessive bleeding into the chest the plaintiff developed blood clots which later led to poor and subsequent malfunctioning of the ICD. The haemothorax remained in the plaintiff’s pleural space for approximately three (3) weeks before the thoracotomy, resulting in the haematoma becoming organised and the plaintiff developing a superimposed infection which further compromised his clinical state.

 

[90]         Dr Tsela concluded that timeous appropriate clinical diagnosis, radiological investigations and management of the plaintiff’s injury could have prevented the complications that he subsequently developed.

 

Dr Pienaar

 

[91]         The gist of the opinion of Dr Pienaar, with due regard to the treatment regime recorded in the Hospital records is that when the thoracotomy was performed, a systemic inflammatory response syndrome was highly likely, well established and the cause of the cardiorespiratory arrest with subsequent multi-organ failure. He opines that antibiotics would not have reached the bacterial load in the haematoma and there was therefore no reason to delay the thoracotomy which should have been performed at the latest on 5 July 2014, when a mediastinal shift had occurred, and puss was noted in the ICD. He opines that if the thoracotomy was performed on 5 July 2014, or on 6 July 2014, the outcome in this matter would most probably have been vastly different.

 

[92]         He further opines that the medical staff at Gelukspan Hospital did not manage the plaintiff according to the accepted standard of care when he presented in haemorrhagic shock on 28 June 2014 by failing to perform an immediate chest X-ray and to insert an ICD. He opines that the failure to perform follow up X-rays and act accordingly is regarded as grossly sub-standard care by the staff of Gelukspan Hospital. He further opines that the failure by the medical staff of Gelukspan Hospital staff to refer the plaintiff to a provincial Hospital in the period between 1 and 5 July 2014, is also regarded as grossly sub-standard care.

 

[93]         In his opinion, the failure of the medical staff at Mafikeng Hospital to urgently treat the infected haematoma in the plaintiff’s left thorax between 5 and 21 July 2014, resulted in the plaintiff’s current condition. He also opines that the rupture of the plaintiff’s urethra during catheter insertion is regarded as grossly sub-standard conduct.                             

 

Issues

 

[94]         The issues in the matter may be succinctly described as follows. Whether the medical treatment of the plaintiff at the Gelukspan and Mafikeng Hospitals, as recorded and extracted from the Hospital (medical) records was sub-standard and/or amounts to negligent conduct on the part of the employees of the defendant. The issue which is at the core of the claim of the plaintiff is whether the period preceding the thoracotomy procedure which was performed on 21 July 2014, constitutes sub-standard medical care or negligence on the part of the employees of the defendant.

 

The approach to evidence in medical negligence cases generally

 

[95]         The proliferation of medical negligence claims in South Africa in recent times is well documented in our law reports. The role of expert medical witnesses in assisting a court to arrive at a fair decision has accordingly taken centre stage in all our jurisprudence which has developed and more so in recent pronouncements.

 

[96]         This action is no different. The plaintiff did not testify in support of his claim. The body of evidence adduced by the parties, particularly relevant to expert evidence, as will become clear, demonstrates the dichotomy in medical opinion which often arises when experts are juxtaposed to assist the Court in arriving at a fair conclusion.

 

[97]         Rather than incorporate the authorities which have developed in our jurisprudence over the years intermittently in the body of the judgment, it would be prudent to set same out at this stage, to appreciate what this action and the evidence in support and against thereof is in fact about. Ultimately negligence plays a central role in the matter and aligned therewith the often-vexed question of causality. I propose with due deference to the authorities of the apex Courts, particularly the Supreme Court of Appeal, to endeavor an exposition of the law in this regard.

 

[98]         The genesis of our jurisprudence on the legal test applicable in the determination of the issue of medical negligence referred to on a precedential basis in our authorities is found in Mitchell v Dixon 1914 AD 519 at 525 where the Appellate Division stated 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.’

 

[99]         The factual evidence adduced by the MEC amplified by the available medical records speaks to this test. It is then adumbrated by divergent expert medical opinion adduced by the plaintiff and MEC respectively.

 

[100]     In Van Wyk v Lewis 1924 AD 438 at 444, the Appellate Division explained the notion of what “reasonable” entails: that the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. What then is reasonable skill and care required of members of the branch of the profession to which the practitioners who treated the plaintiff belong. Expert evidence demonstrates a dichotomy in this regard.

 

[101]     As remarked in Goliath v MEC for Health, Eastern Cape 2 015 (2) SA 97 (SCA), the pleadings and argument in the case frequently refers to the refrain ‘duty and care’.  ‘Duty’ is often also referred to as ‘skill’.  In McIntosh v Premier of the Province of KwaZulu-Natal and Another (632/2007) [2008] ZASCA 62; 2008 (6) SA 1 (SCA); [2008] 4 All SA 72 (SCA) (29 May 2008) at paragraph 12, the Supreme Court of Appeal observed in this regard that:

 

‘[12] The second inquiry is whether there was fault, in this case negligence. As is apparent from the much quoted dictum of Holmes JA in Kruger v Coetzee  1966 (2) SA 428 (A) at 430E-F, the issue of negligence itself involves a twofold inquiry. The first is; was the harm reasonably foreseeable? The second is; would the diligens paterfamilias take reasonable steps to guard against such occurrence and did the defendant fail to take those steps? The answer to the second inquiry is frequently expressed in terms of a duty. The foreseeability requirement is more often than not assumed and the inquiry is said to be simply whether the defendant had a duty to take one or other step, such as drive in a particular way or perform some or other positive act, and, if so, whether the failure on the part of the defendant to do so amounted to a breach of that duty…”

(emphasis added)

 

[102]     To answer the aforesaid questions, relevant expert evidence of those in the medical profession is adduced by parties to assist the Court. Expert evidence as a reminder is not meant to usurp the mandate of the Court which is ultimately to render a decision on the important questions of negligence and causality. On the approach to expert evidence, the SCA stated as follows in Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) at paragraph 34:

 

“THE APPROACH TO THE EXPERT EVIDENCE

 

[34] In the course of the evidence counsel often asked the experts whether they thought this or that conduct was reasonable or unreasonable, or even negligent. The learned Judge was not misled by this into abdicating his decision-making duty. Nor, we are sure, did counsel intend that that should happen. However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is one for the court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the court’s reaching its own conclusion on the issues raised.

 

…

 

[36] That being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority  [1997] UKHL 46;  [1998] AC 232 (H.L.(E.) ). With the relevant dicta in the speech of Lord Browne-Wilkinson we respectfully agree. Summarised, they are to the following effect.

 

 [37] The court is not bound to absolve a defendant from liability for allegedly negligent medical treatment or diagnosis just because evidence of expert opinion, albeit genuinely held, is that the treatment or diagnosis in issue accorded with sound medical practice. The court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached “a defensible conclusion” (at 241 G - 242 B).

 

 [38] If a body of professional opinion overlooks an obvious risk which could have been guarded against it will not be reasonable, even if almost universally held (at 242 H).

 

[39] A defendant can properly be held liable, despite the support of a body of professional opinion sanctioning the conduct in issue, if that body of opinion is not capable of withstanding logical analysis and is therefore not reasonable. However, it will very seldom be right to conclude that views genuinely held by a competent expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which the court would not normally be able to make without expert evidence and it would be wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support. Only where expert opinion cannot be logically supported at all will it fail to provide “the benchmark by reference to which the defendant’s conduct falls to be assessed” (at 243 A-E).

 

[40] Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to express the prospects of an event’s occurrence, as far as they possibly could, in terms of more practical assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty per cent chance and so on. This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathclyde Police, 200 SC (HL) 77 and the warning given at 89 D-E that:

 

“(o)ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved - instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence.”

 

[103]     In Medi-Clinic v Vermeulen (504/13) [2014] ZASCA 150 (26 September 2014), the SCA in elaborating on paragraphs 37 to 39 of Michael & another v Linksfield Park Clinic (Pty) Ltd & another stated:

 

“[6] This approach was first enunciated by McNair J in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (QB) at 122 and later adopted by the House of Lords in Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 (HL); [1997] 4 All ER 771 (HL). In Bolam McNair J, in summarising the true test for establishing negligence on the part of the doctor in medical negligence cases said (at 122B─C): ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I don’t believe in anaesthetics. I don’t believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century”. That clearly would be wrong.’

 

[7] In Bolitho Lord Browne-Wilkinson, with regard to the treatment of expert evidence in cases where a doctor’s negligence is sought to be established, stated (at 778d-g): ‘…in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In Bolam’s case [1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 587 McNair J stated that the defendant had to have acted in accordance with the practice accepted as proper by a “responsible body of medical men” (my emphasis). Later he referred to “a standard of practice recognised as proper by a competent reasonable body of opinion” (see [1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 588; my emphasis). Again, in the passage which I have cited from Maynard’s case, Lord Scarman refers to a “respectable” body of professional opinion. The use of these adjectives ─ responsible, reasonable and respectable ─ all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.’

 

[8] After referring to various cases such as Hucks v Cole (1968) (1993) 4 Med LR 393 and Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] AC 296, [1984] 2 WLR 1, Lord Browne-Wilkinson summarised the legal position as follows (at 779d-g): ‘These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.’

 

[104]     In Chapeikin and Another v Mini (103/2015) [2016] ZASCA 105 (14 July 2016), the SCA restated the test in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H that “the proper approach for establishing the existence of negligence as follows: ‘For the purposes of liability culpa arises if - (a) a diligens paterfamilias in the position of the defendant - (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such steps.’

 

[105]     The SCA went further to state that:

 

“[26] In a recent re-statement of the test in Oppelt v Department of Health, Western Cape  [2015] ZACC 33;  2016 (1) SA 325 (CC) paras 106-108,  Cameron J explained what it involves:

 

‘In our law Kruger embodies the classic test. There are two steps. The first is foreseeability ─ would a reasonable person in the position of the defendant foresee the reasonable possibility of injuring another and causing loss? The second is preventability ─ would that person take reasonable steps to guard against the injury happening?

 

The key point is that negligence must be evaluated in light of all the circumstances. And, because the test is defendant - specific (“in the position of the defendant”), the standard is upgraded for medical professionals. The question, for them, is whether a reasonable medical professional would have foreseen the damage and taken steps to avoid it. In Mitchell v Dixon the then Appellate Division noted that this standard does not expect the impossible of medical personnel:

 

“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; and he is liable for the consequences if he does not.”

 

This means that we must not ask: what would exceptionally competent and exceptionally knowledgeable doctors have done? We must ask: “what can be expected of the ordinary or average doctor in view of the general level of knowledge, ability, experience, skill and diligence possessed and exercised by the profession, bearing in mind that a doctor is a human being and not a machine and that no human being is infallible”. Practically, we must also ask: was the medical professional’s approach consonant with a reasonable and responsible body of medical opinion? This test always depends on the facts. With a medical specialist, the standard is that of the reasonable specialist.’ (Footnotes omitted.)”

 

[106]     In MEC for Health, Western Cape v Q. (928/2017) [2018] ZASCA 132 (28 September 2018), the SCA draws the reasoning in the aforesaid authorities together in respect of the general level of skill and diligence and the onus of proof, where it states that:

 

“[37] It is trite that she who asserts a damage causing event must prove it. The legal duty owed by the medical staff at the various health facilities to the respondent and her baby entailed that they adhere to the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which they belonged. They had no duty to provide the highest possible degree of professional skill. Only reasonable care and skill was required. The respondent had to prove, through credible and persuasive evidence that the doctors and nurses failed to adhere to the required standards.

 

[107]     As in the present matter, the observation at paragraph 38 of MEC for Health, Western Cape v Q. is applicable, in that:

 

“[38] The opinion of the medical experts was 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 support their opinions with valid reasons. Where proper reasons are advanced in support of an opinion, the probative value thereof is strengthened. ‘It is not the mere opinion of the 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.’. The court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached a “defensible conclusion.”’

 

Discussion

 

[108]     The conduct of Dr Motsei, the first medical practitioner to treat the plaintiff at Gelukspan Hospital must be considered against the level of skill, care and diligence expected of, not expert medical practitioners but medical practitioners at the level at which Dr Motsei practiced at the time. That standard is that of a reasonable general practitioner.

 

[109]     Much emphasis was placed on Dr Motsei not referring the plaintiff for an X-ray upon admission and his assessment of the plaintiff on 28 June 2014 at Gelukspan Hospital. Whilst Dr Motsei attempted to elaborate on the entry he made in the Hospital records on 28 June 2014, when he testified more than eight (8) years later, I am not persuaded thereby. Cross examination of Dr Motsei also sought to propose what was not said in his first Hospital entry rather than what appears prima facie the entry, that the plaintiff “Smells alcohol, intoxicated, sleeping, restless”. As indicated above, the entry suggests that since the plaintiff was sleeping and restless a chest X-ray (CXR) could not be taken. This was clearly a value judgment made by Dr Motsei.

 

[110]     The body of expert evidence, which I hasten to add, must be considered not from the perspective of expert evidence but what is required of a general practitioner such as Dr Motsei, suggest that this decision by Dr Motsei was substandard. Drs Edeling and Nicolau readily conceded under cross examination that the choices by Dr Motsei constituted errors of judgment. Dr Nicolau in fact conceded that Dr Motsei treated the plaintiff appropriately, but maintained that he should have transferred him to a higher-level Hospital “as soon as he noticed that the X-ray remained abnormal”. He repeated the concession under cross examination that it was an error of judgment for the doctor not to seek further advice and repeated that Dr Motsei managed the case well in all principles except initially. Relying on a contention put to Dr Nicolau that the delay in performing the thoracotomy was due to bad judgment, which he confirmed and which he stated should not have happened, constitutes negligence on the part of the Hospital’s medical and nursing personnel which is essentially the plaintiff’s case.

 

[111]     Dr Botha in my view correctly isolates the main issue in this matter and that is the issue of the ICD. It must be accepted that the value judgment by Dr Motsei may not have been the correct decision (an error of judgment), but as Dr Botha opined that since a haemothorax was already present in the chest, the ICD was not swinging to drain blood and there were no bubbles, suggesting that the ICD was non-functional. Notwithstanding this, the ICD was not re-inserted or a larger ICD inserted. He, however, testified that once the ICD stopped draining it served no purpose. It is from this point that the body of expert evidence seeks to suggest that from 01 July 2014, at the earliest, something more had to be done to assist the plaintiff who was a very sick man. What was to be done was a thoracotomy to evacuate the haemothorax.  

 

[112]     It is at this very point, that Professor Koto, whilst being less impressive as a witness, having sought to usurp the function of this Court, by badmouthing or relegating the evidence of his colleagues to being irrelevant, dovetails onto that of Dr Botha. That the plaintiff required the surgery to evacuate the haemothorax is beyond dispute. The question which remains, however, is whether it was required as matter of urgency or was indicated only once the plaintiff had stabilised and reacted to treatment by antibiotics. Professor Koto, as a lone wolf in the desert, opined that the case of the plaintiff did not constitute an emergency. The plaintiff therefore could be considered for a thoracotomy once found to be stable to undergo the procedure and subject to the availability of a general surgeon and a theatre.

 

[113]     The alleged failure to first have an X-ray taken upon admission, and second to refer the plaintiff from the District Hospital to a higher Hospital, the Provincial Hospital, for specialised observation, assessment and treatment is the nub of the plaintiff’s claim.  

 

[114]     An error in making the correct choice or otherwise stated the wrong choice on the part of a practitioner does not necessarily equate to negligence. As stated in in Chapeikin and Another v Mini: The test is always whether the practitioner exercised reasonable skill and care or, put differently, whether or not his or her conduct fell below the standard of a reasonably competent practitioner in the field. If the ‘error’ is one that a reasonably competent practitioner might have made, it will not constitute negligence. An error of judgment is ordinarily considered to be a wrong or bad decision. The question then is whether a wrong or bad decision exercised on a value judgment confronted with a patient who smells of alcohol is sleeping and restless, constitutes substandard care, which in turn translates into negligence. 

 

[115]     In this regard, this Court is reminded not to reverse engineer an assessment of the evidence from the result backward to decisions taken early in the treatment of the plaintiff, without considering the evidence or the picture as a whole. Isolating the evidence in its various compartments is countenanced as a correct approach, but then a court is required to step back and look at the picture as a whole. What the respective body of opinion from the expert witnesses postulates as negligence from a medical perspective may not necessarily constitute negligence when considered against the jurisprudence in our law referred to above.

 

[116]     A fact which speaks for itself is that an X-ray was not obtained immediately upon assessment of the plaintiff on 28 June 2014. As indicated above this was on value judgment by Dr Motsei. That the plaintiff was bleeding in his chest or pleural space is similarly a fact that speaks for itself. That continued bleeding may lead to a haemothorax appears common cause and that is in fact what occurred. Whatever the nursing staff may or may not have done from the time Dr Motsei recorded that the plaintiff should be taken for an X-ray once awake, does not advance the matter for either the plaintiff of the defendant.

 

[117]     The decision of Dr Motsei on 28 June 2014 whilst susceptible to being labelled wrong, does not mean that it axiomatically was substandard in lacking the necessary care and skill required of a general practitioner. The dictum in Mitchell v Dixon supra is apposite in that ‘A practitioner can only be held liable . . . if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession . . . . ’

 

[118]     To my mind, what remains is the question of referral of the plaintiff to Mafikeng Hospital for specialized assessment and treatment. In this regard, sight cannot be lost of the fact that the proverbial horse had bolted and that what was required was an assessment of the way forward once the plaintiff arrived at Mafikeng Hospital.

 

[119]     I again align myself with the remarks in Chapeikin and Another v Mini that “…the conduct of treating medical practitioners cannot be critically examined for negligence without reference to the causal sequence … or medical condition from which a patient actually suffered at the time of presentation and treatment. For that reason, it was essential for the high court to make a firm finding in relation to the precise nature of Ms Mini’s condition.”

 

[120]     It is accepted that the plaintiff was a very sick man, as one cannot downplay the fact that he had a mass in his chest which was displacing his lung and heart. It was a miracle as one of the experts stated that he was alive. The plaintiff in fact, with hindsight as a gauge, remained alive for a considerable time thereafter, under the watchful care of Dr Sithole, a general surgeon and his team. This was so much so, that on 18 July 2014, on a fact which was never seriously challenged, the plaintiff was in a position to appreciate the seriousness of his condition and the procedure which was to be performed to evacuate the mass from his chest. To that end, he signed a consent to surgery form as an elective procedure.  This is a clear indicator that notwithstanding an error of judgment and not a negligent act, the treatment that the plaintiff was subject to was reasonable and of a legally acceptable standard at Gelukspan Hospital.

 

[121]     The insightful judgment in Chapeikin and Another v Mini again provides invaluable insight into what was required of the medical staff at Mafikeng Hospital. It stated in that case that: “Essentially, what the high court was required to determine was not what steps the appellants ought to have taken in order to prevent a secondary event, but rather what steps they reasonably should or could have taken in an effort to arrest or reverse the progress of the evolving stroke.” What Dr Sithole and his team were required to do was to take steps to ensure that the plaintiff was stable and, in a position, to undergo a thoracotomy. This they clearly achieved by 18 July 2014, when Dr Sekuila who was on sessional visit to Mafikeng Hospital was satisfied that the procedure could be performed.  

 

[122]     It is telling that the surgery to remove the mass from the plaintiff’s chest was successful and otherwise uneventful. The plaintiff in fact takes no issue with the surgery performed by Dr Sekuila or the administration of the anaesthetic by Dr Kazumba.  

 

[123]     I can find no negligence on the part of Dr Sithole or his team at Mafikeng Hospital from the time the plaintiff was admitted on 5 July 2014 until the thoracotomy was performed on 18 July 2014. The proverbial elephant in the room is what transpired post operatively, which implicates the question of causation rather than negligence. The issue as to what transpired with the urethral catheter of the plaintiff which necessitated it being re-inserted remains unclear. The concessions by Professor Kota against the undisputed evidence of Dr Kazumba, was therefore correctly made. 

 

[124]     It is for the aforesaid reasons that I am not convinced that the plaintiff on whom rests the onus postulated in the authorities supra, has proven negligence on the part of the attending medical staff at Gelukspan Hospital or Mafikeng Hospital. As stated in Chapeikin and Another v Mini “In the end, not only the cause of the damage remained unidentified but also its timing. The fact that harm had been occasioned was not, on its own, proof that the medical staff had caused it, or that they had done so negligently, or even that it had resulted in the brain injury.” In Goliath v Member of the Executive Council for Health, Eastern Cape the court warned against this type of reverse reasoning: ‘… to hold a doctor negligent simply because something had gone wrong, would be to impermissibly reason backwards from effect to cause.’

 

Causation

 

[125]     The sentiments expressed in Chapeikin and Another v Mini at paragraphs 48 – 50 are apposite in the present matter:

 

“48 In the ordinary course a finding that the appellants are not negligent would conclude the enquiry into their delictual liability, but here I find it necessary to consider the element of causation simply to illustrate that even if it were found that the appellants were negligent, Ms Mini would still not have succeeded in proving that they were liable, as she had failed to establish a causal link between their failure to refer her to Hospital and her pleaded sequelae…

 

49 The test to be applied to the question of causation is the well-known ‘but-for test’ as formulated in International Shipping Co (Pty) v Bentley (Pty) Ltd [1989] ZASCA 138;  1990 (1) SA 680 (A) at 700E-J. In ZA v Smith & another  [2015] ZASCA 75;  2015 (4) SA 574 (SCA) para 30 this court reiterated what the enquiry entails by stating as follows:

 

‘What [the but-for test] essentially lays down is the enquiry – in the case of an omission – as to whether, but for the defendant’s wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued. In this regard this court has said on more than one occasion that the application of the “but-for test” is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday-life experiences. In applying this common sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant’s wrongful and negligent conduct, his or her harm would not have ensued. The plaintiff is not required to establish the causal link with certainty (see eg Minister of Safety and Security v Van Duivenboden  2002 (6) SA 431 (SCA) ([2002]  3 All SA 741;  [2002] ZASCA 79) para 25; Minister of Finance & others v Gore NO  2007 (1) SA 111 (SCA) ([2007]  1 All SA 309;  [2006] ZASCA 98) para 33. See also Lee v Minister of Correctional Services  2013 (2) SA 144 (CC)  (2013 (2) BCLR 129;  [2012] ZACC 30) para 41.)’

 

The Constitutional Court has recently reaffirmed the continued relevance of this approach to causation (Mashongwa v Passenger Rail Agency of South Africa  [2015] ZACC 36;  2016 (3) SA 528 (CC) para 65.) In accordance with the ‘but-for test’, the high court prefaced it’s enquiry into causation by asking whether it could be said that it was more probable than not, that but for the negligence of the appellants, Ms Mini’s sequelae would have been reduced had she been referred to Hospital for specialised assessment, observation and treatment. Then on the basis of certain concessions made by Dr Chapeikin, it found that it was likely on the evidence, and a sensible retrospective analysis of the situation, that early intervention in Ms Mini’s condition by referral to Hospital would materially have affected the outcome of her stroke, as it was likely that she would have received care and management, including the immediate administration of anticoagulant agents such as aspirin, prevention of dehydration and her blood pressure would have been controlled and monitored.

 

[50] With respect to Dr Sher, the high court found that the evidence established that had he referred Ms Mini to Hospital, it was likely that she would have received hypertensive emergency treatment and blood pressure control; stabilisation and reduction in a controlled clinical environment, and thus further elevation of her blood pressure would have been prevented. These findings, in my view, are not borne out by the evidence…” 

 

Conclusion

 

[126]     Having found no negligence on the part of the medical staff at Gelukspan and Mafikeng Hospitals, the plaintiff’s claim stands to be dismissed. In my view, the plaintiff failed to prove any causal link between the alleged negligent conduct of the medical staff at both Hospitals. In applying the accepted “but for test”, the plaintiff failed to “establish that it is more likely than not that, but for the defendant’s wrongful and negligent conduct, his or her harm would not have ensued.” There is no evidence on which it can be said on a balance of probabilities that the early referral of the plaintiff to Mafikeng Hospital would have resulted in a different outcome for the plaintiff. In this regard the expert opinion of Dr Nicolau and Professor Koto is at variance on the likelihood of a cardiac episode post-surgery.  The risk of cardiac arrest following the thoracotomy always remained likely because the plaintiff was classified as ASA 3, high risk by the anaethetist, Dr Kazumba.

 

Costs

 

[127]     As a result of the plaintiff’s claim being dismissed, it follows axiomatically that costs should follow the result and be awarded in favour of the defendant. Mindful of the fact that the matter could have been disposed of without the need for the defendant to call on many of its factual witnesses, the defendant has been substantially successful in defending the action. I am of the view that costs on a party and party scale are justified.  

 

Order

 

[128]      In the premise, the following order is made:

 

The plaintiff’s claim is dismissed with costs, such costs to include those costs consequent upon the employment of two counsel, on a party and party scale. 

 

A H  PETERSEN

ACTING DEPUTY JUDGE PRESIDENT OF THE

 HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

FOR THE PLAINTIFF:	ADV.  G J STRYDOM SC
Instructed by:	Motshabi Attorneys
	12 Havenga Street
	Golfview
	MAHIKENG
FOR THE DEFENDANT:	ADV. L M MONTSHO-MOLOISANE SC with ADV. A KOTSOKWANE
Instructed by :	The State Attorney
	1st Floor, East Gallery
	Mega City Complex
	Cnr Sekame Road & Dr James Moroka Drive
	MMABATHO

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