SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – BHISHO)

CASE NO 175B/2012
DATES HEARD: 29/08;15;16/10/2013;
03/02/2014
DATE DELIVERED: 07/02/2014

In the matter between

T[…] E[…] N[…] 	PLAINTIFF

And

MEMBER OF THE EXECUTIVE COUNCIL 	DEFENDANT
OF THE DEPARTMENT OF HEALTH OF 
THE EASTERN CAPE GOVERNMENT, 
BHISHO

JUDGMENT

ROBERSON J:-

[1]	The plaintiff is the mother of I[…] N[…], who was born on 1 October 2008.  On 5 July 2011 I[...] was treated at Hewu Hospital, Whittlesea, for a swollen and painful left index finger.  A splint was applied to the finger, and the finger subsequently became gangrenous and had to be amputated.  In this action the plaintiff sues in contract, alternatively in delict, alleging that the medical and hospital staff treated I[...] negligently and without the requisite professional skill and diligence, with the result that her finger had to be amputated.  The grounds of negligence pleaded included allegations that the splint was applied too tightly and that the staff failed to inform the plaintiff of expected symptoms and the appropriate action to take.  The defendant admitted that I[...]’s finger was amputated but denied I[...] was treated negligently or without the requisite standard of professional skill and diligence. 

[2]	The plaintiff testified that during the first week of July 2011, while she was bathing I[...], the child would not let her touch her left hand.  The plaintiff observed that the uppermost joint of I[...]’s finger was swollen and as the days went by the whole finger became swollen.  I[...] told her that a chair had fallen on her hand at the crèche, which had closed for the holidays on 23 June 2011.  I[...] had not reported the incident at the time and the plaintiff did not know precisely when it happened, but thought that it might have been before the crèche closed.  

[3]	The plaintiff took I[...] to the clinic at Whittlesea on 4 July 2011 and from there was referred to Hewu hospital.  She attended with I[...] at the hospital on 5 July 2011 and was given I[...]’s file.  After I[...]’s blood pressure was checked, she was seen by the doctor who referred her for an x-ray, whereafter the doctor informed the plaintiff that I[...] had fractured her finger and referred them to a nurse for the nurse to apply a splint to the finger.  The doctor did not tell the plaintiff when she should return to the hospital, nor did he explain what might happen to the finger after the application of a splint.  Nurse Ntantiso applied the splint, which started at the base of the finger, went up and over the tip of the finger, and down to the base on the other side.  It was then covered with a bandage.  The plaintiff asked Nurse Ntantiso when she should come back for the splint to be removed and he told her to return on 22 July 2011.  She was not given a written note to return on 22 July 2011, nor did she observe Nurse Ntantiso making a note in her presence.  He did not mention any symptoms she should look out for in the next few days.  She and I[...] then went home.  

[4]	From that night onwards I[...] constantly cried as if she was in pain, despite taking Panado tablets.  The plaintiff thought that the splint was possibly assisting the finger to heal and was not at that time concerned.  She could not look at the finger because it was covered by the splint and the bandage.  I[...] continued to cry and at her mother’s suggestion, the plaintiff took I[...] to the clinic on 13 July 2011 and asked the nurse to remove the splint and the bandage.  The nurse said she could not do that and referred the plaintiff to the hospital.  The plaintiff took I[...] to the hospital on 15 July 2011.  The plaintiff fetched her hospital file and after waiting in the queue, met Ntantiso.  He told the plaintiff that he had told her to return on 22 July 2011 and did not take the file from her.  She tried to show him that I[...]’s bandage had spots of blood on it below the finger, but he did not look at it and attended to another person in the queue.  The plaintiff and I[...] returned home.

[5]	The plaintiff did not take I[...] to the hospital on 22 July 2011 because neither she nor her mother had the R30 return taxi fare.  The plaintiff’s mother took I[...] to the hospital on 27 July 2011.  Her mother telephoned her the same day and told her to come because I[...] was to be admitted to Hewu hospital.  When the splint was removed at Hewu hospital the plaintiff saw a wound at the base of the finger.  The next day I[...] was referred to Frontier hospital.    There the plaintiff took a photograph of the finger which showed that whole finger was discoloured.  The finger was eventually amputated at Frere hospital on 11 August 2011.

[6]	The plaintiff’s mother, N[…] N[…] testified that she had observed the swollen finger a few days after the schools had closed.  She confirmed that she had taken I[...] to Hewu hospital on 27 July 2011.  At this time she observed that I[...]’s finger was “leaking” and she requested to see the doctor immediately.  The doctor instructed Nurse Ntantiso to remove the splint.  Nurse Ntantiso was initially unable to remove the splint and had to use a blade to cut the bandage which was around the splint.  When the splint was removed Mrs. N[...] saw that the finger was black.  Her screams alerted the doctor who told Nurse Ntantiso that he had tightened the splint which had caused a cut and caused the finger to be in that condition.  Mrs. N[…] saw a cut at the base of the inside of the finger.  The doctor explained to her that the finger would have to be amputated.  She and I[...] were admitted to Hewu hospital and were referred to Frontier hospital the following day.

[7]	The plaintiff’s expert witness was Dr. Pieter Olivier, an orthopaedic surgeon whose qualifications and experience were not in dispute.  He examined I[...] and consulted with the plaintiff and Mrs. N[...] on 21 August 2013 and prepared a medico-legal report.  He based his report on the information given by the plaintiff and the various clinical notes.

[8]	Dr. Olivier brought to court a “Zimmer” splint, similar to the one which had been applied to I[...]’s finger.    He said that this type of splint had been used many years ago to immobilise fractures of fingers, but it gained a bad reputation and had more or less been abandoned since about 1980 because it was known often to cause gangrene.  In I[...]’s case it did not make sense to have used the splint at all because the result of the x-ray was inconclusive.  If the arteries in the finger are compromised, oxygen cannot reach the finger and gangrene occurs.  Arteries are compromised in more than one way:  by the shape of the splint, by a bandage being too tightly applied, and by swelling which cannot be accommodated if the bandage is too tight.  When the splint is applied, the person doing so must make sure it is not too tight and must explain potential serious complications and their associated symptoms to the patient or family members.  Pain following the application of a splint is a danger sign and in the case of I[...] the plaintiff should have been informed that if I[...] suffered pain she should return to the hospital.  Dr. Olivier was of the view that the return date of 22 July 2011 was too far off and the plaintiff should have been asked to return in a day or two for a circulation check.  If, as was put to him in cross-examination, the plaintiff was told to return in a week’s time, he would have expected that instruction to have been included in the clinical note.

[9]	Dr. Olivier was of the opinion that there were a number of grounds of negligence.  

[9.1]	The doctor should have applied the splint and not the nurse.  The splint has a bad reputation and Dr. Olivier did not think it was reasonable to expect someone other than a doctor to have the necessary knowledge to apply it properly and to ensure that the bandage was not too tight. 

[9.2]	No information regarding potential complications and symptoms were explained to the plaintiff. 

[9.3]	The bandage was applied too tightly and had to be removed with a blade.  That was why the complication occurred and was the only explanation for the gangrene.  The demarcation line between the gangrenous tissue and normal tissue was at the base of the finger.  The demarcation line was the area where the oxygen supply had been compromised.  The bleeding at the base of the finger was probably a result of the bandage being too tight and the resultant swelling would cause the bandage to cause a wound.   

[9.4]	 I[...] should have been examined when the plaintiff took her back to Hewu hospital on 15 July 2011.  Dr. Olivier was referred to a clinic note which indicated that I[...] had been to the clinic on 13 July 2011.  The note mentioned inter alia that she suffered pain in her left index finger and was crying.  The words “For M.O. to suggest” appeared at the end of this note.  Dr. Olivier explained that “M.O.” meant medical officer.  A doctor should have examined I[...] because pain two weeks after a fracture is abnormal.  Dr. Olivier could not say whether it would have made any difference to the outcome if I[...] had been examined on 15 July 2011.  Gangrene sets in after about six hours from the time the arteries are compromised, and irreversible damage occurs within forty eight to seventy two hours.  If I[...] had suffered a severe injury to the tip of her finger four days prior to the first consultation at Hewu hospital one would have expected at that stage that there were signs of skin change.  It was therefore highly unlikely that gangrene would in any event have occurred, even if the bandage was not applied too tightly.  There was no mention in the clinical note of 5 July 2011 that there were any circulation problems.  With regard to the blood on the bandage, Dr. Olivier said it was important to remember that there was no wound at the outset and the presence of blood or fluid indicated gangrene.  Pain is an early warning sign but once there is fluid there is gangrene and it is too late.

In Dr Olivier’s opinion had none of this negligent conduct occurred, there would have been no need to amputate the finger.

[10]	Dr. Bolelo Mashiya testified on behalf of the defendant.  He did not testify as an expert, but in his capacity as clinical manager at Hewu hospital.  This position entails supervision of medical professionals, responsibility for pharmaceutical and radiography services, and anything clinically related.  Dr. Mashiya did not examine I[...] and referred to the hospital records relating to I[...] while testifying.  He referred to I[...]’s recorded visits to the hospital on 5 and 27 July 2011, as well as the referrals to Frontier and Frere hospitals.

[11]	He further testified that on 19 August 2011 a meeting was held with the plaintiff and Mrs. N[...] following a complaint about the events leading up to the amputation.  At this meeting the plaintiff said that I[...] had suffered an injury on 23 June 2011.  The N[...] family agreed that there were several delays on their part in bringing I[...] for medical treatment, including the period between the initial injury and the 5 July 2011, and the period between 22 and 27 July 2011.  Dr. Mashiya could not dispute that the plaintiff had been told to return on 22 July 2011.  In his view, a delay of ten or so days in seeking medical treatment is negligent.  Further, according to the hospital register I[...] was not brought to the hospital on 15 July 2011 and the family admitted as much.  It was explained to the family that they should admit responsibility for the delays in bringing I[...] for medical attention and the family accepted this as well.  However it appeared that the family was not satisfied and a second meeting was held on 29 November 2011.     

[12]	Despite filing a notice of intention to call Dr. K. Watt, an orthopaedic surgeon, as an expert witness, the defendant closed his case without calling Dr. Watt.

[13]	It was common cause that the plaintiff took I[...] to Hewu hospital on 5 July 2011.  Her evidence that she was told to return on 22 July 2011 was uncontroverted, as was her evidence that she returned to the hospital on 15 July 2011 but was turned away.  I have no reason not to accept the plaintiff’s evidence.  She was a frank witness who did not exaggerate.  She admitted that the injury to I[...]’s finger occurred before the crèche closed for the holidays, and that she only took I[...] to the clinic when the whole finger was swollen.  She therefore did not try to hide the fact that some time had elapsed before taking I[...] to the clinic for the first time.  Her evidence that she took I[...] to Hewu hospital on 15 July 2011 was supported by the clinic record of her visit to the clinic on 13 July 2011 and the reference in that record to the need to for a doctor’s intervention.  If the plaintiff was concerned enough to take I[...] to the clinic, then it is probable that she followed up the referral to the hospital.  In my view the absence in the hospital records of a visit on 15 July 2011 does not adversely affect the plaintiff’s credibility:  on the contrary it corroborates her evidence that she was turned away and was not attended to.

[14]	Dr. Olivier’s expert opinion on the standard of treatment I[...] received and the cause of the gangrene was uncontroverted.  He supported his opinion with cogent and logical reasoning, which corresponded with the history given to him by the plaintiff and the clinical records.  Prior to the application of the splint, no circulation problems were noted in the records.  A splint was applied and following its application the child was in pain, fluid leaked onto the bandage and on removal of the splint the finger was found to be gangrenous.  Given Dr. Olivier’s explanation of the process whereby gangrene sets in following the deprivation of oxygen to the finger, in my view it is overwhelmingly probable that the arteries in the finger were compromised as a result of the bandage being applied too tightly.  Given the time frames of the onset and progression of gangrene as described by Dr. Olivier, the five day difference between 22 and 27 July 2011 was inconsequential.  Gangrene was already present on 13 July 2011.

[15]	The defendant’s only apparent suggestions for the gangrene were what was termed “delays” on the part of the plaintiff, namely the delay from at least 23 June 2011 to 5 July 2011, and the delay from 22 to 27 July 2011.  I have already mentioned that this latter delay was inconsequential.  Dr. Olivier ruled out a severe injury to the finger in June as the cause of gangrene because by the 5 July 2011 there would have been signs of skin change.  Further, there was no expert medical evidence adduced by the defendant which causally linked the delays to the gangrene.

[16]	I therefore find that the plaintiff proved that the gangrene was caused as a result of the bandage being applied too tightly.  I am satisfied from the evidence of Dr. Olivier that this incorrect application of the bandage fell below the requisite standard of professional skill and diligence, as did the failure of the hospital personnel to warn the plaintiff of the potential complications and symptoms.

[17]	I accordingly make the following order:

[17.1]	The defendant is liable to the plaintiff for such damages as she may prove.

[17.2]	The defendant is ordered to pay the plaintiff’s costs of the trial to date, such costs to include the qualifying expenses of Dr. P.A. Olivier.

[17.3]	The plaintiff is declared a necessary witness.

______________
J M ROBERSON
JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: 	Adv S Louw, 
Instructed by 	Niehaus McMahon Attorneys, 
	East London

For the Defendant: 	Adv S M Luzipho, 
Instructed the 	State Attorney, 
	East London