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[2010] ZAECGHC 50
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Qamba v Minister of Health (CA13/2010) [2010] ZAECGHC 50 (23 June 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
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Case No.: CA13/2010 |
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Date heard: 11 June 2010 |
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Date delivered: 23 June 2010 |
In the matter between:
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BRIAN MASWI QAMBA |
Appellant |
and
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MINISTER OF HEALTH nomine officio (herein represented by THE MEMBER OF THE EXECUTIVE COUNCIL) |
Respondent |
J U D G M E N T |
HARTLE, A J:
[1] This is an appeal against a judgment delivered on 4 August 2009 in the Magistrate’s Court, Port Elizabeth, in which absolution from the instance was granted at the close of the Appellant’s case.
[2] The Appellant, in his capacity as father and guardian of his minor child, claimed damages from the Respondent, the cause of action being premised on the negligence of staff members of the Motherwell Health Centre, acting in the course and scope of their employment with the Respondent. It was alleged that the latter had failed to properly diagnose that the child had suffered a fracture to his index finger. Due to the delay in diagnosis, so it was pleaded, his finger did not heal. It was only established some eight weeks later that he had sustained a fracture, as a result of which he was required - at private hospital expense - to undergo an open reduction and internal fixation procedure with the insertion of a pin (“K-wire”) into the finger.
[3] As a result of the negligence of the Respondent’s servants, the Appellant pleaded that he suffered damages in the sum of R78 236, 37. This amount was made up of the costs of the private medical expenses of a radiologist, hospital expenses, and estimated future medical costs for the removal of the pin. It also included an amount of R50 000, 00 for general damages being in respect of the pain and suffering endured by the child, and loss of life amenities.
[4] In proving his claim, the Appellant relied on his own testimony, the child’s mother, Victoria Qamba, and expert witness: Dr Pierre Francois Mulvihal Du Toit. Certain medical reports were also entered into evidence with the consent of the Respondent. The Appellant further introduced real evidence in the form of a demonstration to the court a quo of the child’s injury to show that permanent deformity to the injured finger was evident.
[5] Mrs. Qamba testified that on 14 November 2007 her three year old son was injured whilst playing outside. She noticed that his index finger was bleeding and that “pieces of meat” were protruding from it. She put a bandage over the open wound and immediately took him to the Motherwell clinic by taxi. When she arrived there – it was already late in the afternoon - there was only one nurse on duty. The latter examined the child’s finger and indicated that she did not know whether it was broken or not. She treated the wound with Betadine, dispensed Panado and said that they should return the following morning at seven o’clock to have the doctor examine him.
[6] She made an entry in the child’s clinic card - which was handed in by consent - to the effect that: “test more… (the words are somewhat illegible but this is what it appears to read) …for doctor to exclude fracture”.
[7] The following day Mrs. Qamba returned to the clinic and saw the attending doctor who, she was adamant, did not handle her son’s finger at all. He remained seated on her lap throughout the examination; she took off the bandage herself and held the finger straight at the doctor’s request. The latter merely made a note on the clinic card which - it later transpired - was the diagnosis which she made of a “soft tissue laceration”. No medication was given by her or advice offered. After, Mrs. Qamba was directed by the nurse to a room where her son received an injection and thereafter to another room for a dressing to be applied. She was informed that she should return the ensuing Monday so that they could change the dressing.
[8] On the Monday she attended the clinic again. She was assisted on this occasion by a student nurse. She was concerned by the lack of care not to clean her child’s wound before putting a clean dressing on, as a result of which she resolved not to take him back there. Instead she went to the chemist to buy Dettol and bandages in order to dress his wound herself.
[9] Although the wound itself healed, she noticed after a while that the child’s finger was not straight and that he was not using it. At the time the family was waiting until January 2008 when the savings account with their private medical aid fund would be replenished so that they could take him to a specialist at the Greenacres Hospital for an examination. The Appellant did so on or about the third or fourth day of January 2008, when a fracture was diagnosed for the first time.
[10] Mrs. Qamba remained firm under cross examination that her child had not been examined by the doctor and that, for this reason, the fracture was not detected. It was put to her that the doctor would refute that she had not examined the child’s finger. Indeed it was suggested to her that the doctor would testify that she had not observed any clinical signs of a fracture pursuant to her examination and that she would explain her own observations in detail during her evidence.
[11] Mrs. Qamba conceded that she had been told to return to the clinic on 21 November 2007, but she says this was only for the wound to be dressed. It was put to her, however, that the follow up visit was for further observation during which the diagnosis of a fracture might still have been made. She defended her decision not to return to the clinic because she had noticed, even in respect of her first encounter there, that there was no “care”. She explained in this regard that the duty nurse had been speaking on the phone with a friend for a long while after she arrived at the clinic, and only put the receiver down to attend to her child after she complained. It appears that the family was reluctantly obliged to use the facility of the clinic at that late stage of the year, since their medical aid benefits had been depleted.
[12] Mrs. Qamba was adamant that the reason she took her child to the clinic was because she wanted them to x-ray his finger and see whether it was broken or not. His finger would never have turned out the way it has, she added, had they taken proper care of it.
[13] It was suggested to Mrs. Qamba that the injury might have been made worse by her failure to respond to the “instruction” from the clinic to return when she decided not to, and that she did so at her peril. It was further suggested that she caused the injury - one assumes the fracture or eventual deformity - by her handling of the finger when she treated the wound herself.
[14] The Appellant himself testified that whilst in Grahamstown in December 2007, his mother, who is a qualified nurse, suggested to him that they take the child to a private doctor in January to x-ray his finger to establish whether it was broken or not. He too had noticed that it was bent. The child also complained of pain. He accordingly took him to Dr Beukes, who referred him for an x-ray and – ultimately - to Dr Attenborough. The latter confirmed Dr Beukes’ diagnosis of a fracture, after taking independent X-rays, and operated to rectify it. The reports of both radiologists, which confirmed the fracture, were handed in by consent, as was the report of Dr Beukes.
[15] Dr Attenborough put a wire on the child’s finger and plaster of paris to support it. The child was in pain after. Despite the correction, the finger remains a little bent and is likely, so he was informed by the doctor, to remain like this permanently. He added that the child’s use of the finger, post operatively, was limited to picking up very light things and that its mobility was affected.
[16] Dr Du Toit, a medical practitioner of some 50 years’ experience, testified that, in his opinion, a reasonable doctor in the peculiar circumstances would have sent a child the age of the Appellant’s for an X-ray to exclude a fracture. Their failure to have done so meant that the child did not benefit from early treatment – the earlier, the better – and that the finger was now partially deformed and its functionality impaired.
[17] With regard to the suggestion under cross examination that Mrs. Qamba may have aggravated the injury by dressing the wound herself, he clarified that this would not be the case unless it was severe pressure being brought to bear on the fractured area.
[18] Commenting on the expert report of the attending doctor (which was the premise for her anticipated testimony that she examined the child and found no clinical signs of a fracture), he clarified that the presence of slight swelling only did not necessarily exclude a fracture, even in the early stages. He was satisfied with the treatment administered to the Appellant’s son on 14 November 2007 given the circumstances, but he expected that on the 15th – this being the critical date - he should have been sent for an x-ray.
[19] In his assessment the subsequent changing of the dressings and treatment of the septic wound was correct, assuming proper cleaning of it, but the problem was that the fracture was not picked up on and treated.
[20] He commented on the treatment administered by Dr Attenborough, explaining that the pin would have to come out at some stage. This would involve the child in a further surgical procedure, especially since he was still growing. He confirmed that still that morning when he examined the child a deformity of the affected finger was in evidence. In his opinion, as an adult the child would probably have a lack of function in the finger but he could not comment on the percentage of this as a possibility. Under cross examination he explained the different outcome which might have resulted if proper treatment had been administered timeously. Late treatment in this instance was the reason for the excess callous formation, the latter also responsible for the lack of or impaired function of especially the small joint of a finger.
[21] He conceded under cross examination that it would not have been too late for a doctor to detect that there was a fracture if on 21 November 2007 the child had been presented for examination, but adverted to the fact that despite the nurse’s entry, no steps had been taken to exclude the possibility of a fracture.
[22] The Appellant thereupon closed his case and the Respondent sought absolution from the instance on the basis that the Appellant had not made out a prima facie case for the Respondent to answer.
[23] The magistrate upheld the application on the basis that no “causal link has been made out in the evidence before me...”
[24] It is not clear what causal link is being referred to in his ruling. Ms Mey, on behalf of the Appellant, submitted that it was apparent from this statement that the magistrate had applied the incorrect test in order to determine whether or not absolution should be granted.
[25] It is unfortunate that the magistrate has not assisted in clarifying what he meant in this regard. Even upon request for written reasons in terms of rule 58(1), he indicated that he had “nothing to add to the reasons given in (his) ex tempora judgment”.
[26] Ms Mey submitted further that the judgment was incomprehensible and irrational, giving a self standing basis for this court to interfere with it.
[27] I am inclined to agree with her that the judgment is lacking in reason and detail so as to detract from its purpose It does not explain why the magistrate decided as he did, neither does it assist this court to decide whether he ruled correctly, in relation to the brief reasons given by him for it. It would not be inapposite to observe that it lacks compliance with the clear and necessary provisions of rule 51(8) of the Magistrate’s Court rules, in the process undermining effective legal administration and leaving much to assumption and implication. (see Regent Insurance Company Limited v Maseko 2000 (3) SA 983 (W) at 989 E – 999 A, Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at 171 E – G, Mphahlele v First National Bank of South Africa Limited [1999] ZACC 1; 1999 (2) SA 667 (CC) 671 E – H, Botes & Another v Nedbank Limited 1983 (3) SA 27 (A) at 27 H – 28 H).
[28] That aside, even reading in a meaning to the judgment, in my view the magistrate has not applied his mind properly to the test to be applied in an application for absolution at the close of a plaintiff’s case. The established test is whether there is evidence on which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. In order to escape absolution, the plaintiff has to make out a prima facie case. (See Gordon Lloyd Page & Assoc v Rivera and Another 2001 (1) SA 88 (SCA) at 92 E – 93 A; De klerk v Absa Bank Ltd and Others 2003 (4) SA 315 (SCA) at 323 C – G)
[29] In this regard, the crisp question for determination is whether there is evidence on the record relating to all the elements of the claim. Did the Appellant cross “…the low threshold of proof that the law sets when a plaintiff’s case is closed but the defendant’s is not…” as referred to by Schultz JA in De Klerk v Absa Bank Limited & Others 2003 (4) SA 315 SCA at 321 A?
[30] The elements critical to the Appellant’s claim are conduct that is wrongful; fault; causation and damages.
[31] A court could reasonably find conduct in the form of an omission on the part of the Respondent’s servants by their failure, at least by 15 November 2007 (which was the critical date), to have properly examined the child’s finger and taken an x-ray to exclude a fracture.
[32] As for wrongfulness, where the conduct takes the form of an omission, it is prima facie unlawful and satisfies the low threshold of proof referred to above without further ado.
[33] The fault would be in the form of culpa, such constituted by conduct falling short of the particular standard which the law of delict requires. Would the Respondent’s servant (the attending doctor), acting with the degree of care and skill required of a medical practitioner, in the circumstances where the nurse had, on 14 November 2007, suggested an x-ray to exclude the possibility of a fracture, and given the nature of the child’s injury and his age, have called for one? In my view a court might reasonably conclude that negligence was established.
[34] In respect of causation, a court could reasonably find that, but for the misdiagnosis, the fracture might have healed without the need for surgery, now at private cost to the Appellant, with unnecessary pain and suffering by the child - and deformity - being avoided.
[35] A court could also reasonably find that, having failed to diagnose and treat the fracture at the earliest opportunity, the Appellant suffered a loss of patrimony and would in the future incur medical expenses as a near certainty when the pin was required to be removed; and the child pain and suffering.
[36] It appears that the magistrate may have misunderstood the nature of the Appellant’s claim, or the application of the causation test in relation to such claim or the various components of the damages sought by the Appellant. This is evident by his finding, in a vacuum as it were, that a causal link was not established, without alluding to what was supposed to have been causally linked with the evidence.
[37] I am further in agreement with Ms Mey’s submission that the magistrate misdirected himself by accepting as “evidence” the speculative concession of Dr du Toit under cross examination that it was not too late for the Respondent’s servant to have changed her initial diagnosis had Mrs. Qamba returned to the clinic with her child after 19 November 2007. It was wrong of him to rely on this as a factor in support of granting absolution. The concession would only have had weight if the evidence established that Mrs. Qamba had been “instructed” to come back for the express purpose of “further observation”. But this was not Mrs. Qamba’s evidence, neither is the supposition consistent with the fact that the attending doctor made a different diagnosis on 15 November 2007, and did not pertinently discuss with Mrs. Qamba the need for further assessment or the possibility still that the finger might be fractured. (See Sonny v Premier, KZN 2010 (1) SA 427 (KZP) at 441 C – D). In this regard he entered into the realm of speculation, moving away from the low threshold absolution test.
[38] Once the evidence is approached, shorn of the mis-directions of the magistrate, and applying the appropriate legal principles, I do not think it can be said that there is not at least a prima facie case for the Respondent to meet. Mr. Simoyi, who appeared for the Respondent, seemed to accept as much once the issue of causality had been made clearer.
[39] The appeal is accordingly allowed, with costs. I refer in the latter regard to the observations of Schultz J in De Klerk supra that counsel who apply for absolution from the instance at the end of a plaintiff’s case take a risk, even though the Plaintiff’s case be weak (at 320 I).
[40] In the result the following order is issued:
the appeal is upheld, with costs;
the magistrate’s order is substituted with an order that: “Absolution is refused, with costs”; and
the matter is remitted to the magistrate for further hearing and decision on both merits and quantum.
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B C HARTLE
JUDGE OF THE HIGH COURT (ACTING)
DAMBUZA, J:
I agree.
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N. DAMBUZA
JUDGE OF THE HIGH COURT