---

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,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 4551/2015

In the matter between:

Y M                                                                                                                            Plaintiff

and

MEC: DEPARTMENT OF HEALTH

FREE STATE                                                                                               First Defendant

HEAD: DEPARTMENT OF HEALTH

FREE STATE                                                                                          Second Defendant

 

JUDGMENT

CORAM: NAIDOO J

HEARD ON: 5  NOVEMBER 2019

Heads of Argument filed 15 and 25 November 2019, and Replying Heads on 5 December 2019

DELIVERED ON: 10 MARCH 2020

 

INTRODUCTION

[1] On 27 September 2012, the plaintiff, Y M, was admitted to the Pelonomi Provincial Hospital (Pelonomi) in Bloemfontein with severe abdominal pain, nausea and vomiting. After a gynaecological examination, an explorative laparotomy was done, when it was discovered that the plaintiff required an appendectomy due to acute appendicitis. The latter procedure was performed, after which she was transferred to the general ward, where she remained until her discharge from Pelonomi on 2 October 2012. She continued to experience abdominal pain and nausea. Two days later, on 4 October 2012, the plaintiff was admitted to the Rosepark Hospital (Rosepark) in Bloemfontein, where she was diagnosed with abdominal sepsis and underwent an emergency laparotomy, during which Dr Troskie, under whose care she was, performed, inter alia, an appendectomy and cleansing of the abdomen.  The plaintiff was transferred to the Intensive Care Unit and thereafter to a general ward, where she remained until her discharge from Rosepark on 27 October 2012.

[2] The MEC: Department of Health Free State Province is the first defendant (first defendant), and the Head: Department of Health, Free State Province, is the second defendant (the second defendant), The plaintiff issued summons against the first and second defendants, in which she claimed an amount of R425 379.35 (Four Hundred and Twenty Five Thousand Three Hundred and Seventy Nine Rand and Thirty Five Cents) in damages, together with interest thereon and costs of suit. The parties also agreed to separate the issues of quantum and merits in terms of Uniform Rule 33(4), and an order to this effect was previously granted by the court. The matter accordingly proceeded only in respect of the merits. Adv J Zietsman represented the plaintiff, and Adv SE Motloung represented the defendants.

 

THE PLEADINGS

[3] The plaintiff alleges in her summons that at all relevant times, Pelonomi fell under the direct control of the first and second defendants and that the nursing and medical personnel acted within the course and scope of their employment with Pelonomi and for whose acts the first and second defendants were vicariously liable. The plaintiff also alleged that at all relevant times, and specifically from 27 September to 2 October 2012, the defendants and the health care practitioners at Pelonomi, who were employed by the defendants, had a duty of care towards the public in general, and in particular towards the plaintiff, to render medical care of a reasonable and acceptable standard and not to act negligently, so as to cause harm to the plaintiff. She also alleges that they had a duty in terms of section 27 of the Constitution of South Africa to provide basic and emergency health care to the plaintiff. Implied in this duty was the requirement to execute such duty with such professional skill and care as can reasonably be expected from specialist medical practitioners.

[4] The plaintiff alleges that the defendants’ employees, acting in the course and scope of their employment with the defendants were negligent, inter alia, in one or more of the following respects:

4.1 they performed an incomplete surgical procedure by not completely removing the plaintiff’s acutely inflamed appendix, during the procedure performed at Pelonomi on 27 September 2012;

4.2 they failed to ensure, after the procedure, that the entire appendix was removed;

4.3 they failed to properly monitor the plaintiff’s condition post-surgery until she was discharged from the hospital;

4.4 they allowed the plaintiff to be discharged without ensuring that her condition was stable;

4.5 they allowed the plaintiff to be discharged with a partial, acutely inflamed appendix, which is a potentially life threatening condition;

4.6 the surgical team failed to identify or adequately identify the base of the appendix, where the taenia coli (which are the ribbons of  muscle on the outside of the colon) meet the caecum (a pouch at the junction of the small and large intestines);

4.7 they discharged the plaintiff without her being clinically examined by a doctor, from the time of the operation to the time of her discharge from hospital;

4.8 the surgical team and/or the nursing staff failed to prepare progress notes, alternatively adequate progress notes;

4.9 the surgical team and/or the doctor(s) on duty failed to  physically examine the plaintiff, alternatively adequately examine the plaintiff after from after surgery up to the time of her discharge from hospital;

4.10 the surgical team and nursing staff failed to appreciate the seriousness of a Grade 4 appendicitis and the need for closer observation of the plaintiff;

4.11 they failed to administer suitable antibiotics that have a wider gram-negative cover than the Kefzol antibiotic administered to the plaintiff;

4.12 they failed to take note of the pus swab laboratory results three days before the plaintiff was discharged and two days before another dose of Kefzol was administered to the plaintiff. As such the defendants failed to appreciate that the antibiotic administered to the plaintiff was not effective; and

4.13 they failed to identify and diagnose the plaintiff’s underlying sepsis post-operatively.

[5] The defendants, in their plea, admitted that:

5.1 Pelonomi fell under their direct control;

5.2 the nursing and medical personnel acted in the course and scope of their employment with Pelonomi and that the defendants were vicariously liable for such acts;

5.3 at all times and specifically on 27 September 2012 to 2 October 2012, the defendants and the health care practitioners at Pelonomi owed a duty of care to the public in general and specifically the plaintiff to render medical care of a reasonable and acceptable standard and not to act negligently so as to cause harm to the plaintiff;

5.4 the defendants and the health care practitioners at Pelonomi had a duty in terms of section 27 of the Constitution to provide basic and emergency health care services to the plaintiff

[6] The defendants admitted that the plaintiff suffered personal loss as a result of iatrogenesis (harm caused by health care professionals) but denied that the iatrogenesis was due to any negligence on their part. They also did not admit the plaintiff’s symptoms (on 4 October 2012), the surgical procedure and medical care that was administered to the plaintiff at Rosepark. They, furthermore, denied any negligence on their part or that of the health care practitioners employed by them in the performance of the procedures and execution of the interventions in respect of the surgery performed on the plaintiff on 27 September 2012, and pleaded that:

6.1 they did not act negligently when they did not do a complete appendectomy, as it was prudent to defer a complete removal;

6.2 an interval appendectomy was appropriate in the circumstances as a complete removal would pose a health risk to the plaintiff;

6.3 the plaintiff’s vital signs were monitored daily, the drips were running, dressing was done and complaints attended to;

6.4 the plaintiff was stable on discharge.

 

EVIDENCE FOR THE PLAINTIFF

[7] The plaintiff testified and called three witnesses, namely Professor Jan Hendrik Becker, Dr Jeanette Van Der Merwe and Dr Casparus Gerhardus Troskie. The plaintiff testified that she consulted her general practitioner upon suffering abdominal pain, nausea and vomiting. He then referred her to Pelonomi Hospital, where she was referred to the Gynaecology Department. After numerous tests were done, she was informed that she had appendicitis and required surgery, which was done. She was then transferred to a general ward where she continued to experience pain in her abdomen and at the site of the operation, she was still nauseous, unable to eat and vomiting. It appears that she was given pain medication when she complained of pain. When she was discharged from Pelonomi, she was very weak and her abdomen was very swollen. She had to be assisted out of the hospital by family members as she was barely able to walk.

[8] On 4 October 2012, two days after her discharge from Pelonomi, she noticed a foul smelling discharge from the operation wound. She was then admitted to Rosepark, where she underwent emergency surgery and was initially kept in the Emergency Care Unit and thereafter transferred to a general ward. Dr Troskie performed the surgery at Rosepark, where she remained until her discharge from that hospital on 27 October 2012.

[9] Dr Troskie, a surgeon at Rosepark, attended to the plaintiff on 4 October 2012. He observed severe sepsis in the abdominal area where the previous operation scar was. He found that the plaintiff was cold and clammy and had pus draining from her abdomen. He performed an emergency relook laparotomy on the plaintiff, where he found a large amount of what he described as faecaloid material in the abdomen which was cleaned and washed out. He then saw that she had an abscess where the appendix stump was and also noticed that the vicryl which was used to stitch the stump was lying next to the stump, attached to a small piece of stump tissue.

[10] Dr Troskie then performed a complete appendectomy, stitched the base of the caecum and cut off the stump. He also indicated that the plaintiff was taken to theatre within three hours of her admission to Rosepark, indicating how serious her condition was. Under cross-examination, Dr Troskie indicated that he himself did not make notes because he examined the plaintiff with Dr Van Zyl, who made notes. He also attended to the plaintiff in between other surgeries, and although he made no notes, the plaintiff was one of the first patients he attended to as he had, at that stage, recently commenced his practice. He remembered her case vividly, particularly how the ligature (vicryl) was lying next to the stump.

[11] Dr Jeanette Van der Merwe, a pathologist employed by Ampath Bloemfontein Histology Laboratory, testified that on 5 October 2012, she received a 19mm tubular segment of white tissue from Dr Troskie and subjected the whole specimen to analysis as it was a shorter than normal appendix. She found acute peritonitis, which is an acute inflammation on the outside of the appendix, acute appendicitis as she found acutely inflamed cells in the muscle layer and thrombophlebitis, which is an inflammation of the veins found in the appendix. Dr Van Der Merwe testified that at the time she was not aware that there was previous surgery, hence her diagnosis of a perforation of the appendix. If she had such information, the only thing that would have been different in her report is the interpretation of the findings. The findings would not have changed. She would then have looked for ligation material (the stitches) and if those could not be found her conclusion would have been that the stitches had sloughed off.

[12] Professor Becker is a retired Emeritus Professor of Surgery, having retired as Head of Surgery at the University of Pretoria at the end of 2012. He has extensive experience in the field of surgery, having trained a large number of undergraduate doctors and post graduate surgeons. He co-authored many articles in medical journals and is a member of a number of national and international professional medical bodies. Prof Becker was not in any way involved in the surgeries performed on the plaintiff, nor in the care and treatment of the plaintiff. He prepared his first report in December 2018. After the report of, Dr Pearce, the expert engaged by the defendants, was filed, Prof Becker then filed a supplementary report in October 2019, as additional documentation and information was attached to Dr Pearce’s report. In preparing his report, Prof Becker had recourse to:

12.1  the plaintiff’s Summons and Particulars of Claim;

12.2  the defendant’s plea;

12.3  the plaintiff’s identity document;

12.4  hospital records from Pelonomi

12.5  excerpts from Rosepark’s multi-disciplinary medical records;

12.6  letter from Dr C Troskie dated 4 September 2015

12.7  Ampath pathology report dated 5 October 2012

He also had sight of Dr Pearce’s report and the additional documents filed by Dr Pearce, namely:

12.8  an anatomical histology report;

12.9  the defendants’ observation chart;

12.10  the defendant’s prescription administration chart

[13] Prof Becker testified, with regard to the procedure performed on the plaintiff at Pelonomi, that it is not standard medical procedure to leave a stump when an appendectomy is performed, particularly where there is evidence of appendicitis. The standard procedure is to amputate the appendix, and leave a half centimetre piece outside the appendix so that it could be tied flush with the wall of the colon so that this prevents infection. If the appendix is not removed completely and not tied flush with the colon, it creates a sac on the inside of the colon which can lead to the appendix becoming infected. This is called stump appendicitis. Prof Becker’s opinion is that the surgical team at Pelonomi, consisting of Drs Kgasana, Isaac and/or Malan did not identify the base of the appendix due, in his opinion, to a lack of experience and/or expertise.

[14] This view is bolstered  by the fact that Dr Troskie was able, two days after the plaintiff was discharged from Pelonomi (Prof Becker erroneously refers to it as two days after the initial appendectomy at Pelonomi), to identify the base of the appendix and successfully remove the 19mm stump, which was left by the surgical team at Pelonomi. Prof Becker’s opinion is, therefore, that the failure of the surgical team at Pelonomi to identify the base of the appendix, where it was clearly possible to do so is not in line with accepted medical practice and falls short of the standard expected of a general surgeon.

[15] Prof Becker further opines that the post-operative care of the plaintiff at Pelonomi, in respect of both the medication administered to her as well as the care and treatment she received, did not comply with the reasonable standard of care expected of healthcare professionals. The administering of the antibiotic, Kefzol, was inappropriate because it covers only gram-positive enteric organisms. No other antibiotic was administered in conjunction with Kefzol to cover gram-negative organisms. In addition, the defendants ordered a pus culture in respect of the plaintiff. The laboratory report in respect of the pus culture showed the plaintiff to be resistant to Cefazolin, the active ingredient in Kefzol. Administering Kefzol as a single antibiotic was not appropriate or adequate to treat the plaintiff’s appendicitis.

 

EVIDENCE FOR THE DEFENDANT

[16] The defendants called only the evidence of Dr Nicholas Ernest Pearce. The defendants closed their case after the testimony of this witness, without presenting any further evidence. Dr Pearce, a vascular surgeon, has about 18 years’ experience in the medical field since obtaining his initial medical qualification in 2002. He has obtained a number of post graduate qualifications, including a Master’s degree in surgery. He has also taught medical students and other Allied Health Professionals in various phases of their medical studies. He has some experience in Management and Finance in the medical environment.

He prepared a report on the instructions of the defendants, but does not appear to have had sight of or made reference to the documents that Professor Becker read and considered in the preparation of his reports. Dr Pearce’s report indicates that the

“File and medical records” were provided to him. It is unclear what file he refers to. He, like Prof Becker, was not involved in any of the surgeries performed on the plaintiff, or in the treatment and care of the plaintiff.

[17] Dr Pearce’s report, therefore, appears to be based on the plaintiff’s medical records provided to him by the defendants. His concluding remark confirms this. It reads: “I did not receive a report or medical notes from the private sector only a bill and histology report”. Dr Pearce’s report is a narration of the information obtained from the medical records of Pelonomi, and makes no reference to the histology report he received from the “private sector”. He did not deal with the aspect of the medication and post-operative care of the plaintiff. His view regarding Kefzol only arose when the Joint Minute between him and Prof Becker was discussed and compiled, which I will detail shortly. His conclusion was “I feel there is no negligence in this case”. I will also deal with this aspect later in this judgment. In his oral testimony in court, Dr Pearce confirmed the content of the Joint Minute, but his conclusions based on the medical records that he considered remained somewhat confusing.

[18] The Joint Minute signed by Prof Becker and Dr Pearce was filed on the evening before the commencement of the trial. These experts met only at 19h30 on that evening, and no explanation was tendered by either party for this. The Joint Minute was handed to court shortly before the commencement of the trial. It is perhaps useful to cite the points of agreement and disagreement between the experts. They agreed on the following:

“1. The patient had appendicitis at Pelonomi and a piece of appendix was removed.

2. A portion/Stump of appendix remained (19mm in length) and this was subsequently removed at Rosepark by Dr Troskie.

3. The remaining stump/portion of the appendix should be as short possible (sic).

4. Kefzol as a single antibiotic is not appropriate emphiric (sic) antibiotic in the treatment of acute appendicitis (as later proven by puss (sic) culture) .

5. We agree that we do not know when the exact date and time of the culture results from the puss (sic) became available.

6. No clinical notes are available for the surgeons responsible for the patient’s care (Pelonomi or Rosepark Hospital).

7. Ringers Lacatate is a resuscitation fluid and not a maintenance fluid; whethe  it made a difference in the course of events is questionable.

8. Timeline of events is agreed upon.

9. Grade 4 appendicitis has a high likelihood to develop complications often requiring relook laparotomy.

10. Discharge should be when the patient has recovered – normo-thermic, eating, normal abdomen, passing flatus

11. The wound when presenting to Rosepark was grossly infected, foul smelling with mixed enteric organisms”.

The experts disagreed on 2 aspects - whether surgical procedures were adhered to (at Pelomomi) and the grounds for negligence.

 

ISSUES

[19] This court is required to determine the following issues, which are in dispute:

19.1 Causation – whether the iatrogenesis was caused by the negligence of the defendants;

19.2 Negligence on the part of the defendants with regard to the incomplete surgical procedure performed on the plaintiff as well as the post-operative care administered to the plaintiff;

19.3 The plaintiff’s symptoms on admission to Rosepark Hospital, the surgical procedure performed and the medical care administered to the plaintiff at Rosepark. 

 

THE LAW

[20] The defendants have admitted that they owe a duty of care to members of the public and the plaintiff to render medical care of a reasonable and acceptable standard, to execute such duty with the professional skill and care, as can reasonably expected from specialist medical practitioners and not to act negligently and so cause harm to the plaintiff. The plaintiff bears the onus of showing that the defendants breached that duty of care and that they did act negligently. She also bears the onus of proving that such negligence on the part of the defendants caused the damages she suffered.

[21] The case of Kruger v Coetzee 1966(2) SA 428 (A), established the test for negligence, and has been widely followed, making it the locus classicus on this aspect.  The court held as follows at page 430 E - F:

“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 has failed to take such steps.

…Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend on the particular circumstances of each case. No hard and fast basis can be laid down.”  

[22] In McIntosh v Premier, KwaZulu Natal 2008(6) SA 1 (SCA), a cyclist fell from his bicycle while trying to avoid a pothole, and sustained serious bodily injuries. He sued the respondents for damages arising therefrom. The evidence established that the pothole was present on that road for more than a year, without being repaired, and no reasons were furnished by the respondents for not doing so. The court, citing the Kruger case above said at paragraph [12] that

“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… and, if so, whether the failure on the part of the defendant to do so amounted to a breach of that duty”.

[23] The court held at paragraph [14] as follows:

“What, I think, is clear is that if in the actual implementation of a policy or procedure adopted by the authority, or for that matter in the course of its operations, foreseeable harm is suffered by another in consequence of a failure on the part of the authority’s servants to take reasonable steps to guard against its occurrence, a court will not hesitate to hold the authority liable on account of that omission”

The court also expressed the view at paragraph [13] that

“…it is well established that it is sufficient if the general nature of the harm to the injured party was foreseeable; it is not necessary that the precise manner of its occurrence be foreseeable”.

[24] As indicated earlier, the defendants did not call the evidence of the surgical team, the treating doctors or the nursing staff at Pelonomi. In addition, the Mr Motloung, did not seriously challenge the evidence of the witnesses led by the plaintiff. It is well established in our law that as much as possible of a party’s version and defence must be put to the witnesses of the opposing party and that their evidence must be tested in cross-examination. Failure to do so can entitle the party calling such witnesses to assume that his opponent accepts the evidence of such witnesses as correct.

In President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000(1) SA 1 (CC), the court said at page 36J – 37E:

“The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’ attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn (1893) 6 R 67 (HL) and has been adopted and consistently followed by our Courts”.

[See also Small v Smith 1954(3) SA 434 (SWA); Pezzutto v Dreyer and Others 1992(3) SA 379 (A) and S v Boesak 2000(3) SA 381 (SCA)].

 

EVALUATION

[25] In determining the three issues which this court is called upon to decide, I deal firstly with the surgical procedure performed at Pelonomi. It is not in dispute that when Dr Troskie performed the relook laparotomy and appendectomy at Rosepark, he removed a 19mm appendix stump. The evidence of Prof Becker and Dr Troskie, which Dr Pearce concurred with, is that when an appendectomy is performed, it must be cut off as close to the base of the appendix as possible, with a short piece of about half centimetre left on the outside to be able to stitch the appendix and close the gap or lumen, so that from the inside of the colon, there is no gap or opening. This prevents leakage of colonic material into the abdomen which will cause infection and sepsis. If a stump is left, it could become infected and result in what is referred to as stump appendicitis, which is exactly what happened in the plaintiff’s case. Dr Van der Merwe’s histology report confirms this. Prof Becker explained in detail that it is not standard or acceptable surgical procedure to leave a stump of 19mm.

[26] When considering whether the procedure was properly done at Pelonomi, regard must be had to Dr Troskie’s evidence that when he performed the laparotomy on the plaintiff, he found the ligature (the vicryl used to stitch the wound) lying to one side of the operation site. In my view, this is an indication that the operation wound does not appear to have been properly sutured, resulting in the unravelling of the stitches and most probably causing the leakage of the foul- smelling faecaloid material into the plaintiff’s abdomen, which Dr Troskie found. The defendants led no evidence to counter the opinion of Prof Becker and the evidence of Dr Troskie about what he found and what he did in respect of the plaintiff.

[27] The defendants specifically pleaded that they considered it prudent not to perform a complete appendectomy on the plaintiff, as it posed a health risk to her. No evidence to this effect was presented, nor was this raised with Prof Becker in cross-examination. In fact Prof Becker testified that if a surgeon knew that he performed an incomplete appendectomy, the post-operative care of the patient should have been intensive and meticulous to ensure that whatever prevented a complete appendectomy was treated so that a relook laparotomy could be performed, and the appendectomy could be completed. The defendants evaded the plaintiff’s attempt through the Rule 21(2) procedure to obtain information on why the defendants considered it prudent to perform an incomplete appendectomy. Their response to the plaintiff’s question was that such answers will be provided in evidence. This, of course, was not done.

[28] It is common cause that Dr Troskie performed a complete appendectomy seven days after the initial surgery at Pelonomi, and two days after the plaintiff was discharged from Pelonomi. If the operation on the plaintiff was done in accordance with acceptable and proper surgical procedures, as alleged by the defendants, it is irreconcilable with the condition of the plaintiff, as described by her, while she was still admitted to Pelonomi, as well as the fact that she became seriously ill two days after her discharge from Pelonomi. Applying the test for negligence as set out in Kruger’s case, it is clear, in my view, that with regard to the surgery (proceeding on the version in the defendants’ plea), the defendants would have foreseen that if an incomplete appendectomy was done, they would have to treat the plaintiff so she heals sufficiently for them to have completed the appendectomy. Given the unchallenged evidence of Prof Becker that it is not acceptable surgical practice to leave a stump because of the risk of infection, with which Dr Pearce concurred, it is unlikely that the surgical team at Pelonomi would not have foreseen the risk of the 19mm stump (which they had left) becoming infected and causing serious risk to the life of the plaintiff.

[29] With regard to the post-operative care rendered to the plaintiff, the lack of proper surgical notes and record by the treating doctors and staff, in itself, speaks of conduct that falls far short of the admitted duty that the defendants had to render a reasonable and acceptable standard of medical care to the plaintiff and not to act negligently. An examination of the records that were made available indicates that the plaintiff was not monitored and handled according to the seriousness of her condition. There are no notes to indicate that she was examined by a doctor from the time of the operation to the time of her discharge. She was given an antibiotic that was inappropriate and not sufficient to treat the infections she suffered. In addition, there is no indication that the doctors took the trouble to read the pus culture report that they had ordered, which indicated that the plaintiff was resistant to Kefzol, the antibiotic they prescribed and administered to her. In addition, she was given a large amount of very strong pain medication. It seems the doctors and /or the nursing staff failed to appreciate that pain which is that severe is an indication that something is wrong and required further intervention.

[30] When Prof Becker’s evidence regarding the monitoring and interpretation of the plaintiff’s vital signs is considered, it again becomes evident that the vital signs were not correctly read, or if they were, no appropriate action was taken to treat the condition and prevent harm to the plaintiff. Mr Motloung made much of the fact that a day or two after the surgery, the plaintiff’s temperature had “normalised”, indicating that she was getting better. Prof Becker pointed out that this is so because the pain medication that was administered to the plaintiff was also designed to reduce fever. In addition, the youth of the plaintiff assisted her to fight the infection at that stage. More importantly, Prof Becker pointed out that the temperature cannot be considered in isolation. All the vital signs, such as blood pressure and pulse readings must all be considered together in assessing the condition of the plaintiff. This does not appear to have been done. Although there is a note that Dr Muller was called to attend to the plaintiff, there is no indication that he did in fact respond to that call or examined the plaintiff. The plaintiff’s evidence is that she was not seen by a doctor from the time she came out of surgery to the time of her discharge.

[31] Mr Motloung’s argument suggested that the court should accept as evidence, the defendant’s intra-operative notes, nurses’ progress reports, observation chart and the medication chart which were discovered by the defendants. Mr Motloung seems to have lost sight of the fact that none of the doctors or nurses were called to confirm or explain those documents, which are simply what they purport to be. The truth of their contents was not proved The plaintiff’s witnesses, as well as Dr Pearce formed opinions on the contents of those documents, and interpreted what the documents purported to indicate.

[32] The defendant placed in issue the symptoms that the plaintiff presented with at Rosepark Hospital, the surgical procedures performed and the medical care that the plaintiff received at that hospital. It was not clear what exactly the defendants took issue with. The condition of the plaintiff was so serious upon her admission to Rosepark that she was taken to theatre within three hours of admission. Although Dr Troskie may be criticised for not keeping his own surgical notes which is essential, the medical records of Rosepark gave an indication of the plaintiff’s condition and the treatment rendered. Dr Toskie testified about the procedures he performed and he was not challenged in this respect. The histology report of Dr Van Der Merwe confirms that the stump she analysed was seriously infected. She found acute appendicitis, acute peritonitis and thrombophlebitis (inflammation of the veins in the appendix), all which could not have occurred at Rosepark, given that the stump was extracted on 4 October 2012 (the day the plaintiff was admitted to Rosepark) and was analysed by Dr Van der Merwe the following day.

[33] If the defendants intended to show that the plaintiff’s condition was somehow due to the treatment and care she received at Rosepark, they did not lead any evidence to this effect. In fact the plaintiff made a full recovery after the procedures performed at Rosepark and the treatment she received there. There is reliable evidence to confirm the symptoms that caused the plaintiff to be admitted to Rosepark, so it is unclear why the defendants placed this in dispute.

[34] The evidence that the plaintiff presented to court was not seriously challenged by the defendants. The opinions expressed by Prof Becker were well motivated, with reference to the documents that he was requested to consider. His vast experience was evident, and more importantly, his opinions were objectively based on the facts of the matter. As alluded to earlier, the court was somewhat confused by Dr Pearce’s evidence. He agreed on a number of aspects with Prof Becker in the Joint Minute, but was reluctant to make concessions concerning those very aspects. He, for example agreed that when performing an appendectomy, the appendix must be amputated as close to the base as possible, but asserted that in this case, leaving the stump was not an incorrect procedure. He said that the patient’s lumen was tied off and a surgeon will always leave a piece of the outer wall of the appendix to tie it off. He gave no acceptable answer with regard to the 19mm of the stump removed by Dr Troskie, or the fact that he found the ligature lying at the side of the stump. Prof Becker on the other hand indicated that this procedure is taught to medical students, why it is so taught and that it is an international practice. He explained that in the United States of America, approximately 2 million appendectomies are performed annually. In 2012, only 51 cases were found with stump appendicitis, hence medical students are taught that the appendix should be amputated at the base.

[35] With regard to the administering of Kefzol as a single antibiotic, Dr Pearce agreed with Prof Becker  that this was not the appropriate, and that this would not have been his first choice. But in what appears to be an attempt to rescue the defendants, he asserted that the plaintiff appeared to be responding to it, and that being the case, he would be hesitant to change it. He ignored all the other aspects highlighted by Prof Becker in this regard, which I have mentioned earlier in this judgment. Similarly, the impression was created that Dr Pearce formed his opinion solely on the medical records provided to him, irrespective of the plaintiff’s documentation subsequently being brought to his attention. He opined that he was satisfied that the plaintiff was well enough to be discharged from Pelonomi. Dr Pearce was also not able to comment on the plea of the defendants that the incomplete appendectomy was done to prevent health risks to the plaintiff.

[36] In the final analysis, I am satisfied that the plaintiff has established that the appendectomy performed on her by the employees of the defendants at Pelonomi Hospital was not performed in accordance with accepted medical and surgical standards. I also find that the plaintiff has established that the post-operative care administered to her was not the reasonable and acceptable medical care expected from specialist medical practitioners. I find further that the surgical procedures performed and medical care rendered to the plaintiff at Rosepark Hospital in no way contributed to the condition she presented with on admission to that hospital. It is therefore my finding that the personal loss and damage suffered by the plaintiff resulted from the negligent conduct of the defendants and/or their employees, both in not performing the appendectomy according to accepted medical and surgical procedures as well as rendering inappropriate and unacceptable post-operative medical care to the plaintiff 

 

COSTS

[37] The general rule with regard to costs is that the successful party is entitled to his/her costs, usually on the party and party scale. In this matter, Mr Zietsman argues for costs to be awarded against the defendants on the punitive attorney and client scale, and set out in his argument the reasons for requesting the punitive order. Mr Motloung’s response to Mr Zietsman’s assertions is that no basis has been laid for such (an order), which is only made where the court wishes to show its displeasure with a party. He, regrettably, dismissed Mr Zietsman’s submissions as “rather optimistic”, and elected not to deal any further with that point or to answer the submissions in support of the prayer for a punitive costs order.

[38] A punitive costs order is made by the court, usually to demonstrate its displeasure at the manner in which a party conducted himself in the course of the litigation between the parties, or in the course of the trial. I will deal briefly with the submissions made by Mr Zietsman. He asserts that the defendants denied liability in respect of the surgical procedure and pleaded that it was prudent to perform an incomplete appendectomy, as a complete appendectomy posed a health risk to the plaintiff. The plaintiff attempted, unsuccessfully, to obtain further information in respect of this plea, in accordance with the Rules of Court. The defendants did not call any witnesses to substantiate their case, as pleaded. This begs the question why the defendants would tender a plea which they could not or had no intention of proving in court. Dr Pearce took their case, in this respect, no further and it seems the only reason he was called was to express the opinion that leaving an appendix stump of 19mm was an acceptable surgical procedure. I have already expressed my view in this regard.

[39] The Joint Minute was filed at the proverbial eleventh hour, but the defendants would have known its contents the evening before the trial commenced. It was expected of them firstly to signify their acceptance of the Joint Minute and secondly to have appreciated the impact on their case of the many points of agreement between their expert, Dr Pearce and plaintiff’s expert, Prof Becker. At that stage, they still had the opportunity to curtail costs by advising the plaintiff that it would be unnecessary to call the evidence of Drs Troskie and Van Der Merwe. The plaintiff was however obliged to call, at considerable expense, all of her witnesses, three of whom are medical experts. Therefore the costs of four medical experts (including Dr Pearce) as well as two legal professionals (counsel for each party) were incurred unnecessarily. The purpose of cross-examining the plaintiff’s witnesses appeared to be merely to elicit concessions that there was no negligence on the part of the defendants, as the version of the plaintiff was not challenged in any meaningful way, nor were the evidence and opinions of her expert witnesses challenged or disputed. The plaintiff was told that evidence would be led to counter her version, but that never came to pass.

[40] The conduct of the defendants and their employees in this matter displays, in my view, a lack of appreciation of, or a disregard for the duty on a public entity (such as the Department of Health, Free State, whom the defendants represent) to behave ethically and especially to protect the public purse, by ensuring that it does not litigate in a manner that causes the unnecessary escalation of costs. The conduct of the defendants in this matter was in direct contrast to what is expected of officials of a public entity entrusted to act at all times in the interest of the public it serves. The defendants proceeded headlong with litigation they must have known had a strong possibility of being unsuccessful. No attempts were made to resolve the matter as cost effectively as possible or to ensure, at the very least, that they made every attempt to prove their defence. It turns out that this was a spurious defence.

[41] The plaintiff was obliged to incur the costs of proceeding to trial, engaging counsel and calling three witnesses, Added to this is the fact that she had to wait almost five years after the issue of summons to have her matter heard, a matter which the defendants ought not to have proceeded with, knowing that the defences they raised were unmeritorious. I am in agreement with Mr Zietsman’s submission that this is a proper case for the court to show its displeasure at the conduct of the defendants and grant a punitive costs order, together with an order for the related costs sought by the plaintiff

[42] In the circumstances, I make the following order:

42.1 The defendants are liable to the plaintiff for 100% of her agreed or proven damages, arising out of the injuries and/or loss she suffered as a result of the negligent surgical procedure and post-operative medical care rendered to her at the Pelonomi Hospital for the period 27 September 2012 to 2 October 2012;

42.2 The defendants are ordered to pay the plaintiff’s taxed or agreed costs, in respect of the merits of the matter, on the scale as between attorney and client, such costs to include:

42.2.1 The costs of counsel;

42.2.2 The reasonable preparation/qualifying, travelling,

accommodation and reservation fees and expenses, if any, of the  experts,  Professor JHR Becker, Dr CG Troskie and Dr J Van Der Merwe;

42.3 The costs attendant upon obtaining payment of the amounts referred to in this order;

42.4 Should the costs not be paid as ordered, within sixty (60) days from the date of the Taxing Master’s allocatur, the defendants shall be liable for the payment of interest thereon at the prescribed statutory rate, calculated from the date of the allocatur to the date of payment

 

 

__________________

                                                                         S. NAIDOO, J

 

On behalf of Plaintiff: Adv. J Zietsman

Instructed by: Honey Attorneys

Honey Chambers

Northridge Mall

Bloemfontein

(Ref:HLB/123017)

On behalf of Defendant: Adv. SE Motloung

Instructed by: M Tlale

Office of the State Attorney

11^th Floor Fedsure Building

49 Charlotte Maxeke Street

Bloemfontein

(Ref: 596/201501257/P11 M)

---