C.M v MEC, Department of Health, Eastern Cape and Another (1787/2014) [2017] ZAECPEHC 45 (14 September 2017)

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 LOCAL DIVISION – PORT ELIZABETH

Case No.: 1787/2014

In the matter between:

C. M. Plaintiff and MEC, DEPARTMENT OF HEALTH, EASTERN CAPE First Defendant THE MEDICAL SUPERINTENDENT, LIVINGSTONE HOSPITAL, PORT ELIZABETH Second Defendant

JUDGMENT

REVELAS J:

[1] This action for damages against the defendants is based on the past and future loss of maintenance and support suffered by a minor pursuant to the death of her biological father (“the deceased”) in the Livingstone Hospital in Port Elizabeth. It is the plaintiff’s case that the deceased died as a result of negligence on the part of the hospital staff, nurses and doctors employed by the Department of Health in the Eastern Cape, and who attended to the deceased since he was admitted to the aforesaid hospital on 30 March 2009.

[2] It is common cause that the deceased sustained serious injuries, including head and facial injuries caused by blunt force during an assault on his person on 30 March 2009. He was found lying prone on the side of the road when the ambulance arrived to convey him to hospital where he was admitted at approximately 17h25. The deceased was certified as dead during the early hours of 31 March 2009 at 00h30. According to the medico-legal post mortem examination of the deceased’s body, the cause of his death was noted as “a head injury due to blunt force”. The post-mortem findings regarding the deceased’s body, included a bruised scalp in the right frontal area, a hinge fracture of the base of the skull, epidural haemorrhage in the left temporal area, diffuse subdural and subarachnoid haemorrhage and blood in the trachea.

[3] The defendants dispute that any of the staff at the Livingstone Hospital were negligent. The parties have however agreed on the quantum of damages, in the event of it being found that the hospital staff members attending to the deceased on the night in question, were negligent in breaching the duty of care they had towards the deceased. At the time of his death the deceased was employed at P.E. Propshafts CC, earning R855.80 per week. The deceased had contributed R350.00 per week towards maintenance prior to his death. The amount agreed upon by the parties is R267,640.00, as per the actuarial report prepared by the forensic actuarial firm Munro’s and calculated in accordance with the deceased’s income and his maintenance contributions referred to above.

[4] It was not in dispute, that by accepting the deceased as a patient, the staff employed by the defendants at the Livingstone Hospital were under a duty of care to provide the deceased with medical and surgical care, nursing treatment, supervision and aftercare, with the professional skill, care and diligence that can be reasonably expected of a hospital and its medical and nursing personnel.

[5] The correctness of the contents of the following documents were admitted by the defendant: The records of the ambulance personnel who conveyed the deceased to Livingstone Hospital; the hospital records kept in respect of the deceased; and the post mortem report dated 3 April 2009.

[6] Only one witness, Professor Gert Saayman, was called to testify on behalf of the plaintiff. He is the head of the Department of forensic medicine at the University of Pretoria. Apart from a Master’s degree in forensic pathology, he is also a fellow of the Society of Forensic Pathologists.

[7] Mr Potgieter, who appeared on behalf of the defendants, put no version on his clients’ behalf to the Professor. The cursory cross-examination of the professor took matters no further and his testimony stood largely uncontradicted.

[8] No witnesses were called on behalf of the defendants. No defence was pursued either. Curiously, when argument was to be heard, the following day, the defendants had a different legal representative who, not having had the benefit of hearing Professor Saayman’s

testimony, was hardly in a position to challenge the contents thereof. As a result, only the testimony of the plaintiff’s

expert witness was determinative of the question of liability.

[9] According to the ambulance records, the 27-year old deceased had been breathing spontaneously when he was found on the side of the road. He maintained his own airway and a stable cardiovascular state. A sluggish pupillary reaction was noted. His Glasgow Coma Score was 13/15 which means that his verbal and motor responses were intact. He was therefore in a relatively good state, considering the brutal assault he was subjected to.

[10] An hour after the deceased’s admission to hospital, in the hospital’s casualty section, the first nursing entry is made at 18h30. The clinical notes compiled by the attending medical practitioner revealed that the deceased was still breathing spontaneously and he had a Glasgow Coma Scale score of 10 over 15. His condition was thus deteriorating. It was further noted that the deceased’s nose and ears were bleeding, that an X-ray of his skull and chest were taken. A request was made for a blood analysis (a full blood count, as well as urea and electrolyte analysis). An intravenous dextrose drip was also

administered. In this regard it must be noted that the deceased’s blood alcohol level was quite high when he was admitted, a fact that clearly did not escape the hospital personnel if one has reference to notes on this aspect. The dextrose drip was the only treatment he received during his entire stay at the hospital.

[11] At 22h40 the deceased was transferred from casualty to a ward. At this point he was no longer responding, even to verbal commands.

He responded slightly to pain stimuli and did not open his eyes. Professor Saayman noted in his report that after 22h40 no further contemporary notes with regard to subsequent re-evaluation or interpretation of X-ray results appear to be available. At 00h20 it was noted that the deceased was no longer breathing. From 22h40 – 00h30, when he is certified as dead, the deceased

appears to have had no contact with any medical personnel. Therefore the Professor concluded that the deceased must have died somewhere

between 22h40 and 00h20.

[12] Based on the information available to him, Professor Saayman inferred that the deceased suffered obvious and very significant injuries.

The nature and severity of the injuries were such that the attending physician should have considered the blunt force assault and serious head injury as the primary clinical diagnosis. Other considerations, such as alcohol intoxication as a cause of depressed

consciousness, should have been a secondary consideration of the staff. This comment was written in the professor’s report with regard to an entry in the medical records of the deceased which read “++etoh!!” and was a direct reference to the deceased being under the influence of alcohol.

[13] With reference to the two photographs taken of the deceased taken prior to the post mortem examination, Professor Saayman observed that the deceased’s injuries were highly visible and multiple in number. He also noted visible peri-orbital soft tissue swelling which, in his opinion, was a strong clinical indication of base of skull fracture. The bleeding from the nose and ears were also strong indicators of such a fracture. These were all apparent from the two photographs that were exhibits. The aforesaid factors together with the decline in Glasgow Coma scale score were all indicators of a base of the skull fracture and the inevitable intracranial haemorrhage associated therewith. In these circumstances, Professor Saayman testified, any reasonable doctor or nurse would have recognized that the integrity of the patient’s airways must be maintained at all costs, as blood could be accumulating in the trachea and elsewhere (which in fact happened as evidenced in the post mortem examination report). The deceased ought to have been incubated. The signs of deterioration in his condition, which was relatively good initially, should have galvanized the medical staff into action and to monitor him every 15 minutes and later every 30 minutes. A CT brain scan should have been performed and was not.

[14] Upon the deceased’s admission to the hospital, according to Professor Saayman, the doctors and nursing personnel ought to have performed a proper assessment of the deceased and noted down a strategy or plan regarding his treatment. A neurological

observation ought to have been made, despite the fact that there was a multiplicity of possible diagnoses. This was imperative. As a result there was no plan and no neurological assessment. Despite the two initial superficial assessments, no steps were taken to treat the head injury observed by the emergency personnel and the doctor. As counsel for the plaintiff said, the personnel adopted a “wait and see” approach to their treatment of the deceased.

[15] Professor Saayman held the view that the deceased had a relatively good prognosis and chance of survival at the time of his admission to hospital, but that neglect on the part of the medical staff was the cause of the deceased’s untimely demise. On the uncontroverted

evidence before me, I must accept the conclusions and opinions of Professor Saayman, which were conveyed in a most objective manner and which impressed me as both convincing and highly probable.

[16] In the event, it must accepted that the deceased was admitted to the Livingstone Hospital with a treatable condition, but due to a lack of professional care on the part of the hospital staff attending to him, he was not saved. He could have been saved at the hands of more diligent and professional hospital staff who cared more about assessing and monitoring his condition and treating his very serious injuries, and less about the fact that he had consumed alcohol in excess.

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

1. The defendants are to make payment to the Plaintiff in the sum of R267,640.00 (Two Hundred and Sixty Seven Thousand, Six Hundred and Forty Rand), the one paying, the other to be absolved, in respect of plaintiff’s claim, payable within 14 (Fourteen) calendar days from date of this Order, together with interest thereon at the rate of 10.25% per annum, calculated from a date 14 (Fourteen) calendar days after date of this order until date of payment.

2. The defendants are to pay plaintiff’s costs of suit and any costs attendant upon the payment of the amount referred to in paragraph 1, as taxed or agreed, on a party and party basis, on the High Court scale, together with interest calculated thereon at the rate of 10.25% per annum payable as from 14 (Fourteen) days after date of Taxation or agreement until date of payment, such costs to include, but not be limited to:

2.1 The costs of the reports and supplementary reports, if any, of:

2.1.1 Professor G Saayman, specialist forensic pathologist;

2.1.2 Munro Forensic Actuaries.

2.2 The reasonable qualifying fees and expenses, including travelling expenses, if any of:

2.2.1 Professor G Saayman, specialist forensic pathologist;

2.2.2 Munro Forensic Actuaries.

2.3 All costs attendant upon the trial, including but not limited to the reasonable costs of consultations of plaintiff’s counsel and plaintiff’s attorney with plaintiff, his experts and his lay witnesses in the preparation for trial.

_____________________

E REVELAS

Judge of the High Court

Appearances:

For the plaintiff: Adv P H Mouton and Adv B Westerdale instructed by G.P. Van Rhyn, Minnaar & Co Inc, Uitenhage c/o Struwig

Hattingh Attorneys, Port Elizabeth

For the defendant: Mr L Potgieter (on 11 September 2017) and Adv I Dala (on 12 September 2017) instructed by the State Attorney, Port Elizabeth

Date heard: 11 – 12 September 2017

Date delivered: 14 September 2017