Els v MEC: Department of Health, Northern Cape (1744/2010) [2017] ZANCHC 7 (10 February 2017)

Els v MEC: Department of Health, Northern Cape (1744/2010) [2017] ZANCHC 7 (10 February 2017)

The court found, on a balance of probabilities, that the recurring problem in the plaintiff's right breast from September 2001 until July 2009 was caused by the presence of a foreign body, most likely a needle tip, left behind during the open biopsy performed by employees of Kimberley Hospital. The evidence of Dr Pienaar was preferred over that of Dr Boeddinghaus, as it was logical, well-founded, and consistent with the medical records and the plaintiff's history. The absence of proper theatre records and instrument counts at Kimberley Hospital further supported the finding of negligence. The defendant's alternative explanation of periductal mastitis was rejected due to lack of factual...

Citation
[2017] ZANCHC 7
Parties
Plaintiff: Daleen Els; Defendant: MEC: Department of Health, Northern Cape
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
10 February 2017
Case Number
1744/2010
Procedural Posture
Civil Trial / Merits Separated From Quantum; Judgment on Merits
Outcome
Judgment granted in favour of the plaintiff on the merits; defendant liable for damages to be agreed or proven.
Judges
Williams
Legal Topics
Medical Negligence, Hospital Liability, Expert Evidence, Causation, Damages, Costs Orders
Delict Civil Procedure Medical Negligence Hospital Liability Expert Evidence Causation Damages Costs Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Daleen Els

Plaintiff

MEC: Department of Health, Northern Cape

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Judgment on Merits

Legal Issues

  1. 1 Whether the employees of Kimberley Hospital negligently left a foreign body in the plaintiff's right breast during surgery.
  2. 2 Whether the presence of the foreign body caused the plaintiff's ongoing medical problems.
  3. 3 Whether the defendant is liable for damages arising from the plaintiff's condition.

Ratio Decidendi

The court found, on a balance of probabilities, that the recurring problem in the plaintiff's right breast from September 2001 until July 2009 was caused by the presence of a foreign body, most likely a needle tip, left behind during the open biopsy performed by employees of Kimberley Hospital. The evidence of Dr Pienaar was preferred over that of Dr Boeddinghaus, as it was logical, well-founded, and consistent with the medical records and the plaintiff's history. The absence of proper theatre records and instrument counts at Kimberley Hospital further supported the finding of negligence. The defendant's alternative explanation of periductal mastitis was rejected due to lack of factual...

Court Disposition

Judgment granted in favour of the plaintiff on the merits; defendant liable for damages to be agreed or proven.

Orders

  • Judgment is granted in favour of the plaintiff on the merits.
  • The defendant is ordered to pay the plaintiff such damages as either agreed upon or the plaintiff may prove.