Sobekwa v MEC For The Department Of Health and Another (2457/2011) [2014] ZAECMHC 25 (19 June 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION :

MTHATHA

CASE NO. 2457/2011

In the matter between:

ATHENKOSI SOBEKWA Plaintiff

and

MEC FOR THE DEPARTMENT

OF HEALTH 1st Defendant

THE SUPERINTENDENT-GENERAL

COFIMVABA HOSPITAL 2nd Defendant

JUDGMENT

GRIFFITHS, J.:

[1] This is an action for damages arising from the alleged negligence of certain medical practitioners. When the matter was first called before me, Mr. Mtshabe, who appeared for the plaintiff, indicated that the parties were in agreement that the issues of liability and quantum of damages would be separated. I ruled accordingly in terms of Rule 33(4) and the matter proceeded on the question of liability only.

[2] I was thereafter informed that the parties had agreed that no evidence would be led before me but that they would rely on the

reports of two orthopedic surgeons, namely doctors Kumbirai and Kodi (the plaintiff’s and the defendants' experts respectively), a joint minute of a meeting prepared by these two surgeons together with the relevant hospital records which, I was further informed,

were accepted by both parties as being what they purport to be. Both parties accordingly closed their cases and proceeded to argue the matter.

[3] The parties were agreed that the issues which are before me for decision are:

a) Whether the permanent disfigurement of the plaintiff's arm was caused by the negligent conduct of the medical staff employed by the defendants;

b) If I were to hold in favour of the plaintiff in this regard, whether or not the plaintiff's claim falls to be apportioned in terms of the provisions of the Apportionment of Damages Act[1].

[4] Because it appeared from the defendants' plea and from the argument presented by both counsel that the defendants both denied negligence on the part of the aforementioned medical practitioners and further contended that, in the event of a finding that such practitioners were indeed negligent and that such negligence was a cause of the disfigurement, it appeared that the defendants were absolved from liability due to the subsequent actions of the plaintiff in failing to undergo further necessary treatment, it appeared to me that there was a further issue, that being the question as to whether causation had been established or whether there has been a novus actus interveniens. Both Mr. Mtshabe and Mr. Kunju, who appeared on behalf of the defendants, agreed that this was a further issue and agreed to submit further heads of argument dealing with this aspect and in particular the question of where the onus of proof lies in this regard.

[5] I should pause at this stage to mention that because of the fact that the various expert reports and addenda thereto were distributed

throughout the file and that it was difficult for me to know precisely on which reports I was to rely in making my determination,

I requested the plaintiff to ensure that a separate set of documents was prepared and placed before me in the form of a bundle containing only those medical reports to which I could have reference. This bundle was only prepared and filed towards the end of April 2014 which has thus contributed to a delay in producing this judgment, the matter having been heard on 7 March 2014.

[6] Because of the view which I take of this matter, it has become unnecessary for me to deal with the latter two issues relating

to apportionment and novus actus interveniens.

[7] The plaintiff’s particulars of claim reveal that the plaintiff relies on the following grounds of negligence, all of which were alleged to have arisen on 26 March 2011 when the plaintiff visited the Cofimvaba hospital for treatment of a fracture of her left arm. These grounds are:

"Plaintiff claims that the Second Defendant’s doctors and nurses were negligent and their negligence has caused the permanent disfigurement of Plaintiff’s left arm and were negligent in that:-

11.1. The Hospital Doctors had a duty to ensure that its nurses plastered Plaintiff’s left arm in such a manner that the fracture healed properly and elbow joint was put in its rightful position.

11.2. The Second Defendant should have foreseen that its nurses acting alone without supervision by a doctor could make an error of not looking at the x-ray plates so as to identify where the fracture was, and as a result caused the disfigurement of Plaintiff’s arm by plastering her wrongly.

11.3. The Second Defendant failed to take the necessary steps that any professional person in the position of the doctors/nurses should have taken to prevent the permanent disfigurement of Plaintiff’s left arm from occurring, when such disfigurement could have been prevented

11.4. The permanent disfigurement was caused by Second Defendant’s Staff by failure to put the Plaintiff’s arm in its proper position."

[8] From the medical reports it appears that the salient facts giving rise to this claim are that on or about 25 March 2011 the plaintiff fell and sustained what was described by Dr. Kumbirai as "a chip fracture of the tip of the left medial humeral condyle". As a consequence, she attended upon Cofimvaba hospital where she was consulted by one Dr. Gxoyiya. Dr. Gxoyiya instructed a nurse to apply plaster of paris to the left upper limb. It appears that a circular plaster of paris cast was applied to the left upper limb from below the left shoulder to the left wrist joint with the elbow in full extension. She was informed that she should return for a review at the hospital on 14 April 2011, when the plaster paris would be removed.

[9] On 14 April 2011 the plaintiff indeed returned to the hospital but after removal of the cast it was noticed that she could not flex her left elbow. It appears in this regard from the hospital records that there was some dispute as to whether or not she co-operated with the staff at this stage, the hospital notes reflecting the following:

"Uncooperative patient – elbow L is flexible (done by me). Declined re-application of POP in a flexed position (despite encouragement by sister Dyanti). Client denies the reapplication of POP… (Illegible).”

[10] On examination of the plaintiff by Dr. Kumbirai he established that she presented with what is referred to as a varus deformity of the left elbow. He stated further that this is a known complication of the particular injury suffered by the plaintiff.

[11] In a supplementary report, Dr. Kumbirai states the following under the heading "Opinion on Management of the Claimant":

"a. Management at Cofimvaba hospital:

· I do not have the original x-rays taken at initial presentation. However, it is plausible that the injury might have been deemed non-– serious (in a rural hospital) in view of "minor" radiological findings. Whether this omission is reasonable/acceptable is up for debate.

· The claimant states that a nurse applied a circular POP in the left upper limb from below the left shoulder to the metacarpal phalangeal joint with the elbow in extension.

· Application of a circular POP for an elbow injury would be ill-advised as this can easily lead to compartment syndrome. Luckily the claimant did not get this complication.

· Application of an above elbow plaster of Paris with an elbow in extension is unusual because if the claimant does not regain motion, an upper limb with an extended elbow is not of much use in performing activities of daily living."

[12] Under the heading "Consequence of offered Treatment, Dr. Kumbirai stated the following:

"Difficult as it might be for a rural hospital doctor to have appreciated the seriousness of the injury, the offered treatment has resulted in a varus deformity in the left elbow."

[13] Dr. Kodi dealt more fully with this when he said the following in his report:

"On examination of the x-ray as per Cofimvaba Hospital on the 14.04.2011, one notes a satisfactory quality x-ray of the left elbow showing an AP and lateral view. The x-rays showed a fracture of the lateral epicondyle of the elbow. On further examination one notes that the elbow is in extension and there is an increased joint space in the elbow in keeping with an elbow subluxation.

I would like to add that this is not a complete dislocation of the elbow joint but rather a more subtle injury that one notices only on closer inspection."

[14] His report then proceeded to answer a question posed to him in the following form: "What would have been the corrective course of action and does the failure to get the same correct, on the first visit, amount to negligence." His response to this question was:

"It is not uncommon for patients to attend casualty situations with different types of injuries. Some more subtle than others. It is the duty of the attending doctor to assess these patients and treat them appropriately. One must bear in mind that the attending doctor usually is not a specialist and has to treat varied types of pathology.

In my experience in orthopaedics it is entirely acceptable for the attending doctor to assess the patient, apply a splint or back slab to the patient and then review the patient for definitive treatment.

One must admit that the initial application of a back slab to the upper limb in a position of extension is unusual.

One notes as to the examination of the x-ray that the injury noted is not a gross dislocation of the elbow but a more subtle injury with an associated fracture fragment. The application of the back slab with the elbow flexed would therefore have contributed to the stabilization of the elbow and assisted in its healing while the position of the application of the back slab is an unusual one, I would not describe the act as one of gross negligence if the patient was called back for a return visit for review of the injury."

[15] In answer to a second question, that being "Was the treatment provided by Dr. Gxoyiya on the first visit negligent.", Dr. Kodi stated:

"The question of negligence relies directly on the precise diagnosis i.e. was the elbow dislocated and required reduction or was there a subtle injury to the elbow ligamentous injury with instability. If a major joint is dislocated, it is orthopaedic teaching to treat this as an emergency i.e. the elbow should be reduced under conscious sedation or in theatre. The joint should then be splinted in a position of stability and the patient should be followed up to assess for any complications. If one can conclusively show that the elbow was grossly dislocated on the initial visit, I would therefore conclude that the initial treatment was medically negligent.

If however, the injury was a more subtle one that could only be picked up by the trained orthopedic eye, I would assess the attending doctor according to the standards of his peers i.e. would a general doctor have acted in a similar way according to his level of training and experience. In the latter case the application of an above elbow back slab even in extension would have been within acceptable limits."

[16] As I have indicated, the medical experts were requested to meet and to produce a joint minute of that meeting. This resulted in a joint minute which reads as follows under the heading "Left elbow injury":

"After careful examination of the notes with regards to the events that occurred on the (14).04.2011 it is our opinion that the refusal of treatment by the patient to have elbow placed in a position of flexion in an above elbow back slab has negatively impacted on the healing of the left elbow.

The failure to have the appropriate treatment applied to the elbow on the (14). 04. 2011 has resulted in arguably unnecessary further

manipulations under anesthetic.

We would like to further add that there is an agreement between us that the initial treatment of an above elbow back slab placed in a position of extension is not the standard treatment for this type of injury."

[17] It is as against this background that I am to determine whether or not the plaintiff has established on a preponderance of probability that the medical treatment received by the plaintiff was negligent, it apparently being common cause that, if it was, and subject to the question of novus actus, it caused or contributed to the injury and deformity suffered by the plaintiff at present. In this regard, it is important to stress that the grounds of negligence as pleaded all relate to the events which occurred on 26 March 2011 and not thereafter. Indeed, Mr. Mtshabe was at pains during the course of his argument and as set out in his heads of argument, to stress that his client placed no reliance whatsoever on the events subsequent to 26 March and that his case rested entirely on what are alleged to be the negligent acts of the defendants' servants when they treated the plaintiff on 26 March 2011. It appears that the events which occurred on 14 April 2011 and subsequent thereto are the events upon which the defendants rely to found their argument of apportionment, only in the event that it is found that their servants acted negligently on 26 March 2011. It is, accordingly, on the events which occurred on that day that I shall concentrate.

[18] Mr. Mtshabe has submitted that the joint minute has clearly established that the treatment given the plaintiff on 26 March 2011 was negligent. In this regard he has pointed to the final paragraph thereof as quoted above in which it is stated that the orthopedic surgeons agreed that the initial treatment "is not the standard treatment for this type of injury." This, so he has submitted, is clear evidence that indeed the treatment given by Dr. Gxoyiya and the nurse on 26 March 2011 was culpable by virtue of the very fact that this was not the standard treatment.

[19] Mr. Kunju has pointed to the fact that, whilst this might in isolation seem to be so, it must be read with the background facts as set out in the reports of both surgeons. These facts reveal, so he has submitted, that the treatment depended entirely on the diagnosis and that if the diagnosis had been one of a more subtle injury than a major joint dislocation, the application of an above elbow back slab even in extension would have been within acceptable limits, as expressed in the report of Dr. Kodi.

[20] In the case of Mitchell v Dixon[2] Innes ACJ said:

"'A practitioner can only be held liable in this respect, if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.'

In the present matter it cannot be said that the defendant was negligent or did not exercise the necessary care and skill required of him in making the diagnosis. I am saying this mindful of the fact that the defendant was a specialist and that what is expected of him is the following:

'A specialist is required to employ a higher degree of care and skill concerning matters within the field of his speciality than a general practitioner. The objective ''reasonable physician test” is subjectified to the particular branch of medicine to which the specialist belongs. This means that it is expected from a specialist in the treatment of his patients to act as a reasonable specialist would have done under similar circumstances.' [3]

[21] As the law stands therefore it seems that a medical practitioner is required to exercise the degree of skill and care to be expected from a skilled practitioner in his or her field[4]. In deciding the question of reasonableness, the court will have regard to the general level of skill and diligence which is possessed

and exercised by members of the branch of the profession to which this particular practitioner concerned might belong. Accordingly, a greater degree of skill is expected of a specialist than of a general practitioner[5]. Furthermore, as stated by Scott J in Castell v De Greef [6]:

"The test remains always whether the practitioner exercised reasonable skill and care or, in other words, whether or not his conduct fell below the standard of a reasonably competent practitioner in his field. If the error is one which a reasonably competent practitioner might have made, it will not amount to negligence.'

[22] In applying these tests to the present matter, I am constrained to say that the consensual statement made by the medical experts in this matter to the effect that the treatment given on 26 March 2011 "is not the standard treatment for this type of injury" does not, in my view, establish on a preponderance of probability that the error of the general practitioner at Cofimvaba hospital, if it is an error, is one which a reasonably competent practitioner in his position would not have made. Had it been an error which falls within the acceptable limits that such a practitioner may have made, it cannot amount to negligence. The statement of the medical experts quoted above does not exclude the very real possibility that this is an error of diagnosis which falls within such acceptable limits.

[23] This is even more so as against the background of the medical reports which state that the attending doctor's conduct should be assessed according to the standards of his peers, i.e. would a general doctor in his position have acted in a similar way in accordance with his general training and experience ? It seems clear that Dr. Kodi, and I believe Dr. Kumbirai as well, accept that a general practitioner would not have been in a position to pick up the subtle injury which a trained orthopedic surgeon would have been in a position to have done, and that, in the circumstances, his conservative treatment with the required follow-up for a review not long thereafter, was "within acceptable limits".

[24] To state this differently: the experts seem to agree that had the original injury been a dislocation of a major joint, the treatment given was medically negligent. It was not however an injury which amounted to a major dislocation. The injury, according to the experts, was a "more subtle injury with an associated fracture fragment". This, say the experts, was an injury "that one notices only on closer inspection." The experts appear to agree further that this was not an injury which would have been easily diagnosed by a general practitioner with limited radiology available to him, but was rather an injury which one would have expected a specialist orthopaedic surgeon to have diagnosed in the circumstances. As the attending doctor was not an orthopaedic surgeon with the full resources available to him that would have been available to an orthopedic surgeon, the experts would find it reasonable that he might not have picked up such a "subtle "injury. Dr. Kodi's conclusion in the circumstances was "In the latter case the application of an above elbow back slab even in extension would have been within acceptable limits." As I understand this, the experts view is that although the actual treatment given by the attending doctor was "not the standard treatment for this type of injury", they cannot rule out that the attending doctor, being a rural general practitioner with limited radiological and other resources, could not have been expected to have diagnosed such an injury. In the circumstances, his conservative treatment with the call for a review after three weeks had elapsed was within reasonable and acceptable limits.

[25] It may well be that had the medical practitioners testified and been competently cross-examined, the plaintiff may have been able to establish that the actions of the attending doctor were less than reasonable. However, with the limited information available to me as set out above, I believe that the plaintiff has failed to establish this as a fact according to the civil test. This case once again establishes the pitfalls of relying on medical reports without proper cross examination of their creators in order to place the court in a proper position to be able to assess the real evidence[7].

[26] To sum up then I find that the plaintiff has failed to establish that the servants of the defendants' were negligent in their treatment of the plaintiff on 26 March 2011 and it is accordingly unnecessary for me to deal with the remaining issues.

In the circumstances, the plaintiff's claim is dismissed with costs.

JUDGE OF THE HIGH COURT

HEARD ON

: 07 MARCH 2014

DELIVERED ON

: 19 JUNE 2014

COUNSEL FOR PLAINTIFF : Mr Mtshabe

INSTRUCTED BY

: S. Booi & Sons Attorneys

COUNSEL FOR DEFENDANT : Mr Kunju

INSTRUCTED BY

: State Attorney

[1] No. 34 of 1956

[2] 1914 A.D. 519 at 525

[3] See also: Lourens v Oldwage 2006 (2) SA p at 171 SCA

[4] Mitchell v Dixon (footnote 2) at 519

[5] Van Wyk v Lewis 1924 A.D. 438 at 444

[6] 1993 (3) SA 501 (C) at 512A – B

[7] In this regard see the unreported decision of the SCA in Minister of Safety & Security v Hlomza (374/13) [2014] ZASCA 51(2 April 2014)