Somke v Ostrofsky (9924/2008) [2013] ZAWCHC 82 (4 June 2013)

Somke v Ostrofsky (9924/2008) [2013] ZAWCHC 82 (4 June 2013)

The court found that the plaintiff failed to establish any of the alleged grounds of negligence against the defendant. Expert evidence demonstrated that pre-surgical orthodontic treatment was not indicated given the plaintiff's dental condition and military policy, and the intra-oral procedure was the accepted standard. There was no evidence of infection associated with the plates and screws prior to surgery, and their removal was not warranted. The alleged extraction of teeth did not occur. The post-operative complications, including open bite and nerve damage, were recognized risks of the procedure and not attributable to negligence. The evidence showed that the defendant exercised...

Citation
[2013] ZAWCHC 82
Parties
Plaintiff: Ronald Maboy Somke; Defendant: M K Ostrofsky
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 June 2013
Case Number
9924/2008
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed with costs.
Judges
J I Cloete
Legal Topics
Medical Negligence, Informed Consent, Expert Evidence, Causation, Standard of Care
Delict Medical Negligence Informed Consent Expert Evidence Causation Standard of Care

Case Brief

Summary, issues, holding and outcome

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Parties

Ronald Maboy Somke

Plaintiff

M K Ostrofsky

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the defendant, a maxilla-facial and oral surgeon, was negligent in the surgical treatment administered to the plaintiff on 27 June 2005.
  2. 2 Whether the defendant failed to obtain informed consent from the plaintiff prior to the surgical procedure.
  3. 3 Whether any alleged negligent conduct by the defendant caused or contributed to the plaintiff's post-operative complications and damages.

Ratio Decidendi

The court found that the plaintiff failed to establish any of the alleged grounds of negligence against the defendant. Expert evidence demonstrated that pre-surgical orthodontic treatment was not indicated given the plaintiff's dental condition and military policy, and the intra-oral procedure was the accepted standard. There was no evidence of infection associated with the plates and screws prior to surgery, and their removal was not warranted. The alleged extraction of teeth did not occur. The post-operative complications, including open bite and nerve damage, were recognized risks of the procedure and not attributable to negligence. The evidence showed that the defendant exercised...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.
  • The plaintiff shall pay the defendant's costs on the scale as between party and party as taxed or agreed, including the qualifying expenses of the defendant's expert witness, Professor J Morkel.