CIV/T/292/2001
In the matter between:
and
THE SUPERINTENDENT QUEEN 1stDefendant
ELIZABETH HOSPITAL
MINISTRY OF HEALTH 2nd Defendant
ATTORNEY GENERAL 3rd Defendant
Plaintiff in this case instituted action against the defendants claiming damages in the amount of M800,000.00 made up as follows:-
(a) M300,000.00 for loss of amenities in the nature of loss of a leg.
(b) M400,000.00 for pain and suffering.
(c) M100,000.00 for disfigurement.
The claim as contained in the summons is that, Plaintiff and the Defendant on or about the 17th May, 1999 entered into an oral or verbal agreement in terms of which the 1st Defendant undertook to perform surgery on Plaintiffs leg. Further that it was an implied term of that agreement that the Defendant
would perform the surgery with such professional skill as is reasonable for a specialist in that field. It is also the Plaintiffs case as contained in the summons that despite the agreement, 1st Defendant carried out the surgery negligently in one or more of the following aspects:-
misdiagnosis
(i) failure to take injury suffered by the Plaintiff seriously despite an expert advice from a fellow qualified practitioner.
(ii) Inflicting serious bodily harm along the sides of Plaintiffs leg.
The onus is on the Plaintiff to establish that a reasonable person in the position of the Defendant,
(i) would have forseen the reasonable possibility of his conduct (whether by an act or omission) injuring another person, and causing him loss.
(ii) Would take steps to guard against such occurrence and that the Defendant failed to take such steps.
The facts of this case in a nutshell are that the Plaintiff, who is diabetic and hypertensive was attending a workshop that day at the U.N. House on 11th may, 1999. But before attending the workshop she had thought of going via her office as it was still early. She says it could have been between 7 and 8 in the morning. She was still walking normally.
In describing the place at her work place she said, there are some iron speed humps at the gate. As she passed the place she slipped and fell on her face. When she tried to stand from there she realized that her knee was swollen, and could no longer manage to stand. She had to be supported and was driven to Queen II Hospital. She says she was now experiencing terrible pains.
At Queen II she was taken for x-ray. After the x-ray she was taken back to the doctor who had first attended to her. She says after the doctor had looked at the x-ray she told her that she had not broken her leg, being she had no fracture. The Plaintiff says she had told the doctor about her diabetic condition. The doctor even remarked as the patient was complaining of severe pains, that she could not see anything that could be causing so much pain. Some colleague at work collected medicines for her and she was driven home. She was still in great pains.
Whilst she was already at home, the Plaintiff thought of taking her health back and reading from it. It was only then that she realized that she ought to have gone for physiotherapy. The doctor never told her about going for physiotherapy. Plaintiff said because she was then in great pains, she was scared to go for physiotherapy the next day. She only went for physiotherapy after two days wherein her leg was massaged for reviving circulation as she was told.
Plaintiff then went home and the pain was unbearable. She had to be taken in a wheel barrow to get her into the house. The following day her brother advised her to go to another doctor for a second opinion. She went to Carewell and was examined. According to Plaintiff the doctor who examined her even expressed his surprise to see her walking with such a leg particularly after being attended to at the hospital.
The doctor referred the Plaintiff back to Queen II with a letter, a copy of which Plaintiff handed in as part of her evidence. The letter was addressed to casualty. Plaintiff went back to Queen II and presented the letter. The doctor who received the letter read the letter and only told Plaintiff to come for Physiotherapy on Monday since that day was a Saturday. The doctor had given back the letter to Plaintiff showing that he could not appreciate what that doctor at Carewell had seen.
Plaintiff came back to Queen II Monday morning and was seen by another doctor. Plaintiff says, after he doctor had read from her health book, he appeared worried and angry and even remarked as to how he could have been released before at the hospital with a leg in that condition. That doctor referred Plaintiff to ward II for admission. Plaintiff says at the hospital she was made to sit on the bench from morning of around ten to twelve, only to be allocated a bed at 3.00 p.m. She was told there were no beds and that the doctor who had to attend to her was not available.
Plaintiff was finally admitted at 4.00 p.m. of that day on the 17th May, 1999. She was attended to and was told that the doctor who had to operate on her was on holiday and would only he arriving on the 20th May, 1999.
Indeed the doctor arrived on the 20th, and Plaintiff said, she could see he was just arriving as he still had his luggage with him. The doctor did not waste time and
Plaintiff was taken to theatre same day. Plaintiff was told that they were going to relieve pressure on her foot. According to the Plaintiff the operation was from knee to her ankle. She says she remained in hospital till the 31st may, 1999. She was cleaned and dressed daily.
Plaintiff says she overheard the lady who used to clean and dress her wounds talking to herself that she was now scared of cleaning the wounds as the leg was rotten. Plaintiff herself at that moment realized also that the leg was smelling badly and was turning green. Plaintiffs relatives had all along been asking from 1st Defendant to be transferred to Bloemfontein for further treatment but would be told that they were still managing.
Plaintiff was eventually referred to Bloemfontein on the 31st May, 1999. She was taken to Universitas Hospital in Bloemfontein. She was taken to theatre on the 1st June, 1999. Her leg had to be amputated. Plaintiff says she was in so much pains that she had to authorize the amputation without any hesitation. She stayed in hospital till the 25th August, 1999. She had to buy an artificial leg and paid for it herself.
Plaintiff paid for the leg and handed in the quotation of the amount she paid for the leg, which is M12, 352.00. There was a transfer letter from 1st Defendant which facilitated Plaintiffs transfer from Queen II to Universitas Hospital. A copy of that transfer letter from 1st Defendant which facilitated Plaintiffs transfer from Queen II to Universitas Hospital was given to the Plaintiff by the doctor in Bloemfontein. Plaintiff had been given the original of that transfer letter to hand over to the doctors in Bloemfontein. It was handed in for identification purposes that such a letter was in fact made.
It was the Plaintiffs case that the first doctor who attended to her at Queen II was a Specialist. She however argued that she was never given a professional treatment on admission. She said that she had made the doctor who attended to her aware of her diabetic condition on first consultation, but according to her she was not offered any professional treatment. She said this because after she was first attended to, the said doctor never informed her that she had to go for Physiotherapy. It was only written in her health book. Also that the doctors who attended to her at Queen II did not take heed of the professional advise by the doctor at Carewell of being hospitalized at that time, she was only told to go back home and come back after two days.
Plaintiffs claim is thus based on negligence on the part of the Defendants. That negligence ended up in having Plaintiffs leg amputated. She has thus claimed the amount of M300,000.00 for amenities of life, M400,000.00 for pain and suffering, and M100,000.00 for disfigurement, all totalling M800,000.00.
In the claim for amenities of life, Plaintiff said that being a Hydrologist by Profession, she deals mostly with river water. The loss of her leg has hampered her going out in the field. She used to earn an out of station allowance in the region of M250.00 per day for five days every month, but she no longer gets that as she cant go out in the field. She used to enjoy working out in the field as it brought her some benefit. She has a passion which she can no longer fulfil. When she came to her social life she ended up crying bitterly. She said she no longer has any social life because she no longer enjoys anything at her early age of 45 years. Her life ends inside the house, but even there she is unable to perform most of her housewifes chores. Even her love life is ruined, considering that she lost her husband in 1995. She needs assistance to climb up the stairs even at home. Wherever she goes people would just be looking at her with an expression of pity and shame, and she would feel embarrassed.
Plaintiff showed that before the amputation the pain she was feeling was piercing her heart terribly. She even said she demanded for amputation when she got to Bloemfontein even before she could sign any papers due to the pain she was feeling. It was driving her mad.
As she arrived home back from hospital, she said she had to sit down and push her way up the stairs into her house. Her children were looking at her with pity and misery. Though she had received counselling whilst still in Bloemfontein, she still felt it was not any consolation as each morning she would always wish it were a dream that she had lost a leg.
Plaintiffs counsel had at some stage suggested to the court to see for itself the amputated leg, but the Court felt that that was not necessary as there was no dispute that the leg was amputated. What is being denied is negligence. Plaintiff is alleging negligence on the treatment she received which resulted in her leg having to be amputated.
On the treatment that she received, Plaintiff said that, the doctor who first attended to her leg was negligent in not telling her that she had to go for Physiotherapy. She said had she been told she could have gone for Physiotherapy same day, not after two days as was the case, where she was only massaged. The other aspect of negligence was after she had sought for a second opinion at Carewell Clinic. It was advised that she be hospitalized, but instead the doctor at Queen II told her that he held a different view as could not understand what Carewell saw in her leg. The doctor did not even bother to examine her but only read the letter from Carewell and asked Plaintiff to go back home.
It was suggested to Plaintiff that not only was she diabetic and hypertensive, but was also obese; she agreed. It was further shown to her that for someone who is obese and has swollen area, it would not be easy to make a proper diagnosis. It was also suggested to her that once one is diabetic and hypertensive which are not under control that may lead to dieing of tissues (gangrene) which might lead to amputation, of course these were not known by Plaintiff. She only said her diabetes and high blood pressure were under control as she was on regular treatment.
According to the Plaintiff her leg had to be amputated because it was rotten through the sores that developed as she was hospitalized at Queen II. This was the information she got from the doctor in Bloemfontein. She said her skin was falling of on both sides of her leg where it had been cut for decompression.
Plaintiff complained that it was not the operation to relieve pressure that was negligence per se, but the treatment to the wounds for someone with chronic diseases as diabetes and high blood pressure. Plaintiff even took it that she was eventually referred to Bloemfontein due to pressure from the family and friends as the doctors at Queen II still felt that they were still managing.
In defence of plaintiffs claim the doctor who wrote the referral letter to Bloemfontein was called. She explained what she meant by saying that Plaintiff was misdiagnosed. She meant that the doctor who examined Plaintiff thought she had one condition when in fact she had another. It was according to her, a wrong diagnosis. She said the doctor whom we were told has departed this land (may her soul rest in peace) referred Plaintiff for Physiotherapy as she thought she had a muscle sprain because of her history of having fallen and already developing a swelling. She said it was a reasonable diagnosis, though in Plaintiffs case was an incorrect one.
This witness said misdiagnosis in the medical field is not necessarily negligence. Further that, taking the history of someone like Plaintiff, it would not be easy to make a correct and definite diagnosis. She said it would have been necessary to have made some investigations in the case of coming to a definitive diagnosis.
This witness was the same doctor who referred Plaintiff to Univesitas Hospital in Bloemfontein for further treatment that they might deem fit. Responding to the question of whether it was Queen II or Universitas which has to be held responsible, she said the condition which led to amputation started from the time Plaintiff fell and their (Queen II) participation in the care and treatment of the patient.
In her evidence she said that the patient developed what she termed a compartment syndrome, which meant that the tissues had swollen thus not allowing enough circulation. She further said that the dieing of the tissues was caused by the injury and the risk factors which the patient had of being hypertensive and diabetic. That the condition of the dieing of the tissues was not initially diagnosed and the damage thus carried on until the patient was eventually hospitalized.
The witness denied the fact that the operation for decompression was done negligently. She said the operation was a standard practice under the circumstances. She also denied the fact that the doctors who initially attended to Plaintiff were negligent as they failed to take Plaintiffs injury seriously. She only admitted that they only made a wrong diagnosis.
She concluded by saying that they did all that was in their power to manage Plaintiffs injury, and that the kind of injury he sustained would lead to gangrene and once it developed, amputation would be a necessary step, depending on how far gangrene has developed. She finally said that first Defendant is not responsible for what was done by another hospital as they never directed them as to what exactly was to be done.
Under cross examination the doctor admitted that the fact that the patient was not told by the doctor that she had to go for Physiotherapy was out of step with established procedures. The doctor also showed that had the patient been told to go for physiotherapy she would have felt more pains and that would have made them aware that that was not the correct treatment. That would have caused the doctor to realize that the diagnosis was not correct.
The doctor confirmed that the fact that Plaintiff only realized she had to go for Physiotherapy when she was already at home and was late was part of the misdiagnosis. Plaintiff only went for Physiotherapy after some two days.
The doctor further told the court that dealing with a diabetic patient needed handling with tenderness and comparative care particularly when a wound has to be inflicted as might result in a wound not healing. She went further to say that in such instances it would be necessary to determined the patients health status before any decompression could be done. The witness did not know if the professional standards were followed in the process of decompression to the Plaintiff as she did not participate in the operation. She said she was not present in the operation, though she however said that the management of the operation was a joint management between herself as general surgeon and the doctor who performed the decompression as Orthopaedic Surgeon.
It was the doctors evidence that she could not be able to cut the chain from the first diagnosis to the last stage of amputation as the transactions were related to each other. She even said that she was of the opinion that has there been no misdiagnosis the results might have been different.
The doctor was of the opinion that, the fact that what finally turned out to be the right diagnosis was a rare one which most doctors did not know about, that might have been the reason for the wrong diagnosis.
In response to the question of whether it could be said the doctor who made the 1st diagnosis lacked professional skills, the witness said that would be a fair way of putting it. Further that a better equipped doctor could have attended the complication, but that was not the case. She said in her referral letter she did not exclude the possibility of amputation or any other possibility as much damage had already occurred.
In her referral letter the witness had said, the patient was admitted to the ward from the clinic, but again unfortunately the definitive diagnosis was not made till two days later, and she was therefore only taken to theatre for decompression on Tuesday 20/05/99. The patient had slipped and fell while walking on the 11th may 1999. She said it was detrimental to the patient to have taken that long before reaching the final diagnosis, and that had the procedure as outlined in the referral letter been done timeously that could have made a difference to the patients condition.
The doctor confirmed in re-examination that the doctor had to tell the patient if she had to go for Physiotherapy and this was not done. She however said that the patient ought to have then went for Physiotherapy sooner when she realized that she had to and if she was not sure she could have gone to the doctor to ascertain that. This witness told the Court that she was aware that Plaintiff was diabetic. She said Plaintiff developed a compartment syndrome which is a rare disease. This is where an injury is sustained on the leg resulting in the swelling and blood being compressed in the veins with no oxygen. She said the decompression did not necessitate the amputation, but the injury resulted in the compartment syndrome. To try to restore the circulation decompression procedure was carried out.
In response to the question by the Court as to whether the rare disease was a result of Plaintiff being diabetic, the witness showed that being diabetic was only a risk factor. She further said that that could have been avoided if the doctor who detected the numbness had picked up the rare disease earlier.
It is the Defendants case that Plaintiffs claim is a delictual one founded on negligence. That for such a claim to succeed, some three elements have to be satisfied:-
First national Bank of Southern Africa v Durenhage (5) 2006 S.A 319 at 320
(a) a legal duty in the circumstances of a case to act and conform with the standard of the reasonable person in ones actions, in our case the standard of a reasonable doctor. Krugger v Coetzee 1966 (2) S.A 428 at 430 E.
Plaintiff in her evidence has shown that she made known to the doctor who first attended her, that she was both hypertensive and diabetic. As for her condition of being obese, it was obvious as could be observed even without having to enquire. This was not denied by the defence witness. Plaintiff was not told or warned by the doctor at casualty after examining her, taking her x-ray and writing in her health book that she was to attend physiotherapy.
We have heard from the defence witness in explaining what she meant by misdiagnosis, being a wrong diagnosis. She said she meant that the doctor who first saw the Plaintiff thought that she had one condition when in actual fact she had another. This witness as earlier on shown in this judgment, said that it would have been necessary to have made some investigations in an effort of coming to a definite diagnosis. The doctor referred Plaintiff to physiotherapy as she thought she had a muscle sprain. She further said if the patient had gone for physiotherapy immediately after she was examined that could have helped them to realize at once that it was not the right treatment and would have detected that the tissues were beginning to die. The decompression operation could therefore have been done earlier than had been the case.
According to the defence evidence, when the patient was eventually hospitalized the damage had already been done. This was because the condition of the dieing of the tissues had not initially been diagnosed.
(b) whether in the circumstances of this case, the conduct complained of falls short of the standard of a reasonable doctor?
We are aware that Plaintiff was not informed of going for physiotherapy treatment which we learn could have made them aware that they had to change treatment.
Plaintiff complained that her injury was not taken seriously, despite an advice, would not call it expect advice, from a fellow qualified Medical Practitioner. The doctor just looked at the letter which advised that Plaintiff be hospitalized, made some comments, and acted as though ignoring it and asked the patient to go back home only to come back after two days. She never prescribed anything. Would a reasonable doctor in the circumstances of Plaintiffs condition have acted in that manner? No.
The answer to the above came from the Defendants evidence where she said every single moment in the treatment of the patient counted. So that the passing of time in between when there was misdiagnosis and the time when Plaintiff was finally hospitalized worsened the condition of Plaintiffs leg. Also the waiting period whilst waiting for the specialist doctor who was on leave to perform the decompression was detrimental to Plaintiffs condition.
We have not been told as to why the Plaintiff was not transferred to Bloemfontein when it was realized that the doctor who had to operate on her leg was on leave. She had to wait from the 17th to the 20th 1999 before the operation was performed.
I therefore find that the conduct of the doctors at Queen II fell short of the standard of reasonable doctors in the treatment of the patient in Plaintiffs condition. Though they stated that each moment counted, we see a time lapse in between each treatment. Had Plaintiff been informed of going to Physiotherapy that would have averted the situation from becoming worse. This was confirmed by the doctor who finally referred Plaintiff to Bloemfontein. The decompression could have been performed sooner than was the case.
(c) the loss or damages suffered whether consequent upon the conduct complained of.
The doctor in her evidence told the Court that there was a link from misdiagnosis till the amputation. She said the chain was never broken. The misdiagnosis led to mistreatment which finally led to amputation.
Defendants contended that because no medical evidence was led on behalf of the Plaintiff to prove that the diagnosis was so palpably wrong as to prove negligence, then Plaintiff as a non-professional in the field of medicine could not tell if Professional Standards were met. True enough the Plaintiff was the only witness to prove her claim as the doctor was the only witness for the Defendants.
It would therefore not have been necessary to call any medical evidence for Plaintiff as the doctor who gave evidence for Defendants clearly showed that there has been misdiagnosis. That to have come up with a definitive diagnosis that some investigations ought to have been carried out. She also said it was the doctors responsibility to have told the patient that she had to go for Physiotherapy.
The same doctor further said had the patient sooner gone for Physiotherapy it could have become clearer at the early stage that the diagnosis was wrong. The dieing of tissues could have also been realized before it was too late and decompression done sooner.
The Defendants contented further that Plaintiff ought to have gone for Physiotherapy at her earliest possible chance after she had realized that she had to, but she waited for two day due to severe pain she was experiencing. But the doctor has told this Court that Physiotherapy treatment was going to cause more pain which was going to be an eye opener to wrong diagnosis.
Saying that the date for Physiotherapy was not given is as good as saying the date for collecting medicine prescribed was not given. The prescription written under the date for consulting the doctor meant that all had to be done on that day because if it was any other date that could have been specified. The delay in going for Physiotherapy could therefore not be blamed on Plaintiff but the doctor who failed to inform Plaintiff. It was therefore wrong to have even suggested that no date for Physiotherapy was stated.
Learning from the evidence given by the doctor I would not agree with the Plaintiff when she said operating on her leg from knee down to her leg was causing or inflicting serious bodily harm. That happened to be a necessary operation. The bad thing about the operation was that it was done whilst it was already too late because of the misdiagnosis. If it was done earlier, a day following that of the first consultation after first visit to Physiotherapy it would have brought about the desired results. This was confirmed by the doctor.
The Defendants were also saying that the doctors at Universitas had a free hand in finally deciding to amputate. That 1st and 2nd Defendants should not be held answerable for acts committed in another hospital. I considered this to be a misstatement; otherwise
this would bring an end to allowing referral to expects in the neighbouring country. When Plaintiff was so referred to Universitas,
doctors at Queen II had already participated in the treatment of the patient and done some operations on her. That was why the doctor conceded there was a causal link.
It was not even the question of having called medical evidence by Plaintiff to exclude the possibility of gangrene developing even if a proper diagnosis was made earlier. What the doctor said was that the health condition of Plaintiff being diabetic, hypertensive and obese were risk factors.
She did not say for certain that because of her condition what Plaintiff finally developed was bound to happen. What the doctor said was that having gone for Physiotherapy earlier could have averted the situation from becoming worse. This could have saved Plaintiffs leg. The doctor said going for Physiotherapy would have remedied the situation and corrected the misdiagnosis.
On the question of negligence, Plaintiffs counsel showed that the Court allowed the Defendants counsel to invite his witness to go at length in expressing an opinion on the reasonableness or negligence of a Defendants first doctors conduct upon and after seeing the Plaintiff at the Queen II Hospital. The Court allowed this despite the objection from the other side because in the final analysis the determination on the matter was going to be made by the Court. The case of Michael and Another v Linksfield Park Clinic (Pty) Ltd and another 2001 (3) © A 1188 at Para 34 was correctly cited on this aspect by Defendants Counsel. Whilst on the other hand Plaintiffs Counsel on the same aspect of negligence cited the case of Mitchell v Dixon 1914 AD at 519 where it was stated:
a Medical Practitioner is not necessarily liable for wrong diagnosis. No human being is infallible; and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A Practitioner can only be held liable in this respect, if his diagnosis is so palpably wrong as to prove negligence .. if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being heard to the ordinary skill in the profession.
But in Plaintiffs condition we have not been told that any care or precaution was taken considering the risk factors which the patient already had. She was treated like any other ordinary patient without taking any precautions. For instance, she ought to have been told to go for Physiotherapy by the doctor and immediately to come back and assess if that was the right treatment. That was not done. A reasonable doctor ought to have done that, considering the evidence by the doctor that every moment counted. Again the decompression was not done earlier otherwise it could have saved the condition of Plaintiffs leg according to the evidence by the doctor. All these amounted to negligence on the part of the doctors who were managing Plaintiffs condition. She could have been referred earlier when it was clear that the specialist was on leave, but they waited for him to come back from his holiday.
Under the circumstances of this case, the Court finds that the 1st and 2nd Defendants have been negligent in the management of Plaintiffs injury on her leg.
On question of quantum, Plaintiff has claimed under three heads
- amenities of life M300,000
- pain and suffering M400,000
- disfigurement M100,000
Amenities of Life
Defendants case has been that, Plaintiff under amenities of life has not stated at to why as a Hydrologist by Profession, is now unable to do field work. But Plaintiff has shown that in her professional work she deals mostly with river water but that the loss of her leg has hampered her to go out to the field. That she used to get some allowances for being a field worker but that has since been hampered by her loss of her leg. It is obvious that being in the field involves a lot of walking. You cant be moving in a vehicle to go to the river.
Pain and Suffering
For pain and suffering Defendants case has been that Plaintiff was already experiencing a lot of pain when she went for the first consultation at Queen II hospital. The pain was caused by the injury she had sustained. That the pain she experienced was not caused by an act of Defendants doctors, but the injury which itself was not caused by the Defendants.
Defendants submitted further that the Plaintiff ought to have led evidence to prove when pain caused by the injury itself would have ceased, and at what point it could be said the pain felt thereafter could be attributed to the actions of Defendants doctors.
I would not agree with the Defendants Counsels submission on this point for the following reasons. It has become clear to us that Plaintiff did not waste any more time after she was injured but rushed to casualty for treatment. She went there for treatment to have the pain stopped. We have not been told that the pain could not stop because she had done anything which hampered progress in the treatment of her injury. So that it would not be possible for the Plaintiff to claim for such pain and suffering from a particular time after she had been treated and during the treatment.
Disfigurement
Defendants here said that this heading and that of amenities of life fall under the same category and therefore to be treated as such. We are aware that Plaintiffs leg was amputated and has thus lost her figure and her manner of walking is abnormal and difficult. But for amenities of life Plaintiff showed that her social life has become miserable. Her love life as a widow has came to a stand still as no man would be attracted to someone in crutches. She has become unattractive and her friends, relatives, and strangers even her children look at her with pity. So that the two could by no means fall under the same category.
Plaintiffs claim thus succeeds and the award stands as follows:
1. Loss of Amenities of Life M200,000
2. Pain and Suffering M200,000
3. Disfigurement M 50,000
Total M450,000
With interest at prevailing bank interest rates and costs of suit.
As for some other expenses allegedly incurred, since they have not been part of the claim in the summons and no application was ever made to amend the declaration to involve them, they have not been granted. This being expenditure for buying an artificial leg.
Plaintiff may later claim that in another litigation if she so wishes.
A.M. HLAJOANE
JUDGE
For Plaintiff: Mr Mosito
For Defendants: Mr Putsoane