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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTHAFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 7070/2014

REPORTABLE : NO

OF INTEREST TO OTHER JUDGES: NO

DATE:09/12/2019

In the matter between:

JOHANNES MANGANYI                                          PLAINTIFF

And

MINISTER OF HEALTH                                             FIRST DEFENDANT

THE MEC OF HEALTH, GAUTENG                       SECOND DEFENDANT

HEAD OF DEPARTMENT: ORTHOPAEDIC

SURGERY: GEORGE MUKHARI

HOSPITAL                                                                     THIRD DEFENDANT

JUDGMENT

COLLIS J:

INTRODUCTION

1.    The Plaintiff, instituted action against the defendants arising from the surgery which was conducted on his fractured radial and distal on his left arm at the George Mukhari Academic Hospital on 27^th June 2013.The plaintiff’s cause of action is based on a breach of contract alternatively a breach of duty of care relating to the performance of the operation conducted on the 27th June 2013.

2.    It was common cause between the parties, that the surgery on the plaintiff was performed by Dr Modisane, without supervision in the theatre, that a plate was screwed to the radius bone too far distally, which necessitated a redo operation which was performed on 4th July 2013. It was further common cause that a C­ arm was not used in the operation, resulting in the incorrect placement of the plate and at least one screw penetrating the wrist joint.

3.    As per the particulars of claim, the breach clauses as pleaded by the plaintiff are set out in paragraphs 16 and 17 respectively.

4.    In response thereto, the defendants pleaded the following:

AD PARAGRAPH 16 THEREOF

‘16.1   The allegations contained in this paragraph are denied as if specifically traversed and the Plaintiff is put to proof thereof.

16.2   The Defendants repeat the plea in 10.1 to 10.8 above, as if specifically pleaded herein.

16.3   The Defendants further plead that:

16.3.1    The medical and nursing staff at the Hospital properly, timeously and adequately monitored, assessed and managed the Plaintiffs condition with reasonable care, skill and diligence with the available resources in accordance with the acceptable medical standards.

16.3.2   The corrective surgery on 4 July 2013 was performed by the same surgeon who undertook the first one. The allegation that the surgeon was incompetent is, in the circumstances, without merit and misplaced.

16.3.3.   Even if complications are foreseeable or known, they are sometimes unavoidable.

16.3.4    Not every complication that arise during surgery result in damages.

16.3.5   The Plaintiff opted and signed a consent forms after he was advised of the likely complications of surgery.

16.3.6    The second surgery was successfully performed with no further complications.

16.3.7    Complex regional pain syndrome is a common complication that can occur in an Orthopaedic patient who underwent surgery.

16.3.8    The post-operative re-assessment in September 2016 was done by another surgeon who is more senior to the one who performed the initial one.

AD PARAGRAPH 17THEREOF

The allegations contained in this paragraph are denied as if specifically traversed and Plaintiff is put to proof thereof.'

5.    The case of Mitchell v Dixon[1] is instructive where the test for medical negligence was set out to be the following:

‘The plaintiff’s claim is based upon negligence, that is, upon the absence of that reasonable skill and care which the law requires under the circumstances. A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill and care; and he is liable for the consequences if he does not. The burden of proving that the injury of which he complains, was caused by the defendant's negligence, rested throughout upon the plaintiff.’

6.    In respect of the test of “reasonably foreseeability” the court in Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another[2] emphasized that it implies foresight of reasonably harm and not of a mere possibility of harm:

'[22] It is probably so that there can be no universally applicable formula which will prove to be appropriate in every case.....For example, it has been recognised that, while the precise and exact manner in which the harm occurs need not be foreseeable, the general manner of its occurrence must indeed be foreseeable...lnevitable the answer will only emerged from a close consideration of the facts of each case and ultimately will have to be determined by judicial judgment.’

EVIDENCE

PROFESSOR VAN GELDER

7.    Professor Van Gelder testified that he was a primary physician with a sub­ speciality in cardiology. He testified that training of inexperienced registrars is best achieved when training is properly supervised. As to the training of registrars and more specifically student surgeons, he testified that more supervision will be required at the beginning of their training when complicated procedures are performed and less supervision when more complex procedures are performed. Throughout the training of registrars evaluation of a registrars' proficiency is performed to assess the training of a registrar. He testified that the College of Medicine requires of registrars to keep a formal document where all procedures performed should be recorded in order to evaluate the experience gained during such training and whether such training gained was indeed sufficient. As to the log book kept by Dr Modisane, he opined that such log book did not record the required information as set out by the College of Medicine. When he assessed the x-ray of the plaintiff he concluded that the plate was grossly misplaced. As the plate was placed so distally, one of the plate holes now guides the screw into the cartilage of the wrist joint. It was his testimony that it was accepted that a C-arm be used during the operation as it would have served as a guide to the surgeon that the plate was in the wrong position. This was indeed the position and it is the reason that the redo operation was performed a week later. It was also his testimony that it was a problem that Dr Modisane being in training did more operations independently and unsupervised, than supervised.

8.    During cross-examination, the witness was not challenged as to his evidence regarding the obligations of supervisors in relation to their supervision of junior registrars. No testimony was further presented to Prof Van Gelder with regard to his opinion that where it was clear that at least one of the screws penetrated the wrist joint, there would be damage to the cartilage.

9.    This court could not find any criticism to be levelled at the late Professor Van Gelder’s testimony.

DR. BIRREL

10.   Dr. Birrel testified as an Orthopaedic surgeon. His evidence can be summarised as follows:[3]

10.1    that the initial fracture of the plaintiff was a transvers fracture of the radius which does not extend to the wrist joint itself

10.2   the plate is entirely misplaced and protrudes over the wrist joint and at least over one of the distal screws through the cartilage.

10.3   that when a plate is extending beyond the radius it will have the effect that screws will cause damage to the articulate cartilage of the joint and if left like that it will cause further pain and loss of movement.

10.4   he confirmed that the plaintiff had not suffered a ligament injury.

10.5    that the fracture to the radius had healed and that the original fracture never extended into the wrist joint.

10.6   he therefore concluded that the wrist pain itself was emanating from a damaged cartilage.

10.7   he concluded that the damage to the wrist joint itself was caused by the improper insertion of the screws.

10.8    furthermore, that cartilage cannot repair itself and that it worsens over time.

10.9   he opined that in future the plaintiff would require more treatment because of the problems arising from the incorrect treatment.

11.    During cross-examination Dr Birrel confirmed that the damage to the plaintiffs left wrist would still in future affect his ability to work as the plaintiff was a driver and that he was using his left arm to change gears. He also confirmed that because the plate had been misplaced, that he could be absolutely certain that he screws were also misplaced. During cross-examination he confirmed that had the defendants' made use of a C-arm the misplacement of the screws would not have occurred. The C-arm was used in the redo operation and therefore there was no need not to use it in the initial operation. He further opined that the use of the C-arm would have increased the correct placement of the screws resulting in the placement of the screw into the joint to be miniscule. He re-iterated that the reason for conducting the redo operation was because the plate was far too distal. His testimony as to the eccentricity of the plate, was that this would not justify a redo operation. During cross-examination Dr Birrel conceded that the fracture itself can cause damage to the cartilage.

12.   The evidence of Dr Birrel was not challenged factually or on an expert level and consequently, this Court could place reliance on his evidence.

DR MODISANE

13.   Dr Modisane testified that he is a Registrar employed by the Department of Health. Prior to taking up employment at the George Mukhari Hospital he was employed in Rustenburg. He confirmed that he conducted the operation on the plaintiff during 27 June 2013 and at the time he was assisted by Dr. Elongo. The consultant at the time was Prof Golele. It was his testimony that upon a request received from Prof Moriba, he was requested to compile a report responding to the plaintiff’s letter of demand. At the time of compiling his report, he had been given the hospital file which included the clinical notes relating to the examinations of the plaintiff. His report was finalised on 14 January 2014. It was his testimony that he prepared a list of all his operations performed on an instruction conveyed to him emanating from the third defendant. As to the operation in question, he had no independent recollection of it. In summary he testified as follows:

13.1    In his clinical notes consulted there was no recordal that he had made use of a C-arm when the operation in question was performed.

13.2    In cross-examination conceded that it was now his practice to use a C­ arm when performing operations of a similar nature.

13.3    When he performed the operation in question, Prof Moriba would enter the operating theatre during his operations every two seconds. In addition to this he testified that Prof Golele would also be in the passages whilst he was conducting the operations.

13.4   As to the list of operations which he had prepared, the conceded that the list did not provide the information that one would expect of a logbook reflecting his portfolio of operations or a consolidation thereof. This list he had prepared he did not consider to be his logbook.

13.5    During cross-examination, he denied that the screw went into or through the wrist of the plaintiff. He also conceded that the primary reason for the redo operation was that the plate was far too distal and not that the plate was eccentric. Dr Modisane could proffer no explanation as to why all the letters and reports prepared only referred to inadequate or sub­ optimal reduction and that in such reports and letters no mention was made of the incorrectly placed plate.

14.    Albeit that this court could not find Dr Modisane to be an unreliable witness, the concession made by him that the reason for the redo of the operation was the incorrectly placement of the plate, which is a direct consequence of the failureby him to have used a C-arm, given the totality of the evidence this points to negligence on the part of the defendants.

PROFESSOR GOLELE

15.   Professor Golele testified as follows: He was the head of the unit and he confirmed the contents of his report dated 20 January 2014.lt was his testimony that the hospital file of the plaintiff did not contain sufficient information. It was his evidence that he reason for the redo operation was that the plate was eccentric and reiterated that there was no screw found in the joint. It was further his testimony that the plaintiff was dealt with appropriately and given the best treatment under the circumstances.

16.   During cross-examination he conceded that he had no specific knowledge of the plaintiff’s operation and that he did not supervise Dr Modisane during the course of the operation. Dr Modisane was allowed to perform the operation unsupervised. It was his testimony that he permitted Dr Modisane to operate independently and unsupervised as he was of the opinion that Dr Modisane having performed such similar operations in two prior occasions where he assisted him, he concluded that Dr Modisane could perform these operations unsupervised. As to the list prepared by Dr Modisane setting out his operations performed over a period he was unable to testify as to the success of such operations. During cross-examination he also conceded that there was a difference between experience gained in a certain type of operation where the risk of bad habit and/or mistakes could be repeated and corrected by a supervisor in order to prevent such mistakes from re-occurring. During cross­ examination, Professor Golele conceded that a matter should be defended where his departments' reputation is at stake.

17.   From the evidence of Professor Golele it is clear that he was biased in the manner by which he presented his testimony. Clearly his departments' reputation is at stake and also that of his own and as such even where concessions could have been made by him, he refrained from doing so.

DR VANDEVENTER

18.    Dr Van Deventer’s evidence can be summarised as follows: She was an orthopaedic surgeon whose expertise had not been challenged by the plaintiff. She testified primarily about the contents of her report, the contents of the joint minutes between the parties as well as to the literature which she had consulted in formulating her opinions. She testified that she expects of her Registrars use a C-arm when performing operations of a similar nature, but even if one was used during the first operation of the plaintiff in casu an error of judgment could still have occurred. According to her, the plate the plate as depicted in Exhibit B was too distal and it therefore could cause damage to the tendons. During cross examination she confirmed that her letter dated 27 September 2016, at the time when same was prepared by her, it was prepared by her to furnish an opinion and that she had not been made aware that she would be preparing same in anticipation of giving expert testimony in respect of the contents of such letter. When cross-examined she also conceded that the experts had agreed that there was a screw in the joint. Important in her testimony, was her concession made during cross-examination, that when she attended the first joint meeting of experts that she had not examined the plaintiff nor had she seen the post-operative x-rays. She testified that the placement of screws into the wrist joint was a known complication and that it being a known complication, steps should have been taken to avoid such complication.

19.   Upon assessment of her testimony, this witness came across as a honest witness and readily made concessions where she needed to make same. This Court could find no reason to place doubt on her credibility.

20.    Upon assessment of the totality of the presented evidence, the following common cause facts emerged:

20.1    That a screw penetrated the plaintiff's wrist joint.

20.2   That this screw which penetrated the wrist joint could have been avoided had a C-arm been used during the performance of the first operation.

20.3    That when the first operation was performed, the plate was placed to distally as a direct result of the failure to have used a C-arm.

20.4    The use of a C-arm more likely would have prevented the inadequate operation.

20.5    That Professor Golele testimony was that he was not present during the first operation conducted by Dr Modisane, which is in total contradiction with the evidence of Dr. Modisane who testified that he was in and out of the operating theatre every two seconds. It follows, had Dr Modisane been supervised when he performed the first operation, he in all likelihood would not have performed the inadequate operation.

21.   As a result it must follow that the operation performed by Dr Modisane was performd without the reasonable skill and care expected of a medical professional in his position taking into account the particular facts and circumstances applicable in casu.

COSTS

22.    In the present instance the plaintiff had requested this Court to award costs on a punitive scale against the defendant in the event of him being successful in this suit. The basis upon which the plaintiff had argued for a punitive costs scale, is premised amongst others on the facts that the defendants have not presented any coherent defence, that there was no expert opinion put to the plaintiff experts to support their defence and that there was no dispute that the C-arm should have been used in the performance of the operation as this would have prevented the screws being placed in and through the wrist joint.

23.    The plaintiff’s legal team also belaboured the conduct of the defendants legal team, in that notice was given that Dr Van Deventer would be called as an expert without her having given her consent to do so. In addition to this, expert notices were filed where the said experts had not even examined the plaintiff nor had they seen the relevant x-ray reports in question.

24.     In support of the above complaints the plaintiff had placed reliance on the decision, Sentrachem v Prinsloo 1997 (2) SA 1 (A) justifying a punitive costs order.

25.     The conduct complained off directly points a finger at the legal team of the defendants and their conduct, and not the defendants themselves. The defendants before Court are lay persons and relied on their legal team to defend this suit. The failure on the part of the legal team to defend the suit faced by the defendants in a less costly manner, is more indicative of a costs de bonis propriis order to be visited upon the legal team than of a punitive costs order to be made as against the defendants.

26.     As no notice was given that the plaintiff will seek a punitive costs order against the legal team, I am of the opinion that a punitive costs order is not warranted against the defendants under the circumstances.

ORDER

In the result the following order is made:

27.1    The second and third defendants are causally liable for the plaintiffs proven or agreed damages.

27.2    That the second and third defendants jointly and severally pay the plaintiff's taxed or agreed costs as between part and party costs, which costs shall include the following:

27.2.1  the costs consequent upon the employment of senior counsel;

27.2.2   the costs of all medico-legal reports, including addenda obtained from the plaintiff's experts;

27.2.3   the costs associated with joint meetings, minutes of the parties experts addendums thereto and consultations with the experts in preparation for trial;

27.2.4   the qualifying, preparation, reservation and attendance costs, if any, of the experts allowed by the Taxing Master;

27.2.5   the reasonable costs incurred by, or on behalf of the plaintiff in attending the medico-legal examinations of both parties experts including the travelling time, disbursements incurred in such amount as allowed by the Taxing Master;

27.2.6   the costs of attendance of the plaintiffs experts at the medico-legal examinations of the plaintiff by the defendant;

27.2.7   the qualifying, preparation, reservation and attendance costs, if any, of the following experts as allowed by the Taxing Master:

27.2.7.1     Professor Van Gelder (Physician);

27.2.7.2     Dr Birrel (Orthopaedic surgeon);

27.2.7.3     Dr Oosthuizen (Radiologist).

27.3    All previously reserved costs including the costs of the trial which proceeded before the Honourable Madam Justice Malopa-Sethosa on 30 October 2017.

27.4    The costs of the plaintiffs Rule 30 application and the counter application dated 10 July 2018 on a party and party scale.

C.J.COLLIS

JUDGE OF THE HIGH COURT OF

SOUTH AFRICA

Appearances:

For the Plaintiff                                             :Adv. G.Naude SC

Attorney for the Plaintiff                                :Kriek Wassenaar & Venter Inc

For the First, Second and

Third Defendants                                           :Adv.H.O.R Modisa

Attorney for the First, Second

and Third Defendants                                    :Mothle Jooma Sabdia Inc Attorneys

Dates of Hearing                                            :18 June 2018-29 June 2018; 21-24 January 2019;30 May 2019

Date of Judgment                                           :09 December 2019

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