F v MEC for Health North West Province

• Jurisdiction: South Africa
• Judge: RD Hendricks DJP
• Judgment Date: 28 January 2021
• Court: North West High Court, Mafikeng
• Hearing Date: 01 December 2020
• Docket Number: 1713/2015

Hendricks DJP:

[1]

On 18th December 2012 Ms. N F[…] (the plaintiff) was a victim of domestic violence. During the ordeal she fell and suffered an injury to her left forearm above the wrist. She went to Tshepong Hospital in Klerksdorp, where her left hand and arm were x-rayed. It was detected that she suffered a Colles type fracture on her left forearm just above her wrist. Plaster of Paris (POP) was applied although the doctor who treated her said that she should undergo corrective surgery. As a result of continued pain she suffered, she went back to the hospital after eight (8) days, on the 27th December 2012. The POP was removed and a new one was applied. The excruciating pain persisted, which caused her to went back to the hospital again on 16th January 2013. Once again the POP was removed and a new one was applied. There was no relief from the pain she experienced. She went back to the hospital again on 22nd January 2013. The POP was again removed and re-applied. This was the fourth time. There was still no improvement. Once again, she went back to hospital but this time she attended at the Potchefstroom hospital on 29th January 2013. The POP

2021 JDR 1690 p5

Hendricks DJP

was again removed. It was decided that there was a need to operate. On the 14th February 2013 she went back to the hospital but was not assisted. On 18th February 2013, two months after she sustained the injury, she again went to Klerksdorp hospital. It was only than that the corrective surgery was performed to correct the malunion in her left forearm. She was discharged on 19th February 2013.

[2]

Almost a month later, on 16th March 2013, she experienced numbness in her left hand coupled with severe pain. This caused her to visit the Park Street Clinic for medical assistance. On 01st September 2013 she was again a victim of domestic violence. Her left hand got injured in a skirmish when her live-in partner banged the back of it against a refrigerator. She was conservative medically treated. Again on 30th October 2014, she received treatment for the bruises and pain she had to endure. This is the time table for the hospitals and clinic visits she paid for the injury she sustained.

[3]

She obtained legal advice and instituted a claim for damages against the Member of the Executive Committee (MEC) for Health, in the North West Province. The delictual claim is based on professional negligence the plaintiff suffered as a result of the treatment she received at the Tshepong/Klerksdorp and Potchefstroom hospitals. The act of negligence is attributed to the fact that there was an inordinately long delay in applying corrective surgical treatment to the plaintiff's injury; failure to treat the Colles type injury of the forearm correctly; failure to determine the constant and continuous pain she suffered; failure to prevent the sequel and complications as a result of the negligent acts. At the inception of this trial, liability and quantum were separated in terms of the provisions of Rule 33 (4) and the trial commenced and proceeded with this Court to determine the liability, if any, on the part of the defendant, the MEC. There was a dispute with regard to which party bears the onus and has the duty to

2021 JDR 1690 p6

Hendricks DJP

begin. This Court ruled that the plaintiff bears the onus to prove her case and has the duty to begin. The plaintiff testified and also called Dr. Anthony (Tony) Birrell, an orthopedic surgeon, as an expert witness to testify in her case. Dr. Johannes Heymans, an orthopedic surgeon, was called as an expert witness in the case for the defendant.

[4]

The evidence of the plaintiff with regard to her attendance at the hospitals (both at Tshepong/Klerksdorp and Potchefstroom) and clinic is undisputed and is in fact common cause. Even the prognosis that she suffered a Colles type fracture just behind the left wrist is common cause. Whether she was properly treated and what the apportionment of negligence should be, that must be apportioned to each party were the issues of much debate. To this end, the evidence of Dr. Birrell and Dr. Heymans need to be carefully considered. Both these witnesses testified as expert witnesses with their expertise been admitted. Each of them submitted a report and addenda thereto. They also complied a joint minute.

[5]

According to the evidence of Dr. Birrell, the delay in receiving the correct treatment and eventually the operation, constitute negligence on the part of the doctors at the Tshepong/Klerksdorp hospital and the Potchefstroom hospital, for which the defendant is vicariously liable. He disagrees with Dr. Heymans with regard to the degree of the delay and what the apportionment should be. According to him, the apportionment should be 30/70, being 30% apportioned to the plaintiff and 70% apportioned to the defendant. This is based on the fact that the POP's were too tightly applied and had to be redone several times. The operation, which was absolutely unnecessary, was delayed for much too long. The...