Goliath v MEC for Health, Eastern Cape

• Jurisdiction: South Africa
• Judge: Ponnan JA, Leach JA, Saldulker JA, Mbha JA and Mathopo AJA
• Judgment Date: 25 November 2014
• Citation: 2015 (2) SA 97 (SCA)
• Docket Number: 085/2014 [2014] ZASCA 182
• Hearing Date: 10 November 2014
• Counsel: IJ Smuts SC (with SH Cole) for the appellant. GH Bloem SC (with S Rugunanan) for the respondent. AC Oosthuizen SC (with P van den Heever) for the amicus (the Centre for Law and Medicine).
• Court: Supreme Court of Appeal

Ponnan JA (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring): B

[1] In dispassionate legal terms this is an appeal against the dismissal of an action for damages suffered as a consequence of the alleged negligent conduct of the medical staff in the employ of the respondent, who performed a surgical procedure on the appellant. In human terms it is a tale, at least from the perspective of the appellant, of dashed expectations, C much anguish and insensitivity, culminating in lengthy, stressful, and perhaps needlessly expensive litigation. The resolution of the litigation, so one suspects the appellant would have prophesied at its inception, ought not to have been particularly protracted or inordinately difficult. And yet, that is precisely the course it seems to have run. D

[2] The facts, which are undisputed, fall within a fairly narrow compass. On 8 April 2011 the appellant, Ms Cecilia Goliath, who was then 44 years old, underwent a routine hysterectomy for a fibroid uterus at the Dora Nginza Hospital in Port Elizabeth. By 11 April 2011 she appeared to have recovered and was discharged. On Friday 15 April 2011 Ms E Goliath attended a clinic in Grahamstown for the removal of abdominal stitches and a wound dressing. On 7 June 2011 she was readmitted to the Dora Nginza Hospital with severe pain and a wound abscess. The abscess was scheduled to be operated on in theatre on 8 or 9 June 2011 but this was not done and on 10 June 2011 the abscess burst, leading to the cancellation of the operation and her discharge on no F treatment. Two weeks later Ms Goliath was readmitted to the Dora Nginza Hospital complaining of a hard swelling in the abdominal scar but, after examination by the medical staff, was reassured that nothing was amiss and she was sent home. Being unwilling to return to the Dora Nginza Hospital for further treatment of the wound infection, she called G on the Settlers Hospital in Grahamstown on 5 July 2011 and was admitted to the surgical ward for what was described in the hospital notes as 'a painful abdomen, abdominal distension, wound infection and a draining of wound sinus'. As the wound infection and abdominal pain did not clear up she was referred to Dr SP Muller, a consulting surgeon at Settlers Hospital, who, suspecting a 'deep foreign body in the wound', H performed a laparotomy on 15 July 2011 and a septic gauze swab was removed from her abdomen.

[3] Ms Goliath instituted an action for damages in the Eastern Cape High Court, Grahamstown, against the respondent, the Member of the I Executive Council for Health in the Eastern Cape (the MEC), as the authority responsible for the Department of Health and Hospitals in that province. She alleged:

'7.1

The doctor who treated the plaintiff was a professional servant in the employ and service of the defendant and acted within the course and scope of his/her employment as such; and J

Ponnan JA (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring)

7.2

A the nursing staff and nursing assistants were similarly professional servants in the employ and service of the defendant and acted within the course and scope of their employment as such; and

. . .

7.5

the said doctors and/or medical nursing staff owed the plaintiff a duty of care to ensure that she was provided with proper and B skilled medical treatment including hospital, health services, supervision and care in accordance with generally accepted standards.

8.

The aforesaid doctor/doctors who treated the plaintiff and the medical nursing staff who assisted in the treatment of the plaintiff and acted negligently and in breach of the aforesaid duty of care C in that they:

8.1

failed to ensure that all surgical swabs utilised in the operation had been accounted for before the plaintiff's abdomen was closed; and

8.2

failed to remove all surgical swabs from the plaintiff's abdomen when the abdominal wound was closed; and

8.3

D they allowed the operation wound to be closed before removing the surgical swab from the plaintiff's abdomen.

9.

In and as a result of the aforementioned negligent conduct of the defendant's employees, the plaintiff developed the complications pleaded above, had to attend Dora Nginza Hospital during June 2011 as pleaded above and ultimately had to undergo the further E surgery for a laparotomy by Dr Sam Muller.

10.

In the premises the wrongful and negligent conduct of the defendant's employees as aforesaid was directly causally connected to the plaintiff developing a wound abscess and ultimately requiring further surgery.'

F The MEC's plea to those allegations was that:

'8.2

Ms Goliath's hospitalisation and treatment was consistent with a duty of care owed to her having regard to the conditions and standards prevailing at the time; and

. . .

9.2

G the MEC's employees and servants were not negligent in the manner alleged or at all.'

[4] The high court (per Lowe J) dismissed Ms Goliath's claim with costs but granted leave to her to appeal to this court against the whole of its judgment. In arriving at its conclusion the high court identified the 'real H issue' in the matter as whether the appellant had 'discharged the onus of establishing negligence'. The question, according to Lowe J —

'is whether on the appropriate test (viewed in the circumstances set out above) the surgeon, the theatre staff and swab sister (or any one of them) conducted themselves in a manner constituting negligence'.

I That question the learned judge answered thus:

'I am unable to find that plaintiff has discharged the onus which fell upon her to establish the negligence of either surgeon or nursing staff in the theatre relevant to the swab being left behind.'

J He accordingly dismissed Ms Goliath's claim with costs.

Ponnan JA (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring)

[5] In the course of his judgment Lowe J stated: A

'[58] It has been widely accepted that the majority judgement in Van Wyk v Lewis [1924 AD 438] eschewed the application of [the] res ipsa loquitur maxim in medical negligence actions. Indeed it has been stated that our courts have declined to apply the doctrine in such cases B because it has been argued, accepted and held that in the medical context, the requirement that the occurrence must fall within the scope of the ordinary knowledge and experience of the reasonable man cannot be met.

[59] It is trite that in medical negligence cases, a lower court is bound by the stare decisis legal precedent system and simply cannot invoke the C res ipsa loquitur doctrine. See Van den Heever Should Res Ipsa Loquitur Speak for Itself in Medical Accidents (Nov 2002) De Rebus. There is no South African authority which overrules Van Wyk on this issue, at least to which I was referred to, and I was unable to find any in my own research. On the contrary, the work Res Ipsa Loquitur and Medical Negligence: A Comparative Survey (Juta 2011) by Van Den Heever & Carstens, D while accepting that res ipsa loquitur was rejected as having application in medical negligence cases by the majority of the court in Van Wyk, argues that this should be reconsidered, for many reasons. They suggest that following the high court judgment in Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) the door has not closed on the possible application of the maxim in medical negligence cases, E with the caveat that it can only be applied if the alleged negligence is derived from something absolute, and the occurrence could not reasonably have taken place without negligence. The authors go on to state at 27 that (i)f regard must be had to the surrounding circumstances to establish the presence or absence of negligence, the doctrine does not find application.

. . . F

[69] There can be no doubt whatsoever that until Van Wyk is reconsidered and overturned by a court of appropriate status, a lower court (such as this) is bound to accept that in medical negligence cases, and certainly in cases involving swabs, the doctrine cannot be applied and that a conclusion must be...