Goliath v Member of the Executive Council for Health in the Province of the Eastern Cape

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Lowe J
• Judgment Date: 14 June 2013
• Citation: 2013 JDR 1581 (ECG)
• Hearing Date: 20 May 2013
• Docket Number: 1084/2012

Lowe, J

INTRODUCTION:

[1]

The plaintiff in this matter, an adult female born on the 13 November 1967, instituted action against the defendant in his capacity as the authority responsible for the Department of Health and Hospitals in the Province of the Eastern Cape, claiming damages suffered by her rising from the alleged negligence of the doctor/doctors and

2013 JDR 1581 p2

Lowe, J

nursing staff on duty and involved in an operation upon her for a routine hysterectomy, on 8 April 2011 at Dora Nginza hospital in Port Elizabeth.

[2]

The matter proceeded before me on both merits and quantum.

[3]

Plaintiffs claim (which proceeds in delict) in essence alleges that the doctors and nursing staff involved in her hysterectomy operation owed her duty of care in accordance with generally accepted standards, and acting negligently allowed the operation wound to be closed before removing all surgical swabs from her abdomen. She alleges that one swab had been left in her abdomen which required to be subsequently surgically removed by Dr Muller on the 15 July 2011.

[4]

Plaintiff claims damages as follows:

4.1

Estimated future loss of earnings R50 000-00;

4.2

Estimated future medical expenses R150 000-00;

4.3

General damages in respect of shock, pain and suffering, disability, disfigurement and loss of the amenities of life R300 000-00.

[5]

In the minute of the resumed pre-trial conference dated 20 May 2013 the defendant admitted plaintiff's photographs (to the extent that they could be adduced in

2013 JDR 1581 p3

Lowe, J

evidence) without the necessity of formal proof, admitting the hospital records but persisted in his denial of liability and damages.

[6]

Defendant had raised a special plea, which the parties recorded at commencement of the trial would not proceed costs attached thereto to be costs in the cause.

[7]

I was further informed at the commencement of the trial that the parties had agreed upon the quantification of plaintiff's claim for future loss of earnings in the sum of R5 000-00 (the event of liability being established). Future medical expenses had fallen away.

[8]

Accordingly at the trial what remained for determination was:

8.1

The merits of the matter relevant to liability;

8.2

The quantification of general damages in the event of liability being established;

8.3

The ancillary orders in the event of liability being established;

8.4

Costs.

2013 JDR 1581 p4

Lowe, J

THE EVIDENCE:

[9]

Plaintiffs evidence consisted of two witnesses, herself and general surgeon Dr S. P. Muller.

DR MULLER:

[10]

Dr Muller qualified himself as a specialist surgeon of considerable experience and stated in evidence (in summary) the following:

10.1

He treated the plaintiff for complications arising from sepsis in the abdomen and surgical wound following upon a total hysterectomy done at Dora Nginza hospital on the 8 April 2011;

10.2

The sepsis was a complication of the hysterectomy operation in which he was not involved;

10.3

Prior to being seen by Dr Muller she was treated at Settlers Hospital Grahamstown for wound infection, particularly on the 5 July 2011, when she was admitted for a painful abdomen, abdominal distension, wound infection and a draining wound sinus;

10.4

She was treated with a mixture of high potency antibiotics despite which the infection did not clear up and Dr Muller was called in;

2013 JDR 1581 p5

Lowe, J

10.5

He saw her for the first time on 13 July 2011 and suspected a deep foreign body in the wound or abdominal cavity and operated on plaintiff on the 15 July 2011;

10.6

This was a major operation under anaesthetic being an open laparotomy he finding an abdominal swab left in the pelvic cavity at the time of the hysterectomy operation;

10.7

The swab was removed and appropriate antibiotic treatment given, the abdominal cavity being washed out and closed with an internal drain;

10.8

Plaintiff recovered well, the drains were removed on the fifth post-operative day and she was discharged on the ninth post-operative day;

10.9

She was subsequently seen at out patients on a number of occasions and had fully recovered by November 2012;

10.10

She had no problems with the scar nor abdominal pain subsequent to the second operation after a recovery period;

10.11

The swab which had been left behind at the hysterectomy operation delayed her recovery and gave her pain and agony from abdominal

2013 JDR 1581 p6

Lowe, J

and wound sepsis she being fortunate to make a subsequent full recovery without further complications and even potentially death;

10.12

He reported that she would have been unable to work following an uncomplicated hysterectomy for approximately a month but as a result of the complications she experienced this was extended to some 6 months;

10.13

She had months of suffering in the form of pain, severe anxiety and fear the general inability to enjoy life and obviously the need to undergo a second and dangerous operation;

10.14

Apart from some potential for internal abdominal adhesions she has made a remarkable recovery since the second operation;

10.15

Now that more than a year has passed since the second operation the chance of abdominal adhesion has much diminished and has dropped to proximately 20 % in respect of an adhesion requiring re-admission to hospital;

10.16

Of those re-admitted about 10 % required at least one operation to relieve obstruction which may be required 20 years and longer after the initial operation;

2013 JDR 1581 p7

Lowe, J

10.17

In South Africa approximately five hundred people die per annum from obstructions due to internal adhesions;

10.18

The retained swab complication now put her at increased risk of severe or dense adhesions, at increased risk of intestinal obstruction requiring an operation, he estimating however that she had a 90 % chance of escaping it at this time;

10.19

If in the unlikely event of an intestinal obstruction at this stage she would be off work for two weeks (if no operation was required) and for six weeks or more if one was.

[11]

During the trial when Mr Cole for plaintiff attempted to lead Dr Muller on matters relevant to the facts surrounding the potential negligence in respect of the retained swab, Mr Ruganan for respondent objected as this aspect of the matter had not been covered in the doctors expert notice, that objection being upheld.

[12]

In his evidence in chief, however, Dr Muller explained that swabs are part of the instruments kept by the nursing sister responsible therefore, the so called swab sister. He explained that abdominal swabs were used to swab up body fluids, and it was internationally accepted that there had to be a rigid protocol for these to be counted by the sister and surgeon involved, explaining this counting requirement and method briefly.

2013 JDR 1581 p8

Lowe, J

[13]

He amplified that the plaintiff in this matter, when he operated upon her, had been extremely sick with high fever and peritonitis. He gave evidence concerning the admitted photographs that had been taken by the anaesthetist (present at the operation) and he explained that photographs A3 to A6 demonstrate the swab removed during the second operation (which is quite a substantial sized piece of gauze swabbing) and that the photographs (part of his expert notice) demonstrated the swab in a plastic bag also showing the quite substantial scar relevant to plaintiffs abdomen.

[14]

In cross-examination Dr Muller said that it was a very rare situation to have a swab left in during or after an operation.

[15]

This evidence which is certainly relevant to potential negligence was further dealt with in re-examination (arising from the cross-examination) the doctor saying further that it would be a rare occasion to have a swab left in at an operation, having regard to the rigid procedures to be followed relevant to swab counting, and that this should not occur. There was no further detail or medical evidence of any nature relevant to the above or the circumstances of this particular hysterectomy operation. There were no hospital or medical records placed before me or referred to in evidence relevant to the first operation.

2013 JDR 1581 p9

Lowe, J

THE PLAINTIFF:

[16]

The plaintiff herself gave evidence that she was forty five years old, married with two children presently working as a caterer at the Brookeshaw home for the aged, earning R5 000-00 per month.

[17]

Generally she deposed to the fact that she had not been aware at any time of the fact that the swab had been left in her stomach and had not been told that this was the case nor had she consented thereto. Subsequent to the operation she made a poor recovery still having a sore stomach finding it extremely difficult to perform appropriately at her former employment at Fruit & Veg in Grahamstown, feeling thoroughly ill with temperatures and the like. She returned to Dora Nginza in June 2011 where she was told she would have to have a second operation, but after an abscess on her stomach wound burst she was discharged without such an operation. Subsequently she continued to feel extremely ill returning to Dora Nginza for further examination she being again sent home. In July 2011 she went to the local clinic and was referred to Settlers Hospital where she was treated as already described above.

[18]

She confirms that she was informed that a swab had been found in her stomach during the operation, and that subsequently she made an uneventful recovery, is now able to resume her activities of walking and occasional bike riding which she had previously been unable to do subsequent to the first operation. She had completely recovered at this time and conceded that by November 2011 she was effectively fit again.

2013 JDR 1581 p10

Lowe...