MEDICAL NEG

Facts: The plaintiff underwent a laparoscopic surgical procedure performed by the defendant, Dr. van der Merwe, a specialist gynaecologist and obstetrician. During the procedure, cystic masses around her ovaries were removed, along with her right ovary. Subsequently, the plaintiff sustained a perforation in the dome of her bladder, which was repaired surgically. The plaintiff claimed damages, alleging that the defendant was negligent in using a LigaSure surgical instrument, which caused the bladder injury. The defendant denied negligence, arguing that the injury was an unfortunate but known complication of the procedure.

Issue: The central issue was whether the defendant was negligent in his use of the LigaSure device during the surgery, and whether this negligence caused the plaintiff’s bladder injury.

Discussion: The plaintiff alleged that the defendant breached his duty of care by using the LigaSure inappropriately, failing to identify structures correctly, and not converting the laparoscopy to an open procedure (laparotomy) when necessary. The defendant argued that the injury was a known complication and that he had exercised reasonable care. Expert witnesses for both sides provided conflicting opinions on whether the use of the LigaSure was appropriate and whether the defendant’s actions met the standard of care expected of a specialist gynaecologist. The plaintiff’s experts, Dr. Cronje and Dr. Pienaar, initially criticized the use of the LigaSure Atlas but later acknowledged that the defendant had used a LigaSure Maryland. They argued that the defendant applied the device too close to the bladder, causing thermal damage that led to avascular necrosis and subsequent perforation. The defendant’s experts, Dr. Fölscher and Dr. De Jong, maintained that the use of the LigaSure Maryland was appropriate and that the injury was an unavoidable complication.

Findings: The plaintiff failed to prove that the defendant was negligent. The evidence showed that the bladder injury was caused by avascular necrosis due to thermal energy from the LigaSure, but the defendant’s argument that this was a known complication that could occur even with reasonable care was accepted. The plaintiff’s experts did not establish that the defendant failed to adhere to the standard of care expected of a reasonably competent gynaecologist. The injury was an unfortunate complication rather than a result of negligence.

Order: The court dismissed the plaintiff’s claim and ordered her to pay the defendant’s costs, including the qualifying fees and costs of the defendant’s expert witnesses. Costs incurred after 12 April 2024 were awarded on scale C, reflecting the complexity and importance of the matter.

Facts: The applicant, a 55-year-old resident of Mitchells Plain, was shot in the back on New Year’s Eve 2019, sustaining a gunshot wound that entered his lower back and exited through his upper abdomen. He was admitted to Mitchells Plain District Hospital (MPH) on 1 January 2020, where he underwent emergency surgery performed by Dr. Moodley to address life-threatening injuries, including damage to his small bowel and mesenteric vessels. Although the surgery saved his life, the plaintiff later required a second surgery on 21 January 2020 to remove his left kidney due to complications arising from the initial injury. The plaintiff alleges that the medical staff at MPH were negligent in their treatment, particularly in failing to diagnose and treat the injury to his kidney in a timely manner, which led to the eventual removal of the organ.

Issue: The central issue is whether the medical staff at MPH were negligent in their treatment of the plaintiff, specifically in failing to diagnose and treat the injury to his kidney promptly, and whether this negligence caused the plaintiff to lose his kidney. The quantification of damages was postponed, and the trial focused solely on negligence and causation.

Discussion: The plaintiff’s expert, Dr. Frank Plani, a trauma surgeon, testified that the medical team should have performed a contrast CT scan within a few days of the initial surgery to assess the extent of the kidney injury. He argued that had the injury been detected earlier, the kidney could have been saved through reconstructive surgery. Dr. Plani criticized the medical team for not identifying the trajectory of the bullet and for failing to consult with specialists or refer the plaintiff to Groote Schuur Hospital (GSH) sooner. The defendant’s experts, Dr. Kaestner and Prof. Phillip Borman, argued that the injury to the renal pelvis was rare and complex, making repair difficult even if detected earlier. Dr. Kaestner, a urology specialist, testified that she had never successfully repaired a renal pelvis injury caused by a gunshot wound. The plaintiff’s case hinged on proving that the delay in diagnosing and treating the kidney injury led to infection and inflammation, which made reconstructive surgery impossible. The defendant contended that the injury was inherently severe, and that the outcome would likely have been the same even with earlier intervention.

Findings: It was concluded that the removal of the plaintiff’s kidney was factually caused by the delay in diagnosing and treating the injury, which led to infection and inflammation. The medical team at MPH was found negligent for not performing a contrast CT scan within a reasonable time after the initial surgery, which would have allowed for earlier detection and treatment of the kidney injury. The failure to act promptly resulted in the plaintiff losing his kidney, as the infection made reconstructive surgery impossible by the time the injury was diagnosed.

Order: The defendant, the MEC for Health in the Western Cape, was held liable for the damages suffered by the plaintiff as a result of the negligent treatment administered at MPH in January 2020. The defendant was also ordered to pay the plaintiff’s costs, including the fees of senior counsel and the qualifying expenses of the plaintiff’s expert witness, Dr. Plani.

Facts: The plaintiff sued the Member of the Executive Council for Health of the Free State Provincial Government in her representative capacity as the mother of her minor child, R. The claim arose from the alleged negligence of the medical and nursing staff at Pelonomi Hospital during the plaintiff’s labour and delivery. The plaintiff alleged that the failure to properly monitor and manage her labour led to R sustaining a hypoxic brain injury during the intrapartum period, resulting in cerebral palsy, mental retardation, and epilepsy. The defendant denied negligence, arguing that the medical staff acted with reasonable care and skill. The trial focused on liability, with the key issues being negligence and causation.

Issue: The central issues were whether the defendant’s medical and nursing staff were negligent in monitoring and managing the plaintiff’s labour and delivery, and whether such negligence caused or contributed to R’s brain damage.

Discussion: The plaintiff’s experts, including Dr. Murray (obstetrician), Dr. Lewis (paediatrician), and Dr. Pearce (paediatric neurologist), testified that the hospital staff failed to monitor the foetus adequately during the critical stages of labour, particularly in the last two hours before delivery. They argued that the lack of proper monitoring and the plaintiff’s unassisted delivery in the toilet were clear indicators of substandard care, which led to the hypoxic-ischaemic injury. The defendant’s experts, including Dr. Mbokota (obstetrician) and Professor Cooper (neonatologist), contended that the injury occurred after delivery when the baby fell on the floor, and that the foetal condition was normal until 21h20. However, defendant’s evidence was speculative and not supported by the medical records, particularly the Partogram, which showed no monitoring after 20h20.

Findings: The defendant’s medical and nursing staff were negligent in failing to provide adequate care and monitoring during the plaintiff’s labour. The failure to monitor the foetus half-hourly, as required, and the lack of attention during the critical stages of labour constituted substandard care. The plaintiff’s expert evidence that the negligence caused R’s hypoxic-ischaemic brain injury, leading to cerebral palsy, was accepted. The defendant’s argument that the injury occurred after delivery was rejected, as it was not supported by credible evidence.

Order: The court held the defendant 100% liable for the damages suffered by R. The defendant was ordered to pay the plaintiff’s costs, including the costs of expert witnesses, preparation, and trial appearances.

Facts: The plaintiff, a 21-year-old woman with a history of a previous cesarean section, sought medical care during her pregnancy at Elim Hospital in Limpopo. She was classified as a high-risk patient due to anemia and her prior cesarean. On October 25, 2018, she was admitted to the labour ward after experiencing labour pains. Despite her high-risk status, she was not adequately monitored. On October 26, she experienced severe abdominal pain, indicating a possible uterine rupture, but her cries for help were ignored by hospital staff. Hours later, she was finally attended to, and an emergency cesarean was performed, but the baby was delivered as a fresh stillborn due to the ruptured uterus. The plaintiff sued the defendant, the Member of the Executive Council for the Limpopo Provincial Government: Department of Health, for delictual damages, alleging negligence by the hospital staff.

Issue: The central issue was whether the defendant's medical staff at Elim Hospital were negligent in their care of the plaintiff, leading to the death of her unborn child, and whether this negligence constituted a breach of their duty of care.

Discussion: The evidence, including expert testimonies from both parties, was examined. The plaintiff's expert, Dr. Songabau, argued that the hospital's management of the plaintiff was substandard, and the tragic outcome was preventable with proper monitoring and timely intervention. The defendant's expert, Dr. Mbokota, contended that the uterine rupture was a sentinel event that could not have been predicted or prevented, and the hospital staff acted promptly once the complication was identified. The legal principles related to medical negligence were applied, with emphasis on the duty of care owed by medical practitioners to patients and the need for reasonable skill and care. The plaintiff was classified as a high-risk patient, she had complications and was a previous C-Section patient. She was admitted in Elim Hospital to be monitored because she was a high-risk patient. She was transferred and admitted in the labour ward. The defendant therefore knew that she was a high-risk patient, with complications and was in labour, they knew she had to be monitored closely. They never discussed the mode of delivery with the plaintiff.

Findings: The hospital staff failed to provide the standard of care expected of reasonable medical practitioners. The plaintiff, as a high-risk patient, should have been closely monitored, especially after showing signs of distress. The death of the plaintiff's unborn child was caused by the negligence of the staff of the defendant in failing to properly and timeously care for the plaintiff. The defendant did too little too late, which was shockingly unacceptable, and amounted to gross negligence, especially because the plaintiff was all along admitted in hospital. The outcome could have been prevented with timely intervention, and the defendant was therefore liable for the plaintiff's damages.

Order: The court ruled in favour of the plaintiff, holding the defendant 100% liable for the proven damages. The defendant was ordered to pay the plaintiff's costs, including the costs of expert witnesses and legal representation.

Facts: In 2015 the defendant, Dr Duze, performed a total hip replacement (THR) on the plaintiff, Ms Van Wyk, who was at the time 73 years old. It is common cause that the surgery was performed with informed consent and that the post-operative care and management were acceptable. It is further common cause that the plaintiff suffered a permanent sciatic nerve injury during or as a result of the surgery, which resulted in inter alia a permanent “drop foot”. Drs Naude and Birrell were initially tasked with examining and assessing the plaintiff in 2016. They were of the opinion that due care had not been taken by the defendant during the hip replacement procedure. They were, however, also of the view that since two years had not transpired since the surgery and some improvements were theoretically possible, a follow-up assessment should be done during 2017. Birrel carried out a follow-up examination of the plaintiff in 2017 and after collaboration with Dr Naude agreed, in a report, that no improvement of note was shown by the plaintiff. She still had to wear the drop foot splint and had a limp on the left side.

Claim: The only issue to be determined is whether the intra-operative damage done to the sciatic nerve was as a result of the negligence of the defendant. The plaintiff is not proceeding against the second defendant, Mediclinic Ltd. The nature of the negligence alleged by the plaintiff, as it transpired during the course of the trial, though not specifically pleaded in the particulars of claim, is the incorrect and careless placement of a retractor during the THR procedure.

Discussion: Dr Naude explained that a retractor is the fifth hand during surgery. The surgeon’s and his assistant’s hands are not enough to keep the wound open to gain access to the joint. Because the sciatic nerve is so close to the hip joint, incorrect placement of the retractor can cause damage to the nerve. Dr Naude agreed that the cause of 50% of sciatic nerve injury associated with hip replacements is unknown. Dr Naude also agreed with the literature that no single risk factor has been consistently reported as being significant and that many patients with no known risk factors incur neurological injuries. Dr Jordaan was the defendant’s expert. Whereas Dr Naude favours direct retractor damage as the most likely cause of the injury to the nerve, Dr Jordaan disagrees with this opinion on the basis that it is not indicated. He is of the opinion that indirect compression of the sciatic nerve most likely caused the complication.

Findings: It was an uncomplicated THR and the operation was technically successful. The lateral approach employed by the defendant poses a lower risk of sciatic nerve injury. Permanent sciatic nerve damage in an uncomplicated THR is rare (about 1% - 2%) but is a well-known complication. In 50% of sciatic nerve damage following upon a THR, the etiology or cause thereof is unknown. Against the logical and well-reasoned testimony of Dr Jordaan, that the cause of the plaintiff’s sciatic nerve injury falls within the 50% of cases which are unknown, Dr Naude’s bald opinion that the injury was most likely caused by a retractor because it is always used and is a dangerous instrument known to cause damage, cannot prevail. The plaintiff has failed to show on a balance of probabilities that incorrect and careless placement of a retractor had caused the injury to the plaintiff’s sciatic nerve.

Order: The plaintiffs claim is dismissed with costs.

WILLIAMS J

Facts and issue: The subject matter of this appeal is a medical negligence claim arising from the conduct of medical staff employed by the appellant, the MEC, before and/or during the birth by the respondent, Ms S, of her child, SS, at the St Barnabus Hospital. Ms S instituted the claim on behalf of SS, who is a minor. The trial court absolved the MEC of liability. Ms S’s appeal to the full succeeded, and the MEC was ordered to pay such damages as are proven consequent on the hypoxic ischaemic encephalopathy and brain injury sustained by SS as a result of the medical negligence of the medical staff. The MEC was granted leave on petition to appeal the full court’s order and judgment.

Discussion: The experts’ opinion that the cerebral palsy was caused by undetected foetal distress due to sub-standard foetal heart rate monitoring was nothing more than an opinion. The court was not bound by it. What it was required to do was to consider that opinion as part of the full body of evidence before it. Instead, the full court misdirected itself by placing undue reliance on the joint opinions of the obstetricians and paediatricians in concluding that causation was established. The most obvious misdirection by the full court its failure to factor into its analysis of the facts, the catastrophic ‘crashing’ of Ms S at the commencement of the caesarean. By all accounts, this placed Ms S’s life in danger and must have severely compromised the blood, and hence oxygen flow, to SS. Aligned with this uncontested evidence, was that of the radiologists, which identified the cerebral palsy as having resulted from an acute profound hypoxic ischaemic injury, rather than a partial, prolonged injury. It was not in dispute that the former type of injury is associated with a sentinel event. Consequently, the reasonable possibility is that the sentinel event that ultimately caused the brain injury was Ms S’s adverse reaction to the spinal anaesthetic.

Findings: There was no evidence to support the conclusion that proper monitoring prior to the operation would have averted the brain injury. The opinion of the experts, which was endorsed by the full court, assumed that had there been proper monitoring to identify ongoing foetal distress the caesarean would have been performed at 21h34 or soon thereafter. However, this assumption ignores the evidence that was before the court. When Ms S was first examined at 21h34 the only doctor at the hospital was unavailable because she was in theatre with another patient. For obvious reasons, it was never suggested that the nurses who examined her could have made the decision that a caesarean section was necessary and, without the say-so of Dr Madikane, put that process in motion. There was a demonstrable misdirection on the part of the full court in assessing the prospects of success of Ms S’s appeal. It failed to consider the total body of evidence in reaching the conclusion that causation had been established. Accordingly, its decision to refuse to strike the appeal from the roll because of the prospects of success cannot be justified. The full court ought to have refused condonation and re-instatement of the appeal and struck it from the roll.

Order: The appeal is upheld with costs. The order of the full court is set aside and replaced. The appeal is struck from the roll with costs.

Facts and issue: The plaintiff, in her capacity as mother and guardian of the minor child, instituted action against the defendant for damages following the birth of the minor. The plaintiff claimed that the defendant, through its agents and/or personnel at the Botshabelo Hospital, under the jurisdiction of the defendant, negligently caused the minor to suffer from cerebral palsy. The defendant has conceded liability on the merits. The quantification of the loss of earnings and applicable contingencies constitutes the only remaining issues between the parties.

Discussion: The industrial psychologists agreed that the minor has been ‘rendered uneducable, untrainable and unemployable, due to the incident that occurred leaving the minor with cerebral palsy requiring a full-time care giver.’ It is agreed by the industrial psychologists that it is generally known that children equal or obtain higher qualifications than their parents, which would probably have been the case with the minor. The calculation of the minor’s loss of earning capacity is based upon the agreement reached between the industrial psychologists having agreed that certain factors should be considered as the basis for computation. The minor’s life expectancy is until the age of 31.1 years. As a result of her injuries, she is unemployable. The minor would have attained a National Senior Certificate (NSC) (NQF level 4) in 2027(at age18). Tertiary education was a possibility rather than a probability and employment would be based on obtaining a Grade 12 level of education. The minor would have secured employment in the formal labour market after a period of two to five years.

Findings: The court agrees with the contention on behalf of the plaintiff that the high rate of unemployment in South Africa and the minor’s earning capacity being diminished or interrupted by are the normal vicissitudes of life taken into account by applying a contingency deduction of between 15% and 20%, being the normal contingency deduction. There are no special circumstances present to indicate that a higher contingency deduction ought to be implemented. In the circumstances, a 20% contingency deduction should be applied to the actuarially calculated loss of earnings.

Order: The defendant is ordered to pay the plaintiff, in her representative capacity, the amount of R635,740 in full and final settlement of the plaintiff’s claim for loss of earnings.

Facts and issue: The plaintiff claims damages in her personal capacity and on behalf of her minor son arising out of the treatment administered to the plaintiff during her pregnancy and the birth of Simamkele (baby) at the Mitchells Plain Midwife Obstetric Unit (MOU) in 2010. The court is to decide on the issue of liability only. The plaintiff averred that the injury was caused by the substandard care and for the negligence of medical staff at the MOU, who failed to implement the appropriate procedures when it was evident that she presented with shoulder dystocia.

Discussion: The plaintiff alleges that the administration of the appropriate procedures would have prevented the shoulder dystocia and the resultant brachial plexus injury and Erb’s palsy to the baby. It is common cause the delivery was complicated by shoulder dystocia. There was a time interval of eight minutes between the delivery of the baby and the baby’s head, and, as a result of the delivery he suffered an injury to his brachial plexus in the form of Erb’s palsy and was also diagnosed with hypoxic ischemic encephalopathy. There was little dispute between both Drs Davis and Wright. Both described what the Mc Robert’s manoeuvre is and when it is employed in a delivery. Dr Davis opined that the bruising and swelling of the baby’s right arm, as well as the fact that the delivery was a standard vertex delivery, indicate that an alternative delivery method was employed to deliver the posterior arm and the McRobert’s manoeuvre was not performed. Dr Wright opined that the Mc Robert’s manoeuvre was probably attempted but failed and therefore some other manoeuvre, such as delivery of the posterior arm was also performed. This would account for the trauma to the baby.

Findings: It is manifest that the evidence presented by the plaintiff established on a balance of probabilities that the hospital staff were negligent in failing to assess whether the plaintiff, a multigravida, had risk factors for shoulder dystocia. Had that been done timeously, a caesarean section could have been performed, which would have prevented the injuries from occurring. Once the plaintiff had presented with shoulder dystocia, the hospital staff ought to have applied the procedures prescribed in the protocol. Failure to apply those procedures, and particularly the application of fundal pressure as opposed to suprapubic pressure, has served to worsen the situation and had probably caused the injury.

Order: The defendant is liable for such damages as the plaintiff may prove to have arisen as a result of the injuries sustained by Simamkele during his birth at the Mitchells Plain Maternity and Obstetric Unit.

Facts and issue: The plaintiff, Ms EN claims damages on behalf of her daughter, SN, from the defendant (the Member of the Executive Council for Health of the Gauteng Provincial Government) for injuries resulting in severe permanent impairment that her daughter sustained on her version during birth, because of the negligence of health care professionals employed by the defendant. Only the question of the defendant’s liability is before court. The plaintiff gave birth to her daughter SN at the Chris Hani Baragwanath Hospital (CHBH), under the care of health care professionals (nurses and a medical doctor) employed by the defendant. SN suffers from cerebral palsy and is severely impaired as a result.

Discussion: The plaintiff alleges that her daughter’s cerebral palsy resulted from an injury to her brain caused by prolonged and severe foetal distress that occurred during the time from when she was admitted to CHBH until she gave birth the next morning; and that this injury was caused by the negligence of the nursing staff attending her in failing to monitor her and her daughter adequately and as required during birth, so that they did not notice the foetal distress and could not intervene until it was too late to prevent the resultant injury. The plaintiff’s evidence is in all material respects corroborated by the evidence given by the experts called on her behalf. Prof Gericke gave evidence that there were no risk factors that would have predisposed SN to an antenatal cause of the cerebral palsy and that, on the available evidence he could not detect evidence of any sentinel hypoxic event that could have caused the injury that resulted in the cerebral palsy. On this basis he concluded that the injury most probably occurred during birth, rather than before or after it. He continued that the risk of SN developing cerebral palsy would have been reduced had there been an earlier delivery intervention and that it could reasonably have been detected earlier that SN was compromised during birth if the CTG monitoring was done more regularly during the hours preceding birth.

Findings: The plaintiff’s version that the nursing staff were negligent must stand. The nursing staff attending to her and her unborn baby at CHBH were negligent in failing to monitor the plaintiff and her unborn baby according to the frequency prescribed by the maternal guidelines. SN suffered the injury to her brain that in turn caused her cerebral palsy and impairment intrapartum, due to a partial prolonged hypoxic insult. The nursing staff’s negligence in not monitoring mother and baby as prescribed caused SN’s injury (and so her condition and impairment) in that, had they not been negligent and had they monitored the plaintiff and SN as prescribed, SN’s distress would have been detected earlier, and action would also have been taken earlier to prevent any injury.

Order: The defendant is liable for 100% of the plaintiff’s damages, as proven or agreed to.

Facts: In her representative capacity, Ms VN instituted an action on behalf of her daughter, PN, against the MEC for damages in respect of the injuries suffered by PN at the time of her birth. The allegations were that the injuries were sustained due to the negligence of the staff employed by the MEC. PN was born at the Dora Nginza hospital and she suffered from cerebral palsy. Unfortunately, PN passed away in 2023 at the age of 13 years. The applicant relied primarily on expert evidence in support of the propositions made before the High Court. The expert opinions were based on the cardiotocograph (CTG) trace, the notes of the hospital staff, and the views expressed in the reports compiled by the doctors and specialists from both parties.

Appeal: The claim was dismissed by the High Court. Ms VN applied for leave to appeal, which was denied by the High Court. The appellant petitioned the present court for leave to appeal which was dismissed. Aggrieved by the dismissal of her petition, she applied to the President of the present court to reconsider the application for leave. The Acting President granted the application for reconsideration of the present court’s decision to refuse leave.

Discussion: The criticism that the High Court misdirected itself in finding that the foetus was not in a weakened state and suffered a tapping of her reserves just before the second stage of labour started cannot be sustained. The same applies to the finding that there was evidence of an obstructed labour based on the degree of the caput. The High Court dealt with the issue of the interpretation of the CTG monitoring and the obstructed labour issue pertinently in its judgment. These propositions are inconsistent with the evidence of the applicant’s expert witness, Dr Hofmeyer, who eventually conceded that Ms VN probably endured a normal first stage of labour up to the time of full dilation. It was common cause amongst all the experts that the foetus suffered a severe acute, profound central brain injury intrapartum during the second stage of labour, which only lasted 20 minutes, of which only the last 10 minutes involved active pushing by Ms VN. Not a single expert witness, including those called by the applicant, suggested that there might have been an injury indicative of a partially prolonged hypoxic-ischaemic brain injury. All the experts agreed that these kinds of injuries occur suddenly or over a short period, progress rapidly, and are unanticipated. The applicant is conspicuously silent about the fact that Ms VN’s amniotic fluid was recorded as normal and that there was no meconium present. The significance of this, as all the experts agreed, is that the presence of meconium may be indicative of foetal distress.

Findings: The submission by the applicant that the foetus may have been in a compromised condition from the outset, amounts to nothing more than speculation. All of the submissions made by the applicant fly in the face of the undisputed evidence of the experts that the minor child suffered an extremely severe and profound brain injury intrapartum and was born flat, cold and apnoeic. The extent, if any, to which the alleged sub-standard resuscitation aggravated an already existing brain injury, as correctly found by the High Court, could not be proven with any degree of certainty by all the experts, leaving it in the realm of speculation. The applicant misses the point that all the experts agreed that it is impossible to prove any material contribution to the already extremely severe brain injury sustained in utero. The applicant failed to demonstrate that exceptional reasons exist for leave to appeal to be granted. The upshot of these findings is that the applicant did not meet the stringent test required in this application and has merely re-argued all the factual submissions made before the High Court.

Order: The application for leave to appeal is dismissed.

KGOELE JA (NICHOLLS JA, SMITH JA, COPPIN AJA and MJALI AJA concurring)

Facts and issue: The plaintiff instituted a claim against the defendant for medical negligence which she suffered while under the care of the defendant’s employees. The plaintiff was shot on both lower limbs and sustained gunshot wounds. She was admitted and treated at Tambo Memorial Hospital. Unfortunately, while she was still in hospital her right leg above the knee was amputated. The issues are whether there was negligence on the part of the medical and nursing staff of the hospital in treating the plaintiff.

Discussion: According to Prof Veller with reference to the medical records, the plaintiff first suffered paraesthesia (loss of sensation) which was followed by paralysis (loss of movement). This led to what is called Ischemia. According to Prof Veller, when confronted with this condition the nurse should have reported it to a doctor who would have been able to interpret it. A registered nurse that the plaintiff had signs of ischemia which is a condition where the plaintiff had pain and decreased sensation. The nurses were supposed to report the condition immediately to a doctor. Only a doctor can make a diagnosis of ischemia. She testified further that, the pedal pulse as noted on the hospital records, is not reasonable and was substandard. The strength of the pulse was important to identify any changes in the condition of the patient. According to Prof. Becker it is incumbent that the nursing staff must phone the doctor when they notice a change in the condition of a patient. He testified further that had there been an intervention at the loss of sensation, the plaintiff’s leg would most probably been saved.

Findings: The question is therefore whether the plaintiff’s amputation of the leg would not have occurred had the defendant’s nursing staff timeously alerted the doctor about any changes in the plaintiff’s right leg which could have prevented the amputation. The defendant’s nursing staff provided the necessary care to the plaintiff under the circumstances by checking her condition within reasonable time frames. They discharged the duties according to the general level of knowledge then available to them. The doctor was called and alerted about the plaintiff’s condition. The defendant’s nursing staff by summoning the doctor they took reasonable steps to prevent further deterioration of the plaintiff’s right leg. The plaintiff had a rare neurovascular complication. This complication was not reasonably foreseeable. There was no negligence on the part of the defendant.

Order: The plaintiff’s claim is dismissed with cost.

Facts: The plaintiff, acting on behalf of her minor child, A, instituted a claim against the MEC for Health for the Province of KwaZulu-Natal for damages arising from brain injuries sustained by A during her birth at Christ the King Hospital. Liability was resolved 100% in favour of the plaintiff, and an interim payment of R2.5 million was made. The trial proceeded to determine quantum, focusing on life expectancy, general damages, loss of earnings, caregiving expenses, case management, home adaptations, transport requirements, and the costs of attending a special needs school.

Issue: The court was required to determine the appropriate quantum of damages for the plaintiff, including life expectancy, general damages, loss of earnings, caregiving expenses, case management, home adaptations, transport requirements, and the costs of attending a special needs school. The key issue was the life expectancy of A, as this would impact the calculation of future medical expenses, caregiving costs, and other related damages.

Discussion: Evidence from multiple expert witnesses was heard, including physiotherapists, occupational therapists, speech therapists, and life expectancy experts. The plaintiff’s experts, including Dr. Campbell, estimated A’s life expectancy at 19.4 additional years, while the defendant’s expert, Dr. Botha, estimated it at 12 to 16 additional years. The methodologies used by both experts were evaluated, with Dr. Campbell’s approach being based on established literature and peer-reviewed studies, while Dr. Botha’s methodology was self-devised and not peer-reviewed. The necessity of various expenses was also considered, such as home adaptations, transport, and caregiving, and the appropriateness of awarding general damages.

Findings: Dr. Campbell’s life expectancy estimate of 19.4 additional years was found to be fair and reasonable, based on established literature and logical reasoning. Dr. Botha’s methodology was rejected due to its lack of peer review and inconsistencies. Damages were awarded for past medical expenses, loss of earnings, home adaptations, transport, attendance at a special needs school, caregiving expenses, case management, and general damages. The experts agreed on the requisite need for A to attend Pathways until she reaches the age of 18 years. Costs were also awarded, including the costs of two counsel, given the complexity and importance of the case.

Order: The court ordered the defendant to pay a total of R13,159,579.68. The defendant was directed to pay the amount within 30 days, failing which interest would accrue at 11.75% per annum. The defendant was also ordered to pay the plaintiff’s costs, including the costs of two counsel, with senior counsel’s fees at Scale C and junior counsel’s fees at Scale B. The trial regarding other outstanding claims was adjourned sine die for later determination.