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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

14/7/2017

CASE NUMBER: 7255/2012

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

M M                                                                                                                          Plaintiff

and

NETCARE HOSPITALS (PTY) LTD                                                             1st Defendant

DR J JACOBS                                                                                             2nd Defendant

THE MEC FOR HEALTH & SOCIAL DEVELOPMENT

OF GAUTENG PROVINCIAL GOVERNMENT                                            3rd Defendant

JUDGMENT

AC BASSON, J

Introduction

[1] Twelve year old Ms A M (hereinafter referred to as "the patient") injured her right leg playing football at school on 29 March 2011. At the time of the injury the patient was in good health: she had no previous injuries and, more in particular, her right leg was normal. A few days later on 15 April 2011 an above right knee amputation was performed on her.

The parties

[2] The plaintiff (Mrs M M - hereinafter referred to as "the plaintiff'') is the mother of the patient. She instituted an action for damages against the first defendant (Netcare Hospitals (Pty) Ltd); the second defendant (Dr P Jacobs) and the third respondent (the MEC for Health and Social Development of Gauteng Provincial Government). At the time of instituting the action, the patient was still a minor.

[3] By agreement between the parties, the trial proceeded on liability only. Should the plaintiff be successful the issue of the quantum would be determined at a later stage.

[4] The first defendant - trading as the Bronkhorstspruit Netcare Hospital - is a private hospital in Bronkhorstspruit (hereinafter to as "the Bronkhorstspruit hospital"). The Bronkhorstspruit hospital has since closed down permanently. It was common cause that the Bronkhorstspruit hospital had a public private partnership with the Department for Health and Social Development of the Gauteng Provincial Government (the third defendant) in terms of which a number of beds at the Bronkhorstspruit hospital were made available to so-called "public patients". Two weeks before the commencement of the trial, the plaintiff withdrew the action against the Bronkhorstspruit hospital. The particulars of claim were, subsequently amended to be directed at the alleged liability of Dr Jacobs and the third defendant, jointly and severally.

[5] The second defendant, Dr Jacobs, is a general practitioner who qualified in 1986 as a pharmacist and in 1994 as a medical doctor. He practiced as a pharmacist from 1986 until 1990 whereafter he proceeded with his medical studies. Dr Jacobs worked as a general practitioner since 1994 and has been practicing as a general practitioner from 1997 from his consulting rooms in Bronkhorstspruit.

[6] The third defendant is the Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government in his/her capacity as the MEC responsible for the administration of the Department of Health and Social Development of the Gauteng Provincial Government. The Mamelodi hospital, where the patient was treated in April 2011, is situated in Pretoria, Gauteng and is a so-called provincial hospital which falls under the control and administration of the third defendant. The nurses and medical doctors working in the Mamelodi hospital are employed by the Department for Health and Social Development of the Gauteng Provincial Government. By virtue of their employment, the medical doctors and nurses employed at the Mamelodi hospital are under a legal duty to render to a patient in their care proper and appropriate medical treatment. It was not disputed that they are required to exercise the degree of skill and care to a patient that can reasonably be expected of a medical practitioner and/or nurse in the prevailing circumstances.

[7] It is common cause that the patient received treatment at the Bronkhorstspruit hospital, the Mamelodi hospital and from Dr Jacobs at his private consulting rooms on various days in April 2011.

Claims against the second and third defendants

[8] When the plaintiff initially instituted her claim, it was against the first, second and third defendants whereafter the first defendant joined the third defendant as the first third party (which joinder has now become obsolete in that the plaintiff had withdrawn the claim against the first defendant). The third defendant thereafter joined the second defendant as the second third party. As matters stood, the only parties before the court as defendants are Dr Jacobs (the second defendant and also a third party) and the third defendant.

[9] The plaintiff claims damages from Dr Jacobs as well as the third defendant, for damages as a consequent of alleged negligent medical management and treatment of the patient which resulted in an above right knee amputation (the injury), specifically during the period 2 to 15 April 2011.

Third defendant's conditional counter-claim against the plaintiff

[10] The court was also called upon to adjudicate on the third defendant's conditional counter-claim against the plaintiff and the third defendant's third party claim against Dr Jacobs (the second defendant as third party).

[11] In the third defendant's conditional counter-claim, it is alleged that, if there is a liability finding by this court against the third defendant as alleged by the plaintiff, then the plaintiff is alleged to be a joint wrongdoer.

[12] In this regard it was contended by the third defendant that the plaintiff's negligence is based on the fact that she has certain parental responsibilities and rights over the patient and that she has a legal duty towards the patient to ensure that- (i) the patient attends to all medical treatments as prescribed by the doctors; (ii) the patient attends to all scheduled medical appointments by the doctors; (iii) the patient is taken to appropriate medical facilities for treatment of the injury sustained and/or for treatment of any deteriorating medical condition; and (iv) the patient's medical condition is at all times observed and that the patient is taken for medical treatment as soon as possible when necessary. It was accordingly contended that the legal duty of the plaintiff's parental responsibility towards the patient was breached by the plaintiff in that she failed to ensure that the patient take the medication prescribed by the Mamelodi hospital and that the plaintiff failed to ensure that the patient attended to the scheduled follow-up medical review appointment with the orthopaedic surgeon (at the Mamelodi hospital) on 7 April 2011. It was further contended that the plaintiff failed to observe the plaintiff's deteriorating medical condition - more particularly in respect of the development of sepsis on the patient's limb; that she failed to take timeous action upon noticing that the patient was developing infection and/or sepsis in the right leg and that the plaintiff failed to refer the patient to appropriate medical facilities upon noticing that the plaintiff has developed sepsis.

The third defendant's third party claim against Dr Jacobs (the second defendant as third party)

[13] In addition to the conditional counter-claim against the plaintiff, a third party notice was served upon Dr Jacobs in which the third defendant seeks an order declaring that Dr Jacobs is a joint wrongdoer together with the third defendant in respect of the damages suffered by plaintiff in her personal and representative capacity.

[14] In respect of the lis between third defendant and second defendant, the plaintiff has no role to play.

Claim against Dr Jacobs

[15] The claim against Dr Jacobs is premised on the fact that during the period of 4 April 2011 to 11 April 2011, he, in his professional capacity as a general practitioner, undertook and accepted responsibility for treating the patient and for prescribing treatment to be administered to her. By reason of the doctor-patient relationship which came into being and which existed during the aforesaid period (between Dr Jacobs and the patient), Dr Jacobs was under a legal duty to conduct himself in respect of the treatment rendered or prescribed to the patient as a general medical practitioner, with such skill, care and diligence as could reasonably be expected of a general medical practitioner in similar circumstances.

[16] The plaintiff claims that Dr Jacobs during the period 4 April 2011 to 11 April 2011 wrongfully and negligently breached his legal duty towards the patient in that he on 4 April 2011 failed to properly examine and treat the patient; he on 4 April 2011 removed the previously applied back slab to the patient's right leg, but failed to do a proper examination of the right leg and then incorrectly applied an above-knee plaster of paris to the patient's right leg; he failed to refer the patient to an appropriate orthopaedic surgeon for further treatment; he instructed the patient that the above knee plaster of paris to her right leg must remain in situ for two weeks thereby causing the patient not to attend any further consultations at the Mamelodi hospital for further management and treatment; he failed to recognise the symptoms presented by the patient with signs of developing sepsis on 4 April 2011 and also on 11 April 2011; he failed to timeously and/or sufficiently treat the patient in respect of the developing sepsis; and he failed to prevent an injury (the eventual above-right knee amputation) to the patient's right leg by exercising reasonable skill and care.

[17] It is thus claimed that, as a consequence of Dr Jacobs' breach of his legal duty towards the patient, she suffered from life threatening spreading sepsis in her right leg which led to the non-viability of the muscles and structures in her leg and that she developed respiratory distress which eventually led to the fact that she had to undergo an above-knee amputation of her right leg ("the injury") and that she had to be hospitalised for an extensive period of time.

[18] Although Dr Jacobs denies liability, it is not in dispute that he was involved in the treatment of the patient on 4 and 11 April 2011 and that he had a legal duty of care to render his professional services with the necessary care, skill and expertise. In respect of the treatment administered to the patient on 4 April 2011, Dr Jacobs pleaded that he did assess the injury to the patient's right knee by physically examining the right knee; that he caused x-rays to be taken of the patient's right knee; that he diagnosed the injury to her knee as a possible small hairline crack in the superior tibia anterior; that he diagnosed swelling of the patella bursa with fluid of plus minus 50 - 100 ml on the patella bursa; that he prescribed Dicoflonack (a non-steroid anti-inflammatory Voltaren 25mg tablet) to treat the swelling of the patella bursa to be taken one tablet three times per day; Panado tablets to be taken with the Voltaren to treat the pain and Thermorub to be applied externally to the swelling to assist with the inflammation of the soft tissue surrounding the patella bursa. He also pleaded that he applied 2x150mm crepe bandages to the patient's right leg to assist in minimising the fluid and that he specifically decided not to drain the swelling for fear of infection. More in particular, Dr Jacobs pleaded that he had informed the plaintiff and the patient that no plaster of paris can currently be applied to the leg as the knee and leg may become more swollen. He instructed the plaintiff and the patient that bed rest is prescribed with her knee on a cushion and that, should the knee become hot or should the swelling increase, they should return to him.

[19] There exists a dispute as to whether Dr Jacobs had applied a full circular above-knee plaster of paris to the right leg of the patient on 4 April 2011. In terms of the original pleaded grounds of negligence, at the time when the summons was issued in 2012, it was always alleged by the plaintiff that the "above-knee Plaster of Paris" was applied by the Mamelodi hospital on 2 April 2011. Approximately two weeks before the commencement of the trial the plaintiff, however, decided to amend her particulars of claim to now allege that the patient had arrived at Dr Jacob's consulting rooms with a back slab in situ and not with an above-knee plaster of paris and that it was in fact Dr Jacobs who had applied the full circular plaster of paris to the patient's leg. In his amended plea, filed a week before the trial, Dr Jacobs denies this allegation.

[20] In respect of the treatment administered to the patient on 11 April 2011, Dr Jacobs pleaded that he assessed the patient for her complaint of flue, coughing, a blocked nose and light bleeding of the nose; that he assessed the patient's right leg and that it was found that the right knee was tender to touch although the swelling of the patella bursa had subsided. Dr Jacobs further pleaded that the patient had no complaints about her right leg and that he diagnosed the patient's complaints as being caused by bilateral wet bronchi in both longs. He also diagnosed her to be suffering from bronchopneumonia and epistaxis (bleeding from the nose) and that she had a temperature of 38.6°C. He instructed the plaintiff to immediately take the patient to the Bronkhorstspruit hospital for admission. He prescribed and supplied the plaintiff with a written prescription and instruction that - (i) the patient must be put on oxygen 0² to be administered at a rate of 4 l/m; (ii) that she must be put on a drip with an antibiotic ampicillin to be administered intravenously at a rate of 1000 mg per day; and that (iii) a full blood count must be taken to exclude the existence of infection.

[21] The hospital records of the Bronkhorstspruit hospital contains Dr Jacobs' written prescription given to the plaintiff on 11 April 2011. Dr Jacobs' detailed instructions to the Bronkhorstspruit hospital for the immediate treatment and administration of the patient are also included in the hospital records and refer to the following: his diagnosis of bronchopneumonia and epistaxis (bleeding from the nose are recorded). The records also reflect an instruction for the administration of 1000mg ampicillin intravenously to be repeated 4 times per day; that Panado tablets be administered 2 times per day; that Anthraxin 100 mg must be administered per rectum; that Alcophyllex 10 ml be administered 4 times per day; and that Cyklokapron tablets be administered 3 times per day.

[22] As will be pointed out in more detail herein below, no evidence whatsoever was placed before this court that these instructions were followed by the Mamelodi hospital where the patient was admitted and, more in particular, no evidence was placed before the court that the prescribed medication was in fact administered by the Mamelodi hospital as per Dr Jacobs' instructions.

[23] In addition to the above medication, Dr Jacobs prescribed the following plan to the hospital to determine the cause of the acute illness of the patient: He instructed the hospital to - (i) take a chest x-ray to determine whether the bronchopneumonia was present in both lungs; (ii) apply a nose tampon so that light pressure could be applied on the inside of the nose to stem the nose bleeding; (iii) take a urine dipstick sample from the patient in order to determine various levels of infection and to exclude a whole host of possible sources of infection, including a urinary tract infection and the liver; and (iv) administer oxygen at 4 l per minute.

[24] This prescribed treatment plan was similarly not performed as no evidence whatsoever was placed before the court that a single one of the instructions prescribed by Dr Jacobs was either considered or implemented by the Mamelodi hospital. I will return to this issue in more detail herein below.

Claim against the third defendant (the Mamelodi hospital)

[25] The claim against the third defendant is premised on the basis that the patient had been admitted to the Mamelodi hospital on two occasions and as such the third defendant through its employees (medical doctors and nursing personal) was under a legal duty towards the patient to render such medical and nursing care at all times, with such skill, care and diligence and without negligence, as could reasonably be expected of medical professionals and professional nursing staff in similar circumstances. The third defendant in its plea admitted that medical practitioners and nurses who examined the patient at Mamelodi hospital were in its employment and that they were under a legal duty to render, to the patient, proper and appropriate medical treatment and to exercise the degree of skill and care which can reasonably be expected of a medical practitioner or nurse in the prevailing circumstances. The third defendant, however, denied that its employees breached the alleged legal duty in one or more or all of the respects, as alleged by the plaintiff.

[26] It was common cause that the patient was referred to the Mamelodi hospital on two occasions: the first occasion was on 2 April 2011 where she was examined but discharged. On the second occasion and on 11 April 2011 to 14 April 2011, the patient was admitted to the Mamelodi hospital whereafter she was transferred to the Steve Biko hospital in a critical condition (on 14 April 2011).

[27] The plaintiff claims that the third defendant (represented by one or more of its employees) and acting in the course and scope of their employment with the third defendant on 2 April 2011 and during the period 11 April 2011 to 14 April 2011, wrongfully and negligently breached their legal duty towards the patient in one or more of the following respects: (i) they failed to observe the patient appropriately and to notice and/or recognise or treat her for developing sepsis; (ii) they failed to prescribe and/or administer the appropriate treatment to the patient; (iii) they failed to conduct a proper examination of the patient's right lower limb; (iv) they failed to remove the above-knee plaster of paris cast and to conduct a full examination of the patient's right leg; (v) they failed to request the necessary x-ray examinations of the patient's right lower limb; (vi) they failed to timeously, sufficiently or at all to react and/or treat and/or prescribe treatment for the septicaemia which has developed; and (vii) they failed to prevent the injury suffered by the patient when, by exercising reasonable skill and care, while they could and should have done so. It is therefore claimed that as a consequence of the third defendant's breach of its legal duty, the patient suffered from life threatening, spreading sepsis in her right leg which led to the non-viability of muscles and other structures in her leg and that as a further complication of the sepsis the patient developed respiratory distress which eventually lead to the fact that she had to undergo an above-knee amputation of her right leg and as a consequence hereof she was hospitalised for an extensive period of time.

[28] As a result of the negligence of the aforesaid employees and the consequent injury, the plaintiff claim damages from Dr Jacobs and the third defendant jointly and severally.

Evidence before the court

[29] The plaintiff, the patient and the plaintiff's brother gave evidence on behalf of the plaintiff. She also called as an expert witness Dr Pienaar - a general surgeon. Dr Jacobs gave evidence and called as an expert witness Dr Engelbrecht - an orthopaedic surgeon. Dr NJ and Dr Monsengo gave evidence on behalf of the third respondent but not as expert witnesses. The qualifications of Drs Pienaar and Engelbrecht were not disputed nor their expertise.

[30] In this regard the court was referred to a joint minute signed by Dr Engelbrecht and Dr Le Roux (orthopaedic surgeon on behalf of the plaintiff). The court was also referred to a questioner that was answered to by Dr Firth (paediatric orthopaedic surgeon) which contains important concessions in respect of the possible liability of the third defendant. Neither Dr Firth nor Dr Le Roux was called as expert witnesses. I will deal with the status of these two reports where relevant.

Brief summary of the events:

31 March 2011

Bronkhorstspruit hospital

[31] As a result of pain and discomfort resulting from a soccer injury sustained on 29 March 2011, the patient attended the Bronkhorstspruit hospital. From the hospital records it appears that she was admitted to the Accident and Emergency Unit at 16H00 on 31 March 2011. The patient walked into the hospital accompanied by her friends. It is recorded that she was "awake and well orientated" and that the patient was complaining of a painful right knee that was "slightly swollen". Her respiration was recorded as 20 per minute and her temperature was 38.2°C.

[32] Dr Kotu attended to the patient. He ordered x-rays to be taken. The x-rays were not available on the day and the patient was instructed to return to the hospital on the following day (1 April 2011) in order to obtain the results. The patient was issued with a prescription and was discharged. It is noted on the records that the patient left the unit at 16H20 "on foot" and that her condition was stable. The skin was not compromised. The patient was prescribed Panado and a bandage.

[33] In the x-ray report taken of both knees (which the patient collected the next day) it is noted that Osgood Schlatter disease "should be considered' due to irregularity of the tibial tubercle epiphysis with some overlying soft tissue swelling. No fractures were documented and it was recorded that the joints are intact. Dr Pienaar explained what this disease (Osgood Schlatter) entails and described it as "growth pains" in young growing children. It is common cause that this diagnosis is not of any importance in this matter.

[34] No allegations of negligence are made in respect of the treatment administered by Dr Kotu on 31 March 2011.

1 April 2011

Bronkhorstspruit hospital

[35] The patient returned to the Bronkhorstspruit hospital on 1 April 2011 at 14H50 accompanied by her sister. It was common cause that no doctors were available on that day and that a nurse (Sister Judy) attended to her. She was handed a CD containing the X-rays. Her temperature was recorded as 36.4°C.

[36] It is common cause that Sister Judy applied a back slab to the injured right leg. The patient was thereafter referred for further medical management and treatment to the Mamelodi hospital. The Bronkhorstspruit hospital records reflect that the patient left the hospital at 15H10, walking with help from her friends and that her condition was stable. In the referral letter reference is made to x-rays, a back slab and to pain management. The patient was referred for "further management". Dr Pienaar agreed that the application of the back slab by Sister Judy to the right knee of the patient was the correct treatment at the time.

2 April 2011

Mamelodi hospital

[37] On 2 April 2011 the patient was transported to the Mamelodi hospital by paramedics and was seen in the casualty department at 16H20. The hospital records show that the patient had clinical signs of a raised temperature (38.3°C) and an increased pulse rate (113bpm). Her respiratory rate was recorded at a rate of 20 per minute.

[38] The patient was evaluated by Dr NJ. Dr NJ - who testified on behalf of the third respondent - confirmed that he had seen the patient although he could not independently recall the consultation and had to rely on the medical records of the Mamelodi hospital.

[39] The handwritten notes of Dr NJ confirm that the patient arrived with a back slap in situ. There is no recordal in the clinical handwritten notes of Dr NJ on whether he had removed the back slab and whether the patient's leg was examined. In his evidence Dr NJ confirmed that if no such note appears it means that he did not remove the back slab or that he did not examine the leg. Dr NJ confirmed that he had prescribed Brufen and Panado tablets and that a Voltaren 75mg injection was administered. The hospital records completed by Dr NJ, however, do not contain any record of the vital signs of the patient or what the final diagnosis was.

[40] From the handwritten notes (which was confirmed by Dr NJ in his evidence) it is, however, recorded that Dr NJ requested that an x-ray be taken. Due to the fact that the patient manifested with an orthopaedic injury and the fact that Dr NJ had no orthopaedic experience, he consulted telephonically with Dr Mothiba who was the orthopaedic surgeon on duty in the orthopaedic department. Dr NJ confirmed that two of the vital signs were abnormal and that he did informed Dr Mothiba accordingly in this regard. Notwithstanding the information conveyed to Dr Mothiba, he informed Dr NJ that it was not necessary to take a further x-ray (despite the request made by Dr NJ for a repeat x-ray) and that the patient must return to the hospital on Thursday (7 April 2011) and report to the Orthopaedic Outpatient Department at the Mamelodi hospital. Dr NJ confirmed that he contacted Dr Mothiba because he wanted him (Dr Mothiba) to come and assess the patient. Despite having conveyed the patient's abnormal vital signs to Dr Mothiba, Dr Mothiba did not come and assess the patient.

[41] Dr Pienaar was critical of the treatment administered at the Mamelodi hospital and expressed the opinion that with these vital signs recorded, the reasonable practitioner in a second tier hospital such as the Mamelodi hospital should have ordered an x-ray, investigated the infective markers and should have considered detailed blood investigations(a full blood count and CRP). It is common cause that no such detailed blood investigations were done at the time.

[42] With reference to the clinical notes of Dr NJ, Dr Pienaar was of the view that Dr Mothiba's instruction not to repeat the x-ray because he (Dr Mothiba) did not consider it necessary, was a grave omission on the part of Dr Mothiba, as the x-ray may have shown changes that could have been recognised at the time. Dr Pienaar was also adamant that Dr Mothiba ought to have examined the patient prior to cancelling the x-rays as requested by the medical officer on duty. Further according to Dr Pienaar, there was no need to prescribe the medication that was prescribed as the patient had already been given paracetamol and brufen. Dr Pienaar was of the opinion this medication should never have been used in the face of a developing infective process.

[43] In respect of the treatment received by the patient by the Mamelodi hospital on 2 April 2011, the plaintiff's legal representation posed the following statement to Dr Firth:

"The problem that resulted in the amputation of the leg, commenced here on 2 April 2011 at the Mamelodi Hospital. The back slab was not removed, there was no proper examination and evaluation of the injured limb and with the raised temperature and the increased pulse rate further investigation should have been performed and in fact A should have been sent to the orthopaedic department of this particular hospital on that day for appropriate medical management and treatment."

To this statement Dr Firth responded as follows:

"I agree with this statement. If there is no note of an examination of the skin of the leg then the backs slab was not removed. It was the time when the acute osteomyelitis could have been successfully treated.”

4 April 2011

[44] The patient experienced pain during the night on 3 April 2011 and as a result the plaintiff decided to take the patient to a private medical practitioner in Bronkhorstspruit (Dr Jacobs - the second defendant).

[45] The plaintiff explained that she had to arrange for transport with her neighbour - a certain Steve - who had a motor vehicle. The plaintiff, Steve (who has since passed), Steve's wife and the plaintiff's brother (Mr J M - "J") accompanied the patient to the consulting rooms of Dr Jacobs. The plaintiff, the patient as well as J confirmed that the patient could not walk and that they had to drive around to the back of the consulting rooms so that the patient could be carried into the consulting rooms. The patient was placed on a bed whereafter she was examined by Dr Jacobs.

[46] The evidence of what exactly transpired in the consulting rooms is in dispute. What is, however, common cause is the fact that the back slab was removed by Dr Jacobs and that the patient was taken for x-rays. According to the plaintiff, Dr Jacobs told her that the x-ray showed that there was a "crack".

[47] Dr Jacobs confirmed that he examined the patient comprehensively on 4 April 2011 and that he conducted standard procedures during the examination of the patient. He explained that he obtained a medical history from the plaintiff but that he only recorded that the medical history on the patient card as trauma, due to the patient being a- so-called walk-in patients without an appointment and further due to a lack of space on the patient card to record a comprehensive history. He explained that he took the patient's temperature and measured her respiratory rate and heart rate. His assessment was that the patient was not presenting with any abnormal vital signs and accordingly he recorded "NAD" (nothing abnormal detected on the patient card). He assessed the patient's right knee and determined that she suffered from swelling on the patella bursa. He confirmed that he took an x-ray of the right knee and determined that she did not suffer from any fractures. The x-ray report was, however, not submitted into evidence. The patient's record also contains a note pertaining to a follow-up and is indicated as "PRN" ("as necessary"). Dr Jacobs also prescribed ointment, Panado tables as well as crepe bandages and anti-inflammatories (Diclofenac - Voltaren). It was also common cause that the plaintiff was instructed by Dr Jacobs to return two weeks later for re-assessment and that the plaintiff was instructed to return earlier, if necessary.

[48] The disputes between the plaintiff and Dr Jacobs are the following: (i) the major dispute is whether or not Dr Jacobs applied a (full) "circular plaster of paris" on the patient's leg from above the knee and down to her foot or whether Dr Jacobs only applied a new back slab. This dispute is important in light of the evidence that was presented by Dr Engelbrecht and Dr Pienaar that the application of a full circular plaster of paris to a leg that is swollen, is contra indicated, as it may result in compartmental syndrome which may result in a complication such as an amputation of a limb. It is not in dispute that Dr Jacobs knew that the back slab was applied by Sister Judy at the Bronkhorstspruit hospital and that the patient arrived with a back slab at his consulting rooms;(ii) a further dispute is whether the plaintiff had informed Dr Jacobs that the patient had visited the Mamelodi hospital on 2 April 2011 and that she was prescribed Brufen and Panado and that she had received a Voltaren injection. This dispute is likewise important in view of the fact that on 4 April 2011, Dr Jacobs prescribed almost the exact medication that was prescribed by the Mamelodi hospital. Dr Jacobs testified that, in light of his pharmaceutical background, he would not have prescribed the medicine had he known of the previous prescription. According to Dr Jacobs he was also not informed that the patient had been instructed to visit the Mamelodi hospital for a follow-up assessment by an orthopaedic surgeon on 7 April 2011; (iii) lastly, a dispute exists about whether Dr Jacobs on 11 April 2011 was able to assess that the patient's knee was still tender to touch but that the swelling was better in light of the plaintiff's allegation that the patient had by that time a full circular plaster of paris on her right leg. This dispute is dependent on a finding that Dr Jacobs did in fact apply a full circular plaster of paris to the leg on 4 April 2011. I deal with these factual disputes herein below.

7 April 2011

[49] It was common cause that the patient did not attend the Mamelodi hospital's orthopaedic outpatients as was instructed on the Saturday prior to Dr Jacobs' consultation.

[50] The plaintiff, Dr Jacobs and the third defendant are in dispute as to the reason for not returning for the follow-up consultation scheduled for 7 April 2011. The plaintiff testified that the patient was not taken back to the Mamelodi hospital because the patient was now receiving medical treatment from Dr Jacobs.

[51] The third defendant contended that it was the plaintiff's parental responsibility to have the patient return to the Mamelodi hospital. I will return to this issue where I deal with the third defendant's counter-claim against the plaintiff.

Period between 2 April 2011 to 11 April 2011

[52] After the consultation at Dr Jacobs' consulting rooms the patient returned home. The plaintiff testified that she administered the medicine to the patient as directed by Dr Jacobs. The patient was immobile and had to be carried to the toilet.

[53] The patient testified that she did not experience any major problems during this period and only became ill on the Sunday night (10 April 2011).

11 April 2011

Dr Jacobs

[54] It was common cause that the patient was gravely ill on 11 April 2011. She developed a nose bleed, started to cough and was feverish. The plaintiff testified that the patient started feeling ill over the week and that she was very ill by the Monday morning. She then decided to take the patient back to Dr Jacobs. The patient was again transported to the consultation rooms by Steve. According to the plaintiff they arrived at the consulting rooms between 11H00 and 12H00. She confirmed that when they arrived at the consulting rooms of Dr Jacobs the patient still had the plaster of paris on (or the "cement" as referred to by the plaintiff). She also conceded that Dr Jacobs may have assessed the patient.

[55] According to the clinical notes of Dr Jacobs, the patient's knee swelling was better although still localising tenderness. He noted that she had a cough as well as rhinitis with bilateral wet bronchi of her longs. Her temperature was recorded as 38.6°C. He referred her to the Bronkhorstspruit hospital for admission and prescribed oxygen, an intravenous infusion (drip) as well as intravenous Ampicillin and Berotec. (I have already referred to the instructions given by Dr Jacobs to the hospital.)

Bronkhorstspruit hospital

[56] It is common cause that on the instructions of Dr Jacobs the patient went straight from the consulting room to the Bronkhorstspruit hospital where she was admitted from 15H50 to 17H50 on the afternoon of Monday 11 April 2011 with the initial diagnosis of coughing and fever (bronchopneumonia). Her temperature was recorded as 39°C. It was also recorded that a plaster cast was in situ on her leg. The patient stayed at the Bronkhorstspruit hospital for approximately two hours after which she was transferred to the Mamelodi hospital via ambulance. The patient was examined by Dr Karrim at the Bronkhorstspruit hospital. No allegations of negligence are made in respect of the treatment administered by Dr Karrim on 11 April 2011.

[57] Dr Karrim's clinical notes contain the first reference to a plaster of paris. Her notes also refer to a "Cough Plus Fracture (L) Left Leg" which is incorrect as it was common cause that the patient's leg was never broken. Her notes do not, however, refer to a full circular cast as opposed to a back slab.

[58] At the Bronkhorstspruit hospital ward a saline drip, but nothing else, was applied to the patient. The patient was thereafter referred to the Mamelodi hospital and was transferred by ambulance. According to the plaintiff the patient still had the full circular cast on. The patient was confused and testified that she cannot remember anything as from 11 April 2011 up and until she woke up in intensive care at the Steve Biko hospital. The plaintiff accompanied the patient in the ambulance to the Mamelodi hospital.

Mamelodi hospital 11 April 2011 to 14 April 2011

[59] The patient was admitted during the evening of 11 April 2011 to the Mamelodi hospital. No records of her admission there for the period 11 to 14 April 2011 were made available to the court.

[60] The patient stayed in the Mamelodi hospital for three days. According to the plaintiff the patient received no treatment. It was not disputed that the plaintiff stayed with the patient at the hospital the entire time and that she slept on a hospital bench despite the fact that she had a baby at home.

[61] The plaintiff was only permitted to visit the patient during visiting hours three times a day. She testified that she had to change the patient's nappies without assistance from the medical personnel and that she had to give her water because her lips and mouth were dry. According to her the patient could not communicate as she was severely ill.

[62] It was not disputed that on 14 April 2011 the plaintiff demanded that the patient be transferred to another hospital because she felt that the patient was not receiving any appropriate treatment. The plaintiff was in fact so desperate that she testified that she would '"'hike with A to Bronkhorstspruit". The patient was thereafter referred to the Steve Biko Academic hospital by ambulance.

[63] The only hospital records available from the Mamelodi hospital are the records pertaining to her visit on 2 April 2011 which include a recordal of her vital signs on that day; the handwritten notes of Dr NJ and a referral note from the Mamelodi hospital to the Steve Biko hospital. There is no further documentation available from the Mamelodi hospital. (I will return to this issue herein below.)

[64] The referral note from Mamelodi hospital indicates that the patient was referred from this hospital to the Steve Biko hospital as a septic patient with a diagnosis of septicaemia (with a question mark); "PTB" (pulmonary tuberculosis also with a question mark); with suspected left shoulder septic arthritis. The referral note further refers to a plaster of paris. The note also refers to the fact that the patient was on antibiotics and that she was clinically toxic.

[65] Both Dr Pienaar and Dr Engelbrecht agree that the patient was critically ill on 11 April 2011 and both were exceedingly critical of the medical treatment received at the Mamelodi hospital and the fact that no evidence was placed before the court that the patient was examined or that any treatment was administered to her at any time regarding the developing osteomyelitis and shoulder complaint (sepsis). Both experts were ad idem that the conduct of the medical and nursing personnel at the Mamelodi hospital constituted gross negligence and that, had proper management been administered to the patient as from 11 April 2011 up until 14 April 2011 when she was transferred to the Steve Biko hospital, the eventual amputation of the patient's leg might still have been averted. In this regard Dr Engelbrecht testified that the critical period in the patient's treatment was in all probability 12 April 2011 to 14 April 2011 and expressed the opinion that the last possible time when the full circular cast should have been removed and the leg saved, would have been 13 April 2011 at the Mamelodi hospital, but preferably on 12 April 2011.

[66] It is to be noted that Prof Le Roux was not called by the plaintiff. In this regard it was submitted that a negative inference should be drawn from the absence of Dr Le Roux in light of what is contained in the joint minutes. I am in agreement with the submission particularly in view of the conclusions reached in the joint minute in respect of the conduct of Dr Jacobs in his treatment of the patient:

"Dr Jacobs' actions at the time of these two consultations cannot be faulted."

[67] As already pointed out, no hospital records were placed before the court to show that any examination whatsoever was done on the patient's leg whilst she was at Mamelodi hospital to establish whether there was proper circulation in the right leg. In this regard Dr Pienaar explained that when a leg is in a full circular cast one has to observe the viability of the leg and this is normally done by observing the colour, feel the pulsation and determine the oxygenation which is done with an oxygen probe applied to one of the protruding toes and to feel the temperature of the foot. As there are, as already pointed out, no records available from the Mamelodi hospital, there is no indication had been done. It follows that it must therefore be accepted that it was not done.

[68] It was also common cause that there are no records available in respect of any blood tests that have been done which should have included a full blood count and C-reactive protein determination (CPR).

14 - 15 April 2011

[69] It was common cause that the patient was transferred by ambulance to the Steve Biko hospital on the evening of 14 April 2011. It is documented at Steve Biko that the patient was diagnosed with possible septicaemia and with a suspected left shoulder septic arthritis. It is further recorded that she had a swollen right leg, was lethargic, tachypniec and had an increased pulse rate of 123 beats per minute with a blood pressure of 121/68. After a clinical assessment of the patient and x-rays was taken, it was concluded that she had osteomyelitis of the right proximal tibia as well as in her left shoulder.

[70] It was not in dispute that on arrival, the plaintiff was present when the patient was assessed by medical practitioners at the Steve Biko Academic hospital on the evening of 14 April 2011 and that they removed the full circular cast by using a grinder to cut it. The plaintiff testified that she could see that the patient's leg was "black" after they removed the full circular cast. Much was made, in argument, about the fact that the hospital records do not refer to the patient's leg being "black". Nothing turns on this, particularly in light of the fact that this was an observation made by a layperson (the mother of the patient) who has no medical knowledge. Moreover, the plaintiff's evidence in respect of what she saw (namely that the leg was "black") was in any event not disputed on behalf of the third defendant.

[71] It was common cause that the patient was taken to the theatre during the early hours of Friday, 15 April 2011, where she was operated on. Drains were inserted in her shoulder to drain septic puss (arthrotomy). Surgery was also performed on her injured right leg (debridement). The patient was later on the same day taken back to the operating theatre. Due to compartment syndrome and osteomyelitis, an above knee amputation of the right leg was performed. From the hospital records it appears that Drs Goller and Sprong found that the muscles in the right leg were non-viable. A decision was then taken to perform drastic surgery in order to control rapid spreading sepsis which was life-threatening and to treat the non-viability of muscles and other structures in the leg. This decision to amputate her leg (above the knee) was therefore performed in an attempt to save her life.

[72] The discharge summary from the Steve Biko hospital indicates that the diagnosis was that of osteomyelitis, septic shock / septic arthritis of the left shoulder and the right knee.

[73] Dr Pienaar testified that the treatment and management of the patient at Steve Biko Academic hospital seems to have been above reproach in all aspects.

Issues before the court

[74] In broad terms the following issues were in dispute and fall to be decided by this court:

(i) Was the conduct of the employees at the Mamelodi hospital on 2 April 2011 reasonable in the circumstances, when failing to remove the back slab, failing to take an x-ray and only to administer medication (Voltaren injection and prescribing analgesics being Brufen and Panado) and then to refer the patient for further assessment to the orthopaedics outpatient department the following Thursday, 7 April 2011. Ancillary hereto is the question whether the Mamelodi hospital was negligent in that Dr Mothiba failed to examine the patient and failed to order a further x-ray despite the information conveyed to him by Dr NJ.

(ii) Were the actions of Dr Jacobs reasonable when administering the management and treatment to the patient on 4 April 2011. Ancillary hereto is the factual dispute as to who applied the full circular plaster of paris to the patient's leg. If it is found that Dr Jacobs did indeed apply a full circular cast to the patient's right leg, can the application of the plaster of paris be seen as reasonable treatment under the circumstances and could it be causally connected to the eventual amputation of the patient's right leg? Was the treatment administered to the patient therefore reasonable and was it reasonable not to have aspirated the fluid on the right knee?

(iii) Was it reasonable for the plaintiff not to have caused the patient to return for further management and treatment to the Mamelodi hospital on 7 April 2011 as instructed to do so when she attended at the Mamelodi hospital on 2 April 2011.

(iv) Was any reasonable medical management and treatment administered to the patient during the period of admission at the Mamelodi hospital on 11 to 14 April 2011. More in particular, was it reasonable not to have removed the full circular plaster of paris? Also, did the third defendant fail to timeously and sufficiently or at all act and/or treat the septicaemia that had developed and/or could it reasonably have been expected to be present in the patient's leg at the applicable time?

Principles regarding liability

[75] A medical practitioner is expected to employ reasonable skill and care in exercising his or her duties as a medical practitioner: it is however not expected of a medical practitioner to exercise his or her duties with the highest possible degree of professional skill: See in this regard : Van Wyk v Lewis:[1]

"It was pointed out by this Court, in Mitchell v Dixon (1914, A.D., at p. 525), that "a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care." And in deciding what is reasonable the Court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs."[2]

See also Castell v De Greef[3] where the court held as follows:

"Both in performing surgery and in his post-operative treatment, a surgeon is obliged to exercise no more than reasonable diligence, skill and care. In other words, he is not expected to exercise the highest possible degree of professional skill (Mitchell v Dixon 1914 AD 519 at 525). What is expected of him is the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which he belongs. (Van Wyk v Lewis 1924 AD 438 at 444; see also Blyth v Van den Heever 1980 (1) SA 191 (A) at 221A; S v Kramer and Another 1987 (1) SA 887 (W) at 893E- 895C; Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) C at 3841-385E.) It must also be borne in mind that the mere fact that an operation was unsuccessful or was not as successful as it might have been or that the treatment administered did not have the desired effect does not, on its own, necessarily justify the inference of lack of diligence, skill or care on the part of the practitioner. (Compare Van Wyk v Lewis (supra at 462).) No surgeon can guard against every eventuality, although readily foreseeable. Most, if not all, surgical operations involve to a greater or lesser extent an element of risk, and from time to time mishaps do occur, and no doubt will continue to occur in the future, despite the exercise of proper care and skill by the surgeon. As observed by Lord Denning MR in Hucks v Cole (1968) 118 New LJ 469:

'With the best will in the world things sometimes went amiss in surgical operations or medical treatment. A doctor was not be held negligent simply because something went wrong.'"

It has on occasions been suggested that a 'mere error of judgment' on the part of a medical practitioner does not constitute negligence. In Whitehouse v Jordan and Another [1980] UKHL 12; [1981] 1 All ER 267 (HL) the House of Lords inter alia considered the correctness of the statement by Denning MR in the Court of Appeal that:

'We must say, and say firmly, that, in a professional man an error of judgment is not negligence.'

The House of Lords held this to be an inaccurate statement of the law. At 281a Lord Fraser of Tullybelton expressed the view that:

'I think Lord Denning MR must have meant to say that an error of judgment "is not necessarily negligent".'

Lord Fraser further observed as follows (at 281b):

'Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligent.'

This appears to me to be the correct position."[4]

In assessing the general level of skill of a practitioner, reference must be made to the branch of the profession to which the medical practitioner belongs: See Medi-Clinic Ltd v Vermeulen.[5]

"In Bolam McNair J, in summarising the true test for establishing negligence on the part of the doctor in medical negligence cases, said (at 122B - C):

'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: I don't believe in anaesthetics. I don't believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century. That clearly would be wrong."'

[76] A medical doctor would be negligent if he or she had failed to foresee the possibility of injury to a patient in circumstances where a reasonable person (diligens paterfamilias) in his or her particular circumstances would have foreseen the possibility of injury to the patient and would have taken steps to avoid or prevent the injury. The first question to consider is therefore whether there was a failure to comply with the required standard of conduct of a reasonable person (a medical doctor) in these particular circumstances. As the court pointed out in Mkhatswa v Minister of Defence:[6]

"[18] ... However, before those in command of Apex base (and the defendant vicariously) can be held responsible for any wrongful omission, it must be established that they were negligent in failing to guard against and prevent reasonably foreseeable harm to the plaintiff. The question of negligence (ie the failure to comply with the standard of conduct of a reasonable person) is the logical starting point to any enquiry into the defendant's liability, for without proof of negligence the plaintiff cannot succeed in his action and considerations of wrongfulness and remoteness (legal causation) will not arise."

In this regard the Court in Kruger v Coetzee[7] formulated the test for negligence as follows:

"In an action for damages alleged to have been caused by the defendant's negligence, for the purposes of liability culpa only arises if a diligens paterfamilias in the position of the defendant not only would have foreseen the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, but would also have taken reasonable steps to have guarded against such occurrence; and the defendant failed to take such steps.

Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.

Where the defendant has foreseen the possibility and taken certain steps, the onus is on the plaintiff to prove that there were further steps which he could and should have taken."

[77] In the context of a medical professional, the test for medical negligence was set out as follows in the well-known matter of Mitchell v Dixon[8]

"The plaintiffs 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, but he is bound to employ reasonable 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."

[78] 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[9] 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 or exact manner in which the harm occurs need not be foreseeable, the general manner of its occurrence must indeed be reasonably foreseeable... Inevitably the answer will only emerge from a close consideration of the facts of each case and ultimately will have to be determined by judicial judgment."

See also: S v Bochris Investments (Pty) Ltd and Another:[10]

"Negligence is not established by showing merely that the occurrence happened (unless the case is one where res ipsa loquitur), or by showing, after it happened, how it could have been prevented. The diligens paterfamilias does not have 'prophetic foresight'. The dictum in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The H Wagon Mound) [1961] UKPC 1; 1961 AC 388 (PC) at 424 ([1961) [1961] UKPC 1; 1 All ER 404 at 414G- H) applies, namely: 'After the event, even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility.’”

[79] In as far as causation is concerned the court in ZA v Smith and another[11] explained the application of the well-known "but for" test as follows:

"[30] The criterion applied by the court a quo for determining factual causation was the well-known but-for test as formulated, eg by Corbett CJ in International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) ([1989] ZASCA 138) at 700E - H. What it essentially lays down is the enquiry - in the case of an omission - as to whether, but for the defendant's wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued. In this regard this court has said on more than one occasion that the application of the 'but-for test' is not based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday-life experiences. In applying this common-sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant's wrongful and negligent conduct, his or her harm would not have ensued. The plaintiff is not required to establish this causal link with certainty..."

See also Blyth v Van den Heever.[12]

"Applying the basic principles relating to delictual negligence which is causally linked to the damage suffered to the situation in the present case, it seems to me that this enquiry resolves itself into the following questions:

(i) Whether the reasonably skilled and careful medical practitioner in the position of the respondent would have realised that a serious ischemic condition was developing or threatening to develop in appellant's forearm; and, if so, when he would reasonably have come to realise this.

(ii) Whether there was remedial action which could reasonably have been taken.

(iii) Whether the same notional practitioner would have known of this

remedial action and would have realised that is had to be taken.

(iv) Whether the remedial action, if taken when the need for it ought reasonably to have been realised, would have prevented the damage suffered by appellant.

(v) Whether respondent himself failed to take such remedial action. These questions raise a number of issues upon which the expert medical evidence was again sharply divided. It will, therefore, be necessary for this Court to attempt to resolve these differences of opinion and where possible to make findings on the issues, based upon the probabilities. In this regard some assistance will be derived from the conclusions of the Court a quo."

[80] The particular facts and circumstances of every case must also be considered in deciding whether or not the alleged conduct constitutes negligence. More in particular, it would be necessary in appropriate cases to take into account the place or facility where the medical intervention took place as it may well turn out, for example, that the circumstances and facilities of a general practitioner's consulting rooms are very different from those facilities that would be normally be found in a hospital with specialised departments, specialist doctors and facilities. See in general in this regard: Carstens and Pearmain, Foundational Principles of South African Medical Law[13]:

"The test of medical negligence, by its very nature and scope, can never be disentangled from the particular facts of circumstances. For this reason it can he stated that the degree of skill and care required of a medical practitioner will be dependent on the circumstances of each case. The alleged medical negligence of a physician cannot be assessed in isolation or "in the air" and should only be considered in conjunction with the objective and proven facts in each case. This principle is often referred to as "concrete negligence". In practical terms, this rule of circumstance refers to the place where the medical intervention is formed (in essence the locality of practice) , the facilities available at the hospital or clinic where the operation or intervention is formed, the financial resources of the hospital or clinic, the nature of the medical operation or intervention or medication, the difficult conditions or emergency situations in which the medical intervention or operation takes place, and the particular predispositions, idiosyncrasies and susceptibilities of the patient".

Expert opinion

[81] In assessing the issue of reasonableness and negligence, the court often, as in this case, relies on the assistance of experts from the medical profession in meandering through the peculiar intricacies of the medical field. Although these (medical) opinions are of the greatest value to the court, the ultimate decision of what is reasonable conduct in the circumstances is reserved for the court. Where medical opinions, as they often do, differ in respect of certain (medical) issues, the court will assess the evidence not by applying scientific standards, but by applying the legal standard of balance of probabilities: what in the particular circumstances most probably led to the ultimate injury? See:

Michael and Another v Linksfield Park Clinic (Pty) Limited and Another.[14]

"The approach to the expert evidence

[34] In the course of the evidence counsel often asked the experts whether they thought this or that conduct was reasonable or unreasonable, or even negligent. The learned Judge was not misled by this into abdicating his decision-making duty. Nor, we are sure, did counsel intend that that should happen. However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is one for the Court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the Court's reaching its own conclusion on the issues raised.

…

[36] That being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning...

[37] The Court is not bound to absolve a defendant from liability for allegedly negligent medical treatment or diagnosis just because evidence of expert opinion, albeit genuinely held, is that the treatment or diagnosis in issue accorded with sound medical practice. The Court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached 'a defensible conclusion' (at 241G – 242B)...

[40] Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to express the prospects of an event's occurrence, as far as they possibly could, in terms of more practical assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty per cent chance and so on. This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 77 and the warning given at 89D - E that

'(o)ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a Judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved - instead of assessing, as a Judge must do, where the balance of probabilities lies on a review of the whole of the evidence'."

Liability of Dr Jacobs (the second defendant)

[82] I have already referred to the disputes that exist between the plaintiff and Dr Jacobs and will now proceed to briefly deal with them. As a general background, the evidence of Dr Jacobs will be considered in the context of him being a general practitioner (although also taking into account that he is someone with a pharmaceutical qualification) working from his consulting rooms in Bronkhorstspruit.

Who applied the full circular plaster of paris?

[83] According to the patient, the plaintiff and J, Dr Jacobs applied a full circular plaster of paris from above her knee up to her foot and that only her toes protruded from the plaster. Dr Jacobs disputed this and insisted that he only applied another back slab that was of an extended length compared to the one that had previously been applied to the patient's leg by Sister Judy at the Bronkhorstspruit hospital. He in fact referred to the back slab that had been applied by Sister Judy as a "stupid back slab". Dr Jacobs testified that he told the plaintiff that he was unhappy with the back slab applied by Sister Judy. The plaintiff denied that Dr Jacobs told her so. Despite his insistence that he had applied a new back slab, there is not such recording in his clinical notes.

[84] Before I turn to the evidence of the various witnesses, it is necessary to determine what the available medical records convey in respect of the back slab vis a vis a full circular plaster of paris.

[85] I have already referred to the fact that after the patient's second visit to Dr Jacobs on 11 April 2011, the patient was admitted to the Bronkhorstspruit hospital late that same afternoon. She was attended to by Dr Karrim who notes in her (hospital) records that the patient had a "POP". The notes of Dr Karrim do not, however, indicate that an above-knee full circular cast was in situ. Dr Karrim's notes therefore do not support a contention that the patient had arrived at the hospital with a full circular plaster of paris, as opposed to a back slab that was covered by a bandage to keep it in place. Moreover, Dr Karrim's notes refer to a plaster of paris on the left leg whereas it was common cause that the injury was to the right and not the left leg.

[86] The hospital notes of the Steve Biko Hospital, after the transfer of the patient from Mamelodi Hospital to Steve Biko Hospital on 14 April 2011, also records that: "A was admitted with a 'Plaster of Paris' on the right leg'' . In this regard it was the evidence of the plaintiff that she personally saw how the above-knee circular cast was taken off by using "a grinder", which is a sure sign that a plaster cutter was used to remove the plaster of paris. This fact at least supports the conclusion that the plaintiff had arrived at Steve Biko with a full circular plaster of paris but does not necessarliy support a conclusion that it was Dr Jacobs who had applied a full circular above-knee plaster cast. The patient arrived at the Steve Biko hospital after a three day stay in the Mamelodi hospital and, under the circumstances where there are no hospital records available regarding the treatment received there, it would in my view not be unreasonable to conclude, on the probabilities, that the full circular of plaster of paris was applied during the patient's stay at the Mamelodi hospital.

[87] It is therefore accepted that by the time the patient had arrived at the Steve Biko hospital, she had a full circle plaster of pairs on her right leg. Unfortunately the patient cannot remember anything of her confinement at the hospital as she was severely ill. The plaintiff was also not present the whole time during the patient's confinement and only visited her three times a day during visiting hours.

[88] A further indication that a full circle of plaster of paris was applied during the patient's stay at the Mamelodi hospital appears from the Steve Biko hospital records wherein the history of the mother (the plaintiff) was recorded by the nursing personnel of Steve Bike Hospital, as follows:

"On Monday, this week, [it is common cause that this refers to Monday 11 April 2011] patient was taken back to Bronkhorstspruit Hospital where they then transferred the baby [the patient] to Mamelodi Day Hospital. She was admitted there and a full Plaster of Paris was applied on the leg. She then started bleeding profusely through the nostrils in Mamelodi, nothing was given and the bleeding stopped on its own."

[89] The plaintiff’s submission to the nursing personnel of the Steve Biko hospital cannot be ignored and is the only reference to a full circular cast that was applied on Monday 11 April 2011 at the Mamelodi hospital. This information was conveyed to the hospital staff on 14 April 2011 and is consistent with the original submissions to her legal team as reflected in her original particulars of claim. The plaintiff confirmed that the information contained in the hospital records is correct but for this one note namely that the plaster of paris was applied by the Mamelodi hospital. The plaintiff also could not give an adequate explanation for the delay of approximately six years before abandoning the original view that the full circular cast was applied at Mamelodi hospital to a view that it was actually Dr Jacobs who had applied the circular plaster of paris on 4 April 2011.

[90] On behalf of Dr Jacobs it was also submitted that the evidence of the plaintiff in respect of the plaster of paris should be rejected for the following reasons: the patient confirmed in her evidence that Dr Jacobs only spoke to the plaintiff on 4 April 2011 and not to her. When the plaintiff lodged her claim with her attorneys, she gave her attorney a written report of what had happened. From this document the following appears:

"The Dr examined her and said that the hospital didn't put the cast well on the child's leg and advised us to sue the hospital."

The plaintiff admitted that she gave the document to her attorney, but in court claimed that she knows nothing of the contents of the letter. This despite the fact that the remainder of the contents of the document in broad terms reflects the sequence of events of what happened to the plaintiff. I am in agreement with the submission that the information contained in this report is consistent with the evidence of Dr Jacobs that he was unhappy with the back slab applied by Sister Judy.

[91] I am further also not persuaded that the evidence presented on behalf of the plaintiff in fact supports a conclusion that Dr Jacobs had applied a full circular plaster of paris to the patient's right leg. In this regard J gave extensive evidence about the manner in which Dr Jacobs had applied the plaster of paris. Counsel on behalf of Dr Jacobs was critical of the evidence of J - in my view rightly so - and in this regard referred to numerous discrepancies in his evidence and his somewhat elaborate description of the application of the plaster of paris. For example, J testified that Dr Jacobs had applied cotton wool to the leg prior to the plaster of paris having been applied. In this regard Dr Jacobs explained that the use of cotton wool was stopped to be used more than 30 years ago as the primary material to be applied to a leg before the plaster of paris was applied. His evidence in this regard was not challenged. J also testified that Dr Jacobs mixed and applied a powdery substance described by J as a "polyfilla" and that he applied it with some "instrument". It was submitted on behalf of Dr Jacobs that this evidence is patently incorrect and should be rejected. I agree. In this regard it was the unchallenged evidence of Dr Jacobs that the powder-version of plaster of paris has not been used for the past 30 years and that he certainly has not used the powder plaster of paris to apply a cast for the past 30 years. His evidence to the effect that plaster of paris is supplied on a roll and that, when needed, a strip is cut in the appropriate length only whereafter it (the pre-measured strip of plaster of paris) is applied to the leg, was also not challenged. Despite having been afforded an opportunity to reconsider his evidence in respect of the application of the plaster of paris in light of the uncontested evidence of Dr Jacobs, J remained adamant that this was the manner in which the procedure was applied by Dr Jacobs. I am in agreement with the submission in respect of the reliability of J's evidence regarding the application of the plaster of paris: J either did not observe the procedure or he clearly manufactured his evidence to support the plaintiff's case that Dr Jacobs had applied a full circular plaster of paris.

[92] The plaintiff was, however, adamant that Dr Jacobs had applied a full circular plaster of paris and when it was put to the plaintiff in cross-examination on behalf of Dr Jacobs that it is denied that he had applied a full circular cast, she simply insisted that he would be lying. What did the plaintiff observe? I have already referred to the fact that it was the evidence of the plaintiff that she at all relevant times remained present when Dr Jacobs assessed the patient on 4 April 2011 and that she, as a result, saw the application of the above-knee circular cast. Her evidence must however be seen in light of the evidence of J who testified that the patient's condition on 4 April 2011 was so bad that it upset the plaintiff emotionally to such an extent that she left the examination room of Dr Jacobs immediately after the patient had returned from the x-ray room. In fact, it was the evidence of J on more than one occasion that the plaintiff was "confused". Furthermore, it was the unchallenged evidence of Dr Jacobs that the back slab was only applied after the patient returned from the x-ray room. The plaintiff could therefore not have been present when the back slab was applied in light of the evidence of J that she had left the examination room. The plaintiff can therefore not, in my view, dispute that a back slab, as opposed to a full circular plaster of paris, was applied by Dr Jacobs.

[93] It is also important to take note of the fact that Dr Jacobs has consistently, since 2013 when he filed his plea - which was at the time when the plaintiffs version was that a full circular cast was applied by the Bronkhorstspruit hospital - expressed the opinion that the reason for him not applying a plaster of paris cast, was that the swelling on the right knee was too substantive and that further swelling could be expected or as recorded in the plea: "No Plaster of Paris can currently be applied to the leg as the knee and leg may become more swollen." From the plea originally filed with the plaintiff approximately six years ago, there could not have been any misunderstanding as to why Dr Jacobs was of the opinion that a circular plaster of paris could not be applied. It is against this background therefore difficult to accept that Dr Jacobs would now suddenly adapt his evidence to answer to an allegation which surfaced only two weeks before the trial: for a period of approximately six years it was common cause that Dr Jacobs applied a back slab and not a full circular plaster of paris. It has also been the evidence of Dr Jacobs, who is a general practitioner with more than 20 years' experience that he regarded the swelling that he observed to be of a substantial nature.

[94] The plaintiff also relied on the evidence of Dr Engelbrecht in support of the plaintiff's (now amended) version. Dr Engelbrecht, however, acknowledges in his expert report that contradictory information regarding the plaster of paris application to the patient's right leg was furnished to him. He states in his report that Dr Jacobs informed him that, when the patient visited him on 4 April 2011, there was not plaster of paris present but that it was a back slab attached to her leg and that he prescribed crepe bandages as well as medication. The information conveyed to Dr Engelbrecht is, however, in direct contradiction to what Dr Jacobs testified in court: Dr Jacobs testified that the patient arrived with a back slab at his consulting rooms and that he had removed it and that he thereafter replaced it with another new back slab. According to the report of Dr Engelbrecht, Dr Jacobs, however, also conveyed to him that when he (Dr Jacobs) saw the patient for the second time on 11 April 2011, her leg was not in plaster and that he could palpate the knee and leg which clinically had improved since the first consultation on 4 April 2011. This is consistent with the evidence of Dr Jacobs.

[95] I am on a preponderance of probabilities satisfied that Dr Jacobs had replaced the back slab applied by Sister Judy with a new back slab (and not with a full circular plaster of paris) and that as a result it cannot be concluded that he had endangered the patient's leg by restricting swelling. Dr Jacobs properly immobilised the leg with a much longer back slab and supported it with crepe bandages. Consequently, it is accepted on the evidence that it is more probable than not that Dr Jacobs did not apply a full circular cast to the patient's leg on 4 April 2011 and that the information conveyed by the plaintiff to the hospital personnel of the Steve Bike that the Mamelodi hospital applied a full circular cast on 11 April 2011, is more probable.

What caused the septicaemia and osteomyelitis and when and where did it originate?

[96] It was common cause that by the time the patient was operated on, she had septicaemia in her right shoulder and that her leg had osteomyelitis and compartmental syndrome. Dr Engelbrecht and Dr Pienaar, however, differ in respect of the source of the septicaemia.

Clinical findings at the Steve Biko hospital

[97] At the time the patient had reached Steve Biko hospital the initial assessment was the following: "The left shoulder was swollen and the left arm was tender and the right leg as well and this was the original source of infection". From the hospital records it appears that the decision to amputate was taken by Dr Tshabalala (vascular surgeon), Dr Goller (orthopaedic consultant) and Dr Sprong (surgeon) for the following two reasons:

"1) Source control of sepsis.

2) Non-viability of structures."

Opinion of Dr Engelbrecht

[98] According to Dr Engelbrecht, it was conveyed to him that when the patient saw Dr Jacobs initially on 4 April 2011, there were at that stage, no signs of septicaemia or osteomyelitis of the right leg. He was of the view that the treatment of the patient was appropriate at that stage.

[99] It is common cause that the patient had developed signs of upper respiratory tract infection at the time when she visited Dr Jacobs for the second time on 11 April 2011. According to Dr Engelbrecht, it was not important whether the patient had a plaster of paris on her leg, as the most important consideration at that stage was to refer her to the hospital. It was further his opinion that as osteomyelitis is caused by the haematogenous spread of infective organisms, in his opinion osteomyelitis only started to develop after the patient contracted upper respiratory tract infection which was after the initial contact with Dr Jacobs (on 4 April 2011). It is for this reason that Dr Engelbrecht concluded that the cause of the onset of osteomyelitis and the resultant sepsis, was caused by the patient having contracting bronchopneumonia: the bacteria then spread from the lungs to the knee and the shoulder where the patient developed septic arthritis.

[100] One of the indications considered by Dr Engelbrecht as the most important issue as to why there could not have been signs of septicaemia or osteomyelitis of the right leg at time of consultation on 4 April 2011 was the fact that the patient was ambulated. The evidence presented by the plaintiff, the patient and J was, however, uncontested in this regard: the patient was unable to walk when she was first brought to Dr Jacobs (on 4 April 2011) and had to be carried into the room. She was therefore not able to walk on her own, which gives substance to the opinion of Dr Pienaar that the patient had displayed symptoms of underlying sepsis even at that early stage.

[101] Further according to Dr Engelbrecht the progression of osteomyelitis attacking the bone and destroying the bone would lead to unbearable pain, a feeling of unwellness, lethargic reactions from the patient and a very high temperature. According to him the possibility that the patient was suffering from either sepsis or osteomyelitis already on 4 April 2011 was so slim that it may be discounted. The development of osteomyelitis was described by Dr Engelbrecht as acute and extremely quick once it sets in. He was also of the view that the symptoms of both sepsis and osteomyelitis would not have been masked by the medication prescribed by both Mamelodi hospital on 2 April 2011 or the medication prescribed by Dr Jacobs on 4 April 2011. According to him the medical history, as provided, from 31 March 2011 until at least 10 April 2011 by the plaintiff and the patient does not reflect the presence of osteomyelitis or sepsis.

[102] Further according to Dr Engelbrecht the presence of osteomyelitis and/or sepsis in the knee, would not have been visible even if it had been present before at least the onset thereof on 11 April 2011 and subsequently thereto at Mamelodi Hospital.

[103] Dr Engelbrecht's opinion in respect of the origin of the sepsis and osteomyelitis differs from the opinion expressed by Dr Pienaar, who was of the opinion that both sepsis and osteomyelitis were apparently present already on 4 April 2011 and as a matter of fact, already started on 2 April 2011, at the Mamelodi hospital.

[104] Dr Pienaar was also adamant that the source of the infection should have been investigated earlier and that the septic shoulder and the osteomyelitis were not the result of the bronchopneumonia but as a result of an earlier infection. In this regard he stated that it does not help to give medication for the infection and that it was necessary to remove the source of the infection.

[105] Dr Pienaar was also of the opinion that there was a failure to give a differential diagnoses in order to establish the probable causes of the patient's condition and that, having regard to the history of the patient in respect of the knee injury and the clinical vital signs taken over a period of time, the patient's symptoms should have given rise to differential diagnoses of trauma, infection or malignancy. He further explained that it is well known that osteomyelitis occurs in children prior to the closure of the epiphyseal plates (growth plates) and that it is also well known that osteomyelitis often occur after minor trauma or that pain experience by a child may wrongly be ascribed to trauma. It was therefore the evidence of Dr Pienaar that, over a period of time, the osteomyelitis developed and because the source of the infection was not properly treated, the leg eventually had to be amputated. Dr Pienaar particularly disagreed with the opinion that it would not have taken a long period of time to develop osteomyelitis and disagreed that Dr Jacobs would not have been able to establish any such infection, at the time.

[106] I am in agreement with the opinion expressed by Dr Pienaar in respect of the source of the sepsis and osteomyelitis, particularly if regard is had to the initial diagnoses made at the Department of Paediatrics of the Steve Biko hospital to the effect that the right leg was the original source of the infection and in light of the specialists' view that the leg had to be amputated, as a source control of sepsis.

[107] Dr Pienaar's opinion regarding the gradual onset of osteomyelitis at the time, is also supported by the academic opinion expressed in Apley's System of Orthopaedics and Fractures[15] where the following is stated in respect of the development of osteomyelitis:

"For the first 10 days, x-rays show no abnormality. However, radio-isotope scans may show increased activity - a non-specific sign of acute inflammation. By the end of the second week there may be early radiographic signs of rarefaction of a metaphysis and periosteal new-bone formation. Later still, if treatment is delayed or ineffectual, the bone may appear increasingly ragged."

[108] Dr NJ also confirmed in his evidence that had there been further investigations because of the abnormal vital signs, raised heart beat and raised temperature (and recommended by him) then such investigations could have been indicative of an infective process.

[109] This view is also supported by the opinion expressed by Dr Firth (paediatric orthopaedic surgeon on behalf of third defendant) where he stated as a comment in the questionnaire signed by him:

"The problem that resulted in the amputation of the leg, commenced here on 2 April 2011 at the Mamelodi Hospital. The back slab was not removed, there was no proper examination and evaluation of the injured limb and with a raised temperature and the increased pulse rate further investigation should have been performed and in fact A should have been sent to the orthopaedic department of this particular hospital on that day for appropriate medical management and treatment."

Comment by Dr Fifth:

"I agree with this statement. If there is no note of an examination of the skin of the leg then the back slab was not removed. This was the time when the acute osteomyelitis could have been successfully treated."

[110] The question, however, is whether a reasonable medical practitioner, such as Dr Jacobs and with the information at his disposal at the time on 4 April 2011 could reasonably have been expected to suspect the gradual onset of septicaemia and osteomyelitis particularly in light of the opinion expressed in the academic literature indicating that scans may not show any abnormality during the first ten days of activity.

[126] I am not persuaded on the evidence that Dr Jacobs, as a general practitioner, could reasonably have been expected to be aware of the possible onset of sepsis and osteomyelitis at the time when the patient visited him on 4 April 2011. In this regard the medical evidence presented to the court supports the fact that the initial onset of sepsis and osteomyelitis is slow and that during the first 10 days the onset of sepsis and osteomyelitis may not even be detected on x-rays. Dr Jacobs examined the patient, found that there was a swelling to the leg, took x-rays that established that she did not have a fracture to her leg, prescribed medicine which was reasonable in the circumstances and instructed her to return to him should her condition change. When that happened, the plaintiff brought the patient, as was instructed by Dr Jacobs, to his consulting rooms. On 11 April 2011 Dr Jacobs took decisive decisions and immediately referred the patient to the hospital with a comprehensive prescription regarding the medication that had to be administered. From there on the patient was eventually admitted to the Mamelodi hospital where it is common cause that there is a paediatric department as well as an orthopaedic department. As already pointed out, there is no indication of whether any treatment was administered to the patient, here.

Was there a fracture to the right leg?

[111] On the patient's card, Dr Jacobs recorded on 4 April 2011, that his assessment of the x-ray taken by him, did not indicate a fracture.

[112] Dr Pienaar was critical of this conclusion in his evidence and submitted that this conclusion of Dr Jacobs cannot be correct, as it was found by Steve Biko hospital on 15 April 2011 that the patient suffered from a "Salter Harris fracture". On behalf of Dr Jacobs, it was submitted that the opinion of Dr Pienaar should be viewed against what appears in the theatre notes of Drs Sprong and Goller dated 15 April 2011 of the Steve Biko hospital, where the fracture is described as a "pathological Salter Harris fracture felt”. In this regard Dr Engelbrecht explained that the reference to a "pathological Salter Harris fracture" means that the fracture occurred due to the consequences of the osteomyelitis infection and that this is a known result of osteomyelitis to attack and destroy bone. Had the doctors determined that the Salter Harris fracture was caused by trauma, they would not have used the word 'pathological’ (referring to the osteomyelitis), but would have used the word 'trauma'.

[113] I am satisfied on the evidence, especially in light of what is contained in the Steve Biko hospital records and the evidence of Dr Engelbrecht, that at the time when the patient visited the consulting rooms of Dr Jacobs, there was no evidence of a facture to her leg.

Medication administered by Dr Jacobs

[114] Dr Pienaar was also critical of Dr Jacobs's repeated prescription of analgesics as the use of these drugs is that it also masks symptoms and signs of infection.

[115] It was the plaintiff's evidence that Dr Jacobs was aware of the fact that the patient had been to Bronkhorstspruit hospital as well as the Mamelodi hospital and that she had received medication on both occasions. She also testified that she told Dr Jacobs that the patient was instructed to return to the Mamelodi hospital on 7 April 2011, but that she was dissatisfied with the treatment she received at the Mamelodi hospital and, because the patient was not feeling well on the Sunday night, she decided to bring her to a private doctor instead.

[116] The plaintiff confirmed that she had administered the medication provided at the Bronkhorstspruit hospital, the Mamelodi hospital as well as those supplied by Dr Jacobs and that she gave the medication to the patient after she had eaten something. She, however, denied that Dr Jacobs had provided her with thermorub and testified that she would not have been in a position to use such thermorub for application to the injured right knee because there was a full circular cast applied to the leg by Dr Jacobs. I have already dealt with the issue of the circular plaster of paris.

[117] It was not disputed that the medication provided by the Mamelodi hospital, namely a Voltaren injection, Brufen and Panado are virtually identical to what Dr Jacobs testified, he had prescribed to the patient on 4 April 2011. Dr Jacobs, however, testified that with his knowledge as a pharmacist, he is acutely aware of the dangers of providing similar or too high a dosage of this particular medication to a 12-year old child. He explained that the doubling of the dosage could burn the stomach of a 12-year old child and cause ulcers. He further testified that he would not have prescribed the medicine if he had known about the medication provided by the Mamelodi hospital. I should, however, point out that no facts were placed before the court that the patient did in fact receive more medication than was needed. In this regard the plaintiff testified that she diligently saw to it that the patient took her medication from 2 April 2011 to 4 April 2011 but that she had stopped the Mamelodi hospital medication on 4 April 2011 when they returned from Dr Jacobs and that she then only proceeded with the medication provided by Dr Jacobs. Both the plaintiff and the patient confirmed that she was "alright” and did not suffer from the consequences of either her knee pain or a fever until the early morning hours of 11 April 2011. From the evidence of the plaintiff and the patient it appeared that the consumption of the medication in the period 4 April 2011 had a positive effect on the pain and general unwellness of the patient during this period.

[118] I am not persuaded on the evidence that Dr Jacobs knew about the prior medication nor that he was aware of the referral to the Mamelodi hospital on 7 April 2011. Dr Jacobs is a pharmacist, in addition to being a general practitioner and is acutely aware of the dangers of overmedicating a child and it is therefore, in my view, not probable that he would have prescribed similar medication in the face of an existing prescription.

Aspiration of the wound

[119] Dr Jacobs' evidence relating to 4 April 2011 is that he would never have aspirated the swelling in his consultation rooms due to the very real danger of infection entering the swollen area. In this regard he testified that his facilities are not sanitised enough to conduct an aspiration of the swelling. Dr Jacobs' decision was criticised by Dr Pienaar, who insisted that not only he himself would have aspirated the swelling, but that he would have done it under the circumstances under which Dr Jacobs practises. Dr Pienaar refused to consider that Dr Jacobs' facilities are not sterile enough to conduct an aspiration of the swelling and refused to accept that there existed any danger in aspirating the swelling on 4 April 2011 by Dr Jacobs under these circumstances. Dr Pienaars' view was criticised by Dr Engelbrecht who testified that one of the most basic of mistakes that they as doctors warn medical students against is not to aspirate swelling under circumstances where there is doubt about the sterile circumstances in which the aspiration will take place.

[120] Dr Engelbrecht confirmed the joint minute drawn up by him and Prof Le Roux on 4 June 2017. These two doctors agreed on various aspects of the treatment as conducted by Dr Jacobs. Dr Engelbrecht testified as to the status of the joint minute and referred to a meeting between him and Prof Le Roux, prior to him having drawn up the joint minute that was signed by Prof Le Roux. Dr Engelbrecht confirmed that they discussed the hospital notes of both the Bronkhorstspruit and Mamelodi hospitals' with specific reference to the temperatures recorded by both hospitals. The plaintiff elected not to call Prof Le Roux, despite the known status of the joint minute. In paragraph 4(a) of the joint minute, the experts agreed in respect of the treatment administered by Dr Jacobs on 4 and 11 April 2011 that-

"Conservative treatment for knee injury on 4 April 2011 was appropriate as well as prompt referral to Bronkhorstspruit Hospital on 11 April 2011 when the child was ill with upper respiratory infection."

[121] The two experts then concluded that Dr Jacobs' actions at the time of these two consultations cannot be faulted. I can likewise find no fault with the decision taken by Dr Jacobs not to aspirate the swelling in less than ideal sterile circumstances. This is certainly not an unreasonable decision taken under the circumstances and having regard to the environment in which Dr Jacobs practises.

Conclusion regarding the liability of Dr Jacobs

[122] I am in conclusion, not persuaded that there exist sufficient and acceptable medical evidence on which to conclude that Dr Jacobs was negligent in the manner alleged by the plaintiff. More in particular, I am satisfied that Dr Jacobs in the execution of his medical duties, had applied the standard of care and skill as required of a general practitioner in the circumstances of his private medical practice. More in particular, I am satisfied that when the patient manifested with serious medical symptoms, he acted with reasonable professional skill and care by immediately referring the patient to a hospital. His referral was accompanied with specific and detailed instructions regarding the treatment of the patient and the administration of medication.

[123] Furthermore, Dr Jacobs referred the patient to a hospital with specialised paediatric and orthopaedic departments with proper instructions in the bona fide belief that she would be treated appropriately. She was thereafter further referred to Mamelodi hospital which is an even higher tier hospital than the Bronkhorstspruit hospital. Dr Jacobs, in my view, administered to the patient the best treatment on the facts available to him on 4 and 11 April 2011. See also in this regard: Van der Walt v De Beer:[16]

"The explanation which he gave, and to which I have just referred, clearly bears out the defendant's decision to refer to a doctor more expert in the field than he was, and can certainly not be criticised as illogical, just as diagnosis must be judged in the light of pertinent facts at the time."

Foxcroft, J then referred to the publication Michael Jones: Medical Negligence 3^rd Edition 2003 at para 4-015, as follows:

"The difficulty of making a diagnosis will often excuse a defendant, and a fortiori where other doctors have in fact made the same mistake with the patient. The diagnosis must be judged in the light of the pertinent facts at the time the practitioner rendered his professional opinion; he cannot be expected to possess the sharper vision and higher wisdom of hindsight."[17]

The case against the third defendant

[124] I have already referred to the fact that no medical records (apart from the visit to the Mamelodi hospital on 2 April 2011), exist. It is of concern to the court that there is no evidence before this court as to why only part of the Mamelodi hospital documentation is available. Dr Monseng, who testified as medical officer (but not as an expert on behalf of the third defendant) and who was employed at the Mamelodi hospital during the relevant period in April 2011, was also unable to shed any light in respect of any treatment received by the patient at the Mamelodi hospital during the crucial period of 11 April 2011 to 14 April 2011. All that Dr Monseng was able to confirm was that it was his handwriting on the transfer letter of the patient to the Steve Biko hospital. He had no personal or independent recollection of this matter and was not in a position to confirm whether he had in fact been involved in the medical management and treatment of the patient at the paediatric department or whether he was merely involved as the doctor on call on 14 April 2011, who would then have been tasked with the completion of the transfer letter. Dr Monseng was therefore not able, apart from repeating what he had written on the referral letter, to give any evidence in respect of the treatment (if any) that had been administered to the patient as no hospital records were available to substantiate any of the notes made on the referral letter.

[125] Conspicuously absent from the evidence before this Court (even if regard is had to the referral note) is any reference to any treatment of the patient by the orthopaedic department. This is relevant especially in light of the fact that it was common cause that the patient had arrived at the hospital with a plaster of paris in situ and in light of the fact that Dr Monseng confirmed that the Mamelodi hospital has orthopaedic and paediatric departments. In any event, there is no reference in the referral notes to any tests that have been done in respect of the patient's right leg, particularly in respect of the viability of the leg which would have been crucial in a case, such as this. There is also no recordal of any decision in respect of why a decision was not taken to remove the full circular cast. In fact, there is no indication, whatsoever even in the transfer letter completed by Dr Monseng, that there had been any involvement by the orthopaedic department. In any event, without any hospital records, the probative value of the evidence of Dr Monseng in respect of the referral notice is of very little assistance to the court. Moreover, without any reasonably explanation as to why there are no medical records available for the crucial period of 11 April 2011 to 14 April 2011, no reliance can be placed on the referral note to the Steve Biko hospital, as it remains hearsay evidence. See in this regard Khoza v MEC for Health and Social Development, Gauteng:[18]

"[35] It is apparent on a reading of s 17 of the National Health Act that the legislature has taken a very serious view on the failure to keep medical records and on their disappearance, falsification or being tampered with. Stiff penalties are prescribed under s 17(2).

[36] The application of ss 13 and 17 may have evidential ramifications in civil suits. The cases referred to indicate that the overwhelming evidence ...

[37] On these facts the CTG traces constitute the original and foundational documentary evidence, having been produced directly by the machine. See Zeffertt & Paizes The South African Law of Evidence (2 ed) at 830 - 1. See also Schwikkard & Van der Merwe Principles of Evidence (3 ed) in para 20.3.1 pp 405 - 6. The subsequent alleged noting of the CTG data and the viva voce evidence of its alleged content are hearsay evidence.

Unless there is a satisfactory explanation as to why the original documents are not available, a court is entitled to treat such 'secondary' evidence with caution or even refuse to allow it into evidence. See Vulcan Rubber Works (Pty) Ltd v South African Railways and Harbours 1958 (3) SA 285 (A) at 296D - H where Schreiner JA said:

'The starting point in considering the admissibility of such evidence is the statutory provision which, in each province, refers the Courts in matters of hearsay to the law of evidence in England. Though there is reference in our cases to the statutory requirement that facts must be proved by the best evidence, I do not think that it is really relevant. Weaker evidence is not excluded by the availability of uncalled stronger evidence except in the case of documents, when the original must be produced or its absence properly explained. In that case the secondary evidence itself proves the existence of the better evidence, namely, the original. No doubt the difference between evidence and hearsay can be said to be an illustration of a broad rule favouring the use of the best evidence, but the better way of stating the position is that hearsay, unless it is brought within one of the recognised exceptions, is not evidence, ie legal evidence, at all.

[38] The Vulcan case concerned the law of evidence prior to the enactment of the Law of Evidence Amendment Act 45 of 1988 (the Amendment Act).

[39] In S v Ndhlovu and Others 2002 (6) SA 305 (SCA) (2002 (2) SACR 325; [2002] 3 All SA 760; [2002] ZASCA 70) the court was obliged to consider the constitutionality of s 3 of the Amendment Act. In doing so the SCA (per Cameron JA, at the time) in para 14 approved the passages in Vulcan at 296F that 'hearsay, unless it is brought within one of the recognised exceptions, is not evidence, ie legal evidence, at all', but said that what the Amendment Act had brought about was a fundamental change to permit the relaxation of the evidentiary rules by allowing hearsay evidence to be received only if it is in the interests of justice to do so (relying on the statement to that effect by Navsa JA in Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA) ([2002] 1 All SA 413) in para 21)."

[126] It is important to point out that, in terms of the National Health Act,[19] there rests an obligation on the third defendant to keep records in terms of section 13. The third defendant also has an obligation in terms of section 17 to protect the health records. The third defendant placed no evidence before this court as to why the bulk of the Mamelodi hospital records (for the period 11 - 14 April 2011) are not available and it is of concern that only some of the Mamelodi hospital records are available (as Dr NJ testified to).

[127] Furthermore, as pointed out in the Khoza matter, the inadmissibility of hearsay evidence is only one of the consequences that flow from the fact that hospital records are not placed before the court: in suitable cases the application of the principle of res ipsa loquitur may be appropriate:

"[45] In my view the inadmissibility of hearsay testimony is not necessarily the only consequence that results from the failure to produce the CTG records without an adequate explanation. That is a negative consequence which provides little comfort to a plaintiff who still bears the onus of demonstrating negligence. In medical negligence cases the issue often arises whether the injury to the patient was due to negligence, non­actionable mistake or another unrelated cause. Accordingly the application of res ipsa loquitur may be an unruly horse in certain cases. Nonetheless in suitable cases it may be appropriate, as appears from its application in Ntsele. In that case Mokgoatlheng J considered that a failure, to produce the potentially exculpatory evidence of any clinical or hospital notes, justifiably calls for the invocation of the maxim res ipsa loquitur (at para 124). The learned judge added in paras 125 and 126:

'In Naude NO v Transvaal Boot and Shoes (supra) in the headnote it is stated:

"Whether a case is one to which the expression res ipsa loquitur applies or not the burden of proving negligence is on the plaintiff who alleges it; there is no burden of proof on the defendant to disprove negligence. Where, however, the case is one where the occurrence speaks for itself proof is required from the defendant to rebut the presumption arising from the fact that the occurrence speaks for itself: he must produce evidence sufficient to destroy the probability of negligence presumed to be present prior to the testimony adduced by him. If he does so, then on the conclusion of the case the inference of negligence cannot properly be drawn. 'Because the defendant has failed to discharge the evidential burden disproving a causal connection between the negligence of his employees and [A's] cerebral palsy, the summation that the eventuality speaks for itself is unanswered"'

[128] I am in agreement with the submissions made on behalf of the plaintiff that in the present matter it is appropriate to invoke the maxim of res ipsa loquitur: the facts speak for itself in that the failure to produce the relevant Mamelodi hospital records for the period 11 to 14 April 2011 and in the absence of an acceptable explanation, leads to the inescapable conclusion that these records would have shown that there was no proper management and treatment by the medical personnel of the Mamelodi hospital and/or orthopaedic and paediatric departments to the patient's injured right leg which was in a full circular cast at the time.

[129] Furthermore, because the third defendant has failed to discharge the evidential burden of disproving a causal connection between the negligence of its hospital employees, in not removing the circular cast from the patient's leg and by not administering appropriate treatment to the patient and the eventual amputation of the leg, the inference of negligence can, therefore in my view, be properly drawn from the facts. In this regard it was common cause that when the cast was finally removed by the Steve Biko hospital on 14 April 2011 the right leg was so compromised in its viability that it had to be amputated above the knee. In conclusion therefore, I find that the negligence of the third defendant's medical staff was the sole cause of the above-knee amputation of the patient's right leg.

[130] See in this regard the Constitutional Court judgment of Lee v Minister for Correctional Services[20] where the Constitutional court held as follows in respect of causation:

"[57] Postulating hypothetical lawful, non-negligent conduct on the part of a defendant is thus a mental exercise in order to evaluate where the probable factual causation has been shown on the evidence presented to court. It is not a matter of adducing evidence, as the Supreme Court of Appeal appears to have found. I accept that the postulate must be grounded on the facts of the case, but that is not the same as saying that there is a burden on the plaintiff to adduce specific evidence in relation thereto.

[58] What was required, if the substitution exercise was indeed appropriate to determine factual causation, was to determine hypothetically what the responsible authorities ought to have done to prevent potential TB infection, and to ask whether that conduct had a better chance of preventing infection than the conditions which actually existed during Mr Lee's incarceration. Substitution and elimination in applying the but-for test is no more than a mental evaluative tool to assess the evidence on record. In my view, this hypothetical exercise shows that probable causation has been proved."

Counter-claim

[131] I have carefully examined the evidence and can find no basis upon which it can be concluded that the plaintiff had ever abdicated her parental obligations to her daughter. In my view the evidence, in fact overwhelmingly confirms, that the plaintiff did everything in her power to ensure that her daughter received the best medical treatment possible. To recap her evidence: when her daughter became ill during the course of the week-end of 3 April 2011, she arranged that a neighbour to transport her daughter to a private medical practitioner (Dr Jacobs). She duly administered the medicine to her daughter as prescribed and helped to carry her to the toilet when needed. When her daughter became gravely ill on Sunday night 10 April 2011, she took her back to Dr Jacobs on the Monday. Although she did not take her daughter to the appointment on 7 April 2011, she did so in the belief that her daughter was now the patient of Dr Jacobs. On 11 April 2011, she accompanied her daughter to the Bronkhorstspruit hospital and thereafter to the Mamelodi hospital. From 11 April 2011 to 14 April 2011 she stayed at the hospital; she slept on a hospital bench the entire time and attended to her daughter during the day when she was allowed to visit her daughter. She changed her daughter's soiled nappies and gave her water. By 14 April 2011 the plaintiff was so desperate that she threatened to take her daughter and hitchhike to another hospital. She also accompanied her daughter to Steve Biko hospital and stayed at her side whilst the doctors removed the plaster of paris. The manner in which the plaintiff cared for her daughter and her desperate attempts to have her transferred to another hospital on 14 April 2011 were not disputed in cross-examination.

[132] On all accounts there is not a shred of evidence to indicate that the plaintiff had forsaken her parental duties towards her child. In fact, had it not been for the plaintiff's desperate attempts to have her daughter transferred on 14 April 2011 to the Steve Biko hospital, her daughter might not have survived the cruel onslaught of septicaemia, osteomyelitis and compartmental syndrome which ultimately led to the amputation of her leg. This is not the actions of a mother who abdicated her parental responsibilities, but rather the actions of a mother who was desperate to help her child and save her life.

[133] In light of the aforegoing, the third respondent's conditional counter-claim against the plaintiff is therefore dismissed. Furthermore, in light of what was placed before the court I am of the view that a special costs order is warranted in respect of the counter-claim.

The third party claim

[134] I have already, for the reasons set out hereinabove, held that the plaintiff's claim against Dr Jacobs is dismissed.

[135] The third defendant joined Dr Jacobs as a third party and alleged that, in the event it is found that the third defendant is liable, Dr Jacobs will similarly be liable. The third defendant has not submitted any evidence suggesting the negligence of Dr Jacobs: his joinder was therefore inappropriate. For this reason, Dr Jacobs also pleaded in the third party pleadings that should this court find that he is not liable, the third defendant be ordered to pay the costs of Dr Jacobs in respect of the joinder proceedings. I am in agreement that the third defendant should be liable for the costs of Dr Jacobs. I should also mention that a concerted effort was made by the third defendant to place blame on the Bronkhorstspruit hospital, without any foundation and by incorrectly relying on the unsubstantiated allegation that Drs Kotu and Karrim are employees of the Bronkhorstspruit hospital. No such evidence was placed before the court and in fact, the evidence presented by Dr Pienaar was clear, that the two doctors could never have been employees in the employ of a private hospital. In any event, the third defendant elected not to join the Bronkhorstspruit hospital as a third party but instead elected to only join the second defendant as a third party.

Costs

[136] In respect of costs, I am satisfied that special costs orders are warranted in the circumstances. The third defendant persisted in proceeding with its defence in circumstances where no hospital records existed regarding the treatment (if any) that was allegedly administered to the patient. Not only did the third defendant not call its own expert witness, it called two witnesses who were unable to shed any light on the treatment allegedly administered to the patient in the period 11 to 14 April 2011. To add insult to injury, the third defendant tried its best to shift some of the blame on the shoulders of a mother who disparately tried to care for and save the life of her daughter when she saw that the Mamelodi hospital was not treating her critically ill daughter. There is no reason why the plaintiff should be out of pocket. The same can also be said about Dr Jacobs who was inappropriately joined by the third defendant as a third party. In this regard I am in agreement with the decision of the court in Lushaba v MEC for Health, Gauteng[21], where the court made a finding with regard to costs that the joint minute in that matter raised questions around the defendant's reasons for proceeding with its defence and that the defendant should only litigate in public interest. The court further pointed out that the defendant in that matter, with the persistent denial of negligence raised concerns that it persisted in not appreciating its obligation towards the public it is meant to serve. I have the same concerns in the present matter.

Order

[137] In the event the following order is made:

1. The plaintiff's claim against third defendant succeeds.

2. It is declared that the third defendant is 100% liable for the plaintiff's proven or agreed upon damages arising out of the above knee amputation of A M's right leg.

3. The third defendant is ordered to pay the plaintiffs costs (on an attorney and client scale), inclusive of the cost of two counsel and inclusive of the costs for the preparation and drafting of the heads of argument.

4. The plaintiff's claim against second defendant is dismissed. The third defendant is ordered to pay the costs (on an attorney and client scale), including the costs consequent on the employment of senior counsel.

5. The third defendant is ordered to pay the costs of all the expert reports by the plaintiff which are in the possessions of the defendants and of which notice in terms of the Rules have been given, the preparation of such report and the qualifying and witness fees of the experts, addendum reports, join minutes and preparation (if any) as the Taxing Master may upon taxation determine.

6. The third defendant's conditional counter-claim against the plaintiff is dismissed. The third defendant is ordered to pay the costs (on an attorney and client scale), inclusive of the cost of two counsel.

7. The third defendant's third party claim against the second defendant (as second third party) is dismissed. The third defendant to pay the costs (on an attorney and client scale), including the costs consequent on the employment of senior counsel.

8. The third defendant is ordered to pay the travelling and accommodation costs of M M and A M who are declared to necessary witnesses.

AC BASSON

JUDGE OF THE HIGH COURT

Appearances:

On behalf of the plaintiff:

Adv. S Joubert SC

H Botha

Instructed by: Adel van der Walt Inc.

On behalf of the second defendant:

Adv. J du Plessis SC

Instructed by: Serfontein Viljoen & Swart

On behalf of the third defendant:

Adv. Adv N Cassim SC

Adv H Mpshe

Instructed by: State Attorney

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