Zeeman v The Women and Children’s Hospital and Another (1264/2012) [2018] SZHC 51 (01 April 2019);

IN THE HIGH COURT OF ESWATINI

JUDGMENT 

 

CASE NO: 1264/12

In the matter between:

THERESA-MARIE EARNSHAW ZEEMAN                              PLAINTIFF

 

And

 

THE WOMEN AND CHILDREN’S HOSPITAL                1^ST DEFENDANT

 

DOCTOR SHANDARE KAPUNYAMAYIKA                             2^ND DEFENDANT

 

Neutral Citation:           Theresa-Marie Earnshaw Zeeman vs. The Women and Children’s Hospital and Another (1264/12) [2018] SZHC 51 22^nd March 2019.

 

Coram:                           MLANGENI J.

 

Heard:                            4/7/17, 5/7/17, 4/10/17, 5/1017,

10/10/17, 30/11/17, 7/3/18, 6/4/18,

10/7/18, 11/7/17, 15/10/18, 1/11/18

 

Delivered:                      22^nd March 2019

 

 

 

 

Summary:                       Law of delict – claim for damages arising from medical negligence – whether claim is ex contractu or ex delictu.

 

                                      Delictual claim – Plaintiff admitted to Defendants’ hospital for voluntary caesarian section operation – baby successfully delivered and Plaintiff discharged on the fourth day.  During her stay in Defendants’ hospital Plaintiff in constant abdominal pains and incessant bleeding per vagina, administered strong pain killers throughout her stay at Defendants’ hospital. 

 

                                      On discharge, Plaintiff unable to walk and taken out of the hospital on a wheelchair.  While at home Plaintiff’s condition did not improve and was back at Defendants’ hospital one day after discharge – on this occasion attended to at outpatient department and released – again on a wheelchair due to inability to walk.

 

                                      Two days later, Plaintiff taken to another hospital where she underwent an emergency operation to remove her womb due to an infection – after this operation Plaintiff immediately recovered, was discharged four days later and did not require any follow-up treatment other than for depression occasioned by the fact that she would not bear another child again.

 

                                      Medical practitioners have a duty to exercise reasonable care and skill in treating their patients, such care and skill does not need to measure up to the highest possible degree.

 

Held:                               The Plaintiff has established on balance of probabilities that the Defendants were negligent in the discharge of their duty towards her, and Defendants ordered to pay special damages and general damages for pain and suffering, permanent disability and loss of amenities of life.

 

[1]      The Plaintiff claims an amount of E516, 704.00 from the Defendants, being damages in respect of alleged negligence of the Defendants in rendering professional medical services to the Plaintiff.  It is common cause that the Plaintiff, who was expecting a child, made pre-natal visits to the Defendants’ hospital and pursuant to the visits and consultations, on the 27^th January 2012 the Plaintiff presented herself to the Defendants’ hospital to be admitted for purposes of delivery of the baby through a voluntary caesarian section operation. 

 

[2]      According to the Plaintiff’s particulars of claim, a contractual relationship was created between the Plaintiff and the Defendants, in terms of which the Defendants were to provide the services “with professional skill and ability”[1]. However, to my understanding the basis of the claim is more delictual than contractual, in that once the Plaintiff presented herself to the Defendants for the said medical procedures, there was a duty of care upon the Defendants to carry out the procedures with reasonable care and skill[2].  But the question whether the claim is ex-contractu or ex-delictu was not raised during the trial of this matter, and it is therefore immaterial for purposes of this judgment.  Indeed, in some cases a contractual relationship can give rise to delictual liability[3].  It is therefore hardly surprising that in his opening address the Plaintiff’s attorney Mr. Rodrigues stated that the damages claimed were occasioned by the negligence of the Defendants through failure to act with due care and skill, resulting in the removal of the Plaintiff’s “placenta” and failure to attend to complications arising from the caesarian operation.  The reference to placenta was obviously in error – what was surgically removed from the Plaintiff was the uterus.

 

[3]      At paragraph 7 of her particulars of claim the Plaintiff avers that the Second Defendant “carried out the surgery in particular the caesarian procedure negligently in one or more of the following respects:-

-        failed to perform a complete removal of Plaintiff’s placenta.

-        failed to attend to complications arising therefrom timeously or at all,”

and further alleges at paragraph 8 that:-

“as a result of the Defendants’ negligence aforesaid, Plaintiff experienced pain and suffering both in the past and future and consequently suffered permanent disability and had to undergo further medical treatment, perform a hysterectomy with resultant medical costs”.

 

 

THE PLAINTIFF’S CASE

[4]      The Plaintiff’s case was presented by four witnesses who testified on her behalf, inclusive of herself.  In her evidence in chief she stated that during pre-natal care at the First Defendant hospital she was being attended to by a Phillipino gynecologist whose name was Dr. Phongyong.  She subsequently booked herself in at the First Defendant hospital for a voluntary caesarean section operation on Friday the 27^th January 2012 at 6:45 a.m. She was in the company of her husband.  They paid E11, 000.00 for the procedure.  After booking herself in, she became aware that the procedure was to be carried out by the Second Defendant whom she had not met before.  She was informed at the reception that Dr. Phongyong was away on emergency leave, hence the arrangement for her to be attended to by the Second Defendant, Dr. Shandare Kapunyamayika. At a later stage it was brought to the attention of the court that the Second Defendant’s correct name is Shandirai Kapuyanyika.  Nothing turns on the inaccuracy of the name as recorded by the Plaintiff in her summons and particulars of claim and the Defendants did not make an issue of it.  

 

[5]      The Plaintiff further testified that while at the reception, having checked herself in, she was approached by the Second Defendant who informed her that she was the doctor to perform the caesarian section procedure.  The Plaintiff proposed to go away and come back on the following Monday when Dr Phongyong was expected to be back at work.  Second Defendant’s response to this suggestion, according to the Plaintiff, was that there was a risk that she might go to labour anytime.  As I understand the evidence, the Plaintiff was successfully persuaded to get on with the procedure and did get on with it.  She was taken to theatre at about noon on the 27^th January 2012.  According to her, when she came out of theatre, after the operation, she had not gained consciousness and thereafter she was in severe pain and “in and out of consciousness”.  She noticed that she was in a private ward and next to her was a baby and her husband.  She states that the pain that she was experiencing was so severe that she could not hold the baby, she was weak and tired, and the pain on the abdomen was constant.

 

[6]      She further stated that her heartbeat was low, her eye sight was blurring, she was experiencing pain on the left side of her eye and there was “a gush of blood flowing from my private parts”.  The doctor was called but she did not come.  At about seven-eight pm a nurse came in and administered on her a pain killer injection.  She states that on Sunday 29^th January she was conscious but still in pain and blood was still “gushing” out of her private parts.  When she tried to move, the pain felt like “something slicing or tearing inside of me”.  According to the witness, the Second Defendant came to see her on Sunday the 29^th January 2012 in the morning, turned the bed sheet and noticed the large amount of blood and said that a nurse would come and clean up and change the bedding.  She says on this occasion no physical examination was done on her and the Second Defendant told her that she would be okay.  The baby was being looked after by her husband as she was unable to do so due to the pain and discomfort that she was experiencing.  She proceeded to say that “Every time the nurse came in we asked for the doctor but she did not come to the ward”.

 

[7]      The 29^th January 2012 was the Plaintiff’s third day in the medical facility.  According to her evidence, in the morning of the 30^th January 2012 a nurse informed her that she was going to be discharged as at 8:00 a.m. on that day.  When she was informed of the discharge the Second Defendant was not there, she said.  She was subsequently wheeled out of the Clinic on a wheelchair, by a nurse, to the car park where the family car was parked. At the ground floor of the hospital she told her husband that she needed to see the doctor in order to get advice on medication that would help her.  She “dragged” herself back to the doctor’s office, unannounced, and upon seeing her the doctor was surprised and said that she should not be walking around, that she “should be resting”.  She told the court that in that encounter she asked the doctor for medication to express milk.  The admission and discharge form, which was marked “PWA”, shows that upon discharge the Plaintiff was given three types of medication – FeS04 200mg p.o., Folate 5mg po.od and Brufen 400mg p.o. At the bottom of the form there is a tick next to the word “improved” and follow-up appointment date was “10/02/12”.  The form was signed by the Plaintiff’s doctor, the Second Defendant.

 

[8]      It is not clear what “improved” is specifically in reference to.  The evidence of the Plaintiff does not demonstrate any improvement in her condition at that stage.  Upon discharge she was wheeled out of the building to the car park.  On her evidence the bleeding had not stopped and she was in so much pain that she was unable to relate to the new-born baby who, at all times, was under the care of Plaintiff’s husband.   She was not breast feeding the baby, a third day post-operation, hence she needed to have a stimulant to express milk.

 

[9]      What transpired on the date of discharge, the 30^th January 2012, is captured by the witness’ words in her evidence in chief.  She said what follows:-

“When I arrived home I wanted to try to breastfeed the baby but the weight was unbearable on my abdomen.  I started bleeding again and wanted to go to the toilet.  At the toilet I tried to urinate but discharged clots of blood.  When I stood up there was severe pain in the abdomen, such that I needed assistance to come out of the toilet.  I was assisted by my mum, she needed to put my whole weight on her in order for me to get mobility.”

 

[10]    This, to me, is not consistent with “improved” if this was in reference to Plaintiff’s condition.  As a matter of fact, the witness’ evidence is that her condition got worse at home, such that when she went to the toilet to urinate she released blood and blood clots and “changed clothing about five times a day” in order to keep clean.  The bleeding and the excruciating pain continued in the night of the day of discharge, the 30^th January 2012.  She tried to sleep on the sitting position but that did not work.  When she tried to get up from the couch the pain was severe.

 

[11]    On the morning of the 31^st January 2012 she needed the assistance of her mother to bathe, and her mum had to help her out of the bath tub.  She states that as she lifted her leg to dress up she fell on her knees. She was assisted to dress up and the decision was taken by her family to take her back to the First Defendant’s facility where she was attended to by a nurse at the outpatient ward.  She informed the nurse what she was going through.  The nurse was assisted by another nurse to get her onto a bed.  The Second Defendant was called to come and see her and the Plaintiff related to the Second Defendant what she was going through.  The Second Defendant took a scan of the Plaintiff’s lower abdomen “and said that she did not see anything wrong with me…….she stared at me.  After about five minutes she stood up and left without saying a word”.  Plaintiff was administered a drip and a pain killer.  After the drip was finished the nurse who had received her removed the gadget from her and blood was dripping. She was helped on to a wheelchair and wheeled to the exit door to go back home. 

 

[12]    While she and her husband were at the car park, ready to leave, a nurse came and demanded that they should pay E1, 000.00.  Her husband refused to pay, on the basis that “when I was discharged I was bad, when I came back again I was told there was nothing wrong with me”.  Back home, her condition did not improve.  She was getting weaker and her eyesight was getting blurred.  The visits to the toilet were constant and blood continued to come out of her vagina.  Her mother observed that she was looking pale and the stomach was swelling.  The decision was taken to take her to another medical institution.  Her husband helped her into the car, a pillow was put under her to make her as comfortable as possible.  She was then taken to Medisun Clinic at eZulwini and her evidence gives an idea of the extreme abdominal pain that she experienced along the way.  This, according to her, was on the 1^st February 2012, five days after the operation. 

 

[13]    At Medisum Clinic she was attended to by one Dr Abdissa Juka who immediately took her to the scan room and made her lie on a bed.  The scan showed black spots inside her womb and she says the doctor’s face looked concerned.  The doctor tried to examine the Plaintiff physically but she could not stand the pain of the hand being put inside her vigina.  She was then put in a ward and administered anesthesia. Her husband’s consent was obtained for an emergency operation to remove her womb. She was taken to theatre for surgery.  When she regained consciousness she was in a ward, and she remembers seeing family members in the ward and Dr Abdissa “was explaining that he had to remove my womb because he found fragments of placenta there”.  The doctor further assured her that she would be okay and informed her that she would not be able to conceive another child or to have monthly menstruation.  At a certain point in time Dr Abdissa told the Plaintiff that the fragments of placenta had caused an infection in the womb, and that the Plaintiff would have died if she was not rushed to hospital.  Another doctor, Dr Ibrahim, also came to see her but did not say much.

 

[14]    Her evidence is that she was admitted at Medisun Clinic for four days, and that during this period she felt much better – there was not much pain, she started gaining strength, she was able to get up and go to the toilet.  She further stated that her first child was also delivered by caesarean section at Medisun Clinic, that on that occasion she was in theatre for about one hour, that she felt little pain and blood from her vagina was like normal flow (I assume that is during menstruation) and she was able to sit up and hold the baby.  On the third day the bleeding had stopped.  She described the experience at the Defendants’ medical facility as “the worst experience”. She testified that she was suing the Defendants for negligence, that during her time in the hospital she received very little care, on numerous occasions she asked the Second Defendant to come to assist her but she did not, that on her stay at First Defendant she was seen by the doctor on three occasions only, inclusive of the date she was discharged.  She confirmed the claim and the amounts in her particulars of claim, but added that her husband was in a better position to deal with the various amounts that were paid in respect of hospital bills. 

 

[15]    This witness was subjected to long and probing cross-examination, in a manner that sought to leave no stone unturned.  The first  part of cross –examination sought to advance a version that prior to the operation on the 27^th January 2012 the Second Defendant had done pre-natal reviews on the Plaintiff and that notes were made of these consultations.  The witness persisted that her first encounter with the Second Defendant was on the day of the operation, and that she had preferred to wait for the Phillipino doctor to come back.  It was also put to her that contrary to her evidence, before and after the operation she was given every care and attention, by nurses as well as the Second Defendant.  She repeated that soon after the operation she was in and out of consciousness, hence she may not be aware of all that was going on around her, but was informed by her husband that no doctor came to attend to her on the 27^th January 2012 after the operation.

 

[16]    The Second Defendant’s notes, captioned “doctor’s notes”, are part of the documents that were discovered by the Defendants. The entries are numerous in respect of each of the dates the Plaintiff was in the hospital – the 27^th, 28^th, 29^th and 30^th January 2012 when she was discharged.  The notes also deal with occurrences prior to the Plaintiff’s admission on the 27^th January, 2012.  For instance at page 8 of the Defendant’s discovered documents there are entries relating to 27^th November 2011 and 9^th January 2012.  The entries relating to the 9^th January 2012 are at page 9 of the bundle.  It is apparent from the signatures that the entries in respect of 27^th November 2011 were signed by one person and those of the 9^th January 2012 were signed by a different person.    The signature on the entries dated 9^th January 2012 is consistent with the signature on the entries from date of admission to date of discharge.  One thing that this does is to lend credence to the Defendants’ version that the Second Defendant did see the Plaintiff prior to the date of admission, and further that it is the Second Defendant who booked the Plaintiff for caesarean section procedure scheduled for the 27^th January 2012. This is at page 9 of the bundle where there is an entry in the following words:-

“Plan.         Booked for elective C-section 27/01/2012.  Has one previous C-section review 20/01/2012”.

The page on which this entry stands is upside down.  In other words, the bold letterheads “WOMEN AND CHILDREN HOSPITAL” and “DOCTOR’S NOTES” are at the bottom part of the page whereas in other entries they are at the top, where they should be.

 

[17]    When the Second Defendant was leading evidence I became aware that the doctor’s notes and the nurses’ notes are made ex post facto the occurrences that are recorded.  What, one may ask, can stop one from making the notes say what one wants them to say? In other words, what guarantee is there for honesty and accuracy? I raise this because of the frequent disparity between what the notes say and what was said by the Plaintiff and her husband about their stay at the Defendant’s hospital.  I am prepared, however, to accept that the Second Defendant did see the Plaintiff prior to the date of admission.  The Plaintiff’s husband said that much. I am also prepared to accept that due to passage of time from January 2012 to July 2017 when the matter was heard, a period of about five years, the Plaintiff’s memory of some events may have faded. I do not believe that she was deliberately telling a lie, because if that was the case she and her husband would probably have said the same thing.

 

[18]    Further cross-examination of the Plaintiff sought to counter her evidence that the doctor did not come to see her on the 27^th January 2012 post- operation.  It is apparent that to an extent she relied upon her husband’s report on this aspect, given that she was in and out of consciousness for most of the time on this day.  The doctor’s notes at page 10 of the bundle have no date, not at the top, not at the bottom, not anywhere.  At the top it has the reading of vital signs, then it says “Examined Stable Communicating (sic) of pain …….”.

 

          Towards the bottom there is an entry relating to time – “2030. Still complaining of pain. Plan: Paracetamol 500mg i.v. stat to run over 15 mins.”

 

          It is a matter of inference that the entries referred to above probably relate to the 27^th January 2012, post-operation.  But then the entries on page 11 of the bundle also have no dates, not at the top of the page, not anywhere.  But on page 12 at the top there is an entry in this manner:-

“0550a.m. 28/01/2012,” followed by notes that cover the whole page.

 

[19]    Whatever the stage at which these doctor’s notes were made, they are not satisfactory.  They would be more unsatisfactory if they are made ex post factu, in a more relaxed situation, for in that case they would be expected to reflect consistency in terms of dates and time.  They do not.

 

[20]    Here are some questions and answers during cross-examination of the Plaintiff by defence counsel Mr Flynn:-

Q:      28^th January – In chief you said the doctor did not come until the evening?

A:      I did not see the doctor on that date. Only a nurse came.

Q:      This is untrue.  Look at page 12 – it says “0550a.m”., called to see patient?

A:      I did not see the doctor on Saturday.  I saw nurses, not the doctor.

Q:      28/01/2012 at 1800 hours – came to review the patient, no longer bleeding?

A:      I was bleeding.  I was not breastfeeding.  I would eat occasionally but I was concentrating on the pain.

Q:      On the 29^th January at 8:45 the doctor came for review?

A:      I saw her.

Q:      The notes say “wound exposed, clean and intact.  Minimum p.v. bleeding”.

A:       I did complain.  There was quite a bit of blood.

Q:      Minimum bleeding.  You said that she said there was a lot of blood? She said there was minimum bleeding?

A:      No.

Q:      You said she just lifted the sheet to look?

A:      She saw the blood and said she would send a nurse to clean up.

Q:      You said she didn’t call for a second opinion?

A:      She was the only doctor attending to me.  Despite the pain and the bleeding she wasn’t showing any urgency.

Q:      You said no one came with a CAT scan on the 29^th.  What you are trying to portray is a neglectful doctor………..?

A:      I needed to have the cause of the bleeding and the pain determined.  I have had a CAT scan done before. 

Q:      Did you discuss the issue of a CAT scan with anyone?

A:      No.

 

[21]    It was then put to her that the CAT scan and the second opinion are an afterthought, in retrospect. But the effect of the witness’ evidence is clear.  She is saying that the seriousness of her condition –bleeding and the pain – was such that something more had to be done, a CAT scan or a second opinion.  And this must be seen in the context of someone who had had the same operation in respect of an earlier birth, and was therefore in a position to make a meaningful comparison.

 

[22]    Further questions and answers on cross-examination appear below:-

Q:      The decision was made on the 30^th to discharge you. Notes show that the wound was stable and intact, rash subsiding. There is no reference to bleeding.  Review on 10/2/12?

A:      I couldn’t even walk properly.  I was bleeding.

Q:      On 30^th January when you were discharged did you see a doctor?

          A:      No doctor came.

          Q:      You asked to see the Second Defendant as you were wheeled out?

          A:      Yes

          Q:      Were you seen by the Second Defendant at 8:30am?

A:      I went to her office.  I asked to see her in her office.  She did not assess me prior to discharge.

Q:      You came to see the doctor about breast feeding?

A:      Yes.   She did prescribe something for expressing milk.

 

[23]    It is common cause that upon discharge on the 30^th January 2012 the Plaintiff was given the 10^th February 2012 to come back for review.  It is also common cause that she was back on the following day – the 31^st January 2012, complaining of extreme pain and incessant bleeding.  She was cross-examined on what transpired on this occasion.  She stated that she was attended to by a nurse, later on the Second Defendant came to attend to her.  It was put to her that upon examination by the doctor her sanitary pad was dry. Her response was that she had cleaned herself up, otherwise the bleeding was ongoing.

 

          Cross-examination continued in this manner:-

Q:      She then did a scan and did not notice any abnormalities? Did she tell you that?

A:      She did not.  She just said that she did not see anything.

Q:      We will be saying that on all the record of the notes, the doctor exercised due care in treating you?

A:      Not on all occasions.

Q:      On the 31^st January, what do you say about that? She went through and conducted every examination and every procedure that she could?

A:      Yes she did a scan.

Q:      She examined you before the scan?

A:      No.  She just conducted the scan and checked the wound.

Q:      And what happened after that?

A:      She sat and looked at me for some time and said I am fine. She said that she had an operation to do and she left.

Q:      The nurses were chatting that you were wasting their time?

A:      Yes.  They were not talking to me.

Q:      After the ultra sound scan, about two hours later, the doctor came back to check your condition, then called Dr Subira to review you?

A:      Not true.

 

[24]    Defence counsel made reference to the doctor’s notes, that the Plaintiff was advised to pass through Dr Subira’s surgery. The Plaintiff sternly denied this, adding that she did not even know that there was a Doctor Subira.

Court:         If Dr Subira or any other doctor had been recommended to you would you have been happy to take that route?

A:                Most certainly My Lord, because I was going through a lot of pain.

Q:                The following day you went to Medisun Clinic?

A:                Yes.

Q:                Why did you go there, why not go back to Women and Children?

A:                Because I was not receiving much help.

[25]    Upon further cross-examination the Plaintiff stated that once admitted at Medisun Clinic she was operated upon the same day.  She stated that her earlier caesarian-section operation was done at Medisun Clinic and that she switched off to Women and Children because since the Defendants specialized on women and children, she expected to receive good or better care there. 

 

[26]    It also transpired during her cross-examination that at Medisun Clinic she was admitted on the 2^nd February 2012 as opposed to the 1^st.  I do not regard this inconsistency as a major flaw in the Plaintiff’s evidence.  It is unlikely that she deliberately told a lie and this, again, is probably due to the passage of time.  According to her evidence, having failed to get satisfactory assistance from Women and Children Hospital she then went to Medisun Clinic.  It is common cause that at Medisun Clinic her womb was removed.  The reason, she was told, being that the womb had fragments of placenta which had caused an infection in the womb.  This aspect became the subject of an enormous dispute, the Defendants’ case being that the evidence does not support the argument that there were fragments of placenta on the womb.

 

[27]    The matter was adjourned before the conclusion of the Plaintiff’s cross- examination.  Upon resumption on the following day defence counsel revisited the events of the 31^st January 2012 at the Defendants’ outpatient department.  Upon further cross-examination the Plaintiff insisted that on that occasion she was with the doctor only once, when the ultra sound scan was done and a drip administered to her.  She insisted that the doctor did not come back to review her.  The effect of this, according to the Plaintiff’s version of events, is that the doctor’s notes to the effect that she came to review the Plaintiff after two hours are incorrect.  She re-iterated that the nurses treated her badly, in the presence of her brother-in-law Nino Martins.  She repeated that when the drip was removed blood dripped down to the floor and that as the nurses walked away her brother-in-law asked them to clean the blood.

 

[28]    The witness further repeated that after the treatment at the outpatient department her husband refused to pay, “because he said I am leaving here with no difference.  I was still in pain and was still bleeding…..”. She confirmed that at Medisun Clinic the doctor did a scan and told her that he saw black spots in her womb which had an infection.  According to the information she received, the black spots were fragments of placenta.  The doctor said that if the operation was not done she would not have made it, which she understood to mean that she would have died.  Some further questions and answers during cross-examination follow below:-

 

Q:      When you were asked yesterday about your allegation of negligence amongst other things you said there had been very little care given to you by the Second Defendant.  Is that right?  

A:      Yes.

Q:      You also listed three times when the doctor came to see you (at Women and Children)?

A:      Yes.

Q:      So in other words she did not see you after the operation and she did not see you on the Saturday?

A:      Yes.

Q:      Your case is that the hesterectomy was a result of Defendants’ negligence?

A:      Yes.

Q:      Your first child was delivered at Medisun, by Dr Abdissa, through caesarean section?

A:      Yes.  He said the child was big.

Q:      Did you have difficult labour?

A:      No.

Q:      After the removal of the womb did you go back to Medisun Clinic?

A:      Yes.  I went there for depression ….I was at home for three months.

 

[29]    In justifying her claim for permanent disability the Plaintiff stated that she has lost her womb, that although she has two healthy girls she would have wanted to try for a boy and now she cannot.  She stated that her assessment of the quantum of damages was on the basis of legal advice.  She further stated that after discharge from Medisun, after four days, she did not experience any severe pain.  She was given pain killers but the pain was very mild.  She put it in this manner:-

 

“It was endurable pain. I did not take the pain killers although they were prescribed.”

In respect of the Plaintiff’s claim for pain and suffering, she was asked some questions that follow below:-

Q:      Were you on pain killers at all after you were discharged at Medisun?

A:      I did not need to take them, it was bearable pain.

Q:      So you did not take pain killers?

A:      No.

Q:      So, after your discharge you did not need pain killers.

A:      Yes.

 

[30]    Upon re-examination the Plaintiff stated that whereas she noticed nurses recording notes on a daily basis at the Defendants’ hospital, she did not see the doctor doing so.  In respect of the doctor’s notes suggesting that her pain and bleeding diminished, she said that it was not so.

 

[31]    In respect of loss of amenities of life the Plaintiff stated that now she cannot conceive another child and will not have the joy that comes with it.  She stated that the pain and the bleeding were not dealt with properly by the Defendants, that she went to Medisun because she was getting worse, and that on the day she went to Medisun she collapsed on her knees, she was weak and blood was flowing from her vagina.  When she came to Medisun she could not bear examination by hand due to pain, hence she was put on anesthesia.   She confirmed that her admission date at Medisun was the 2^nd February 2012.  The court asked Plaintiff the following question:-

Q:      You say you did not see any notes being made by the doctor on each of the three occasions?

          A:      I only saw a stethoscope.

          At this stage the witness was excused.

 

[32]    PW2 was Cedric Errol Zeeman who also testified under oath.  He stated that he was the Plaintiff’s husband.  He stated that a few pre-natal visits were made to the Defendants’ hospital, that on the first visit they were attended to by a Phillipino doctor and on the second or third it was a different doctor.  He used to drive the Plaintiff to the hospital.  On the date of the operation there was long waiting, but eventually the new born baby was brought to him “still with a bit of blood”.  He further stated that he cleaned the child himself, the nurse who was there was moving back and forth.  Later, at about 3:00 pm, his wife was brought into a room on a stretcher.  She was not responsive when him and a sister-in-law were telling her about the baby girl.  They had expected her to be excited, but when she reacted she was complaining of pain.  On several occasions he asked the nurses to help alleviate the Plaintiff’s pain and they would administer pain killers.  He stated that there was no interaction between the Plaintiff and the baby.  She was lying there facing the wall.

 

[33]    He continued:-

“On that day her condition did not improve.   I got agitated because I’d expected she would help me with the baby as I now had two.  On this day I was next to Theresa for a lengthy time.  During my presence the nurses did come at different times ……..not the doctor.  I could have gone out to get food…. during my presence the doctor did not come.  My wife’s condition the next day was not improving…..on the 27^th I slept at the hospital next to Plaintiff’s bed”.

 

[34]    PW2’s evidence largely corroborated that of the Plaintiff in respect of the difficult life after the operation, the continuous pain and bleeding, the lack of communication between mother and child and that there was no improvement on the condition of the Plaintiff right up to the time when she was discharged on the 30^th January 2012.  He stated that he spent most of the time at the hospital next to his wife and confirms that she was constantly complaining of pain and bleeding per vagina.  He does not recall the doctor examining the Plaintiff physically.  He further stated that when the Plaintiff was discharged the doctor was not there.  Once they were at the car park the Plaintiff insisted upon seeing the doctor prior to departure.  He then assisted her to get to the doctor’s office, but only his wife went in.  So he does not know what exactly was discussed between the doctor and his wife.  He further testified that the notes that were made about the doctor’s visits were not made in his presence.  He specifically denied the doctor’s visit that was allegedly on the 28^th January 2012 at 5:50 a.m. He agreed, however that the doctor did come at 8:45 am on the 29^th January 2012.   On the date of discharge, the 30^th January 2012, he does not recall the doctor coming to the ward.  A nurse came to tell them that they were being discharged and that, he said, is the reason the Plaintiff later insisted on going to see the doctor in her room.  He stated that all three nights he did not leave his wife’s bedside – he slept there all three nights.

 

[35]    Upon discharge they drove straight to their home.  Along the way the Plaintiff wanted him to drive slowly as she was in pain on the lower abdomen.  She needed to be assisted to go into the house.  He continued to say that at home there was no interaction between the Plaintiff and her new born baby, that the Plaintiff, “was in her own little world of pain and bleeding”.  Upon discharge, the Plaintiff had no medication except some green painkillers.  Because the Plaintiff’s condition was not improving, they went back to the defendants, the day after discharge.  He confirmed the bad treatment they received at the outpatient department of the defendants, especially at the hands of one “large lady” who said in Siswati that “we were wasting her time”.  He further stated that other than the drip and the scan, nothing much was done to assist the Plaintiff.  When they were discharged from the outpatient department he refused to pay E1, 000.00 upon demand, the reason according to him being that there was no improvement on the condition of the Plaintiff.  He states that he felt that “we were being pushed out of the hospital, we were not getting the necessary care.  I flatly refused to pay the bill” 

 

[36]    The witness further stated that after leaving the Defendants’ facility on the 31^st January 2012, they went straight home.  The Plaintiff could barely move on her own.  He stated that he does not know any doctor whose name is Subira, and that the Plaintiff was not given any referral letter by the Second Defendant.  

 

[37]    After being attended to at the outpatient department of the First Defendant the Plaintiff’s condition did not improve.  In the witness’ words:-

“Back home the Plaintiff kept on sitting on the chair, looking pale.  Her complaints did not diminish, and when she peed it was just blood coming out.  The complaints got worse, she was crying. It was just misery, and I had a baby crying.”

 

[38]    On the 2^nd February 2012, as the witness was preparing to go to work in the morning, his mother-in-law, who was residing in the house for purposes of assisting the Plaintiff with personal needs during this difficult time, urged him to take his wife to hospital “now” if he wanted her to live.  My understanding of the evidence is that this was after the Plaintiff had fallen on her knees in the bathroom.  The witness then took the Plaintiff to Medisun Hospital.  It is common cause that at Medisun hospital the Plaintiff was hospitalized for four days, and during her hospitalization her womb was removed because an infection was found on it.  Upon discharge the Plaintiff recovered significantly and did not need any follow-up treatment other than for depression which was occasioned by the fact that she would not be able to give birth again.  Upon discharge, the Plaintiff did not take any painkillers.

 

[39]    PW2 further testified on the events upon arrival at Medisun hospital.  He stated that the Plaintiff was received in Dr Abdissa’s room, then taken next door to a scanning machine.  Upon reading the scan, the doctor said “there were black unusual marks in the womb.  He wanted to insert his hand but the Plaintiff said it was too painful”.  The doctor also observed that on the right hand side one of the stiches was bleeding. The Doctor then said he needed to put the Plaintiff under anesthesia, apparently for purposes of effective examination, and she was then taken to a ward. He was subsequently told by the doctor that she needed surgery.  He continued:-

“I was concerned about the money part.  I asked what it would cost and was told E16, 703.00. I do have an invoice in that amount.”

 

[40]    He then handed in the invoice and it was marked “PLA”.  He stated that he did not have the money and had to plead with his boss for the money in order to save his wife.  He left to get the money from his boss.  Upon return he was asked to sign a consent form for the operation to remove the Plaintiff’s womb.  According to the witness, Dr Abdissa then explained to him that the womb was removed “because of bits of placenta which had infected the womb….. the doctor said we were lucky that she was alive, in many such cases people lose their lives.” According to the witness, the doctor further explained that the placenta was torn and remained inside, this infected the womb and it became necessary to remove it.  The doctor further explained that the Plaintiff would not have the menstrual cycle.  The witness further stated that about one to two days later the Plaintiff was recovering, she was talking and responding – “the old Teresa came back, she was eating and holding the baby.  Within a few hours after the operation she was already interacting with the baby.  Before that she was not”.

 

[41]    He further stated that Dr Abdissa was being assisted by Dr Ibrahim.  He subsequently requested a medical report and he was given one written out by hand and later on he got a typed version of the same report.

 

[42]    This witness was also subjected to extensive cross-examination by defence counsel.  He stated that the booking for the caesarean section operation at First Defendant hospital was done by the Phillipino doctor, and that the consultation on the 9^th January 2012 – the last one prior to admission – was with the Second Defendant. On the 27^th January 2012, the date of the operation, the baby was brought to him at about 3:00pm.  He stated that he bathed the baby himself.  At this time his wife was sleeping and not communicating.  He was asked if he was in the ward between 3:30pm and 4:00 pm on the 27^th January 2012.  He answered in the affirmative and proceeded in this manner:-

“I stayed in the ward.  I went to get food, may be around 7:00 pm. I was out for 30 minutes or 40.”

 

[43]    Curiously, at page 27 of the bundle of defendants’ documents the nurses’ notes state that the “baby was cleaned and dressed”.  By the nurses or by the Plaintiff’s husband? This is but one of the many examples of polarised versions of evidence by the opposing sides. No nurse was called by the Defendants to give evidence, and in the circumstances I must accept PW2’s evidence that he cleaned the baby soon after its birth.

 

[44]    Referring to the doctor’s notes at page 11 of the bundle of Defendants’ discovered documents, defence counsel drew the attention of the witness to an entry at 17:51, to the effect that the Second Defendant came to see the Plaintiff  who was “complaining of per vagina bleeding after the operation, drip was administered but the set was kinked” .  The witness was adamant that he did not see a doctor at that time.  The witness was also referred to page 10 of the bundle, where the doctor noted that the Plaintiff was “stable.  Communicating (sic) of pain”.  Significantly, at the same page the doctor makes the observation that “uterus responding well”. I say this is of significance because later on in the evidence of the Second Defendant it was repeatedly stated that the persistence of bleeding per vagina was due mainly to failure by the uterus to contract.  It would seem, therefore, that if it was responding well the bleeding should not have persisted in the manner that it did. This places a shadow of doubt upon the doctor’s note that the uterus was “responding well” at that time.

 

[45]    The witness was emphatic that he never saw a doctor come to see the Plaintiff after the operation on the 27^th and on the 28^th, and reiterated that he slept next to the Plaintiff in the ward.  He further stated that on the 28^th his wife was not eating, that she was on a drip and could not even eat the Kentucky Fried Chicken that was carried over from the 27^th.  The witness confirmed that on the 29^th January 2012 at 8:45 a.m. the Second Defendant did come to see the Plaintiff at the ward.  Further questions sought to establish that the Second Defendant visited the Plaintiff, on more occasions than the Plaintiff’s evidence suggested, and the witness stood his ground, insisting that even at discharge on the 30^th January 2012 the doctor did not come to the ward at 8:30 a.m., as suggested by the defence, and that the Plaintiff came back from the car park because she wanted to see the doctor before leaving the hospital, in order to get advice.

 

[46]    Assuming that the Plaintiff and her husband are correct that the Plaintiff came back from the car park and “dragged” herself to the doctor’s room in order to get advice, if the doctor had been to her ward at 8:30 am to discharge her, then a discussion would most probably have happened there and then, and advice sought and given, and there would have been no need for her to come back from the car park to see her doctor.  In the circumstances I accept the Plaintiff’s version that on the date of discharge she saw her doctor after discharge, when she went back in from the car park, not at 8:30 a.m. as alleged by the Defendants.

 

[47]    Finally, on cross –examination, the witness stated that when he sought a medical report from Medisun he wanted to know what had happened.

 

[48]    Upon re-examination by the Plaintiff’s attorney, PW2 said that when he took the Plaintiff to Medisun he considered the situation to be serious, that after the scan at Medisun the tone of Dr Abdissa was very alarmed, that “his eyes grew bigger, I could see the concern.  He is a quiet spoken man.  I trusted him from the first child’s birth”.

 

[49]    PW3 was Doctor Abdissa Juka.  He stated that he is an obstetrician at Medisun Clinic, that his qualifications are in gynecology and obstetrics.  He graduated in Addis Abbaba, Ethiopia, in 2003.  He qualified as a general practitioner in the same institution in 1994.  He practised as a general practitioner for four years in different departments, prior to embarking on a course to specialise in gynecology and obstetrics, achieving the post-graduate qualification in 2003.  He has worked as a gynecologist and obstetrician at Medisun since 2009.  Having qualified as a specialist in 2003, he commanded experience of about nine years at the time he attended to the Plaintiff in February 2012.  Both sides agreed that there was no need for him to hand in his academic certificates. 

 

[50]    The witness stated that the Plaintiff came to him on the 2^nd February 2012 complaining of abdominal pain after having a caesarian section surgery on the 27^th January 2012.  She had vaginal bleeding and back pain.  She was sick looking.  He further stated that he made a summary of his findings which include pre-operation, intra-operation and treatment.  He stated that on physical examination the Plaintiff was sick and in pain, blood pressure at 110/96, pulse rate was high, etc.  There was prominent swelling on the left side of the wound site.  Upon pelvic examination there was excessive clotted blood coming out of the vagina. He was not able to examine the cervix properly due to the Plaintiff’s pain.  Ultra-sound showed echo-complexed mass which could be clotted blood or placental tissue.  He stated that the condition that he observed was “not normal but occasionally it can occur”. His Clinical impressions were subject to further findings.  He had suspicion of hematoma and determined that there was need to do a laparotomy to evacuate the hematoma, “because it is better to do evacuation under direct vision”.

 

[51]    His findings, among others, were that:-

51.1   The womb was wide open. Normal opening would be less than one finger.  He observed that on the 6^th day after the operation only one finger should go in.

51.2   Uterus was boggy, the size of twenty weeks.  He observed that on that day twenty weeks’ size was abnormal, it was expected to be at sixteen weeks’ size.

51.3   Uterus was big because it was “filled with blood”.

 

[52]    Upon opening the abdomen he found that the hematoma was outside the womb, about 150ml of blood.  There was dead tissue on the stitch sites and he stated that this was not normal.  The dead tissue was removed manually.  She was put on a drip to help contraction of the womb but this did not yield positive results.  He stated that contraction of the womb is what stops the bleeding.  The tissue was friable (breaking easily) instead of contracting.  The uterine cavity was not smooth, with defects (pockets) as one felt around and the uterine wall was weakened.  Fragments and blood clots were removed from the uterine cavity.

 

[53]    Of particular importance in this case, he stated that the placenta was not there.  Equally important was his observation that the abnormal condition of the Plaintiff could be due to an infection, and the infection could be caused by dead tissue or that it was not getting blood supply, the latter situation being unlikely because there is normally adequate supply of blood in the womb.

 

[54]    The witness made reference to a report that he prepared in respect of his observations and findings on the Plaintiff at Medisun Clinic.  He described this report as a summary of his findings and observations.  It was in two versions, one handwritten and the other one typed, marked “B” and “C” respectively.  The contents of the documents are essentially the same.  It deals with pre-operation findings, inter-operational findings and after operation treatment.  Prior to the operation the vital signs were not notably abnormal.  He made reference to prominent swelling on the left side of her womb and excessive clotted blood.  He was unable to explore the cervix due to pain.  There was bleeding from the vagina, described as post-partum hemorrhage.  Upon admission the Plaintiff was administered anti-biotics and pain killers.  She was restricted from eating anything, in readiness for examination under anesthesia.  This was to make it possible to examine the cervix in order to establish the cause of the bleeding.

 

          Court:         So the anesthesia was necessary for subsequent procedures?

          A:                Yes.

PC:              And it is correct to assume that it was for a more detailed examination of the condition of the patient?

          A:                Yes, more detailed examination plus action.

 

[55]    Once the patient was under anesthesia further examination was done and a decision was taken to do a laparotomy, which means opening the abdomen.  A laparotomy was necessary to establish whether there was hematoma and its location – whether inside or outside the womb.  If it was outside the womb then it could be removed without getting into the womb.  The cervix was wide open, admitting two fingers.  If it was normal it would be expected to admit one finger on this the sixth day after the caesarian section operation. 

 

[56]    It was clear from the witness’ evidence that the main cause of the Plaintiff’s abnormal condition was that the womb was not contracting, and because it was not contracting the bleeding did not stop.  Despite massaging and administering drugs the womb was not contracting and it remained friable.  It became necessary to remove the womb because it was not healing.  The doctor stated that other methods of stopping the bleeding could not be used because of the bad condition of the womb.  He stated that inside the abdominal cavity there was dead tissue – “necrotic”, and that this was not normal.

 

[57]    It was clear from the evidence of this witness that the failure of the womb to contract was at the centre of the Plaintiff’s badly abnormal condition.  It is therefore important to know the likely causes of the non-contracting of the womb.  According to this witness the likely cause was an infection, and the likely cause of the infection was dead tissue. He stated that such findings were not common on the sixth day post-operation. “It might happen, though not common.” In the event of persisting pain and vaginal bleeding he would “re-evaluate the patient to establish the cause”. If the problem was only pain he would use analgestics since pain is common in such situations.  In the event of persistent bleeding there is need to re-check, do physical examination, look and feel.  One may also need to get a second opinion from a colleague and possibly refer the patient back to the operation table.  On being asked whether this condition that the Plaintiff was in could have been prevented, he said “partially yes”. In conclusion in chief the witness said non-removal of an infected womb can lead to sepsis and possible failure of organs like the kidney and lungs. 

 

[58]    The evidence of PW3 showed clearly that at admission at Medisun hospital the Plaintiff was in a very grave condition.  Under cross-examination the witness said that he did not remove adherent placenta.  He found the uterine cavity irregular but did not remove placenta.  Upon being asked if he found fragments of tissue, he said yes.  He referred to them as desidua or placenta tissue, that it can be any one of the two, and confirmation can be made through histology.  Some questions and answers during PW3’s cross examination follow below:-

          Q:      Explain “desidua”?

          A:      Inner lining of the womb.

Q:      You examined the patient under anesthesia and found fragments and clots?

          A:      Yes.

          Q:      Would your first step not be to remove those?

          A:      Yes, I did that.

          Q:      Would you not then ensure that the uterus contracts?

          A:      Yes.  It didn’t contract

          Q:      Why?

A:      I needed to find that out.  I had to evacuate tissues due to infection.  That can happen after a caesarean section operation.

Q:      It has nothing to do with the placenta?

A:      It is a good medium for bacterial growth.  

Q:      In any caesarian section operation?

A:      It is less likely in an elective caesarian section.  But it can happen.

 

[59]    In reference to the pathology report[4]it was put to the witness that chorionic villi were not seen and there was no evidence of abnormal placental implantation, and he said “yes”. Cross-examination proceeded in the following manner:-

          Q:      We now know that there was no inherent placenta.

          A:      It can depend on where you get the sample.

          Q:      If it is adherent it is attached.  In this case it was not adherent?

A:      I am referring to the abnormality that I found in the cavity.  I did not find the placenta, hence the questions mark – how come, what happened? The placenta had been removed.

 

[60]    At the conclusion of the pathology report, it is mentioned that “scanty products of conception are noted within the endometrical cavity”.  Commenting on that, the doctor said that this should not be there and proceeded to say that he did not get an empty uterus.  He further stated that the existence of chorionic villi can cause failure of the womb to contract, and that the womb had to be removed to save the life of the Plaintiff. Further questions and answers follow below:-

Q:      If there were significant chorionic villi they would have been attached to the womb?

A:      Yes.

Q:      But none were found?

A:      Yes.

Q:      You removed the fragments of tissue?

A:      Yes.

Q:      The womb should then have contracted?

A:      It did not.

Q:      There is no evidence in the report of an infected womb?

A:      I accept that.

Q:      What is not recorded in both versions of your report is a statement that you have to remove the uterus because you have found fragments of placenta?

A:      Yes.

[61]    The witness accepted that the fragments were possibly there because the womb was not contracting, and that common causes of uterine atony are a large foetus, anesthetic agents and prolonged and augmented labour.

 

[62]    In reference to the doctor’s notes of the Second Defendant, at page 11 of the Defendants’ bundle of documents, the witness’ attention was drawn to an entry at 17:51, to the effect that the Second Defendant came to see the patient who was complaining of per vagina bleeding post caesarian section.  The witness was then asked the following questions:-

          Q:      What would you have done?

          A:      I would check vital signs, clot, if there was one I would remove it. 

Q:      The doctor did an ultra sound and found bulky postpartum uterus.  Can this be due to uterine atony?

A:      Now action has to be taken.  Things are now serious.  Now we have to take you to theatre for evaluation.

 

[63]    On re-examination, the witness stated that in his treatment of the Plaintiff there was evidence of uterine atony after the removal of fragmented tissue, and that after the first twenty-four hours the womb should contract in the normal course “but some factors may prevent it from contracting after delivery.”

Q:      In the pathology report there is reference to scanty degenerate chorionic villi.  Would this villi cause an infection?

A:      Yes.  It can cause haemorrhage.

Q:      Irrespective of the amount?

A:      It correlates to clinical and pathological findings.

Q:      Should this chorionic villi be present under caesarean section?

A:      The rate is quite low.

 

[64]    The witness re-iterated that in the event of persistent complaint about abdominal pain and per vagina bleeding he would thoroughly evaluate the patient.  This was specifically in reference to the Second Defendant’s notes in respect of the 31^st January 2012 on what transpired on the Plaintiff’s unscheduled visit to the outpatient department of the Defendant’s[5].  The doctor’s notes say this:-

“Complaining of abdominal pains lower abdomen radiating to the thighs.  Pain is mainly on the right side.  Patient also complaining of per vagina bleeding.  No vomiting.  No dizziness reported.”

 

[65]    It is in this context that the witness says he would thoroughly evaluate the patient, because the problem is persisting.

 

[66]    On the notes of the same date, the 31^st January 2012, the Second Defendant records that the ultra sound scan showed “bulky postpartum uterus – approximately 26/40 in size ….. no other abnormalities seen”. The witness stated that this was not normal, and stressed that he “would not discharge a patient under that condition” He continued to say that if conservative management fails, there is need to check the causes of the symptoms and, if need be, the patient should be taken to theatre for thorough examination under anesthesia, and added that “the earlier the better”.  He would also consult (colleagues) or refer the patient.  In respect of referral, the witness said that a proper medical referral must explain the referring doctor’s findings and the patient’s presentation.  Asked whether it would be responsible to say “pass through Dr Subira”, his response was that he would rather contact the doctor “to come to assist me.”

 

[67]    PW4 was Dr Ibrahim Iyassu Sileesion.  He obtained a medical doctorate degree in Addis Abbaba in 1996 and in 2005 he obtained a post-graduate qualification in general surgery, both in the same faculty.  At Ghandi Hospital he did a course on obstetrics care.  He has practised his profession in Swaziland since October 2006 when he was employed at Medisun Clinic.  He does general surgery, both emergency and elective as well as gynecology work.

 

[68]    He stated that he knows the Plaintiff as a patient, that he has treated her, and he remembers the procedure that was done on the Plaintiff in February 2012.  His involvement was in the form of intra-operative consultation with Dr Abdissa Juka, PW3.  He was assisting PW3. 

 

[69]    His evidence regarding the observations and findings on the Plaintiff largely corroborated that of PW3.  PW4 was more effective in English communication as compared to PW3.  He stated that when he was called in by PW3 he found that the uterus was not contracting, its wall was not normal, the surture line was very weak, there was minimum bleeding inside the uterus and outside. There was bulky tissue in the uterus which was morphological (gross).  Some tissue that were found in the uterus were evacuated.  While together, Pw3 and PW4 together assessed the situation, weighed the risk and benefits of removing the uterus and decided on the spot to remove it.  Before that was done the family was consulted.  The decision whether to remove the uterus was critical and it required “weighing the life of the patient”. This was explained to the Plaintiff’s husband, PW2, and he consented to the evacuation of the uterus.  The witness proceeded as follows:-

“It was the best way.  What we found, if we left the uterus in place the life of the patient was at risk if she bleeded continuously.  After five days the bleeding is abnormal.  The tissue in the uterus was not normal.  Any doubtful tissue must be removed.”

 

[70]    He further stated that the uterus was friable and weak.  Upon being massaged, the uterus did not respond positively.  Some clots and tissues were removed and the uterus and other samples were sent for examination.  He concluded his evidence in chief by stating that the Plaintiff was admitted in a critical condition but upon discharge day she was improved.

 

[71]    Upon cross-examination PW4 stated that prior to the Plaintiff being brought to Medisun on the 2^nd February 2012 he was telephoned by the Plaintiff’s family who informed him that the Plaintiff was very sick.  He then alerted Pw3 that the Plaintiff was being brought to the hospital.  He re-iterated that he was there when the decision was taken to remove the Plaintiff’s womb.  Regarding the condition that the Plaintiff was in immediately before the operation, PW4 substantially corroborated the evidence of PW3 and maintained the essence of his own evidence in chief – about fragile tissue and disintegrating tissue in the uterus, the uterus being boggy, etc.  He stated that until the Plaintiff’s abdomen was opened “we would not know the real cause”.  Once the abdomen is opened, there might be no need to remove the uterus.  In other words, the decision to remove the womb was informed by what was found inside.  He reiterated that what was found was clots and tissue and that it was gross. 

 

[72]    He repeated that prior to the operation the uterus was massaged to procure contraction but this did not work.  Then oxytocin was administered but it also did not work.  He continued to say that “under normal circumstances it should contract once the tissue has been removed.”

 

[73]    He stated that there was no evidence of abnormal placental implantation and no chorionic villi was seen.  The clots and fragmented tissue were together.

 

[74]    Upon being re-examined by the Plaintiff’s attorney, Pw4 said that in life-threatening conditions “you don’t wait for the pathology report” and that the pathology report “confirmed our findings to an extent,” and added that this was an emergency case “especially when the patient comes from another facility”, and that inter-operative consultation is done in serious situations, a real emergency that is life-threatening.

 

[75]    At the conclusion of the evidence of PW4, the Plaintiff closed her case.

 

THE DEFENCE CASE

[76]    In support of the defence case the Second Defendant is the only witness that gave evidence.  She stated under oath that her correct name is Dr Shandirai Kapuyanyika as opposed to the one that appears on the Plaintiff’s papers.  She obtained her Batchelor’s degree in Medicine and Surgery at the University of Zimbabwe in 2007. After completing her medical degree she did internship at the United Bulawayo Hospital, Zimbabwe, which included orthopaedics, general surgery and general medicine.  She is also conversant with internal medicine, which includes cardiac cases, HIV cases and everyday conditions such as diabetes.  On general surgery she observed and assisted in doing minor procedures like surturing and draining wounds.  On orthopaedics she did bone and trauma and bone and muscle.  The internship period was two years and three months and she completed this in 2010.  After the internship she worked at the same hospital, focusing on female health, which includes pregnancy, female pelvis, miscarriage, fibroids etc.  She stated that during internship the intern is initially assisted in doing caesarian section operations, and after about two months there is usually no need for assistance.  She did quite a number of caesarian section operations at United Bulawayo Hospital where she stayed till July 2011.  From December 2011 she has been working for the First Defendant. 

 

[77]    She stated that in her career she has performed over a hundred caesarian section procedures.  She is mainly in general practice but she also does obstetrics and gynecology but the latter “are not my main focus”. From 2011 she has been doing caesarian section procedures but “it’s not so often anymore”, the main reason being that “there is usually a gynecologist.  Currently it is Kanama.  Previously it was Tlale. Dr Subira is also a gynecologist.  He was an independent practitioner”.

         

[78]    She further stated that for  a caesarian section procedure there are quite a number of indications, the most common being pelvic disproportion.  There are those who go to labour but fail to progress, or inability to dialate adequately.  She testified that elective caesarian section is a planned one, not an emergency.  If there is an elective caesarean section procedure “we usually go through the same cut” so as to leave the woman with one scar.  She stated that she did have a pre-natal consultation with the Plaintiff whom she attended to on the 9^th January 2012.  She made notes in respect of that consultation.  There were no complaints, and the baby had turned to come out head first.  The witness then booked the Plaintiff for elective caesarian section on the 27^th January 2012 but she was to come for review on the 20^th January 2012.  It is common cause that the Plaintiff did not attend on the 20^th January 2012 and presented herself on the date scheduled for caesarian section procedure.  The witness stated that the Plaintiff’s previous delivery was in early 2011, which is “close together” with the one scheduled for 27^th January 2012. 

 

[79]    Upon admission on the 27^th January 2012 the Plaintiff was checked for vital signs by a nurse who made notes of what was done and the recordings thereon.  She made reference to notes at page 11 of the defendants’ bundle of discovered documents and mentioned that although there is no specific date recorded thereon, the entries were made on the 27^th – the date of admission of the Plaintiff.  She did not give an explanation why a date was not recorded on the said entries.  She further stated that she carried out the caesarean section operation upon the Plaintiff under anesthesia.  She stated that the notes are made “after completing the operation, usually in the recovery room, soon, and that it is necessary to make such notes because they are considered to be legal documents that must note everything that happens in theatre”.

[80]    She further stated that the Plaintiff’s baby was delivered at 13:26p.m. Her evidence was that the uterus tends to separate upon incision, “then you see the baby and take it out.” After taking the baby out you give it to another person, a pediatrician, who then handles the baby.  She did not state who she gave the baby to.  The next step, the witness continued, is to deliver the placenta.  The anesthetist then gives medication to make the uterus contract, e.g. oxytocin, which is administered after the baby is delivered.  As the uterus contracts the placenta separates, it is then pulled out.  “There was no difficulty in removing it.  It came out”.  She further stated that when the placenta was taken out she did examine it, it was delivered healthy and complete.  “If not complete, parts might have remained behind and they have to be removed.” The importance of this, she said, was that placenta remaining behind would cause bleeding.  She said that the birth weight of the child was on the heavier side, but there was no real problem with that.  She also made reference to the apgar score being 8/10, then 10/10 in five minutes after delivery.  She said that in this particular operation “nothing untoward happened”.  The Plaintiff was taken to the ward, and antibiotics were given to prevent infection.  Painkillers were also given to the Plaintiff.  The level of pain is severe in the first 24 hours.  At 17:51 (date not specified on the doctor’s notes) she said that she came to see the Plaintiff who was complaining of bleeding per vagina, which is to be expected, “but this was more than expected.  Her uterus was relaxed, was no longer contracting.  Contraction closes the blood vessels that would let out blood in bleeding”.  Oxytocin was administered in order to stimulate the contractions. 

 

[81]    She further made reference to page 10 of the Defendants’ discovered documents and said that upon the fast application of oxytocin the uterus was responding well, it contracted.  And since it was responding well there was nothing else to do.

 

[82]    The witness further made reference to an entry at 20:30 which shows that the Plaintiff was complaining of pain, and that paracetamol was added to morphin.  These are both very strong pain killers.  At page 12 the doctor’s notes show, among other things, that the Plaintiff was not breastfeeding on the 28^th January 2012, one day post operation.  The witness says that she attempted vaginal examination and found blood clots.  The exact entry that she made is as follows[6]:-

                   “v.e. clots +++.

Patient complaining of severe pain on attempting to empty uterus”.

 

[83]    I understood “clots +++” to mean plenty as opposed to minimal or negligible.  The plan of action included mobilizing the patient[7], and she said in her evidence that this was meant to get some movement of the patient – “don’t want them to lie down for too long”.  She did not state, however, whether this intended plan was achieved.  As a matter of fact, the evidence of the Plaintiff suggests that she was bed-ridden for the duration of the four days at the hospital.  I accept this version as correct.  It is consistent with the evidence that upon discharge she was conveyed on a wheelchair, and this was not gainsaid by the Defendants.   

 

[84]    At page 31 of the Defendant’s bundle of discovered documents there is a record of nurse’s notes.  An entry at 19:00 hrs says:-

“Received a fair patient from day shift.  Complains of pain, patient advised to lay down and avoid too much exertion…..”.

[85]    So, while the patient was to be mobilized according to the doctor, she was also discouraged from exerting herself according to the nurse’s notes.  Earlier on, at 12pm, the day shift nurse wrote:-

                   “Managing to cope with her baby abdominal pains reported.”

          and then at 7pm:-

                   “Severe abdominal pains reported…….”.

[86]    The notes referred to just above lend credence to the Plaintiff’s version that she was in perpetual pain, was incessantly bleeding and was unable to relate to her new born baby.  The nurse’s note that the Plaintiff was managing to cope with the baby was not explained and could not be explained because no nurse was called to testify for the Defendants. This is despite the copious notes that were made by the nurses on each day that the Plaintiff was admitted at Women and Children hospital.

 

[87]    The witness commented on her notes of the 30^th January 2012[8], the date the Plaintiff was discharged.   The observation made was that she was “stable”, and under plan it states “home today” – meaning that she was being discharged and was prescribed three different drugs, namely Brufen, FeSO4 and folate.  In her evidence the Second Defendant said that she was satisfied about the condition of the patient and that “bleeding was minimal”.  She further stated that she does not remember if she (the patient) was relating to the baby at that stage.  The Plaintiff’s evidence is that she wasn’t, and she was actually taken out of the hospital on a wheelchair to the car park.

 

[88]    Second Defendant proceeded to testify about the Plaintiff’s unscheduled attendance at the First Defendant hospital on the 31^st January 2012, nine days ahead of her scheduled review date of 10^th February 2012.  The Plaintiff was attended to by the Second Defendant at the outpatient department.  The doctor’s notes say the following:-

“Complains of abdominal pains lower abdomen radiating to the thighs.  Pain is mainly on the right side.  Patient also complaining of per vagina bleeding.  No vomiting.  No dizziness reported.”

 

[89]    I note, needlessly, that these serious complaints were made by the Plaintiff to her doctor the day following her discharge.  According to the doctor’s notes, upon examination of the Plaintiff the sanitary pad was dry.  Ultra sound examination showed “bulky post-partum uterus, approximately 26/40 in size”.   The size of the uterus, according to the witness, was “bigger than expected.  It had relaxed again, wasn’t well contracted”.  She further stated that she was concerned about the bulky uterus.  It appears on the plan of action that the Plaintiff was put on a drip, one litre fast and one litre slowly.  She was reviewed after two hours and the notes say that “says she is much better called Dr Subira to review patient, he advised that patient should pass through his surgery, patient was agreeable”.

 

[90]    If the patient was “much better” after two hours, it is possibly incongruous that she was “referred” to another doctor for review, because she was presumably responding well to the medication that was administered in the previous two hours.  The witness stated that the referral to Dr Subira was telephonical.  She says she explained the situation to Dr Subira but he was not in a position to come to the hospital, hence the Plaintiff was to “pass through Dr Subira on the same day.  She agreed”. The witness further stated that “there was no gynecologist on site”, and “in referring her to Dr Subira, he is a specialist, I needed his opinion on how to further manage the situation”.

 

[91]    From the evidence of the witness this hospital that professes to specialize in the health of women and children did not have a gynecologist at that point in time.  Objectively, this is cause for grave concern. And it is a firm pointer towards negligence on the part of the First Defendant.

 

[92]    Before completing her testimony the Second Defendant commented on numerous aspects of the pathology report[9].  She mentioned that this report was not sent to her prior to the trial.  The report, among many other things, notes “gaping and thrombosed vessels” in the endometrical cavity, evidence of fresh heamorrahage within the pouch of Douglas, evidence of breakdown in respect of Specimen 2, scanty products of conception within the endometrical cavity and that “there is no evidence of abnormal placental implantation”.

 

[93]    Upon being asked questions by her counsel, the witness admitted that she did not understand what some of the observations in the pathological report mean, e.g. scanty products of conception.  This is hardly surprising because she is not a specialist gynecologist and her scope of knowledge and understanding can only be limited.  In respect of some observations in the report she commented that they were normal.  An example of this is “very scanty degenerate chorionic villi” which were noted in respect of specimen 2 which was unlabeled.

 

[94]    The witness’ attention was further drawn to page 38 of the book of pleadings, which is a report that was written to the Plaintiff’s husband on the findings by Dr Abdissa Juka who treated the Plaintiff at Medisun Clinic.  At the bottom of the page the report states the following:-

“There was necrotic stitch sites, soft and boggy uterus.  Removing stitches revealed large amount of fragmented tissue with clotted blood.  Uterus friable and non-contracting despite stimulation.  There was haemorrhage”,

          and continues at page 39 as follows:-

“Uterine cavity is irregular with uterine muscle wall defects. Adherent placenta removed…..”.

[95]    The witness stated that a boggy uterus is soft, not well contracted, and that it was at twenty weeks’ size.  In her scan on the 31^st January 2012 it was at about twenty – six weeks size.  She further stated that a friable uterus “easily tears apart” and does not contract despite stimulation, and that this happens “as part of complications of pregnancy”.  Such complications may be due to pre-disposition occasioned by carrying twins or a big baby.  In that case bleeding would be “heavier than expected” and there may be need to remove the uterus or to make stitches or braces, but that the simplest way to deal with such condition is to remove the uterus.

 

[96]    In conclusion the witness stated that there was no negligence on her part, she performed the caesarian section operation with skill and care, that the post-operation care was sufficient and that upon discharge of the Plaintiff there was sufficient recovery.

 

[97]    The doctor was cross-examined by the Plaintiff’s counsel at length.  She stated that she is a general practitioner but she also does gynecology and obstetrics, that the latter two are part of general medical practice.  Some questions and answers during cross-examination follow below:-

Q:      In terms of your general knowledge you administer oxytoxin to stimulate the uterus?

A:      Yes. 

Q:      That also helps to expel whatever else may remain in the placenta? (I would assume that “placenta” actually refers to “womb”).

          A:      Yes, by contracting. 

          Q:      The expulsion of conceptus is actually necessary?

          A:      Yes.

          Q:      If not expelled it can lead to infection?

          A:      Yes.

          Q:      If there is infection the uterus will not contract?

          A:      Yes.

Q:      Unlike in a normal birth, the placenta has to be removed by the doctor……?

A:      We give oxytocin and pull it out.  We control its delivery from the vagina.

Q:      In normal situation the Plaintiff plays a part?

A:      Yes, by pushing.

Q;      How else do you ensure that the uterus is clean?

A:      Can take a swab and wipe the uterus.

Q:      You inspect the uterine cavity to ensure that it is clean?

A:      Yes.

Q:      Refer to you notes at page 11. There is no note to indicate that a swab of uterine cavity was made.  Why? 

A:      I had satisfied myself that the placenta was complete. 

Q:      Had you satisfied yourself that the uterine cavity was empty?

A:      Yes.

Q:      Is it in your notes?

A:      No.

Q:      Was the uterus wiped, as you indicated?

A:      No.

Q:      How sure is the court that that you did ensure that it was free of placental tissue or membrane?

A:      Upon the inspection of the placenta.  The wiping is not recorded.

Q:      What are chronic villi?

A:      Finger like projections from the placenta.  It is part of the placenta.  It also gets expelled.  It is necessary that it should get expelled.

 

[98]    In respect of gaping vessels being thrombosed, the witness said that this was normal, being occasioned by non-contracting of the uterus.  But then it is abnormal for the uterus to not contract, and it is common cause that this is the cause for continuous bleeding. It therefore appears to me to be incorrect to describe the situation as normal.

Q:      From the nurse’s notes there was a complaint of consistent bleeding, from day one?

A:      Yes.

 

[99]    She was asked if it was not vital for the bleeding to be monitored more closely and she said it was vital.

          Q:      Part of evidence is that breastfeeding releases oxytocin?

          A:      Yes.

          Q:      The mothers are encouraged to breastfeed as soon as possible?

          A:      Yes. 

Q:      On the 28^th at 5:50 a.m. the note states that the patient was not breastfeeding? “Severe clots, not breastfeeding”, wouldn’t that raise some strong concerns about her state?”

A:      It was.  I responded by giving her number 3 on the plan.  It is to help contraction of uterus.

Q:      You didn’t think of looking for the underlying cause of the bleeding?

A:      At this point no.

Q:      All the time you administered medication for pain?

A:      Yes. 

Q:      Morphin is a strong drug?

A:      Yes.

Q:      Patient was to come for review ten (10) days later?

A:      Yes.

Q:      Despite the set review date, the patient returned earlier?

A:      Yes.

It is on record that the patient returned the following day.

Q:      She complained of abdominal pain?

A:      Yes.

Q:      This is four days post-op?

A:      Yes.

Q:      Should the pain not have subsided, as well as the bleeding?

A:      Yes.

Q:      Throughout she complained of pain and bleeding in various degrees?

A:      Yes.

Q:      On the 31^st January she had the same complaints, now as an outpatient?

A:      Yes.

Q:      You found bulky post-partum uterus?

A:      Yes.

Q:      In view of the bleeding, the pain and the finding that the uterus was bulky, at twenty-six weeks, can you explain your plan under number one.

 

[100] Plan number one reads: “R/Lactate 1L fast then 1L slowly”. In simpler terms, a drip was administered, one litre fast and one litre slowly. Nothing more.

          The questions and answers continued:-

          Q:      Was this not a serious condition?

          A:      It was.

Q:      In view of this, did you not see it fit to carry out other forms of examination?

A:      I believed it was satisfactory.

Q:      You rescussitated the patient?

A:      Yes. I found a need to rehydrate her, she was weak.

Q:      Did you perform other tests?

A:      No. I then decided to refer her……..at this point I did not know what was stopping the contraction……

Q:      The patient was wheeled out of the hospital by her husband.  Is that not an indication of seriousness?

A:      It was.

Q:      Is it normal to do a referral verbally?

A:      Normally we write a letter.

Q:      You have done over 100 caesarian section operations. Shouldn’t you have appreciated the seriousness of the condition, especially the bulky uterus?

A:      I did.

Q:      At 20/40 weeks Dr Abdissa took the condition seriously?

A:      Yes.

Q:      Compare 20 weeks to 26 weeks.  Did you not fail the patient?

A:      I made a referral.

Q:      From your notes you did not ensure that the uterus was clean, empty?

A:      It was. 

Q:      Your notes don’t support that?

A:      Yes.

Q:      The fact that she was not breastfeeding the baby was of no concern to you?

A:      This may be a matter of choice. I don’t remember her reason for not breastfeeding. 

Q:      Did you inform the Plaintiff that you were not a gynecologist or obstetrician?

A:      No

 

[101]  There was a significant amount of cross-examination regarding the inter-action between the Plaintiff and her doctor during the period when she was admitted.  The Plaintiff’s version was that she saw the doctor only three times in the four days that she spent at the hospital, and the doctor’s version is that she visited the patient on at least seven occasions.  It is my view, however, that although regular visits by a doctor to his or her patient are important and, depending on the condition of the patient, may be necessary, this particular case does not turn on this aspect.  Whether the attendances by the doctor were only three or seven or more, the real issue is whether the Plaintiff was treated with reasonable care and skill, taking into account all the circumstances of the case, including the condition of the patient at the particular time.

 

[104]  Under further cross-examination the witness stated that where there is atony of the womb bleeding tends to be heavier than expected, and that there are a number of ways of dealing with that situation, including putting braces on the uterus, but the most effective way is to remove the uterus “if it absolutely doesn’t respond” to stimulation.  At the conclusion of cross-examination the witness said that when the Plaintiff was discharged on the 30^th January 2012 she (the doctor) was “happy that at that point there was sufficient recovery”.  In reference to the unscheduled visit of the 31^st January 2012 by the Plaintiff, it was put to the witness that she was “at a loss on how to treat this patient” and she denied this, adding that she gave fluids as treatment for the bleeding.  We now know that the bleeding and the pain did not stop. We now also know that fluids could not possibly achieve the result that was achieved by the Medisun doctors.

 

[105]  Under re-examination the witness stated that after the caesarian section operation she satisfied herself that the placenta was complete and that the uterine cavity was empty.  She also stated that she recorded that the uterus was wiped[10], and yet this was a major issue under cross-examination, the Plaintiff’s counsel putting it to the witness that although she said that it may be necessary to wipe the uterus, there is no note that she did so.  As a matter of fact, later on she confirms that she did not make such note[11] because she had satisfied herself that the uterine cavity was empty.  Shortly thereafter, her counsel put to her the following question:-

Q:      Let us just clear that up, it was your recollection that you would ensure that it was empty and you had wiped it?

A:      Yes my Lord.

 

[106]  Clearly, the witness got into a tangle over the issue whether she wiped the uterus or not, but I am satisfied from the evidence that she did not, and her reason for not doing so was that she was satisfied that the placenta was complete.  We now know that the Plaintiff’s womb was subsequently determined to have an infection.  It is my finding that the Second Defendant did not do enough to ensure that the womb was clean.  On her own words, she could have used a swab to wipe it clean but she did not do this.

 

[107]  The rest of re-examination was largely on the dispute regarding the extent of interaction between the Plaintiff and her doctor while at Women and Children hospital.  I have already noted that I do not see this aspect of the matter as being decisive, without reference to other things, like establishing the causes of the symptoms and dealing with them effectively.  This, I think, is where the case is.  And in this context the witness was asked whether she was alarmed to find the uterus bulky on the 31st January 2012 and she said “yes”.  She also said that it had been bulky previously, post-operation, but it had been dealt with[12].

At this stage the Defendants closed their case.

 

 

THE LAW

[108]  A medical practitioner is required to exercise reasonable care and skill in the discharge of his or her duty towards the patient[13].  The practitioner is not expected to measure up to the highest possible degree of professional skill.[14]  It follows that it is all about what the evidence discloses, by inference or otherwise.  In the words of Ponnan J.A.,………:-

“At the end of the trial, after all the evidence relied upon by either side has been called and tested, the judge has simply to decide whether as a matter of inference or otherwise he concludes on the balance of probabilities that the Defendant was negligent and that that negligence caused the Plaintiff’s injury.  That is the long and short of it……In that regard it is important to bear in mind that in a civil case it is not necessary for a Plaintiff to prove that the inference that she asks the court to draw is the only reasonable inference; it suffices for her to convince the court that the inference that she advocates is the most readily apparent and acceptable inference from a number of possible inferences.”[15]

 

APPLYING THE LAW TO THE EVIDENCE

[109]  Before I zero in on the evidence and it’s import, I spare a moment to deal with the Defendants’ argument that has persisted from the application for absolution from the instance, which was unsuccessful.  In its particulars of claim the Plaintiff alleged that the caesarean operation was carried out negligently in that the doctor failed to perform a complete removal of the Plaintiff’s placenta, and that the doctor further failed to attend to complications arising therefrom either timeously or at all.  The Plaintiff’s averments are that the negligence was in one or more of the ways outlined above.

 

[110] The Defendants argue, as they did in the application for absolution from the instance, that if the Plaintiff fails to prove that the Second Defendant failed to perform a complete removal of the placenta, its  case collapses there and then; that the issue of “failure to attend to complications arising therefrom timeously or at all” becomes irrelevant.  In other words, according to the Defendants, the complications must relate to the removal of the placenta, nothing else. Extrapolating from that argument, one would come to the conclusion that if complications arose from any other factor, e.g. high blood pressure, the Second Defendant would be allowed to turn a blind eye, that even if she realized the high blood pressure and did not deal with it properly, she cannot be held responsible.  I am unable to agree with this argument.  At the first instance because the Plaintiff has alleged that the negligence was constituted in “one or more” of the ways that were pleaded.  At the second instance, and this will become apparent in my analysis of the evidence, there are indications that even at the stage when the caesarean section operation was conducted the Second Defendant did not exercise reasonable care to ensure that the womb was clean and empty. Further, there is strong evidence that shows that the Plaintiff should not have been discharged in the condition that she was discharged in on the 30^th January 2012.  If I follow the Defendants’ position, which I regard as being over-technical, I would deny my-self the opportunity to see the case in its totality and make the inference that I am required to make[16]. On the facts before me, that would occasion grave injustice to the Plaintiff.

ONUS UPON THE PLAINTIFF

[111]  The onus is upon the Plaintiff to prove its case on a balance of probabilities.  The court makes this finding on the basis of direct evidence or inference[17]from the totality of the circumstances of the case. 

 

[112]  After the caesarian section operation on the 27^th January 2012 the evidence of the Plaintiff and her husband shows that the Plaintiff was in constant pain and continuously bleeding per vagina, to such an extent that she was unable to interact with the baby.  On the date of the operation she was in and out of consciousness and showed no excitement even as she was told that she had a baby girl.  She describes the flow of blood from her private parts as a “gush”, and that the pain was like something “slicing or tearing inside of me”.  As she described the pain, I could see that she re-lived the experience of about five years back.  The Plaintiff is someone who has a previous experience of a caesarian operation and this placed her in good position to make an informed comparison.  Upon her discharge, the doctor’s notes describe her condition as “improved”. The description is inconsistent with the evidence, not only of the Plaintiff and her husband but that of the Second Defendant as well, in her notes and during her cross-examination. 

 

[113]  The Second Defendant’s notes, which are presumed to be of the 27^th January 2012, the date of the operation, show that the Plaintiff was complaining of pain.  At 20:30pm, presumably on the same date, she was still complaining of pain and was administered a very strong pain killer, paracetamol, which was to run over fifteen minutes.  Under cross-examination, the Plaintiff stated that on the 28^th January, a day after the operation, she was bleeding, was not breastfeeding and only ate occasionally.

 

[114]  In her evidence in chief and under cross-examination the Second Defendant largely confirmed the repeated complaints by the Plaintiff, of persistent pain and bleeding, during the period of admission on  the 27^th January to 30^th January 2012.  She also confirmed that the main cause of the bleeding was uncontracting uterus.  The patient was not breastfeeding, so oxytocin was not released naturally, to stimulate the contraction.  There is preponderant evidence that the Plaintiff was not interacting with the child and could not breastfeed it because of the child’s unbearable weight due to the Plaintiff’s pain.

 

[115]  On the date of discharge, the 30^th January 2012, the Plaintiff was unable to walk.  She was taken on a wheelchair to the car park.  This is on the fourth day after the operation and during her stay at the medical facility the Second Defendant agrees that the bleeding was “more than expected”.  Her uterus was relaxed…………,” and on the 28^th January 2012 the Second Defendant attempted vaginal examination of the Plaintiff and found plenty of blood cloths, and the Plaintiff complained of “severe pain on attempting to empty uterus.”

 

[116]  I find it as a fact that the Plaintiff should not have been discharged in this condition.  She had not made enough progress to justify discharge and it does appear from the overall evidence that there was no improvement in her condition at all.  In this position that I take I am fortified by the evidence of Doctor Abdissa Juka, PW3, who treated the Plaintiff at Medisun hospital.  Dr Abdissa Juka stated that if pain and bleeding persist some days after the caesarian section operation the patient must be examined to determine the cause of this situation, and if necessary take the patient back to theatre for evaluation.  It is common cause that the Second Defendant did not do this and was satisfied to discharge the patient who was taken on a wheelchair to the car park.  Either the condition of the Plaintiff was beyond her capacity or she did not exercise reasonable care and skill in treating the patient.  In either situation, in the totality of the evidence relating to the period during which the Plaintiff was admitted and treated by her, the Second Defendant’s acts or omissions fell below the required standard and amount to negligence.  In this context I also note the Second Defendant’s evidence in chief that gynecology is not her “main focus”.  This possibly suggests that she did it when there was no one else to do it.  In the medical field, this to me is unacceptable.   

 

[117]  The events of the 31^st January, when the Plaintiff was attended to at the outpatient department, are even more revealing.  The patient came back a day after discharge – some nine days ahead of the scheduled review date.  This, in itself, should have triggered the alarm bells in the mind of the Second Defendant, especially if she appreciated the condition of the Plaintiff upon discharge.  On this occasion the Second Defendant established that her patient had a “bulky postpartum uterus, approximately 26 weeks’ size”. She admits that this was a serious condition, but she did nothing other than to administer a drip.  She did not undertake an examination to establish the cause of this serious condition.  Dr Abdissa Juka says that he would not discharge a patient under that condition.  In his own words:-

 

“Now action has to be taken.  Things are now serious. Now we have to take you to theatre for evaluation”.

 

[118]  It is more probable than not that the Plaintiff’s condition was beyond the capacity of the Second Defendant.  The Second Defendant is not a gynecologist, so it may not be surprising that she was on her wits’ end regarding the situation.  I mentioned earlier on that the fact that this hospital which professes to specialise in the health of Women and Children did not at this point in time have a gynecologist on site is cause for grave concern.  But be that as it may, the Second Defendant ought to have made a referral to a more competent doctor.  She says that she did, but I am unable to accept this.  If she did make the verbal referral to Dr Subira, this in itself is an adverse reflection upon her competence. She admitted that a referral is normally in writing. I think that a medical referral has to be in writing.  According to Dr Abdissa, this is to ensure that you inform the referral doctor of your findings and the patient’s presentation.  To say to a patient “pass by Dr Subira” is far from satisfactory.  One reason I am unable to accept that the referral was made is that the Plaintiff was desperate for a referral, and she said in her evidence that she would have seized the opportunity if it had been given to her.  Another reason is that if such referral did occur, the Plaintiff would most probably have been told about Dr Subira’s requirements regarding a deposit payment or what record or records to bring, otherwise he would be starting from scratch.  That would defeat the purpose of a referral.

 

[119]  The Second Defendant completed internship in April 2010 and worked in her home country Zimbabwe.  In December 2011 she started working at Women and Children hospital, the First Defendant.  When she did the operation that is the subject matter of this case she had approximately twenty months’ experience post-internship and was only about two months working for the First Defendant.  It appears to me that the case of the Plaintiff did have complications while she was being treated at Women and Children hospital.  The Second Defendant’s inability to deal decisively with the complications, especially the boggy uterus post – operation, which was responsible for the incessant pain and bleeding, may well be a reflection not only on her medical qualifications (she is not a specialist gynecologist) but also on her relatively little experience.  In this regard I make comparison with the Medisun doctors, PW3 and PW4, who each commanded about nine years as specialists, having practised a few years as general practitioners before undergoing specialist training.  The Second Defendant’s situation was made worse by the absence of specialist back-up in house.  For this the First Defendant is fully responsible.

 

[120]  According to my findings, there are three clear phases of negligence on the part of the Second Defendant.  First, she failed to deal effectively with the Plaintiff’s complaints while she was admitted. Secondly, she went on to discharge her in a very unsatisfactory state of health whereby she was taken out of the facility on a wheelchair.  Thirdly, upon the Plaintiff’s return a day after her discharge, with the same complaints, the Second Defendant did nothing more than administer a drip and did not evaluate the Plaintiff to determine the causes of persisting bleeding and pain.  Although she understood that this had to do with the non-contracting uterus, she did nothing to determine why the uterus remained boggy and friable. She was happy to see the Plaintiff leave on a wheelchair once again, some five days post-operation.

 

[120]  The evidence of the two Medisun doctors, PW3 and PW4, completes the puzzle.  Both doctors, and the Second Defendant, agree that the most probable cause of Plaintiff’s condition was an infection.  All the doctors agree that the likely cause of the infection was dead tissue which was mixed with clotted blood. It appears to me that if the uterus was cleaned thoroughly after the placenta was delivered, no dead tissue would have remained behind. It was not enough for the Second Defendant to merely look and be satisfied that the womb was cleared of all and any unwanted matter.  As I stated earlier, she is the one who stated that in such a situation a swab may be used to ensure that the uterus was clean.

 

[121]  The evidence of the Plaintiff, her husband and the Medisun doctors clearly shows that the Plaintiff was admitted at Medisun in a very grave condition.  Because her womb was in a bad condition it did not respond to conservative stimulation including the administration of oxytocin.  The decision was taken to do a laparotomy, which confirmed the theory of PW3 and PW4 regarding the bad state of the Plaintiff’s womb. The findings were that the womb was wide open, boggy, friable and filled with blood. The blood was mixed with tissue.  The decision was taken to remove the womb in order to save the life of the Plaintiff.

 

[122]  The Defendants have sought to make much of the fact that there was no adherent placenta in the Plaintiff’s womb, and argue that this must exonerate the Defendants because the Plaintiff’s pleadings are based on the assumption that there was adherent placenta.  In order to agree with the Defendants I would have to ignore a significant portion of the evidence of both sides which points towards the negligence of the Defendants in many respects.

 

[123]  A day or two after operation of the Plaintiff at Medisun she “was the old Theresa again[18]”, significantly recovering.  Upon discharge on the fourth day, she was given pain killers but she did not use them.  This cannot be a result of a magic wand. It shows that the Medisun doctors confronted the problem and dealt with it decisively and effectively.  If the Second Defendant had done so, a great deal of the ordeal of the Plaintiff would have been avoided.

 

[124]  The Second Defendant agrees with the Medisun doctors that the most effective way to deal with a womb that was in such a bad condition was to remove it.  So there is no suggestion that there was a better way to deal with the situation at that stage.

 

[125]  In the conspectus of the matter and taking into account all the evidence before me, I have no hesitation in concluding that the Plaintiff has established negligence against the Defendants on a balance of probabilities.  If the negligence was on the part of the Second Defendant only, the First defendant would still be liable on the basis of vicarious liability[19].

 

 

QUANTUM OF DAMAGES

[126] The quantum of general damages is upon the discretion of the trial court.  There are no hard and fast rules applicable.  Obviously, the discretion must be exercised judicially, taking all the relevant evidence into account.

 

[127]  Plaintiff’s claim of general damages amounts to E500, 000.00[20].  These are in respect of pain and suffering (E100, 000.00) and loss of amenities of life and permanent disability (E400, 000.00).

 

[128]  The evidence establishes clearly that the Plaintiff was in great pain continuously from the 27^th January 2012 right to the 2^nd February 2012 or thereabout, after the operation at Medisun.  She described the pain quite vividly, and this description is borne out by the very strong pain killer drugs that were continuously administered to her at First Defendant hospital, inclusive of morphine and paracetamol. There is no evidence that she will experience pain in the future, and her evidence is that soon after the Second operation her life became much better, and she did not need any follow-up treatment other than for depression.

 

 [129] Amenities of life is quite broad.  Other than that she will not have the monthly menstrual cycle, the court was not told much else.  The court was told, however, that the Plaintiff will not have a child or children again.  This was the cause of her subsequent depression, the knowledge that she would not have a child again.  She stated that she would have liked to try for a boy, given that the children that she has are both girls.  I can take judicial notice of the fact that the average family in eSwatini likes to have a mix of male and female children, and in many it is an issue not to have a baby boy, because of the notion that the family name will “die”.

 

[130]  Further, it cannot be denied that living without a womb is a permanent disability to one who has not had it removed voluntarily.

 

[131]  The Plaintiff has succeeded in laying out a basis for compensation in respect of pain and suffering, loss of amenities of life and permanent disability.  In my award I must take into account that the permanent disability can be in the mind of the Plaintiff for the rest of her life.

 

[132]  I have not come across a case that is on all fours with the present one, for purposes of comparison on quantum.  In the case of GOLIATH v MEC FOR HEALTH, EASTERN CAPE[21] the quantum of general damages was settled at E250, 000.00.  This was in 2015.  In that case a swab was left inside the Plaintiff’s abdomen after a hesterectomy, and this caused an infection, resulting in her requiring a second operation to remove the swab.  This case is obviously short of the dimension of inability to have a child again, “and the joy that comes with it”, as the Plaintiff put it in her evidence. With that precedent in mind, I am satisfied that the amount of E100, 000.00 that is claimed by the Plaintiff for pain and suffering is not unreasonable or excessive.  Similarly, the amount of E400, 000.00 in respect of loss of amenities and permanent disability is not unreasonable or excessive.

 

[133]  At the trial the Plaintiff was able to prove that at Medisun Clinic she paid an amount of E16,704.00, and this constitutes her special damages. No evidence was furnished in respect of what she paid for the treatment for depression.

 

[134]  In the final analysis, the Plaintiff’s claim having succeeded, the Defendants are hereby ordered to pay to the Plaintiff, jointly and/or severally, the one paying the other one to be absolved, a total amount of E466,704.00 which is made up as follows:-

                   i)        Medical Expenses =          E16, 704.00

                  

ii)       General damages            =        E450, 000.00

                                                                             E466, 704.00

iii)      Interest on the above amount at the rate of 9 per cent per annum calculated from date of judgement to date of final payment.

 

 

 

iv)      Costs of suit, including costs of counsel in terms of Rule 68 (2) of the High Court rules.

 

___________________________

MLANGENI J.

 

For The Plaintiff:                    Attorney J. Rodrigues

For The Defendants:               Advocate P.E. Flynn, instructed by Attorneys L.R. Mamba & Associates