The Gauteng High Court has ordered the MEC of Health and Social Development in Gauteng to pay a pensioner who suffered damages to her knee due to negligence during surgery just under R1.3-million in damages.
In his judgment on Friday, Judge Stuart Wilson said on July 16, 2013, the plaintiff [name withheld] “was operated on at a hospital controlled by the defendant, the MEC. The aim of the surgery was to replace her left knee with a prosthetic joint. The surgery went badly wrong.”
Judge Wilson further noted that “although the knee joint was replaced, the [the plaintiff] now cannot bend her knee at all.
“The MEC accepts that the knee replacement surgery was negligently performed, and has assumed liability for [the plaintiff’s] proven losses. In all but two respects, the MEC and [the patient] also agree what those losses were,” Wilson said.
During proceedings, the parties disagreed about whether and to what extent the 64-year-old woman would require domestic assistance because of the injuries caused by the negligent surgery, and whether and to what extent the MEC should have to pay for such assistance.
The parties further disagreed on the quantum of general damages to compensate the woman’s pain and suffering and loss of amenities of life.
Wilson noted that the woman is presently 64 years old and will need domestic assistance as she ages.
The state’s lawyer, LH Adams, argued the need for assistance arose not from the knee replacement surgery itself, but from the fact that the woman already had arthritis in her left knee, and pain in both of her knees at the time of the operation.
Adams further submitted that the woman’s condition would likely have so debilitated as to have made the need for domestic assistance inevitable whether or not she had the knee replacement surgery.
But Wilson rejected this assertion. “I cannot accept this line of reasoning or the conclusion pressed from it. The evidence was that, although she was in pain before the operation, [the plaintiff] was mobile and able to perform a number of tasks associated with her job as a meat packer at a Spar supermarket.”
He said the plaintiff is now substantially immobile without the assistance of a crutch.
“Even with a crutch, she finds it difficult to get around. This is partly because her left leg is stuck in a fully extended position as a result of the negligent surgery. It is shorter than her right leg, probably also as a result of the negligent surgery. A decade after the operation, the knee joint is still painful and swollen,” Wilson said.
“I am grimly aware of the imprecision of any exercise which involves comparing different cases of loss and suffering – which are always, ultimately, incommensurate. Nonetheless, for the reasons I have given, I think that a just and fair award for general damages in this case would be R850 000.”
Wilson further ruled that there were no prospects of the woman’s condition getting any better, and awarded her a further R438 250 “for future domestic assistance”.
In September last year, at a meeting of the National Council of Provinces Appropriations Committee, the Auditor-General (AG) of South Africa revealed the government had failed to meet its target of reducing the contingent liability of medico-legal cases by 80% (under R18-billion) in 2024 from the baseline of R70-billion in 2018, with claims standing at R77-billion in March last year.
The committee further heard that most of the claims were birth-related and included brain damage, cerebral palsy, caesarean sections and non-standardised procedures.
“The AG further indicated that the cumulative total value of all 15 148 claims made against the DoH (Department of Health) during the 2021-2022 financial Year stood at R125.3-billion, with 96% being for medico-legal claims.
“Altogether, R1.8-billion was paid out for medico-legal claims in 2021 and R855.7-million in 2022. Of the 15 1 48 claims, 4 443 were from the Eastern Cape, 3 783 from Gauteng, 2 915 from KwaZulu-Natal and 1 617 from Limpopo.”
