A North West woman who had a finger fracture in 2016 has been left with a permanently disabling condition after staff at a provincial hospital failed, over months of repeat visits, to recognise a well-known complication of her injury.
Anita Kleinsmidt, writing for MedicalBrief, reports that the North West High Court (Mahikeng) has found the provincial Health MEC fully liable for her damages, a finding reinforced, interestingly, by the defendant’s own expert witness.
In the Pheko v MEC for the Department of Health, North West, judgment delivered on 3 March, Judge FMM Reid held that the defendant’s employees were negligent in their treatment of plaintiff Msego Beauty Pheko, which directly caused her current severe and ongoing impairment.
Injury and search for diagnosis
On 15 February 2016, a brick fell on Pheko’s right index finger, causing a laceration on the dorsal surface and a fracture of the distal phalanx – a relatively common injury.
She attended Joe Morolong Hospital on the same day where her finger was cleaned, sutured and bandaged, X-rays were taken, and she was told a bone was broken. She was discharged with Panado and an appointment to return in a month.
Pheko returned as instructed on 29 March 2016. Further X-rays showed the fracture had not healed and she was given another appointment three months later. At that follow-up she was referred to a physiotherapist, Dr Mbali, and attended three sessions.
Still her condition did not improve.
She then sought private treatment. Two private practitioners, Dr MA Rakgole and Dr Khan, both in Vryburg, saw her and referred her back to Joe Morolong Hospital with requests for follow-up.
When Pheko returned to the hospital with Khan’s referral letter, she was refused treatment by Dr Viljoen, a hospital employee who dismissed the private practitioner’s recommendation and, according to the judgment, reprimanded her for having sought private care.
Missed diagnosis: Complex Regional Pain Syndrome
What the treating healthcare professionals failed to identify, across multiple consultations over several months, was that Pheko had developed Complex Regional Pain Syndrome Type 1 (CRPS1).
This is a recognised complication of the type of injury she sustained. CRPS is a chronic pain condition involving dysfunction of the nervous system, typically characterised by disproportionate and persistent pain, trophic changes to the skin, altered temperature, swelling and progressive loss of function.
By the time both parties’ orthopaedic experts examined Pheko, she presented with severe restriction of movement in all fingers of the right hand, generalised tenderness of the hand and wrist, atrophy of the intrinsic muscles of the hand, osteopenia, trophic skin changes, temperature asymmetry between the two hands, decreased perspiration of the right hand and a coarse tremor of the right arm brought on by simple movements.
Her whole person impairment (WPI) was calculated at 15%. Both experts agreed that her condition substantially limits her in major life activities, including work.
Defendant’s expert confirmed plaintiff’s case
The pivotal aspect of this case was the evidence of Dr WE Williams, the defendant’s expert orthopaedic surgeon.
In the joint minute compiled by both experts, Williams stated that CRPS “was not recognised by any of the treating healthcare professionals”, and that “it is regrettable that no healthcare professional who attended to the plaintiff, could recognise the presence of CRPS and refer her to the appropriate services”.
He attributed the failure of treatment to a lack of familiarity with the features of the condition.
Under cross-examination, Williams conceded that his use of the word “regrettable” was synonymous with negligence.
He noted that “negligence” was not a term that he could use in his capacity as an expert.
The court found this concession significant and correctly made. The evidence of Dr Oelofse, the plaintiff’s expert, was commended by the judge as credible and impressive.
Reid held that the failure to recognise a known complication of a common injury, particularly where the patient returned repeatedly with classic signs and symptoms, fell below the standard of care expected of reasonable healthcare professionals.
The refusal by Viljoen to act on the private practitioner’s referral and the reprimand of the patient for seeking private care further compounded the negligence.
Amendment of pleadings and costs
The judgment also addressed a procedural issue: an application by the plaintiff to amend her particulars of claim to add a specific ground of negligence relating to the failure to diagnose CRPS.
Applying the principles set out in Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC), the court granted the amendment, finding no bad faith, no prejudice to the defendant (both experts had dealt with the issue thoroughly).
The defendant was found 100% liable for Pheko’s damages. Quantum was postponed sine die.
Given the complexity of the medical evidence, costs were awarded on scale C, inclusive of senior counsel’s fees.
Significance for medico-legal practitioners
This judgment carries several important lessons. First, it illustrates the medico-legal risk of failing to recognise CRPS, a condition that, while not rare, remains under-diagnosed in general hospital settings. The progression from a straightforward distal phalanx fracture to a whole-person impairment of 15% was entirely attributable to this diagnostic failure.
Second, it is a reminder that a defendant’s expert can, through candid professional language, effectively establish the plaintiff’s case.
Third, the conduct of Viljoen’s refusal to act on a private referral and reprimanding a patient for seeking additional care, was treated as an aggravating factor that denied the patient a further opportunity for appropriate treatment.
Pheko v MEC for Health, North West, Case No 99/2019, North West High Court (Mahikeng), judgment of Reid J, 3 March 2026.
P van den Heever Expert Evidence in Clinical Negligence Juta 2015
- Anita Kleinsmidt is with the Faculty of Law, University of Western Cape
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