Almost 10 years after the fact, a nurse at Chris Hani Baragwanath Academic Hospital, who suffered serious injuries in a botched operation at a government hospital in 2014, has finally won her claim for the funds she needs to cover the costs of future surgeries at a private hospital.
During surgery to remove her gall bladder at Tambo Memorial Hospital in Boksburg, Nomgqibelo Mashinini’s bile duct and hepatic artery were injured, requiring emergency management.
News24 reports that this was performed at Grey’s Hospital in Pietermaritzburg but as a result of the injuries suffered during the failed operation, she had to undergo various procedures to correct the damage.
In 2017, Mashinini launched legal action in the Gauteng High Court (Johannesburg) for damages based on medical negligence against the Gauteng MEC for Health, as well as the doctor who performed the failed operation. She claimed for past hospital and future medical expenses, as well as future loss of earnings and general damages.
The MEC raised the “public healthcare defence”, in broad terms, a request that she be directed to provide Mashinini’s future medical treatment at Chris Hani Baragwanath Hospital rather than give her financial compensation for her injuries.
The High Court ruled in favour of the MEC, ordering that Mashinini’s claim for past medical expenses be postponed indefinitely. The MEC was instructed to ensure Mashinini receive the medical services she needs at “the same or better level of service than in the public healthcare sector” and pay her a lump sum of just more than R2m, and cover the costs of her lawsuit and those of her expert witnesses.
Mashinini was not satisfied with the court’s decision not to compensate her financially for her future medical and surgical treatment and to be treated at the Charlotte Maxeke Johannesburg Academic Hospital, and obtained leave to appeal against this part of the High Court order.
The MEC argued she was able to provide Mashinini with care that was both of an acceptable quality at a cost lower than the R1.765m she was claiming. There was no dispute of nature and extent of the medical and surgical treatment Mashinini would need in future.
The Supreme Court of Appeal found that Mashinini’s application was an Aquilian action (most Aquilian actions are based on negligence) in terms of which the MEC was required to pay all costs of the damage she suffered, and that it was up to Mashinini to provide these costs.
“By making use of private medical services and hospital facilities, a plaintiff, who has suffered personal injuries, will in the normal course receive skilled medical attention and, where the need arises, be admitted to a well-run and properly equipped hospital. To accord him/her such benefits, all would agree, is both reasonable and deserving,” the appeal court said.
It was noted that Mashinini had experienced excruciating pain and burning because of the failed surgery – the cause of which was an accumulation of bile fluid in her stomach that had to be washed out.
She had been treated by Professor Damon Bizos, the Wits University Medical School’s head of surgical gastroenterology at Charlotte Maxeke Hospital. He also has a small practice at Donald Gordon Medical Centre, where he sees some private patients.
Mashinini was happy with the treatment she was receiving from Bizos and wanted to continue with him because of his familiarity with her case. However, when needing to consult with him at Charlotte Maxeke Hospital, she was subjected to long waiting periods at the casualty section, as only emergencies were treated quickly.
Bizos testified that Mashinini had a complex clinical condition that required her to have access to a specialist surgeon, hepatobiliary surgeon and a clinical hepatologist, and that resources at the public hospital were difficult to access.
The court found that Mashinini had proven the extent of the damages she had suffered because of the wrongful treatment and was entitled to compensation enabling her to access the treatment she needs at a private healthcare facility. The MEC had failed to prove that the specialist treatment was available at public hospital, nor had she shown that the calculated costs of Mashinini’s future treatment were incorrect.
Meanwhile, the Gauteng Health Department yesterday the Chris Hani Baragwanath Academic Hospital recorded no cases of medical negligence in the neonatal and maternity wards in the past three years.
They delivered 54 244 babies during that period, said Health MEC Nomantu Nkomo-Ralehoko in response to a question in the provincial legislature this week, according to a TimesLIVE report.
Nkomo-Ralehoko said the hospital recorded 1 565 (2.9%) neonatal deaths in the three years.
“However, none of the deaths were due to negligence, but other factors such as prematurity (661), infections (547), intrapartum hypoxia (256) and congenital anomalies (118).”
Out of these recorded deaths, 909 were identified to have possible avoidable factors which include inadequate infection control, limited neonatal intensive care unit beds, delays in case management and hypothermia.
On average, 60 babies are born per day (28 through Caesarean section and 32 through normal vaginal delivery).
Asked if the hospital had enough healthcare workers for the amount of patients it caters for daily, Modiba said the number of employees in the hospital is 6 223, which is not in line with the requirements.
TimesLIVE article – Nurse wins R3m claim after botched surgery (Open access)
TimesLIVE – Baragwanath-hospital-had-no-negligence-cases-in-the-past-three-years-department (Open access)
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