The North West High Court (Mahikeng) has dismissed – with costs – a woman’s R6m medical negligence claim against a doctor, saying she had waited too long and had thus failed to submit her claim within the prescribed three-year period, reports IOL.
She had sued Dr Sam Amaoukua Adu for damages arising from medical complications after her baby’s birth in December 2019, when the child was delivered by vaccuum extraction, and she had to undergo an episiotomy.
She said she later experienced serious medical problems, including the passage of flatus and faecal matter through her vagina, and claimed the complications resulted from a breach of the doctor’s duty of care and negligence in the treatment and procedures provided to her.
Her claim included damages for multiple surgical procedures and medical treatment, loss of amenities of life, as well as emotional and psychological problems.
She also claimed that she would require further treatment in the future.
Problems emerged after childbirth
The doctor testified that he had treated the woman since 2017 and had provided her with antenatal care. He said after she gave birth, he examined her and advised her to return to hospital for a six-week check-up.
When she attended the hospital in January 2020, there were no complications at that stage.
The woman later began experiencing problems in February 2020, including the passage of flatus through her vagina. In March 2020, she had diarrhoea and began passing faeces through her vagina.
Adu said that when he subsequently examined her, he diagnosed a recto-vaginal fistula and told her surgery would be necessary to repair it.
She underwent surgery on 4 February 2021.
Disputed evidence
However, the woman disputed parts of the doctor’s evidence and said she had first consulted him in November 2020, when he diagnosed an infection and referred her for surgery.
After the operation, the same problem continued, and she was referred to Dr Van Wyk, whom she consulted on 24 February 2021. She later sought legal advice and was referred to a Dr Burgin for an assessment of the cause of her condition.
The patient argued that she only acquired the necessary knowledge to pursue a medical negligence claim after receiving Burgin’s report in June 2021.
She said that although she suspected something had gone wrong, she did not know Adu had been negligent.
Her legal team argued that the cause of action only arose after she consulted Burgin and his findings provided her with knowledge of what had happened.
Adu’s lawyers disagreed, arguing that the woman had already been aware of the material facts underlying her claim by 4 February 2021.
They argued that she did not need to have knowledge of the legal conclusion that the doctor had been negligent for prescription to begin.
Court applies three-year prescription period
The court considered the Prescription Act 68 of 1969, which provides for a three-year prescription period applicable to the claim.
Under section 12(3), a debt is not regarded as due until the creditor knows the identity of the debtor and the facts from which the debt arises.
However, a creditor is deemed to have that knowledge if it could have acquired it by exercising reasonable care.
Acting Judge BF Mnyovu found that knowledge of a legal conclusion, like negligence, was not required before prescription could begin.
The court distinguished between the primary facts underlying a claim and the legal conclusion that those facts amounted to negligence. The judge found that the woman had acquired the relevant primary facts through her consultations and medical treatment before she obtained Burgin’s report.
Claim expired
The court found that the woman knew Adu’s identity and the primary facts underlying her claim by February 2021. She had already consulted the doctor about her condition, undergone surgery and subsequently consulted another medical practitioner.
On 27 February 2021, she appointed attorneys to investigate the cause of her medical condition and gave them a mandate to institute legal action.
The court found that these events demonstrated that she had acquired the relevant knowledge before receiving Burgin’s report on 28 June 2021.
The judgment explained that in professional negligence cases, a mere suspicion that something had gone wrong does not necessarily immediately trigger prescription.
However, where the circumstances give rise to a suspicion of wrongdoing, the person is expected to make further enquiries or obtain expert advice as part of exercising reasonable care.
Prescription will then run once the suspicion is confirmed or a reasonable period for investigating the matter has expired.
In this case, the judge concluded that the woman had acquired knowledge of the identity of the alleged debtor and the primary facts from which the debt arose by 4 February 2021.
The court consequently found that the claim expired on 3 February 2024.
The judge upheld Adu’s special plea of prescription and dismissed the woman’s claim with costs. She was ordered to pay the costs of the application.
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