Court name
High Court Main Division
Case name
Kasingo v Minister of Health And Social Services N.O and Another
Media neutral citation
[2014] NAHCMD 176
Judge
Miller AJ










REPUBLIC OF
NAMIBIA







HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: I 925/2012





DATE:
03 JUNE 2014





REPORTABLE








In the matter
between:





IVAN
KASINGO...........................................................................................................PLAINTIFF





And





MINISTER OF
HEALTH AND SOCIAL SERVICES N.O..........................1ST
DEFENDANT





THE
SUPERINTENDENT OF KATUTURA


STATE
HOSPITAL........................................................................................2ND
DEFENDANT






Neutral citation:
Kasingo v Minister of Health and Social Services NO (I 925/2012)
[2014] NAHCMD 174 (03 June 2014)





Coram: MILLER AJ





Heard: 24-25
February 2014; 31 March 2014





Delivered: 03
June 2014








ORDER





The first defendant
is liable to compensate the plaintiff for such damages in such amount
as may be agreed between the parties or determined by the Court. The
first defendant is also ordered to pay the costs of the plaintiff
relating to this stage of the proceedings.








JUDGMENT





MILLER AJ :





[1] In this matter
it is common cause that at about 04h00 on the 12th of April 2013, the
plaintiff sustained a gunshot wound to the upper part of his right
leg. The bullet fractured the right femur and as a further
consequence caused some vascular injury which obstructed blood
flowing to the injured limb.





[2] The first
medical practitioner to addend to the plaintiff was Dr. Marais, a
general practitioner at Lüderitz. Dr. Marais immediately
diagnosed the vascular injury which required prompt attention.





[3] Dr. Marais
contacted Dr. Oberholzer who was the Chief Medical Superintendent of
the Windhoek Central Hospital complexes which include the Katutura
State Hospital.





[4] Dr. Marais also
contacted Dr. Orlando who was the surgeon on call.





[5] It was decided
to airlift the plaintiff to Windhoek where he would receive treatment
for his injuries.





[6] Thus it came
about that the plaintiff was admitted to the Katutura State Hospital
at approximately 13h00 on the 12th of April 2013.





[7] As matters
turned out no attempt was made to attend to the vascular injury. The
probabilities indicate that this failure was attributable mainly to a
wrong diagnosis made by Dr. Domingos, a medical practitioner employed
by the first defendant.





[8] Dr. Domingos
incorrectly recorded that the plaintiff’s leg was warm and that
the pulses were strong. He concluded that plaintiff was in a stable
condition.





[9] The plaintiff’s
leg was placed in traction and antibiotics were prescribed.





[10] On 13 April
2013 it was noted that the limb was cold and the pulses were weak.
This condition was also observed on 14 April.





[11] The plaintiff
remained at the Katutura State Hospital until 15 April 2013 when he
was transferred to the Windhoek Central Hospital. Dr. Nel, a
specialist surgeon and Dr. Burger attended to the plaintiff. Dr. Nel
concluded that the plaintiff’s leg was in rigor mortis and not
salvageable.





[12] Nonetheless and
mainly at the insistence of Dr. Burger, it would seem the injured
artery was repaired on 16 April 2013.





[13] Unfortunately
that attempt came to nought.





[14] Toxins from the
dead tissue in the limb caused the plaintiff to become feverish. The
only solution was to amputate the limb in order to save the life of
the plaintiff.





[15] The plaintiff
now claims damages from the defendants based upon their alleged
negligence.





[16] The defendant
resists to claim on two defences raised in the pleadings. Firstly it
is denied that there was negligence on the part of anybody who dealt
with the plaintiff whilst he was at the Katutura State Hospital.
Secondly it is denied that there is a casual connection between the
conduct of the hospital staff and the amputation of the plaintiff’s
leg. The argument is that due to nature and extent of the vascular
injury coupled with the time that elapsed from when the injury was
sustained until the plaintiff was admitted to the Katutura State
Hospital, the amputation of the leg was inevitable regardless of what
treatment the plaintiff received or did not receive.





[17] The parties
agreed to separate the merits and the quantum of the plaintiff’s
damages.





[18] I am called
upon to consider the question of liability only.





[19] I consider
firstly whether the plaintiff had proved the issue of negligence and
if need be to consider the issue of causation in respect of which the
plaintiff also has the burden of proof.





[20] It is common
cause that the diagnosis by Dr. Domingos was wrong. I bear in mind
though that a wrong diagnosis does not necessarily translate to
negligence. Innes CJ in the case of Mitchell v Dixon 1914 AD 519 said
the following:





‘A
practitioner can only be held liable of his diagnosis is so palpably
wrong as to prove negligence, that is to say, if his mistake is of
such a nature as to imply an absence of reasonable skill and care on
his part regard being had to the ordinary level of skill in his
profession.’





See also Dube v
Administrative, Transvaal 1963 (4) SA 260 (WhD).





[21] Apart from the
facts which are common cause I take into account the testimony of Dr.
Nel, who testified for the plaintiff and Dr. Walters who testified
for the defendant. Dr. Walters is the principal medical officer at
Katutura State Hospital.





[22] The evidence of
Dr. Nel is that there are what he terms hard signs of a vascular
injury. These will be inter alia, a weak pulse, paralysis and a
tingling sensation. He concludes that these symptoms manifested
themselves at the time the plaintiff was admitted to the Katutura
State Hospital. He testifies that the fact of a possible vascular
injury was in addition known at the time. Dr. Nel states that it was
essential to have explored and opened the damaged vessel as a matter
of urgency. He adds that time is of the essence, because rigor mortis
will set in if the blood supply is not restored which in turn will
result in amputation.





[23] Dr. Nel was of
the opinion that at the time the plaintiff was seen by Dr. Domingos
rigor mortis would not have set in.





[24] I did not
understand Dr. Walters to dispute this. In a joint report prepared by
Dr. Nel and Dr. Walters they express the view that the standard of
care fell below what is expected of a reasonable doctor in a major
centre. I am of course not bound by this view. However, if regard is
had to the totality of the facts and the probabilities I conclude
that their assessment of the standard of care is justified and
correct.





[25] Dr. Nel and Dr.
Walters express divergent opinion on whether the plaintiff’s
leg could have been saved had the blood supply been restored in time.





[26] Dr. Nel was of
the view that the leg would in all probability have been saved. Dr.
Walters considers that the damage caused and the time delay would
have resulted in a situation where amputation was in any event
inevitable.





[27] The issue of
causation raises two distinct tests. The first often called the “but
for” test is whether the negligent act or omission caused or
contributed to the harm done. That is essentially an issue of fact.





[28] The second is
whether the link between the act and the result is sufficiently
close. That requires a determination on the basis of policy
considerations and matters of reasonableness fairness and justice.





See Viviers N.O. v
Minister of Basic Education, Sport and Culture 2007 (2) NR 725 (HC).





[29] Upon
consideration of the dispute between Dr. Nel and Dr. Walters, I
conclude that the view expressed by Dr. Nel is to be preferred.





[30] He is an
experienced specialist surgeon in inter alia vascular surgery. His
testimony is to the effect that through timeous intervention he has
saved many limbs. I also have regard to the fact that in fact the
blood supply was restored when Dr. Nel performed surgery.





[31] The amputation
became necessary simply because the surgery was performed too late.





[32] Dr. Walters
does not hold the same specialist qualifications in vascular surgery
as Dr. Nel has. In addition Dr. Walters never saw the patient. His
view of the severity of the injury is not based on clinical
observation and diagnosis but instead based on notes made by the
staff who attended to the patient. These factors detract from the
weight of his expertise.





[33] There is a
direct and close link to the omission of particularly Dr. Domingo’s
and the damage caused to the plaintiff.





[34] I therefore
conclude that the first defendant is liable to compensate the
plaintiff for such damages in such amount as may be agreed between
the parties or determined by the Court.





[35] The first
defendant is also ordered to pay the costs of the plaintiff relating
to this stage of the proceedings.





P J Miller





Acting Judge





APPEARANCES





PLAINTIFF : I D
TITUS





Of Koep &
Partners, Windhoek.





DEFENDANTS:M G
BOONZAIER





Of Office of the
Government Attorney, Windhoek