This is a
sad case in which an unrepresented litigant waded into unfamiliar legal waters
plaintiff claims that in April 2000, being pregnant, she went to the Broadhurst
Clinic to enroll for pre-natal care. It is common cause that the clinic falls
under the defendant. At the clinic, she was advised of a programme for
referred to as the Prevention of Mother-To-Child Treatment (PMTCT). This
programme involved the testing of an expectant mother for HIV/AIDS. If the test
is positive the mother is then enrolled on a treatment to reduce the incidence
of transmission of the virus infection from her to the child. She was told
that, even if she did not consent to an HIV test, a sample of her blood would
still be taken
and, if found positive for the virus, she would be enrolled.
underwent the test and when the result came she was informed by the clinic
personnel that she was positive for the virus. She was enrolled on the PMTCT
programme which required her to take certain medication during the pre-natal and
post-natal period. As a result of the disclosure to her that she carried the virus, she underwent
considerable emotional trauma. In this testimony, she is supported by the
testimony of her cousin, the plaintiff's first witness.
birth of the child, perhaps in some sense of denial, the plaintiff returned to
the clinic for another test and the clinic referred her to the Tebelopele
Voluntary Testing Centre. The test result at the centre showed that she was HIV negative. To
confirm that result, she went back to the voluntary testing centre after about
three months for another test and the result was still negative.
advice of the voluntary testing centre, she went back to the clinic, where her
initial test results could not be located. The matron of the clinic took
another blood sample from her for testing. This time the test result was
plaintiff has instituted action against the defendant, both in her name and in
the name of her minor child, for damages. She seeks the sum of P220 000 in
respect of herself alleging that she suffered damages in the said amount for
the trauma, stigmatisation, shock, discomfort and rejection by members of her
family, loss of amenities of life, pain and suffering, anguish and misery as a result of the wrong
of her minor child, she claimed damages in the sum of P230 000 for the same
categorisation of loss as in respect of herself.
At the close
of her case, no evidence had been given to support the claim in respect of the
minor child and an application absolution from the instance was granted in
respect of the child's claim.
herself and her cousin, the plaintiff called two other witnesses being her boyfriend and a
clinical psychologist in support of her case.
In a claim
for medical negligence, a plaintiff must not only plead but also lead evidence
to show that the conduct complained of was negligent and/or in breach of the
tacit or express contract between the medical professional and the patient, and
that as a result of such negligence or breach, the plaintiff has suffered the
in a medical professional and patient relationship, the professional undertakes
no more than to treat the patient with the amount of skill, competence and care
which may reasonably be expected from a professional of his/her branch of
medicine. See, DJ McQuoid-Mason and SA Strauss 'Medicine, Dentistry, Pharmacy,
Veterinary Practice and Other Health Professions' in LAWSA vol 17 para
the element of reasonableness, the court must have regard not only to the
conduct complained of, but also the evidence of how a reasonable professional
in that branch would have acted.
of skill and care that would be expected is largely a question of evidence
though it is for the court to decide whether in the circumstances of a given case the methods
used were reasonable. See, McQuoid-Mason and Strauss (op cit) at para 199; L T
C Harms, Amler's Precedents of Pleadings (4th ed LexisNexis Durban) p
its case, the plaintiff must first establish as a requirement causation, that is, the factual link
between the alleged wrongful conduct of the defendant or its employees and the
harm the plaintiff alleges to have suffered. This factual link must be alleged
in the pleadings and the evidence led by the plaintiff to establish that fact
unless the fact has been admitted by the defendant. The alleged negligence or
breach of contract is a component of causation enquiry. There is the second
component of causation, namely, legal causation. The question here being whether the
wrongful act is linked sufficiently closely or directly to the loss for legal
liability to ensue. International Shipping Co (Pty) Ltd v Bentley 1990
(1) SA 680 (A) at pp 700-1. If the plaintiff cannot establish the factual
causation, that is the end of the enquiry.
I now turn
to the plaintiff's pleadings. At para 8 of the plaintiff's particulars of claim
which were drawn up by her erstwhile attorneys, who withdrew before
commencement of the trial, she pleads that:
'The 1st and 2nd plaintiff aver that the results upon which
they were placed on AZT [Prevention of Mother-to-Child Transmission Medication]
by the employees of the defendant herein were false and the Defendant's
employees were consequently negligent alternatively failed in their duty
of care which they owed to the Plaintiff herein in the manner of
examining the results aforesaid in one or more of the material respect; ....'(My
It is quite
clear from the above that the plaintiff's claim is not based on any liability
arising from a wrong diagnosis but it is being alleged that the defendant's
personnel was negligent, alternatively, failed in its duty of care to the
plaintiff. It is also evident from the pleadings that the negligence is not
be in the carrying out of the test but in the manner of examining the result of such test.
pleaded, it was necessary for the plaintiff to lead evidence of negligence or
as pleaded the defendant's failure in its duty of care in the manner of
examining the result of the test.
evidently a case which required the plaintiff to lead medical evidence showing,
firstly, that the test itself showed that she was HIV negative and that it was the defendant's
employees who misinterpreted that result. Generally, in a case of negligence in
the medical or in the professional field, the test for the standard of the duty
of care is that of the standard of the ordinary skilled person exercising and
professing to have the requisite skill in the particular area of his alleged
conduct. It is when such person has failed to measure up to that standard in respect of
the alleged conduct founding the claim that he or she can be said to have been
negligent. See Maynard v West Midlands Regional Health Authority 
1 All ER 635 and also Louwrens v Oldwage 2006 (2) SA 161 (SCA).
In the Louwrens
case (supra) at p 171, Mthiyane JA cited with approval the dictum of Innes ACJ
in Mitchell v Dixon 1914 AD 519 at p 526 to the effect that:
'A practitioner can only be held liable in this respect, if
his diagnosis is so palpably wrong as to prove negligent, that is to say, if
his mistake is of such a nature as to imply absence of reasonable skill and
care on his part, regard being had to the ordinary level of skill in the
plaintiff has failed, firstly, to lead evidence showing that the result of the
test which the defendant's clinic received was that she was HIV negative. If,
on the other hand, the said result was HIV positive, then there cannot be any
question of negligence. Even if the defendant's employees read the result
wrongly, it must be shown on the authority of the Mitchell case (supra),
that if it was a mistake, it was
of such a nature as to imply absence of skill and care on the part of the
defendant's employees, regard being had to the ordinary level of skill in their
profession. This called for medical evidence.
It is not
even being said by the plaintiff that the test was being carried out by the
defendant's clinic itself. On the other hand, there is evidence from the
defendant's witness, a medical doctor, showing that the test is carried out elsewhere and that the
system is not foolproof as there may be times when the test result may be false
without any act of negligence on the part of the defendant or its employees.
This was a
case which required the plaintiff to lead medical evidence to establish
negligence on a factual basis or to establish facts upon which a reasonable
inference of negligence at a probative level may be made. Her failure to do so
in this case has been fatal to her claim.
It may be
mentioned in passing that the court did indicate to the plaintiff during the
course of the trial that this was a case upon which she would have been well
advised to obtain the necessary assistance in presenting her case. Her response
however was that she had approached those organisations which she expected to
assist her in the prosecution of her claim but that she had not been very
successful. If that is so, it is regrettable. That
of hers is however a non-issue as her claim must stand or fall on her pleadings and the evidence she
has presented before the court.
plaintiff did lead expert evidence to establish damages she has suffered, that
evidence is of no value unless she has established negligence on the part of
defendant or its employees.
It will be
remiss of me not to acknowledge the invaluable assistance and contributions of attorney Mr A E
Bayford who volunteered to assist the plaintiff during the submissions at the
close of case stage, and the presentation of the defendant's case. He provided
very invaluable assistance to this court and his research was well-prepared.
For this the court is very grateful.
plaintiff's claim must however fail and it is dismissed with costs.