DIBE AND ANOTHER v GABORONE CITY COUNCIL 2010 2 BLR 575 HC

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Citation: 2010 2 BLR 575 HC
Court: High Court, Lobatse
Case No: Civ Case 1050 of 2005
Judge: Lesetedi J
Judgment Date: May 22, 2010
Counsel:
Plaintiff in person.M Dingake for the defendant.
Flynote

Damages - For medical negligence - False HIV test result - Plaintiff not showing  negligence.

Headnote

Whilst pregnant, the plaintiff tested positive for HIV and commenced ARV treatment. After the birth of her child, she was re-tested twice and, on both occasions, tested HIV negative. She claimed damages in delict for her emotional  trauma and pain and suffering flowing from the initial false test results.

Held: The plaintiff had failed to show that the defendant's employees had been negligent, in that they had misinterpreted a negative test result as positive. Her failure to do so was fatal to her claim. Mitchell v Dixon 1914 AD 519 at p 526 applied.

Case Information

Cases referred to:  

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)

Louwrens v Oldwage 2006 (2) SA 161 (SCA)

Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635; [1984] 1 WLR 634

Mitchell v Dixon 1914 AD 519


ACTION for damages for medical negligence.The facts are sufficiently stated in  the judgment.

Plaintiff in person.

M Dingake for the defendant
Judgment

LESETEDI J:  

This is a sad case in which an unrepresented litigant waded into unfamiliar legal waters without assistance.

The 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 expectant  mothers, 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.

She 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.

After the 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.

On the 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 negative.  

The 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 diagnosis.

In respect 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.

LESETEDI J

Other than 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 damages claimed.  

Ordinarily, 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 189.  

In deciding 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.

The degree 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 213.

To establish 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 emphasis)  

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

LESETEDI J

alleged to be in the carrying out of the test but in the manner of examining the  result of such test.

Having so 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.

This was 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 [1985] 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 profession.'  

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


LESETEDI J

predicament 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.

Although the 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.

The plaintiff's claim must however fail and it is dismissed with costs. 

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