Medical Negligence cases and legal advice for claiming medical negligence (eg Injury | Clinical Medical Negligence; Court Date: Thursday, 09 June ; Court: Breach of duty established, but causation not established on the evidence. A trial judge's approach in a trial on the issue of liability to the legal principle in.
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- Clinical Medical Negligence
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- Evidence In Negligence Cases (2 Volume Set): Thomas A. Moore: leondumoulin.nl: Books
In the circumstances, I am satisfied that the plaintiff has established on a preponderance of probabilities that the defendant's employee acted negligently. The next question to consider is whether the plaintiff has, as a result, suffered damages as alleged or at all. The plaintiff led evidence directed, at establishing negligence on the part of the defendant. The said understanding was to be reflected in the final pre-trial order which unfortunately was dispensed with.
This understanding therefore was not recorded and was never brought to the attention of the court. It must be noted here that the plaintiff's counsel failed to turn up for oral submissions contrary to directions given by the court. His written heads of argument were filed late when the court had already listened to the defendant's oral submissions and adjourned for the day.
The court was, as a result, not informed of the loose arrangement that had apparently been made by counsel with regard to quantum of damages. At any rate, counsel made no mention of the arrangement throughout the proceedings. Has the plaintiff proved that he suffered damages as alleged in the summons?
To answer this question I shall deal with the various heads of damages contained in the declaration. In judging such duration and intensity the court will rely upon the nature of the injuries and general circumstances of the case, the evidence of the plaintiff or family members, and the medical evidence. The deceased no doubt had terrible suffering, but fortunately for quite a short time, the accident being on Sunday he died on Monday.
During that time he was conscious and indeed talked to the solicitors who gave evidence in the case.
Clinical Medical Negligence
With the above principles, I respectively agree. In the instant case, the plaintiff testified that the accident occurred on 15 March He was attended to timeously but the pain did not stop. From 17 March , the day on which the doctor in Nyangabwe Hospital failed to perform to the required standard, all pain suffered by the plaintiff is attributable to the negligence of the doctor.
The plaintiff's evidence is that on that day he was in intense pain. He could neither walk nor position himself in the wheelchair. The pain endured until the plaster of Paris was removed at Thebephatshwa Air Base Hospital on 19 March when it abated. Even then the plaintiff testified that he still experiences pain in his leg. All in all, the plaintiff endured immense pain for a period of about four days. The question is, how much is he entitled to in damages? I respectfully agree with Watermeyer J A in that assessment of pain and suffering is as exacting as it is inexact.
They offer some comfort to him for all this. They reflect a value judgment by the court awarding them as to what a fair, reasonable and just amount would be. In exercising my value judgment in the instant case, I shall seek guidance from previous awards of this and other courts on the subject matter. The plaintiff was a passenger on a bus who fell, striking her neck against a metal structure in the bus, when the bus driver pulled off too quickly as she was walking to her seat.
She sustained a spinal cord injury which left her 85 per cent disabled. There was medical evidence that he had endured pain and would continue to do so for some time. In the instant case, the plaintiff has, although no medical evidence was adduced, suffered what one can term extreme pain. Although he can no longer play football or run, he walks unassisted, his gait is normal. In my view, an award of general damages in the sum of P30 is sufficient solatium for pain, suffering and loss of amenities. As regards disfigurement and permanent disability, there is evidence that the plaintiff's ankle, big toe and second toes are dysfunctional.
The plaintiff did not adduce any evidence in support of his claim of P I find the claim to be excessive and unsupported. I would in the circumstances award not more than P5 as damages.
The difficulty I have is with respect to the plaintiff's claims for special damages. The plaintiff made no effort whatsoever to justify his claims. He led no evidence that would assist the court in calculating the extent, if any, ofhis loss. He claimed the sum of P for future medical expenses yet no evidence in the form of a prognosis by a medical officer has been placed before the court. It is clear from the evidence that the plaintiff has always sought and obtained medical treatment from government hospitals and the private hospital.
I take judicial notice of the fact that citizens of Botswana are not required to pay any fees except for a nominal sum of P4 whenever they access government hospitals. Again, there was evidence that the plaintiff is receiving some disability allowance the extent of which was not revealed.
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In the circumstances I make no award under this head. The only evidence was with regard to the salary he earned before his discharge from the BDF. The evidence adduced is not sufficient to assist the court to reach an informed decision. I find that the plaintiff has failed to discharge the onus placed on him to prove this head on a balance of probabilities. In the result, I make the following order:. Plaintiff awarded P30 for pain and suffering and P5 for disfigurement and permanent disability. Civ Case No of Introduction By summons issued out of this court on 29 November , the plaintiff sued the defendant for payment of the following sums: Matters common cause The following are common cause: Evidence The plaintiff testified that on 17 March he was taken in a wheelchair to the Orthpaedic Department at Nyangabwe Hospital.
Asked by his counsel why he did not wait for the appointment of 2 June, the plaintiff answered that: I could not even use crutches' It was the plaintiff's evidence that to date he is unable to run. Where expert and factual evidence has been called on both sides at a trial its usefulness will normally have long since been exhausted. But the trial procedure, which is essentially the same as in other cases, is designed to deal with those and thus no special difficulty ought to be involved in determining them.
For, in no other way could it have found its way into her body.
The compensation demanded is in respect of an injury alleged to have been sustained by reason of the negligence on the part of the attending medical staff in the employ of the MEC. No witnesses were called on behalf of the MEC. As is commonplace in cases of this kind, Ms Goliath did not fully know what had occurred because the relevant procedure was an operation carried out under general anaesthetic.
Dr Muller testified that: So too was Wessels JA when he stated at We must place ourselves as nearly as possible in the exact position in which the surgeon found himself when he conducted the particular operation and we must then determine from all the circumstances whether he acted with reasonable care or negligently. Did he act as an average surgeon placed in similar circumstances would have acted, or did he manifestly fall short of the skill, care and judgement of the average surgeon in similar circumstances? If he falls short he is negligent.
In particular we do not know whether there was a count of the swabs or at the very least an attempt at one prior to sewing-up the patient. And if so, what was the level of training, and how experienced was, the person to whom that task was assigned? Tellingly in Van Wyk v Lewis that task fell to a very experienced theatre sister.
On that score Innes CJ was unwilling to hold that a surgeon who leaves that task to a competent sister was on that account guilty of negligence at , and even assuming in those circumstances that she was negligent in her check, it did not follow that the surgeon was liable for the consequences at As the nurse was not a party to that case, the learned Chief Justice declined the invitation to express an opinion as to her liability. In this case the MEC has been sued in his capacity as the employer of all of the medical staff who at the relevant time attended on Ms Goliath during the course of the operation, at least one of whom would have had to perform the rather important task of checking and counting the swabs.
If such a case should arise, the judge should not be diverted away from the inference of negligence dictated by the plaintiff's evidence by mere theoretical possibilities of how that outcome might have occurred without negligence: He appeared not to appreciate that: That is the long and short of it. In that connection the important distinction between an onus of proof and an obligation to adduce evidence Arthur v Bezuidenhout and Mieny at A came to be blurred. He cannot rely implicitly on the count of the nurse, he must search and make as sure as possible that all swabs have been removed.
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Evidence In Negligence Cases (2 Volume Set): Thomas A. Moore: leondumoulin.nl: Books
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