The recent judgment (on 7 May 2019) of
the Gauteng High Court in amongst others, Viviers and MEC for Health Gauteng,
is unexceptionable on the facts as accepted by the Court. It indirectly contains an important reminder
of the significant role which contemporaneous and comprehensive record keeping
can play for healthcare practitioners and healthcare facility operators in the
successful defence of a medical malpractice claim.
The crisp question before the Court was
whether the doctor employed by the Province and who examined and treated the
patient in the outpatients section of the hospital acted negligently. And whether that negligence was the cause of
the death of the patient.
The cause of death was unknown but it
was accepted that the mechanism of death was vomiting and subsequent
aspiration. No pathoanatonical cause for
the vomiting was determined at the post-mortem.
The patient was examined and treated by
the hospital’s doctor in the outpatients section. The doctor examined the patient and did
various observations and tested the abdominal sounds, the cardiovascular
function, and respiratory functions as well as the central nervous system and
prescribed medicine for vomiting and a painkiller. A blood sample was sent for testing to either
confirm or negate a weak pregnancy result from a dipstick test.
Medicine was prescribed and administered
and the patient requested to return the next day to the hospital.
The allegation was that the patient
should have been admitted to the hospital and kept under observation. And if
that had been done the patient’s death would have been avoided.
The experts agreed that the patient must
have taken food after she and her mother left the hospital during the afternoon
and before she went to bed that night.
The experts were agreed that vomiting aspiration causing death is a rare
event in patients of the patient’s age.
The experts were ultimately in agreement
that if the patient in the particular circumstances was admitted for monitoring
routine inspections would have been four hourly, possibly reduced to one hourly
in given circumstances, but that would be no safeguard at all against the
patient dying of aspiration whilst being under observation in the
The patient had left the outpatients
section walking on her own, and in her sound senses. No vomiting occurred until such time when the
patient went to bed and even thereafter until after midnight when the sudden occurrence
of aspiration must have occurred. The
court was satisfied that aspiration as a possible mechanism of death was not
indicated on the clinical evidence available to the doctor at the time of
treatment and nor would it have been indicated to any reasonably conscientious
doctor in her position at the time.
Further testing or admission for observation to the hospital would be
seen as an overcautious treatment to eliminate a possible future cause of harm
which was at the time completely unknown and the subject of endless possible
In the circumstances the court found
that there was no negligence established on the part of the attending
doctor. In any event on the facts it was
not established that even if the patient had been admitted for monitoring that
that would have safeguarded against the patient dying from aspiration.
Part of the dispute was the condition of
the patient on admission to and
discharge from the hospital and whether she required assistance in walking and
moving or was in great pain when an abdominal examination was conducted. The latter was the evidence of the patient’s
mother. The evidence of the doctor and
two nursing sisters was that the patient had not cried out in pain when
examined and needed no assistance on admission to walk to the examination bed
or when she left the consultation and after the examination. The mother had also denied the existence of a
stressful situation between her and her daughter contrary to the evidence of
the doctor and nursing staff. The
latter’s evidence was accepted.
The Hospital and/or medical records are always
hearsay evidence until such time as the person responsible for the creation of
the particular recordal’s gives evidence to confirm the truth of what is
recorded. Reference is made in the
judgment to a trial bundle and the doctor’s clinical findings, prescriptions
given and some blood pressure and pulse observations. Those
records (it is assumed since they were not referred to to corroborate the
doctors’ and nurses evidence) are silent about whether the patient was ambulant
upon entering on the facility, whether assistance was required to place the
patient on the examination bed, and whether assistance was required to leave
the facility and any expressions or reports of pain by the patient.
Those type of recordings would have been
very useful on the facts of the case to corroborate the defendant’s witnesses’
evidence. The witnesses were, however,
strong enough on their own on their oral evidence and following
cross-examination to have their versions accepted by the court, in the
circumstances where the patient’s mother conceded her memory of events at the
time were not beyond question.
In keeping records and making notes it
is sometimes important to record and report on the mundane, unexceptional and/or
the positive, such as the fact that the patient was ambulatory and could enter
and exit the facility unaided, and the absence of complaints such as a report
of pain on examination. Seemingly there
were no such records in this case. Such recordings may have avoided a “she
said, she said” exchange and prevented the matter from ever having proceeded to
trial in the first place.
* Donald Dinnie, Medical Defence Lawyer