A nurse at Chris Hani Baragwanath Academic Hospital, who suffered serious injuries in a botched surgery at a government hospital in 2014, has finally won her claim for the funds she needs to cover the costs of future surgeries at a private hospital.
Nomgqibelo Nellie Mashinini, 39, had her gall bladder removed at the Tambo Memorial Hospital in Boksburg. However, during the surgery her bile duct and hepatic artery were injured and required emergency management. This was performed at Greys Hospital in Pietermaritzburg but as a result of the injuries Mashinini suffered during the failed operation, she had to undergo various procedures to correct the damage.
In 2017 Mashinini instituted an action in the Joburg high court for damages based on medical negligence against the Gauteng MEC for health, as well as the doctor who performed the failed operation. She claimed for past hospital and future medical expenses, as well as future loss of earnings and general damages.
The MEC raised the “public healthcare defence”, which in broad terms is a request that she be directed to provide Mashinini’s future medical treatment at Chris Hani Baragwanath Hospital rather than give her a financial payout for her injuries.
The high court ruled in favour of the MEC, ordering that Mashinini’s claim for past medical expenses be postponed indefinitely. The MEC was instructed to ensure that Mashinini receive the medical services she needs at “the same or better level of service than in the public healthcare sector” and pay her a lump sum payout of just more than R2m and cover the costs of her lawsuit and those of her expert witnesses.
Mashinini was not satisfied with the court’s decision not to compensate her financially for her future medical and surgical treatment and instead direct her to be treated at the Charlotte Maxeke Johannesburg Academic Hospital and obtained leave to appeal against this part of the high court order.
The SCA found that Mashinini’s application was an Aquilian action in terms of which the MEC was required to pay all costs of the damage she suffered, and that it was up to Mashinini to provide these costs.
The MEC argued that she was able to provide Mashinini with care that was both of an acceptable quality at a cost that is lower than the R1.765m she was claiming. There was no dispute of nature and extent of the medical and surgical treatment Mashinini would need in future.
The Supreme Court of Appeal found that Mashinini’s application was an Aquilian action in terms of which the MEC was required to pay all costs of the damage she suffered, and that it was up to Mashinini to provide these costs.
“By making use of private medical services and hospital facilities, a plaintiff, who has suffered personal injuries, will in the normal course receive skilled medical attention and, where the need arises, be admitted to a well-run and properly equipped hospital. To accord him such benefits, all would agree, is both reasonable and deserving,” the appeal court said.
It was noted that Mashinini had experienced excruciating pain and burning because of the failed surgery — the cause of which was an accumulation of bile fluid in her stomach that had to be washed out. She had been treated by Prof Damon Bizos, the Wits University Medical School’s head of surgical gastroenterology at the Charlotte Maxeke Hospital. He also has a small practice at Donald Gordon Medical Centre, where he sees some private patients.
Mashinini was happy with the treatment she was receiving from Bizos and wanted to continue with him because of his familiarity with her case. However, when needing to consult with him at Charlotte Maxeke Hospital, she was subjected to long waiting periods at the casualty section, as only emergencies were treated quickly. Bizos testified that Mashinini had a complex clinical condition that required her to have access to a specialist surgeon, hepatobiliary surgeon and a clinical hepatologist, and that resources at the public hospital were difficult to access.
The court found that Mashinini had proven the extent of the damages she had suffered as a result of wrongful treatment and was entitled to compensation that would enable her to access the treatment she needs at a private healthcare facility. The MEC had failed to prove that the specialist treatment was available at public hospital, nor had she shown that the calculated costs of Mashinini’s future treatment were incorrect.
The court, therefore, granted in favour of Mashinini and ordered that she be paid R3,213,564.40 “at the prevailing legal interest rate from the date of this judgment to date of final payment” along with all her legal costs.
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