Gauteng health MEC to pay more than R1m over woman’s botched knee surgery

The Gauteng health MEC has been ordered to pay out over R1m to an elderly woman whose mobility was affected after a botched knee surgery more than a decade ago.

A portion of the amount will go towards paying for domestic assistance while the remainder is for damages.

This judgment is one of many in which the department finds itself having to pay millions of rand in negligence claims. In March, it emerged that the department had paid out R623m to claimants who sued for medical negligence in the first nine months of the 2023/24 financial year.

In its 2022/23 annual report, the Gauteng health department said there were 2,358 verified medico-legal claims against it as of August 31 2022. The department stated the value of medico-legal claims increased by 4% from R17.5bn in 2021/22 to R18.2bn in 2022/23. 

Florence Radebe, 64, and the Gauteng health MEC went to court after an operation on July 16 2013 on Radebe's left knee at a public hospital in the province left her unable to bend her knee. Judgment was handed down in the Johannesburg high court on Friday.

“The aim of the surgery was to replace her left knee with a prosthetic joint. The surgery went badly wrong. Though the knee joint was replaced, Radebe now cannot bend her knee at all. Her left leg is, as a result, stuck in a fully extended position. She has apparently been in this condition for the last decade,” judge Stuart Wilson summarised in his judgment.

The MEC accepted that the knee replacement surgery was negligently performed, and assumed liability for Radebe’s proven losses. In all but two respects, the MEC and Radebe agreed what those losses were.

The differences related to the extent to which Radebe would need help and “whether and to what extent the MEC should have to pay for such assistance”.

Another issue was on the compensation Radebe was entitled to for “pain, suffering and loss of amenity of life”.

The MEC argued that while Radebe would require assistance as she ages, it would not be because of the surgery itself but rather “from the fact that she already had arthritis in her left knee and pain in both of her knees at the time of the operation”. 

“I cannot accept this line of reasoning or the conclusion pressed from it. The evidence was that, though she was in pain before the operation, Radebe was mobile and able to perform a number of tasks associated with her job as a meat packer,” Wilson said.

The MEC also argued that Radebe resigned several months before the surgery and relied on a crutch to point at her previous immobility, but Wilson rejected this, saying “the weight of evidence was that, other than high blood pressure, Radebe was healthy and mobile before the surgery”.

The judge said that since there “can be no serious dispute that the surgery changed” her mobility, the question became “how much assistance she will need, for how long, and how much it will cost”.

Both the MEC and Radebe submitted figures, based on actuarial calculations, on what they thought would be a fair amount. The MEC's calculations came to R437,024 while Radebe's amounted to R594,126.

Wilson eventually awarded her R438,250 despite the department undertaking to fund another surgery aimed at rehabilitating the knee, to which Radebe agreed.

“I heard no evidence on the likelihood of the rehabilitative surgery being successful. However, there was no serious dispute that surgeries of this nature are inherently riskier than straightforward knee replacement surgeries; that complete recovery is unlikely; and that the nature and extent of the likely improvement to Radebe’s condition as a result of the rehabilitative surgery is essentially unknowable,” the judge said.

Turning to damages, the MEC said that R300,000 would be a reasonable amount but Radebe asked for R1m.

Wilson eventually awarded her R850,000, ruling that: “I am grimly aware of the imprecision of any exercise which involves comparing different cases of loss and suffering — which are always, ultimately, incommensurate.”