An unemployed woman has lost her R1.8m damages claim against the North West health MEC after the Mahikeng High Court found that she had not succeeded in proving medical negligence even though she was discharged and sent home with a dead foetus in her womb after suffering a miscarriage.
The woman, who was 29 at the time, discovered that she was still carrying a dead baby only 30 days after losing the first baby, and that the twin had gone undetected.
The woman's lawyer, Phillip Mogau, told TimesLIVE Premium that he is in discussions with counsel about how to proceed and whether they will appeal. He did not want to comment further on the matter, and said the woman was in no condition to speak about the case.
Marion Stevens, founding director of the Sexual and Reproductive Justice Coalition in South Africa and who sits on the Gender Advisory Panel for the World Health Organisation, said this case illustrates the difficulties encountered by poor women in under-resourced communities.
“This is terribly unfortunate, but I can understand how it can happen,” she said, referring to a lack of proper hi-tech equipment and high-level training for nurses as among reasons the public healthcare system can fail women — but that it was normal for 10-to-15% of pregnancies to end in miscarriage.
She said it was standard for women who have undergone a gynaecological procedure to go back for a check-up six days after the treatment to ensure everything is normal. Had that happened in this instance, healthcare workers would have discovered the foetus before the patient experienced trouble.
“Many facilities do not have ultrasounds, and health providers are also not taught how to do them, and this may be a reason — a health system challenge — for not having this done this.”
The woman, identified only as Ms LLM, instituted a claim for damages against the health MEC for alleged medical negligence which occurred during her admission to Zeerust Hospital from 5-7 April 2018.
LLM told the court she had gone to Gopane Clinic for a pregnancy check as she was experiencing lower abdominal pain and nausea. From there she was transferred to Zeerust Hospital as it was found that though she was only three months pregnant , she was about to deliver.
Both Gopane Clinic and Zeerust Hospital are public health facilities, so all the staff who treated LLM were department of health employees. They carried out checks, but LLM suffered a miscarriage and was discharged from the hospital two days later on April 6.
LLM alleged the nursing staff and doctors failed to apply the necessary skill and care and were negligent in performing their duties by failing to observe that another dead foetus was left inside when the “first foetus was removed and/or delivered”.
A month later, on May 7 2018, LLM was again admitted to Zeerust Hospital with severe abdominal pains and “acute foul-smelling vaginal discharge”. It was discovered that a dead twin had been left in her womb.
LLM told the court she had suffered a miscarriage then carried a dead foetus for 30 days because of the failure of her doctors and nurses in their duty of care.
Because of their negligence she had suffered “emotional discomfort/harm or distress; pain and suffering” and also “loss of amenities of life”. She believed the damages she had suffered amounted to R1.8m.
LLM told the court that she had started vomiting and bleeding on April 4 2018, when she was just short of three months pregnant. She went to Gopane Clinic and was referred to Lehurutshe Hospital, where she was examined by staff then transferred by ambulance to Zeerust Hospital.
She arrived at Zeerust at 2am the following morning and was examined by staff. She told them she was pregnant, and they told her she needed to go into theatre. She was given anaesthetic and woke up in the afternoon.
After she regained consciousness, she was told blood clots had been removed. When she complained of pain, she was given painkillers. She said she was given no information about her pregnancy.
She remained in hospital for another two days and was then discharged.
A month later, on May 5, she experienced severe abdominal pain. She went to Gopane Clinic which was closed, and then to Dinokana Clinic.
“That is where I got help. They removed the baby. They examined my private parts and saw the baby was visible,” she testified.
She said the dead baby was removed, and she went home. She was given medication and told to return for a scan. She was given a sonogram, which was presented to court. She said she still continues to experience abdominal pain when she carries anything heavy.
LLM’s medical records were handed in court. The discharge noted on her record when she left Zeerust hospital stated: “Diagnosis on discharge: Incomplete miscarriage, Condition on discharge: stable.”
Her file from the Dinokana Clinic noted: “Please take note over the above-mentioned patient for assessment/treatment. Short history of illness: Client seen at Gopane clinic with history of lower abdominal pain and nausea and still presenting with the same problem. Miscarriage a month ago. Findings on examination: bleeding noted, foetus delivered, clots and membranes expelled. Nursing diagnosis: palpable mass and excessive bleeding.”
“Delivered a foetus spontaneously (6cm). All clots expelled and membranes apparent completely. Uterus contracted. Clinically looks well.”
Another handwritten note in her file read: “Patient referred by Gopane clinic? Missed miscarriage and twin. She had an incomplete miscarriage in April — was evacuated in Zeerust hospital and discharged. Subsequently carried the remaining unevaluated twin. Moderate bleeding, mild abdominal discomfort, no fever, no dizziness.”
Specialist obstetrician Dr Donald Amoko said when patients were referred with a nursing diagnosis of incomplete miscarriage, the attending doctor should conduct a thorough examination before treating the patient.
“If this was done, a twin pregnancy would not have been missed. It is strange that during an evacuation a twin pregnancy was missed. Furthermore, it is mandatory that a patient that has been to the theatre for evacuation must have a post-evacuation ultrasound before discharge,” Amoko said.
He said it was his opinion that the management of LLM’s case was substandard and negligent, and she should qualify “for compensation for pain, suffering and stress caused by this gross negligence under general compensation under AMA Guidelines”.
However, the court found that the specialist’s opinion was based “on the ‘say-so’ of the plaintiff” with no research done on the medico-legal understanding of the concepts “twin pregnancy, miscarriage vis-à-vis stillbirth given the period of gestation, missed miscarriage, incomplete miscarriage and retained products of conception”.
“In my view, the report has failed to pass the muster of an expert report/opinion,” said acting judge Okgabile Dibetso-Bodibe.
She said Amoko’s absence from court meant that only his report could be used.
“This means that all the grey areas in his report remain unanswered, leaving the court with the onerous burden of evaluating the factual evidence of a single witness unassisted with the relevant medical scientific knowledge,” she noted.
“The court is inclined to reject the unsubstantiated opinion of Dr Amoko more so that he also failed to give oral evidence of his opinion, technically leaving the court with no opinion at all.”
Dibetso-Bodibe said LLM had not provided evidence to show that it was the medical staff who caused her miscarriage. No records of what had happened to her while she was admitted at Zeerest Hospital were provided, other than the discharge note that said she had suffered an incomplete miscarriage. No witnesses testified in this regard either.
She said for her to find that negligence had happened and the patient had suffered loss as a result, this needed to be proven.
“The proof is on a balance of probabilities of these elements — wrongfulness, negligence, causation and that the loss suffered was as a result of the defendant’s conduct or omission,” the judge said, explaining that LLM needed to prove that the act or omission by health workers was wrongful and negligent and had caused harm.
“The evidence before the court is insufficient to attract delictual liability in general. The lack of medical records and a well-reasoned expert opinion left the court with general assumptions as to the cause of negligence,” she said.
For this reason she dismissed LLM’s claim.
Efforts to reach the North West department of health for their comment and response were unsuccessful.
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