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- Parents of a young boy, who suffered a head injury in 2011, have failed in their appeal to recover damages.
- The parents instituted action against the Western Cape's Health MEC.
- The SCA described what happened to the couple's son as a "tragedy".
Feelings and the law often don't mix, with judges focusing on the hard facts and the law to determine the outcome of both civil and criminal litigation.
And a tragedy that befell a Western Cape family in August 2011 has highlighted that, even when officers of the law recognise a party's pain, they sometimes have the difficult task of following the law to a fault.
Andre and Sharon McGregor's lives took an unexpected turn almost nine years ago on the night of 23 August 2011 when their six-year-old son, Justin, suffered a head injury - and since then they've fought to hold the Western Health MEC's office accountable for what happened to their boy.
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But last month, the Supreme Court of Appeal (SCA) ruled against them as they sought to recover damages arising from their son's head injuries.
A judgment penned by SCA Judge Malcolm John David Wallis described what happened to Justin as "a tragedy".
Although he dismissed the couple's appeal, Wallis said the young boy's parents deserve every sympathy for what they have suffered as a result.
"However, medical science has not advanced to the stage of diagnostic infallibility and there will be cases where, notwithstanding the best efforts of the medical profession, a tragedy like this occurs. Sympathy is not a ground for imposing legal liability in this or any case."
Judgment
The judgment explains that, on that night, shortly after 18:00, Justin's father took him to the Trauma Unit at Red Cross Memorial Hospital.
A trauma nurse determined that all his vital signs were normal. At the time, young Justin was walking, alert and responsive.
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A Dr Horn, who was the duty registrar, examined him and concluded that he had suffered a minor injury.
She described this as a bump to the head.
After a brief discussion with his father, Dr Horn discharged the boy.
According to the judgment, Justin was taken home and arrived shortly after 19:00 and put to bed. He shared with his parents.
"They came to bed at about 21:30, in the ordinary course his father woke at around 3:30. He tried to rouse Justin to take him to the toilet, but found him to be in an unusually deep sleep," reads the judgment.
When McGregor called the hospital, he was informed that, if his boy was still sleeping deeply at his normal waking time of 06:30, he should be brought back to the hospital.
"Shortly after this, Justin wet the bed and vomited, and his parents rushed him back to the hospital, arriving at about 04:00. Tragically, this was too late, because a CT scan disclosed that he had suffered an extradural haematoma, caused, in common parlance, by a bleed between the skull and the brain.
"An emergency craniotomy was performed, but it was too late to prevent the serious brain injury that has left Justin with cerebral palsy and spastic quadriplegia."
Action
The McGregors instituted action in their personal capacity and on behalf of Justin, citing medical negligence.
However, the Western Cape High Court rejected the allegations of negligence levelled against Dr Horn and dismissed the claim.
In the SCA, the issue was whether the doctor was negligent in her treatment of Justin.
The judgment states that:
Wallis said Dr Horn could not have detected this fracture from her examination on 23 August because a "linear fracture cannot be detected by a routine examination and palpation of a head injury such as that suffered by Justin.
"It would have been detected by a CT scan or a skull X-ray. At Red Cross Memorial Hospital, any further investigation would have been by way of a CT scan."
The doctor's evidence was that she conducted a proper examination of Justin's injury.
She also said she "palpated the swelling on his head and noted it as being simply 'a bump'".
In his ruling, Judge Wallis said "suddenness of a patient's decline means that it is difficult to tell at any stage that they are suffering from an extradural haematoma".
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He said, even if Justin had been awakened once or twice during the night, there was no basis to determine when he would have manifested symptoms causing alarm and resulting in his urgent return to hospital.
Judge Wallis said the appeal should fail.
However, in the dissenting judgment, Justice Mahube Molemela disagreed with the main judgment.
Molemela said she is of the view that the doctor's "negligence is plain from her own evidence, viewed against the backdrop of the provisions of the applicable guidelines".
"In my opinion, the evaluation of evidence and the reasoning of the court a quo are flawed, and its judgment ought not to be supported. For the reasons set out hereunder, I would uphold the appeal with costs."
Molemela said the short duration of the examination conducted by Dr Horn on Justin and the "scanty notes she made speak volumes".
"Her note taking fell short in various respects. She failed to record the time of the incident, despite the fact that the pro-forma trauma unit record form has a block in which the time that has elapsed since the fall must be recorded."
