26 October 2016

South Africa: Failed By the Health System ... and the Courts Didn't Help Either

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The case of Mzwandile Loni must be one of the grossest cases of state health department neglect yet heard in post-democratic South Africa. And yet his claim for damages was thrown out of court.

Admitted with a gunshot wound, Loni was ignored for days. Staff at the radiology department were so drunk they could not take x-rays. When he was ultimately sent to theatre for an operation no doctor checked on his condition afterwards. When the wound began to spew pus because it was so badly infected, nothing was done - and he was ultimately discharged from hospital, the wound still suppurating, with just some over-the-counter medicine.

Now he has a chronic condition and is officially classified disabled.

There are two huge questions here: how was it possible to have received such shoddy, negligent treatment at any hospital, let alone a major teaching facility; and, after he claimed damages, how could it have happened that he lost his case, first in the High Court and then on appeal? The judgment answers the second question; but because Loni's case barely made it out of the starting blocks, the state was not required to explain the first.

The outcome is all the more frustrating because Loni has his official hospital medical file with a precise and complete record of what happened to him while he was in state care. Furthermore, according to the appeal judgment handed down earlier this month, the state - here the MEC for Health of the Eastern Cape - does not dispute the facts about his treatment.

Loni, at that stage aged just 17, arrived at Cecilia Makiwane Hospital - a tertiary teaching hospital outside East London in the Eastern Cape - on the evening of 6 August 1999. A gunshot wound in his left buttock had shattered his left femur and he was in severe pain.

He was seen by a doctor at casualty who made no attempt to remove his trousers or even to examine the wound. He was given an injection for pain and sent for x-rays. Those on duty in that department were so drunk they couldn't take the x-rays. Only on the third attempt, after Loni asked a doctor to go with him, was a set of x-rays taken.

Next he was assigned to a ward, put to bed still wearing the same pair of dirty jeans and given no medication or any kind of treatment.

Although a note was made in his file during the night that he would be taken to the orthopaedic section this did not happen until several days later.

When he was woken up early next morning a student nurse told him to wash. He said he could not do so and so the student helped him. 'This was the first occasion that his dirty jeans were removed.' Although she washed his body she did not examine or wash his wound.

Doctors came on their rounds, looked at his file and stood next to his bed. They left after saying and doing nothing. He received neither treatment nor medicine from them.

As the court put it: 'It is apparent from the file that the gunshot wound was never examined at any stage whilst he was in hospital. ... The hospital folder contains no evidence that even a basic wound dressing was ever prescribed.'

According to the orthopaedic specialist now treating Loni, he 'effectively received no treatment at all' until, four days later, he was referred for treatment to the orthopaedic department.

The specialist was 'severely critical' of the many failures during that period. No tetanus injection was given to Loni, though it is 'routine' in gunshot wound treatment. His wound was not dressed to prevent further contamination of the site. He was given no antibiotics or wound debridement to remove dead tissue, both of which would be normal practice. No doctor so much as examined him.

But his troubles were just starting. After an operation to put a pin in his leg on 10 August he was again largely ignored, being seen by no treating doctor at any stage until a further operation on 23 August.

This despite the specialist's evidence that various tests should have been 'a matter of routine' at this stage. After the second operation he was still ignored and by the time doctors paid him any attention he needed a blood transfusion because he was bleeding so heavily. At the end of August he had a temperature and his wound was oozing pus.

He should have been taken to theatre urgently to clean out the wound and given massive antibiotics. Instead he was discharged from hospital on 19 October 'with the wound still open and oozing pus'.

The court noted: 'He was given Panado and Brufin and instructed to go to the nearest clinic to fetch dressings from time to time.'

According to Loni, it was only later, in 2008, when he started work with the South African Police and had access to a medical aid fund that he eventually discovered, via doctors he consulted, that his now chronic pain and limp amounted to a disability and that he would have a claim of medical negligence.

And that is where he encountered the last, insurmountable hurdle. For, after his attorneys launched a negligence action on his behalf in March 2012, the state claimed among other defences, that it was too late: the claim had become prescribed.

Loni responded that he only realised he had a claim in November 2011 after consulting with his medical specialist, and that the three year countdown to prescription should only start running from that date.

Defending the case, the state's position was that Loni's knowledge was in fact acquired rather earlier. And if the state could prove this, and show that the clock should begin running from that earlier date, then indeed by the time he ultimately brought his action he was out of time.

Ironically, in the end it was precisely because his treatment had been so extremely bad that he ultimately lost on this critical issue: the court found he 'had knowledge' of the facts needed to bring a case against the state much earlier than he had claimed. He was 'subjected to the most horrific dereliction of duty on the part of the hospital and medical staff', said the court.

He clearly had knowledge of exactly how terrible their behaviour had been. On Loni's own evidence 'it is inconceivable that (he) could have thought that the medical treatment he received was commensurate with the professional skill which one may reasonably expect of professional medical and hospital staff.'

His treatment in hospital and the continuing aftermath of pain and infection, all must have made it clear to him that he had 'suffered harm', and should have been grounds for him to suspect he had a claim and to seek legal advice.

The court said the state had shown that from the time he left hospital Loni had all the necessary facts - his maltreatment and the full record with its bleak picture - that led to his claim. That maltreatment, rather than any new facts, caused him to seek further advice in 2011.

The clock had to start running from the time of his knowledge of that maltreatment, rather than with the legal and medical advice he subsequently acquired.

And with that finding, Loni's case was dismissed. The young man, his life altered by pain and disability, was also ordered to pay the state's legal costs. As for the hospital and its staff: with the case against them thrown out, will anyone ever be held to account for his scandalous treatment?

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