Dutton - Medical Malpractice in SA

78
Medical Malpractice in South African Law
question is therefore not whether the damage was a direct consequence or reasonably
foreseeable but whether, in the light all the circumstances of the case,
the damage should reasonably be imputed to the defendant.
In Gibson v Berkowitz 86 the plaintiff, a 28-year-old woman, sued the first defendant
(a gynaecologist and obstetrician) and the second defendant (a hospital) for pain,
suffering and loss resulting from a botched cauterisation procedure performed by
the first defendant in September 1992 in which undiluted instead of diluted acid
was used to swab pre-cancerous cells in her vagina, resulting in serious burns to the
genital area, the small of the back, and the buttocks. Plaintiff suffered severe pain
and discomfort for months afterwards. She required round-the-clock help with
the changing of dressings, ablutions, and bathing. She was, for a time, sexually
dysfunctional. Reconstructive surgery was performed, resulting in further pain
and discomfort. She underwent a personality change, from being enterprising,
dynamic and sociable to being withdrawn and depressed. She lost interest in her
appearance and began overeating. Although she eventually returned to work, it
was to a position inferior to the one she had had before. By late 1995 she had developed
a major depressive disorder, coupled with anxiety. She was no longer able to
work. It was, however, common cause that this condition was curable within about
18 months, which resulted in the limitation of plaintiff’s claims for future loss of
earnings and future medical expenditure.
The plaintiff contended that the defendants were liable for the costs associated
with her depressed condition. The Court pointed out 87 that it was trite
law that psychological sequelae could form the subject of a damages claim, reiterated
the essential principles governing the question of causation (both legal
and factual) 88 and, after analysing the evidence, the Court found that plaintiff’s
condition was justifiably linked to the first defendant’s negligence: the depressive
disorder was not harm of an altogether different kind from that normally
expected after an injury of the kind suffered by her. 89 In essence her vulnerability
stemmed from the weakening effect which pre-existing personality traits had on
her ability to withstand trauma. In the emotional and psychological sense, hers
was a typical ‘thin skull’ case. The Court held, further, that in cases where psychological
sequelae follow physical injury there was less likelihood of limitless
liability and therefore greater scope to include liability for psychological sequelae
which were further removed from the original negligent conduct. 90
case was ‘just another fact to be considered, with all the other facts of each particular case,
when applying the ‘dominant investor criterion’ according to which the imputability of the
particular damage to the defendant is be determined’ (at 15F).
86
1996 (4) SA 1029 (W).
87
At 1038C/D–F/G.
88
At 1039F–1041D.
89
See, also Clinton-Parker and Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W).
90
At 1049B–C.