Cape Town - The family of a woman whose leg was amputated after she was allegedly incorrectly diagnosed with gout instead of a diabetic foot and later died while fighting for damages, is asking the Western Cape Health Department to cough up R950 000 and have taken their plight to the Supreme Court of Appeal.
The patient’s identity at this stage is protected.
According to Tzvi Brivik, director of Malcolm Lyons and Brivik Inc, as a result of a misdiagnosis the woman lost her leg and later her life.
The matter is now before the Supreme Court of Appeal.
Brivik said his client was unsuccessful before a single judge in the Western Cape High Court but further petitioned the Supreme Court of Appeal, which thought the matter of sufficient importance to consider.
Brivik confirmed they had received the respondent’s heads of argument.
“We now wait on the SCA to set the matter down for hearing. I believe it may be towards the end of the third term, alternatively the fourth term.”
Last week, Weekend Argus reported that in the past four years, the National Department of Health has coughed up R23.6 billion for medicolegal claims across the country, while in the Western Cape 270 claims have been paid with a R501 million price tag and R34m for legal costs.
The woman had been treated by her local clinic in Tafelsig, where she had been diagnosed with gout.
It was only later, after being referred to Groote Schuur Hospital, that the leg was amputated above the knee.
According to the court documents, due to the severity, she was referred to Groote Schuur Hospital where she was admitted to the Vascular Ward and her left foot was classified as a Rutherford IIA. She would later undergo an angiogram.
Her left leg was amputated above the knee on September 28, 2013 and she was sent for rehabilitation at the Mitchells Plain Rehabilitation Ward
The impact of her loss of limb weighed on her and her family life.
After an investigation was done, it was discovered she had been incorrectly treated at the clinic for gout.
“This is a terrible story in which our client, a Type 2 diabetic, was misdiagnosed after repeated consultations at the various hospitals administered by the Minister of Health, initially including Groote Schuur and Mitchells Plain Day Hospitals, said Brivik.
“Our client had pain in her left leg, which was misdiagnosed as gout and cellulitis. The result of the misdiagnosis, over an extensive period, was an above-knee amputation of her leg.
“The amputation precipitated a deterioration of her health.
“We instituted an action on her behalf against the MEC for Health.
“Pursuant to an agreement with the representatives of the MEC that payment would be made of her proven damages, she was assessed by various medical experts. Once future medical expenses were ascertained from these assessments an amendment was proposed to the documents before court.”
Brivik said they were seeking damages for future health care for the woman but that she had died before the case could be completed and that the family stepped in for damages and suffering.
“However, tragically our client passed away before that amendment could be effected,” he added.
“That means the actual amended pages were not inserted into the court file.
“A period of 15 days must be allowed for the defendant, in this case the MEC for Health, to consider the proposed amendment and to object.
“The MEC for Health had not object to the amendment.
“Instead, she has raised a technical defence to prevent payment, arguing that the pleadings were reopened and now as such no part of the claim can be paid.”
Brivik added the decision of the MEC for Health to refuse to pay is challenged by the executor of the estate, their client’s daughter.
“Our client argues that the common law should be developed in terms of the Constitution: the right to access to justice, access to health and a right to equal protection and benefit of the law,” he said.
“Cases take far longer to resolve than they did in Roman times, from where this law originates.
“It is only fair and just that once the action is instituted and the issues between the parties are clear, and where there are no significant changes to either party’s claims, then in such terrible circumstances such as this, the damages should be recoverable.
“Our client has lodged the appeal with the Supreme Court of Appeal in Bloemfontein and waits on a date for that argument to be heard.”