Torrian Marthinus presented numerous times at both Ysterplaat sick bay and 2 Military hospital with symptoms that were typical indicators for a positive diagnosis of meningitis. However the treating doctors failed to accurately or timeously diagnose him resulting in him having severe fits and seizures and suffering from cognitive fallout.

This case highlights 3 main issues:

1) The duty imposed upon hospital personnel (whether public or private) in keeping adequate and up to date records and client history;

2) The duty imposed upon medical practitioners in adhering to a reasonable standard of care; and

3) The method adopted by a court in establishing a causal link between negligence and the sequelae arising therefrom.

Malcolm Lyons & Brivik Inc alleged on behalf of the Plaintiff in this matter that had proper and adequate records been kept, the delay in treatment and subsequent damages could have been avoided.

Evidence showed that it would take the data capturing department of the Defendant up to 2 months following a consultation with the Plaintiff to record in its systems the consultation notes and treatment administered. There was such a backlog in the data capturing department, to the extent that certain specialised units would make copies of doctors notes and retain them in a file before sending them to be captured so as to retain up to date records.

The National Health act 61 of 2003 as well as the HPSCA guidelines direct that health establishments keep and maintain health records. Such record keeping undoubtedly goes towards enabling medical staff to treat patients effectively.

Malcolm Lyons & Brivik Inc argued therefore that the hospital is obliged to ensure that contemporaneous notes are taken by the health practitioner and that these notes are available and accessible when treating the patient at any stage.

There was therefore a duty, as alleged by the Plaintiff to ensure the availability of these records and this duty was breached by the defendant. Had the Defendant kept adequate notes then Torrian would have been diagnosed correctly earlier and not suffered the fits and seizures that resulted in the subsequent cognitive fallout.

In the case of Collins v Administrator of the cape 1995 (4) SA 73 (c)  the judge held that a standard of excellence cannot be expected that Is beyond the resources of the hospital authority. However the judge in this matter did not accept that it was beyond the resources of the Defendant to keep the records to the standard required of them and she therefore ruled that the failure by the defendant to ensure that the medical records were available to the treating doctors fell short of the required standard of care to be provided to patients.

The next issue for determination raised by Malcolm Lyons & Brivik Inc was whether or not the care administered by the medical practitioners fell short of the reasonable standard expected of them.

The standard of care required of a medical practitioner is one of reasonable diligence, skill and care. In deciding what Is reasonable a court has regard to the level of skill and diligence possessed by the particular medical professional in the branch of the profession to which the practitioner belongs.

The duty of deciding whether or not the medical practitioners conduct fell short of the standard of reasonable care demanded of him falls on the court. The court will take into consideration various expert opinions as well as taking cognisance of various literary opinions. The courts will scrutinize and challenge these professional standards to ensure that they are commensurate with the obligations expected by the law, and remain the final arbiters of the legal standard of care and are therefore free to base their judgements on considerations that reach beyond professional norms and guidelines.

After hearing expert witnesses led by Malcolm Lyons & Brivik Inc on behalf of both the Plaintiff and those of the Defendant as well as considering the necessary literature, the court held in this case that the Defendant’s conduct and in particular certain medical practitioners had fallen short of the standard of care that was required. The court held that a competent medical professional would have acted differently and taken the necessary steps to diagnose the meningitis especially given the symptoms that the Plaintiff was exhibiting.

The court then turned to whether or not the failure to meet this standard causally contributed to the Plaintiff’s resultant condition.

The question posed by Malcolm Lyons & Brivik Inc was: but for the negligence of the Defendant, would the Plaintiff’s sequelae have been reduced if he was correctly diagnosed and received the necessary treatment immediately and timeously. All the experts involved, including those of the Defendants conceded that the delay in diagnosis resulted in complications such as seizures and cognitive fallout.

The judge therefore held in this case that the failure by the doctors to correctly diagnose and commence treatment materially contributed to his sequalae and difficulties.

Torrian Marthinus, with the help of Malcolm Lyons & Brivik Inc will go on to prove the damages he has suffered.