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MEC agrees to settle amputation claim

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About a week or two before the expiry of three years, the Legal Aid Centre referred him to his present attorney to institute a claim against the MEC for Health

THE MEC for Health in the Northern Cape has agreed to pay the costs for a former cleaner at Kimberley Hospital, this after Dirk Links’ thumb was amputated without his consent.

Links is claiming more than

R10 million from the department.

The MEC for Health, as the defendant in the case, yesterday agreed that “without prejudice or admission of liability and by way of an offer in full and final settlement of the merits of the plaintiff’s claim, the defendant hereby offers 100% of the merits in respect of the action instituted by the plaintiff (Links)”.

The case made headlines in 2015 when the Constitutional Court ruled that, despite a time lapse of more than three years before the claim was instituted, the medical negligence claim had not expired.

The offer of 100% merit in favour of Links was accepted in the Northern Cape High Court this week by the plaintiff.

Links’ claim for damages amounts to a total of R10.475 million. This includes future medical costs of R7.6 million, loss of income of R466 052, future loss of income of R1.6 million and general damages of R900 000.

While the quantum of damages should have been determined this week, the Department of Health applied for the postponement of the adjudication, despite Judge Violet Mamasebo ordering on December 5, 2018 that the case be prepared for trial on merit and quantum. Arguments in this regard were heard yesterday and judgment was reserved.

Links, 38, who lives in Transit Camp in Galeshewe, dislocated his left thumb in 2006 and went to Kimberley Hospital for medical treatment.

There were no open wounds on his left hand or thumb. A plaster of Paris cast was put on his left hand and forearm and he was sent home with instructions to return after 10 days to have the cast removed.

After four or five days, he returned to the hospital because he was experiencing severe pain and discomfort in his left arm and hand. The hospital staff conducted a clinical examination and gave him pain medication. He was told to return after five days but returned sooner because the pain had increased and had become unbearable. On this occasion he was admitted.

On July 5, 2006 he was taken to theatre for a fasciotomy and was operated on under general anaesthetic. During this operation his left thumb was amputated. Links claimed that he was never told of the decision to amputate his thumb nor was he told the reason for it.

He underwent three further operations and remained in hospital until the end of August of that year.

There is no evidence that the hospital doctors or nurses ever explained to him why he was feeling pain after June 26, 2006 or that anyone had ever told him why it was necessary to amputate his thumb.

According to Links, on the day that he was discharged from hospital a doctor told him that he would probably never again be able to use his left arm. At that stage he was aware of the risk but not certain that he had permanently lost the use of his left arm in addition to losing his left thumb.

For some time after his discharge from hospital, he was treated as an out-patient for the cleaning of the wound on a daily basis. It was during this time, about September 2006, that he realised that he had permanently lost the use of his arm.

By this stage the full extent of the damage to his arm was apparent as his hand had “clawed” and had become unusable.

In December 2006 he approached the Legal Aid Centre in Kimberley for legal assistance and asked them to investigate a possible claim. For about three years they failed to institute any action.

About a week or two before the expiry of three years, the Legal Aid Centre referred him to his present attorney to institute a claim against the MEC for Health.

The Northern Cape High Court originally dismissed his claim for damages on the basis that it had been delayed for too long before legal action was instituted. This decision was upheld by a full bench of the high court but the matter was then taken to the Constitutional Court, where the decision was overruled.

Advocate Botha, on behalf of Hentie van Niekerk of Elliot Maris Attorneys, Kimberley, is acting on behalf of Links and Advocate Mohamed Salie SC, on behalf of Stratford Lemboe of Robert Charles Attorneys, is representing the Department of Health.