The Constitutional Court attributed medical negligence to the amputation of the claimant’s thumb and permanent loss of the use of his left arm.
THE NORTHERN Cape Department of Health has been ordered to pay R8.2 million in a medical negligence claim after a settlement was reached last week.
The department was instructed to pay the legal fees as well as costs incurred in obtaining medico-legal reports after Dirk Links had his thumb amputated after his arm was placed in a cast.
The claim is in respect of past and future loss of earnings or earning capacity, future hospital, medical and related expenses and general damages. The settlement must be paid in three instalments by October.
Links, who was employed as a cleaner, dislocated his left thumb on June 26, 2006. He was treated at the Robert Mangaliso Sobukwe Hospital in Kimberley, where a plaster of Paris cast was placed on his left hand and forearm.
He was later admitted to hospital after complaining of severe pain and he underwent surgery for the removal of tissues and the amputation of his left thumb.
Links was informed that he would never be able to make use of his left arm again, although he related that no one had told him this during his two-month stay at the hospital.
He claimed that upon his discharge from hospital he was not aware of the reason for the amputation or why he had permanently lost the use of his left arm.
He approached Legal Aid South Africa in Kimberley to investigate a possible legal claim.
However, Legal Aid SA did not act on the matter for about three years, whereupon he later instructed a law firm to institute a claim for damages against the MEC for Health on the basis that the hospital staff had been negligent.
Summons was served on the MEC on August 6, 2009.
The MEC for Health argued that the prescribed time of three years in which court action should have been taken had lapsed.
The Constitutional Court in 2016 overturned a judgment of the Northern Cape High Court where it ruled that Links had delayed before instituting court action.
In a unanimous judgment by Justice Zondo, the Constitutional Court attributed medical negligence to the amputation of his thumb and permanent loss of the use of his left arm.
The court held that there was no evidence that Links knew this by August 5, 2006 and that he did not have access to independent medical advice.
Advocate WP De Waal (SC) and advocate CH Botha represented Links on instruction of Elliott, Maris Wilmans and Hay Attorneys, while advocate M van Heerden (SC) was the legal representative on instruction of Robert Charles Attorneys.