Woman loses R1.8m negligence case involving miscarried twins removed a month apart

The North West High Court in Mahikeng has dismissed a woman’s R1.8 million negligence lawsuit against the state.

The then 29-year-old woman filed the claim after her miscarried twins were removed from her body 30 days apart.

She initially had one foetus removed at Zeerust Hospital.

However, a month later, she sought medical attention at a local clinic for abdominal pain, where doctors discovered the second deceased twin was still in her womb.

Woman sues for medical negligence

On 4 April 2018, the woman, only referred to as “LLM” referred to in the high court judgment, began experiencing vaginal bleeding and abdominal pain while at home.

She went to Gopane Clinic, where she was referred to Lehurutshe Hospital for further examination.

After being assessed by the nursing staff at Lehurutshe Hospital, she was transferred by ambulance to Zeerust Hospital.

The woman arrived at Zeerust Hospital at around 2am on 5 April 2018, where medical staff conducted an initial examination.

Later that morning, doctors and nurses visited her, and she informed them about her condition, including the fact that she was pregnant.

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She was subsequently discharged from Zeerust Hospital shortly after 11:30am on 6 April, with a diagnosis of “incomplete miscarriage”. Her condition was considered stable at the time.

A month later, she experienced the same symptoms again.

With Lehurutshe Hospital closed, she returned to Gopane Clinic for help.

She was referred to Dinokana Community Health Centre, where the medical records stated she “delivered a foetus spontaneously” around 12:15pm on 5 May.

Medical records presented in court revealed that a doctor noted on 7 May that, although the woman had miscarried when discharged from Zeerust Hospital, she had “subsequently carried the remaining unevaluated twin”.

LLM’s evidence in court

The plaintiff later filed a lawsuit against the state, alleging negligence.

On 13 February 2024, the woman testified in court, stating she was pregnant and “close and or ready to deliver” when admitted to Zeerust Hospital.

She alleged that the hospital staff failed in their duty of care by incorrectly concluding she had suffered a miscarriage, which she claimed should not have occurred.

Additionally, the plaintiff argued that after one foetus was removed from her uterus, the medical staff failed to conduct a thorough examination, leaving a second deceased foetus unnoticed in her uterus for more than 30 days.

Expert report

An expert report by specialist obstetrician and gynaecologist, Dr Donald Amoko, was submitted as evidence in court.

In his report, Dr Amoko stated that “in a district hospital under normal conditions, when a patient is referred with a nursing diagnosis of incomplete miscarriage, the doctor at the hospital must conduct a thorough examination including ultrasound before instituting a definitive treatment”.

He found that this crucial evaluation had not been conducted in the plaintiff’s case.

“If this was done, a twin pregnancy would not have been missed. It is also strange that during an evacuation a twin pregnancy was missed.

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“Furthermore it is mandatory that a patient that has been to theatre for evacuation must have post-evacuation ultrasound before discharge,” the two page report reads.

The gynaecologist concluded that the hospital had been “grossly negligent”, and the woman was entitled to compensation for her “pain, suffering, and stress”.

Meanwhile, lawyers representing the Minister of Health, named as a defendant in the case, did not present any evidence.

This was due to the court’s refusal to grant the minister additional time to submit their expert report.

Judge rejects medico-legal report

In her judgment delivered on Friday, Acting Judge Okgabile Dibetso-Bodibe determined that Dr Amoko’s report was largely based on the woman’s “say-so”.

“No research had been done to assist the court on the medico-legal understanding of the concepts of twin pregnancy, miscarriage vis-à-vis stillbirth given the period of gestation, missed miscarriage, incomplete miscarriage, retained products of conception (clots, membranes and placenta) etc.

“The expert also referred to some sources of information that he received without including same in the report,” the judgment reads.

Dibetso-Bodibe noted that it was “strikingly odd” that Dr Amoko’s report did not include his personal qualifications or specialised experience, rendering the document insufficient as an expert report.

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The judge emphasised that Dr Amoko’s failure to provide oral testimony left “all the grey areas” in his report unanswered.

This, therefore, placed an undue burden on the court to evaluate the factual evidence from a single witness without the support of relevant medical expertise.

“In the premises, the court is inclined to reject the unsubstantiated opinion of Dr Amoko moreso that he also failed to give oral evidence of his opinion technically leaving the court with no opinion at all,” Dibetso-Bodibe said.

She also found that the woman did not present any evidence to demonstrate that the staff at Zeerust Hospital were responsible for causing her miscarriage.

Negligence case dismissed

Dibetso-Bodibe pointed out the contradiction in the woman’s testimony that she was “close to or ready” to give birth.

“During cross-examination the plaintiff told the court that she is the one who informed the medical staff at Zeerust hospital that she was pregnant and that she was two months and three weeks. According to Dr Amoko, the plaintiff’s gestation was of three months.”

The judge further noted the lack of crucial evidence to the case.

“The plaintiff’s cause of action is dependent on what transpired at Zeerust hospital yet no attempts were made on both sides of the litigants to assist the court with the medical records from Zeerust hospital and/or witnesses who offered the plaintiff the medical treatment during the said period.”

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Dibetso-Bodibe dismissed the woman’s case for damages due to medical negligence, but did not impose a costs order because she was unemployed.

“The evidence before the court is insufficient to attract delictual liability in general.

“The lack of medical records and a well-reasoned expert opinion left the court with general assumptions as to the cause of negligence and this mitigates against the plaintiff’s case.”

She also noted the absence of evidence from the minister, highlighting that the defendant missed three deadlines, including the deadline to file the expert report by 15 December 2023.