Topham v Member of the Executive Committee for the Department of Health, Mpumalanga

The appellant, Mrs Doreen Topham, was involved in a motor vehicle collision on 1 May 2006 which resulted in a dislocated right hip. She was taken to Rob Ferreira Hospital in Nelspruit, Mpumalanga and examined by Dr Molete, a newly admitted intern. Despite experiencing severe pain in her right hip, Dr Molete failed to diagnose the hip dislocation and discharged her. She continued to experience severe pain and was unable to stand, walk, sit up or bend her right leg. On 8 May 2006 she consulted a private general practitioner, Dr Smith, who diagnosed the dislocated hip and referred her back to Rob Ferreira Hospital where she was treated until 1 June 2006. The delayed diagnosis resulted in the appellant developing avascular necrosis involving her right femur head, a serious complication that occurs when a dislocated hip is not treated within a 'golden period' of six hours. The appellant claimed damages from the respondent, the MEC for Health, Mpumalanga, for the negligent failure to diagnose her condition. The High Court dismissed her claim, finding that although Dr Molete 'misdiagnosed' the condition, he had adhered to the standard of care required and was not negligent.

• Whether Dr Molete's failure to diagnose the hip dislocation constituted negligence according to the standard of a reasonably skilled and careful medical practitioner
• Whether Dr Molete's examination of the appellant met the required professional standard of care
• Whether the negligent failure to diagnose caused the appellant's harm (factual causation)
• Whether the respondent was vicariously liable for the negligent conduct of Dr Molete

The appeal was upheld with costs, including costs of two counsel. The order of the High Court dismissing the claim was set aside. The respondent was declared liable for payment of the appellant's proven or agreed damages resulting from the negligent failure to diagnose her right hip dislocation on 1 May 2006 and the avascular necrosis involving her right femur head that developed as a result. The respondent was ordered to pay the appellant's costs of the trial including the qualifying and reservation fees of the appellant's expert witnesses, Drs Van der Westhuizen and Kaiser.

Professional negligence in medical practice is determined by reference to the standard of conduct of the reasonably skilled and careful practitioner in the particular field and in similar circumstances. A medical practitioner is expected to adhere to the general level of skill, care and diligence possessed and exercised at that time by members of the branch of the profession to which he or she belongs. While a wrong diagnosis does not per se amount to negligence, it becomes negligent if the practitioner's conduct does not comply with the general standard of care. A medical practitioner who: (1) fails to perform proper clinical examinations that would reveal obvious clinical signs of a patient's condition; (2) relies on diagnostic tests of no diagnostic value when better alternatives are available; (3) fails to take further investigative measures when a patient presents with severe unexplained pain; and (4) discharges a patient without determining the cause of serious symptoms, falls below the required standard of care and is negligent. Factual causation is established by applying the 'but for' test - if but for the negligent conduct the harm would not have occurred, causation is established.

The court noted that the question of legal causation (remoteness of damage) had not been pertinently raised, observing that it could hardly be contended that considerations of reasonableness, justice and fairness would dictate that the respondent should not be held liable for the harm suffered by the appellant. This suggests that even if the issue had been raised, the court would have found the causal link sufficiently close and direct for legal liability. The court also made a comment that the trial judge had made an 'irrelevant and unwarranted credibility finding' against the appellant, though the specifics of this finding are not elaborated in the judgment. The case provides useful guidance on the types of examinations that should be performed for suspected hip injuries, including the Trendelenburg test, observation of leg alignment and length, testing of vascular and nerve supply, and having the patient attempt to stand, walk and flex the hip. The court emphasized that a hip dislocation is one of the few true orthopaedic emergencies, with a 'golden period' of six hours for treatment, after which there is an 85.8% risk of developing avascular necrosis.

This case is significant in South African medical negligence law as it: (1) Reaffirms the established principles for determining professional negligence by reference to the standard of a reasonably skilled and careful practitioner in the particular field and similar circumstances; (2) Demonstrates that reliance on inadequate diagnostic tools (such as poor quality x-rays) when better alternatives are available can constitute negligence; (3) Establishes that discharging a patient with severe unexplained pain without determining its cause or conducting appropriate further investigations falls below the required standard of care; (4) Emphasizes that a wrong diagnosis does not per se constitute negligence, but failure to follow proper examination procedures and diagnostic protocols does; (5) Illustrates the application of the 'but for' test for factual causation in medical negligence cases; (6) Confirms vicarious liability of the state for negligent acts of medical practitioners employed in public hospitals. The case serves as an important reminder of the duty of medical practitioners to conduct thorough examinations and not to discharge patients until the cause of their symptoms has been properly investigated.