1

HB-94-15

 

1)PREDAG M. MAKSIMOVICH

versus

IVETTE DOMINGUEZ (VAN DER HEVON)

and

MATER DEI HOSPITAL                                                               HC 1566/13

 

 

2)MATER DEI HOSPITAL

versus

IVETTE DOMINGUEZ (VAN DER HEVON)

and

PREDIG M. MAKSIMOVICH                                                      HC 1491/13

 

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 27 OCTOBER 2014 & 14 MAY 2015

 

Opposed Court Applications

 

G. Nyoni for applicant in case 1 and 2^nd respondent in case 2

S. Mazibisa for 1^st respondent in both cases

N. Mangena for 2^nd respondent in case 1 who is applicant in case 2

 

            KAMOCHA J:          These two matters were consolidated as they involved the same parties with different roles in each case but the issues to be determined by the court are the same.  The applicant in the first matter was seeking an order of this court in the following terms:

            “It is ordered that:-

 

(1)the first respondent be and is hereby ordered to supply the information requested in paragraphs 2; 6; 7; 10; 12; 13.2; 13.3; 15; 16; 17 of the request for further particulars filed by the applicant under case number HC 3294/14 on 28 November 2012; and

(2)1^st respondent to pay costs of this application.”

 

While the order being sought by the applicant in the second case was as follows:-

 

            “It is ordered:-

           

(1)1^st respondent be and is hereby ordered to provide the particulars requested in applicant’s request for further and better particulars dated the 21^st February 2013, within 10 (ten) days of the service of this order;

(2)if the 1^st respondent fails to comply with order 1, the applicant be and is hereby given leave, without notice to the 1^st respondent, to make a chamber application for the dismissal of the 1^st respondent’s claims;

(3)applicant’s legal practitioners be and are hereby given permission to serve this order by delivering to the 1^st respondent’s legal practitioners of record;

(4)1^st respondent be and is hereby ordered to pay the costs of this application”.

            The applicants in both applications sought further and better particulars to a declaration composed of 34 paragraphs, excluding the prayer, spanning to five pages.  I shall quote in extenso hereunder to illustrate whether or not the complainants by the applicants are necessary for them to plead to the case they are facing.

“(1)      The plaintiff is Ivette Dominguez (Van Der Hevon), a female adult and a dentist by profession whose address of service for purposes of this action is that of her legal practitioners of record Messrs Cheda and Partners, 6^th Floor LAPF House, 8^th Avenue/Jason Moyo Street, Bulawayo

(2)        The  1^st defendant is Mater Dei Hospital, a duly registered private hospital under the laws of Zimbabwe with legal capacity to sue and be sued.  Its address of service is Burns Drive, Malindela, Bulawayo.

(3) The 2^nd defendant is Predrag M. Maksimovich, a male adult and registered   medical doctor practicing as an ear and nose specialist.  His address of service is Room 2 Medical Centre, 8^th Avenue/J. Tongogara Street, Bulawayo.

(4)At all material times the 2^nd defendant was engaged and assigned by the 1^st         defendant to render medical and surgical service to the plaintiff during the time plaintiff was admitted as a patient of the 1^st defendant.

(5)On the 6^th August 2011 the plaintiff was a passenger in a motor vehicle travelling from Bulawayo to Victoria Falls to attend the Annual Dental Congress at the resort town.  The motor vehicle plaintiff was travelling in was involved in road traffic accident along the Bulawayo to Victoria Falls road and plaintiff was seriously injured.  Plaintiff was taken to St Luke’s Hospital in Lupane, however, due to the serious nature of the injuries she suffered plaintiff was transferred same day from St Luke’s Hospital to the 1^st defendant.

(6)Upon arrival at 1^st defendant from St Luke’s Hospital plaintiff was admitted as a patient of 1^st defendant and was attended to by a doctor assigned by the 1^st defendant.  The doctor sent plaintiff for an X-ray which revealed that plaintiff had suffered a double fracture of the left mandible.

(7)At the material time the plaintiff, as a patient of 1^st defendant, was under care of the 1^st defendant and due to the injuries she had suffered plaintiff was not in a position to make a decision for herself as to the medical personnel to attend to her or to consent to any surgical procedure conducted on her.  Plaintiff entirely relied on the 1^st defendant to render all the necessary and appropriate medical treatment and services.

(8)After the X-ray revealed that plaintiff had suffered a double fracture of the left mandible, the 1^st defendant made the decision to assign the 2^nd defendant, an ear and nose specialist, to attend to the plaintiff and render the necessary and appropriate medical surgical services.

(9)On the 8^th August 2011, at the surgical operations theatre of the 1^st defendant, the 2^nd defendant conducted a surgical operation on plaintiff ostensibly to do a reduction of the double fracture of the left mandible suffered by plaintiff.

(10)In carrying out the surgical operation the 2^nd defendant wrongfully and negligently carried out an incorrect and inappropriate reduction of the double-fractured mandible.  The incorrect and inappropriate surgical procedure carried out by the 2^nd defendant resulted in the following:

(a)The displacement of plaintiff’s sub-condylar

(b) process

(c)Non-alignment of the reduction of the double-fractured mandible

(d)Paralysis of plaintiff’s left eye

(e)Persistent noise in plaintiff’s ear

(f)Facial disfigurement of plaintiff

(g)Double vision condition of plaintiff’s left eye

(h)Excruciating pain in plaintiff’s face

(11)While attending to the plaintiff and carrying out the botched surgical operation the 2^nd defendant also wrongfully and negligently failed to notice or realize that plaintiff had a missing tooth.  A reasonably competent doctor in the position of 2^nd defendant and carrying out maxilla surgical operation would have noticed that plaintiff had a missing tooth.

(12)While attending to the plaintiff and carrying out the botched surgical operation the 2^nd defendant also wrongfully and negligently failed to notice or realize that there were foreign bodies, namely pieces of glass, in plaintiff’s ears.  A reasonably competent doctor in the position of the 2^nd defendant who holds himself out as an ear and nose specialist would have noticed that there were foreign bodies in plaintiff’s ear.

(13)The wrongful and negligent acts of the 2^nd defendant were reasonably foreseeable to the defendant’s because the correct and appropriate surgical procedure which plaintiff ought to have undergone at the material time is a maxilla facial surgical operation.  The 2^nd defendant was at all material times a nose and ear specialist and therefore not qualified to do a maxillary facial surgical operation.

(14)As a result of the wrongful and negligent acts of 2^nd defendant in carrying out an incorrect and inappropriate surgical procedure on plaintiff’s double fractured mandible, the plaintiff was compelled to seek the services of a maxilla facial surgeon in Harare to look into and mitigate or remedy the incorrect and inappropriate surgical procedure done by the 2^nd defendant.

(15)The plaintiff was compelled to travel to Harare and on the 12^th August, 2011 a qualified maxilla facial surgeon in Harare conducted a surgical operation on plaintiff to mitigate the wrongful and negligent surgical operation conducted by the 2^nd defendant.

(16)While carrying out the surgical operation on plaintiff in Harare the maxilla facial surgeon noticed that plaintiff’s sub-condylar could not be attended to because plaintiff’s left eye had been damaged as a result of the wrongful and negligent surgical operation conducted by the 2^nd defendant.

(17)But for the 2^nd defendant’s wrongful and negligent acts aforesaid, the plaintiff would not have been compelled to incur expenditure and suffer the pain and trauma travelling to Harare to seek further medical and surgical services to correct or mitigate the incorrect and inappropriate surgical operation done by 2^nd defendant.

(18)As a result of the 2^nd defendant’s wrongful and negligent acts aforesaid and following the revelations of plaintiff’s condition during further surgical operation by a maxilla facial surgeon in Harare, the plaintiff was compelled to travel to her home country, Spain, on the 7^th September 2011 to seek further medical and surgical treatment to remedy the consequences of the inappropriate and incorrect surgical procedure conducted by 2^nd defendant on plaintiff.

(19)On the 9^th September 2011, in Spain, plaintiff sought the services of, and was attended to by, a maxilla specialist who did a C T scan of plaintiff’s face and thereafter admitted plaintiff in hospital.  The C T scan results revealed that plaintiff had suffered a fracture of the front wall of the external auditory canal and that there was a foreign body lodged inside.

(20)The 2^nd defendant wrongfully and negligently failed to notice the fracture of the front wall of the external auditory canal despite the fact that 2^nd defendant holds himself out as an ear and nose specialist.  A reasonably competent doctor in 2^nd defendant’s position would have noticed the aforesaid fracture and taken corrective surgical measures to spare plaintiff the trauma and pain she went through.

(21)On the 12^th September, 2011 in hospital in Spain the maxillar specialist removed two pieces of glass from plaintiff’s ear.  The 2^nd defendant breached the duty of care he owed to the plaintiff to carry out a correct and appropriate surgical operation such as a reasonable and competent doctor in his position would have done.

(22)On the 23^rd September, 2011 in Spain the plaintiff underwent a third surgical operation to correct and mitigate the consequences of the wrongful and negligent surgical operation done by the 2^nd defendant.  The plaintiff was subsequently discharged from hospital in Spain on the 26^th September 2011 and had to go back to hospital for weekly reviews of her condition.

(23)But for the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff would not have been compelled to incur expenses and suffer the pain and trauma of travelling to Spain to seek further medical and surgical services.

(24)As a result of the incorrect and inappropriate surgical operation wrongfully and negligently performed by the 2^nd defendant on plaintiff, the plaintiff was compelled to undergo tree surgical operations in a space of six weeks and suffer the pain and trauma associated with such operations, namely the heavy anaesthetic that was administered into her body, antibiotics, pain killers, corticosteroids and sleeping tablets.

(25)As a result of the 2^nd defendant’s wrongful and negligent acts aforesaid, the plaintiff suffered the following at the material time:-

(a)She could not sleep and had to rely on heavy doses of sleeping tablets which induced unconsciousness or stupor;

(b)She could not eat and was subjected to drip-feeling of liquids only diet for many months;

(c)She cannot chew food because when she opens her month the affected jaw moves to the left as it is shorter on the left condylar side;

(d)She could not talk for many months;

(e)Excruciating pain and discomfort.

(26)As a result of the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff suffered general damages for pain, discomfort, psychological trauma, disfigurement, stress, loss of enjoyment of amenities of life, and reduction of life expectation in the sum of US$100 000,00 (one hundred thousand United States dollars)

(27)As a result of the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff suffered general damages in the sum of US$200 000,00 (two hundred thousand United States dollars) for impairment or loss of future earning capacity.

(28)As a result of the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff suffered damages in the sum of US$ 150 000,00 (one hundred and fifty thousand United States dollars) for the following:-

(a)expenditure incurred in travelling to and from Harare and paying for medical and surgical services and ancillary costs.

(b)Expenditure incurred in travelling to and from Spain and paying for medical and surgical services and ancillary costs.

(29)As a result of the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff lost an implant with a replacement value of US$1 800,00 (one thousand eight hundred United States dollars).

(30)As a result of the wrongful and negligent acts of the 2^nd defendant aforesaid, the plaintiff suffered loss of income from her vocation as dentist in the total sum of US$50 000,00 for a period of five months which but for the 2^nd defendant’s wrongful and negligent acts, would not have been suffered.  Plaintiff’s average income was at all material times US$10 000,00 per month.

(31)While admitted as a patient of the 1^st defendant and under anaesthetic during the botched surgical operation performed by the 2^nd defendant the 1^st defendant breached its duty of care owed to the plaintiff to ensure that the plaintiff’s possessions, namely cash in the sum of US$7 800,00 (seven thousand eight hundred United States dollars) disappeared from plaintiff’s handbag and was never recovered.

(32)The 1^st defendant owed the plaintiff a duty of care at all material times to assign a doctor with requisite qualifications to attend to the plaintiff and carry out correct and appropriate surgical operations.  The 1^st defendant breached that duty by assigning the 2^nd defendant, a nose and ear specialist, to carry out maxillary facial surgery when 2^nd defendant was not qualified to perform such a surgical operation.

(33)The 1^st defendant is vicariously liable for the wrongful and negligent acts of the 2^nd defendant because:-

(a)It was the 1^st defendant that identified the 2^nd defendant, brought him to its premises, and assigned him the duty to attend to the plaintiff and render medical and surgical services; and

(b)At all material times there was ostensible employer – employee or alternatively principal agent relationship between the 1^st defendant and the 2^nd defendant; and

(c)The circumstances of the case are such that the 1^st defendant ought to be held vicariously liable for the wrongful and negligent acts of the 2^nd defendant.

(34)Plaintiff further claims costs of suit.”

The applicant in the first matter, Predag M. Maksimovich, contended that in order to enable him to plead to the above allegations the plaintiff should be compelled by this court to supply the following further and better particulars:

            “(1)      2.         Ad para 4 -5

(2.1)     Where exactly did the accident take place and was the accident reported to the police?

(2.2)     What was the outcome of the police investigations?  A copy of the police report is requested.

(2.3)     How was 2^nd defendant engaged by the 1^st defendant?  Full details thereof are requested.

(2.4)     Who from 1^st defendant, assigned 2^nd defendant and what was the nature of the said assignment?

                       

            6          Ad para 9 – 10

                       

(6.1)     what is implied or meant by “incorrect” reduction and “inappropriate” reduction?

                        (6.2)     What reduction ought to have been done by the 2^nd defendant?

                        (6.3)     What is meant by sub-condylar process?

                        (6.4)     What is meant by “incorrect” surgical procedure?

                        (6.5)     What is meant by “inappropriate” procedure?

(6.6)     Which surgical procedure ought to have been done and which surgical procedure did 2^nd defendant perform on plaintiff

(6.7)     How did a surgical operation by 2^nd defendant on the jaws affect or cause paralysis to 2^nd defendant’s (sic) eye and double vision?

 

            7.         Ad para 11

           

7.1       What is meant or implied by botched surgical operation?  What is meant by “botched”?

7.2       In what way was the said operation “botched”?  Full details thereof are requested.

7.3       What is the nexus between the surgical operation performed by 2^nd defendant and missing teeth?

 

            10        Ad para 16

 

                        A report from the alleged maxilla facial surgeon is requested?

 

            12        Ad para 19

 

                        The said C T scan report or results are requested

 

            13        Ad para 26

(13.2)   How has plaintiff’s life expectation been reduced?  A full medical report is requested.

                        (13.3)   How is the figure of US$100 000 arrived at?

 

            15        Ad para 29

 

                        (15.1)   Where and when was implant lost?  Which implant is being referred to?

 

(15.2)   What is the nexus between what 2^nd defendant was supposed to do on plaintiff and the safety of the said implant?

 

            16        Ad para 30

 

What is the nexus between what 2^nd defendant was to do on plaintiff and the loss of cash?”

 

17        Did plaintiff not sign any document consenting to having a surgical operation done on her by the 2^nd defendant?”

           

            The parties quoted the relevant decided cases and authorities relating to the subject under discussion.  Applicant referred the court to the case of Trinity Engineering (Pvt) Ltd v CBZ 1999 (2) ZLR 417 which quoted the English case of Bruce v Odhams Press Ltd [1936] 1 KB at page 712 where SCOTT LJ had this to say;

“Their functions (that is the request for further particulars) is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard on what he is to meet and to enable him to prepare for trial.”

 

            Applicant contended that he would be embarrassed if he pleaded to plaintiff’s claim without the information he requested.  He however, did not state the details and to what extent of how he would be embarrassed.  He simply made a bald assertion that he would be embarrassed.  That is not sufficient.  NDOU J had this to say in Carlo Franchi vs Dixon A. Mohammed HB-17-05 not yet reported cyclostyled judgment at page 3:

“When asking for further particulars, the applicant is required to show that without such requested particulars he will be embarrassed in attempting to plead and that he must make plain to the court the precise embarrassment which he alleges he will suffer – Birrell v Fryer 1926 EDL 284; The Citizen (Pvt) Ltd vs Art Printing Works 1957 (3) SA 383 (SR); Time Security (Pvt) Ltd vs Castle Hotel Ltd 1972 (3) SA 112 (RA); Allen vs Kinsey 1966 RLR 335 (G); Davidson v Standard Finance Ltd 1985 (1) ZLR 173 (HC) and Alesp (Pvt) Ltd vs Natural Stone Export Co (Pvt) Ltd HB-59-04.”

            It is an established principle of our law that an applicant is well within his or her rights and entitled to the particulars sought.  An applicant cannot be expected to plead in the dark.  The case of Time Security vs Castle Hotel 1972 (1) RLR 155 at page 160B – G articulated as follows:

 

“A litigant is not to be put in the position either of pleading in the dark or of preparing for a trial in the dark.  No hard and fast rule can be laid down regarding the particularity required.  Each case must be judged on its own merits.  It is sometimes argued that because a litigant, who is unsure of the case he has to meet may take refuge in a bare denial, he is not embarrassed by the lack of particularity and should postpone his request for particulars until the stage at which he is entitled to ask for particulars for the purposes of trial …   The argument was held to be fallacious …   A litigant is entitled to know the case or defence he has to meet; not only to know whether he should admit or deny the particular allegation.  He is entitled to be placed in the position of being able to decide whether to persist in his claim or defence.  A litigant must not be put in the embarrassing position of being forced to resort to a bare denial by the lack of particularity; a denial which in the light of particulars supplied at a later stage, he might well be obliged to withdraw, or qualify.  He should be in the position honestly to deal with the matter and either to admit or deny an allegation in the light of the particulars furnished.”

 

            In the case of Zimbabwe Online (Pvt) Ltd vs Telecontact (Pvt) Ltd 2012 (1) ZLR 197 (H) at 199A – E, MUTEMA J had this to say;

“Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3^rd ed at page 310 state that the function of the particulars required to enable a party to plead to his opponents pleading is to provide a more precise albeit fuller, statement of the issues which will arise in the trial.  The supply of such particulars will, of necessity, limit the generality of the allegations in the pleadings and will prevent the party so supplied from being taken by surprise at the trial. …  Mary Welsh, Civil Practice Handbook (1996) at pp 8 – 10 says that where another party’s claim or defence is not sufficiently clear, a party may request further particulars of the claim which will enable him to plead.  Particulars are intended to define the issues and prevent a party from being taken by surprise at the trial.  Only those particulars which are strictly necessary will be supplied and not where disclosure of evidence is sought, or where the request is a fishing expedition or to gain time or to assemble material for cross-examination or where particulars relate to a statement of law. ….  In Purdon vs Muller 1961 (2) SA 21 (A) OGILVIE-THOMPSON JA, dealing with the detailed further particulars which had been requested therein, cautioned against the tendency on the part of practitioners to abuse the further particulars procedure by making unnecessary and unduly lengthy requests for information before pleading, thereby clouding the real issues between the parties.”

            The declaration made by the plaintiff was lengthy as can be seen and the particulars which in my view, can be said to constitute the particulars of negligence and basis of this case can be summerised as follows.  The applicant in the first case Predrag M. Maksimovich is a male adult and a registered medical doctor practicing as an ear and nose specialist.  He carries out his practice from room 2 Medical Centre 8^th Avenue/J. Tongogara Street, Bulawayo.  While Mater Dei Hospital the applicant in the 2^nd case is a duly registered private hospital.  It is situated at Burns Drive, Malindela, Bulawayo.

            The plaintiff, Ivette Dominguez (Van Der Hevon) is a female adult who is a dentist by profession.  On 6 August, 2011 was a passenger in a motor vehicle travelling from Bulawayo to Victoria Falls to attend the Annual Dental Congress.  The vehicle she was travelling in was involved in a traffic accident.  It hit a tree along the Bulawayo – Victoria Falls road and the plaintiff was seriously injured.  She was taken to St Lukes Hospital but because of the seriousness of her injuries she was that same day transferred to Mater Dei Hospital, the applicant in the second applicant, where she was admitted as a patient.

            She suffered a double fracture of the left mandible and a fracture of the front wall of the external auditory canal.

Particulars of negligence

1. Assigning an ear and nose specialist to attend to a patient who suffered a double fracture of the left mandible
2. An ear and nose specialist undertaking to render the necessary and appropriate medical or surgical services to such a patient
3. An ear and nose specialist, conducting a surgical operation on plaintiff ostensibly to do a reduction of the double fracture of the left mandible suffered by plaintiff
4. Carrying out an incorrect and inappropriate reduction of the double fractured mandible
5. Failure to notice or realise that there were foreign bodies, namely 2 pieces of glass, in the patient’s ear by an ear and nose specialist
6. Failure to notice that there was a missing both from the patients jaws
7. Failure to notice the fracture of the front wall of the external auditory canal
8. Failure to appreciate that the correct and appropriate surgical procedure that the patient ought to have undergone at the material time was a maxilla facial surgical operation.
9. Failure to appreciate that as a nose and ear specialist, the applicant in the first case did not qualify to do a maxillary facial surgical operation.

I have extracted the above particulars of negligence from the plaintiff’s declaration which was quoted in extenso in this judgment.

In my view, the plaintiff’s declaration is sufficiently clear to enable the first applicant to plead.  The allegations against him verge on recklessness and serious level of incompetent i.e. undertaking a surgical operation which he was not qualified to perform and failure to detect or notice two pieces of broken glass in the ear of a patient when he is an ear specialist.  The question of pleading in the dark does not arise at all, in my view.  He also is not going to be embarrassed as he does not state in what way he is going to be embarrassed.

            The applicant was seeking to have the words like assign, incorrect and inappropriate as used in the declaration to be explained so that he is not forced to plead in the dark.  It is difficult to understand what he means by that when the particulars clearly lay out what he did due to failure to appreciate what he ought to have done.

Requests for the exact place of where the road accident took place; the outcome of the police investigation and police report were clearly irrelevant and would not assist the applicant to plead.

After a careful examination of the particulars supplied by the plaintiff I hold the view that, they are very clear for the applicant not to be taken by surprise at the trial in any way.

I would in the result dismiss the application in the first case with costs on the ordinary scale.

The applicant in the second case is Mater Dei Hospital the hospital into which the plaintiff was admitted while she was in a very serious condition.  The hospital wants to know whether or not she was admitted as an outpatient or in patient.  Such a request lacks seriousness as a patient in such a condition is not expected be admitted as an outpatient.  A patient in such a condition cannot be expected to take care of her possessions.

The allegations against the hospital are that it assigned an ear and nose specialist to attend to a patient who suffered a double fracture of the left mandible.  Such an ear and nose specialist undertook to render the necessary and appropriate medical or surgical services to such patient.  The hospital failed to appreciate that an ear and nose specialist did not qualify to do a maxillary facial surgical operation.  The hospital was vicariously liable for the actions and failures of the ear and nose specialist it assigned to what he was not even qualified to do.

The plaintiff who was admitted in a very serious condition would not have anything to do with disclaimers.

The hospital requested for the medical report confirming plaintiff’s alleged shortened life span.  Such medical report will be produced when parties are making their respective discoveries.  The requests made by applicant are not pertinent for purposes of pleadings.  The particulars supplied in the plaintiff’s declaration are very clear and the question of the applicant pleading in the dark does not arise, in my view.  The plaintiff in my view, has set out her case clearly in her declaration for the applicant to plead.  In the result, I would dismiss the application with costs on the ordinary scale.

The order of this court is that both the first and second applications are hereby dismissed with costs on the ordinary scale.

Messrs Moyo & Nyoni Legal Practitioners for the applicant in the first application

Coghlan & Welsh Legal Practitioners for applicant in the second application

Messrs Cheda & Partners 1^st respondent’s legal practitioners