A woman who had a double mastectomy and endured months of chemotherapy after being told she had Stage IV breast carcinoma in both breasts, an aggressive form of cancer, is set to receive a substantial sum of damages from the MEC for the Health Department, Limpopo Province as it transpired she had been misdiagnosed by a General Practitioner in the Oncology Department of the Polokwane Hospital.

“The 49-year-old Rustenburg former estate agent and now housewife is claiming more than R9.9 million from Limpopo health authorities for inter alia past and future medical, psychiatric, psychological and related treatment, past and future loss of earnings/earning capacity and general damages for pain and suffering, loss of amenities of life, trauma, etc.,” says Jean-Paul Rudd – Senior Associate – from the Commercial and Property practice of law firm Adams & Adams who is representing the woman.

“Without admitting negligence, the province’s health authorities have now recently said they would pay 80 percent of her proven or agreed damages arising from the examination and diagnosis, the bilateral mastectomy performed and the aggressive chemotherapy she underwent,” says Rudd.
“The settlement agreement, made an order of court by Pretoria Deputy Judge President Willem van der Merwe, made it clear that the MEC settled without admitting any liability or negligence. The province will also pay the woman’s legal costs inclusive of the costs consequent upon the woman employing two counsels.”

Rudd says in earlier proceedings before the North Gauteng High Court situated in Pretoria, the Limpopo health authorities raised a special plea of prescription resulting from the woman’s alleged failure to institute action within three years from the date the bilateral mastectomy was performed. The health authorities however ultimately withdrew its special plea of prescription and furthermore granted the woman condonation for her failure to notify the health authorities within six months from the date of her intention to institute action against a state organ in compliance with Section 3 of Act 40 of 2002, after the woman’s legal representatives provided the health authorities with the salient facts and arguments relevant to Act 40 of 2002. 

The woman, who lives on a smallholding in Donkerhoek, was referred to the Polokwane Hospital in April 2005 for investigation of a lump in her left breast.

The General Practitioner practicing in the Oncology Department of the hospital referred her for a series of tests which included a chest x-ray, mammogram, abdominal sonar examination, blood tests, a bone scan and a fine needle aspiration.

The doctor told her a few days later that the results of the fine needle aspiration reported the presence of multiple malignant cells in both breasts, in keeping with infiltrating duct carcinoma. The next day he confirmed that she had Stage IV breast cancer in both breasts requiring a bilateral mastectomy.

The woman was admitted to the hospital on 17 June 2005, after having commenced chemotherapy on 9 May 2005 in preparation for performance of a bilateral mastectomy scheduled for 20 June 2005. After being discharged, she continued receiving chemotherapy for several months.

The woman was told sometime later that her breast tissue on review of the histology, following the bilateral mastectomy, showed benign fibrocystic breast disease with no carcinoma.

The doctor failed to examine her properly and had not bothered to do further tests which were indicated, when the results of some of the tests were inconsistent.

She pleaded in the court papers that a double mastectomy had been performed for no reason due to the negligence of the doctor in breach of the duty of care a patient could expect from a medical practitioner acting with the degree of care, skill and diligence which may reasonably be expected of medical practitioners in similar circumstances.

She had worked as an estate agent, but after her operation, she could no longer work.
“Apart from suffering unnecessary severe pain and discomfort, she also suffered from psychological trauma, loss of dignity, insomnia, depression and mental exhaustion.

“The woman had to change her wardrobe due to the disfigurement and negative body image she developed as a result of the loss of her breasts. She further suffered a loss of intimacy with her husband, to the extent that their marital relationship is in jeopardy.

“Apart from having lost all her self-confidence, she is no longer able to participate in her former hobbies, sport or normal household activities. She has further become reclusive and withdrawn from society.”

According to Rudd, the amount of damages she suffered and is owed to her will be determined at the quantum hearing at a later stage. The woman has however in the interim in preparation therefore secured the services of a battery of experts to investigate and quantify her damages, which the Limpopo authorities will ultimately be responsible for.