With thanks to Hilbert Chiu for noting a decision of the Constitutional Court of South Africa, Oppelt v Health, Department of Health Provincial Administration  ZACC 33.
The Court’s media summary notes that Mr Oppelt (aged 17 at time of injury) claimed that the hospital personnel acted negligently by failing to promptly treat his spinal cord injuries (in a rugby match) or failing to treat him within four hours of the injury. He succeeded at trial but the verdict was overturned at the intermediate appellate stage.
Before the Constitutional Court, where Mr Oppelt ultimately succeeded:
…Mr Oppelt argued that his right to emergency medical treatment was infringed. He also argued that the grounds that the Supreme Court of Appeal relied on to reject Dr Newton’s theory were in conflict with the principles laid down in an earlier decision by that Court. The Department argued that its employees could not have known about the four-hour theory and that even if they had known, there were protocols that made it impossible to have Mr Oppelt treated at Conradie Hospital within four hours, and thus had not acted negligently.
The majority held in favour of Mr Oppelt, with the reasons for judgment including:
- Strict adherence to a protocol that does not accommodate emergencies was not an excuse for the delays.
- The proper treatment was inexpensive and could have been performed promptly.
- Given the widespread knowledge about Conradie Hospital’s specialisation in the treatment of spinal cord injuries, a reasonable doctor in the Department’s employment would have transferred Mr Oppelt directly to Conradie Hospital where he would have probably received the appropriate treatment within four hours of his injuries.
- On the basis of Dr Newton’s evidence, Mr Oppelt’s quadraplegia could probably have been avoided if he had promptly received appropriate treatment.
- The Department’s failure to promptly refer Mr Oppelt to Conradie Hospital was negligent and violated Mr Oppelt’s right to emergency medical treatment.
At  ff the court considered legal / scientific causation, noting amongst other things that the Supreme Court of Appeal fell into the trap of focussing on scientific proof instead of assessing where the balance of probabilities lies based on an evaluation of the whole evidence (see ).