Crash victim wins HIV suit

2010-01-21 00:00

HIGH court Judge Chiman Patel has ruled in a landmark judgment handed down yesterday that the MEC for Health in KwaZulu-Natal is liable to pay damages to a Gauteng woman who was infected with HIV as a result of negligence by paramedics who treated her at an accident scene.

In his judgment, Patel found it was probable that a pedestrian who was killed in the crash at Mooi River on August 31, 2000, was infected with HIV and that a paramedic transferred the virus to the woman after handling the pedestrian’s body.

The Gauteng woman — who was in her 40s when she tested positive for the virus in October 2000 — had been married for 20 years and testified that she had a monogamous relationship with her husband throughout their marriage.

She tested negative for HIV immediately after the crash, but two months later was found to be positive, after she became ill.

The woman broke down when she gave evidence about her ordeal in 2005 and revealed that her marriage had broken down after she was found to be HIV-positive.

She was a keen sportswoman and was on a netball tour in KZN when the vehicle in which she was travelling hit a pedestrian, Crophet Mandla Mthalane (36) of Bruntville, Mooi River, on the evening of August 31, 2000. Mthalane died of his injuries.

Patel said in a reserved judgment handed down yesterday that he was satisfied on a conspectus of the evidence that the paramedics (in particular Afzal Dayal) had failed to treat the woman “with the degree of care and skill required of a reasonable paramedical professional”.

He said Dayal had failed to properly “or at all” ensure that no contamination occurred when he handled the body of Mthalane and treated the woman.

“Dayal … with two patients each having open wounds which were bleeding … should have foreseen the risk of cross-contamination of blood and should have taken all necessary precautions to avoid such contamination. This he failed to do,” the judge said.

As a result, the MEC was liable for damages.

The woman initially sued the province for R2 109 244, but it was agreed by the parties that the amount of damages to which she would be entitled would be determined only once the court had ruled on the issue of liability.

Patel rejected the evidence of Dayal that he did not first handle Mthalane’s body and thereafter treat the woman and that he had worn latex gloves at all times.

Patel said his evidence had to be viewed with “caution and suspicion” for various reasons.

On his own admission, Dayal could not remember the incident after two years and his evidence was based not on memory but “normal procedure”.

The judge said his rejection of Dayal’s testimony meant there was no credible evidence that neccessary protocols were followed at the accident scene by the employees in question.

He found it was probable the ambulance first stopped at Mthalane’s body, which was checked for vital signs, before moving to the scene where the woman was treated for her head injuries.

Although there was no evidence that blood tests showed Mthalane was HIV-positive, Patel said a prima facie case had been made out indicating he may have had HIV or full-blown Aids.

“In his notebook it was shown in the deceased’s own handwriting that he had noted various HIV and Aids helpline numbers.”

The judge said people are not in the habit of carrying these numbers unless they have a particular interest, and that the only reasonable inference is that Mthalane was HIV-positive at the time of the accident.


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