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[2016] ZAWCHC 21
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Vlotman v Baker (12009/2013) [2016] ZAWCHC 21 (7 March 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 12009/2013
DATE:
07 MARCH 2016
In
the matter between:
PAULUS
VLOTMAN
..................................................................................................................
Plaintiff
And
DR
M
BAKER
..........................................................................................................................
Defendant
Coram
:
KOEN AJ
Heard:
23 – 29 February & 1 March 2016
Delivered:
7 March 2016
JUDGMENT
KOEN
AJ
[1]
This is an action for damages for alleged
medical negligence. All that is in issue, at this stage, is the
question whether the plaintiff
has established negligence on the part
of the defendant and, if so, whether such negligence was the cause of
the damages claimed
by the plaintiff.
[2]
On 14 September 2010 the plaintiff in this
action, Mr Vlotman, presented with symptoms of a strangulated
inguinal hernia. He was
treated by the defendant, Dr Baker, who
repaired the hernia surgically, using synthetic mesh to cover the
hernia site.
[3]
Five days later, on 19 September 2010, Mr
Vlotman was discharged from hospital after the hernia repair.
However, on 24 September
2010, he was readmitted to hospital
complaining of pain and an infected discharge from the operation
site. Dr Baker treated him
again on this occasion. The extent of the
infection was unknown and aggressive conservative treatment was
commenced by irrigating
the wound with peroxide, and the use of
betadine and antibiotics. Mr Vlotman was discharged from hospital
after this course of
treatment appeared to have resolved the
infection on 3 October 2010.
[4]
However, after what appeared to be
persistent infections of the operation wound site, Mr Vlotman was
readmitted to hospital, just
over a year later, on 25 October 2011,
again under the care of Dr Baker. The purpose of this operation was
to remove the mesh which
had been used in the initial repair of the
hernia because it was considered that it was the mesh which played a
significant role
in the perpetuation of the infection. Although Dr
Baker set out to remove all of the mesh on this occasion he did not
do so, for
reasons which will appear from what follows. When the
infection persisted a further operation was scheduled for 28 December
2011.
Again, the object of the operation was to remove the mesh which
was considered to be involved in the persistent infection at the
operation wound site. Again, Dr Baker did not remove all of the mesh.
[5]
The infection persisted. During January
2013 Mr Vlotman consulted Dr Ebrahim, another surgeon. After
treatment with antibiotics
proved to be unsuccessful in resolving the
infection Mr Vlotman was admitted to hospital on 8 May 2013. Dr
Ebrahim excised the
sinus, or channel, through which infected
material was passed from its source to the surface of Mr Vlotman’s
skin after injecting
the sinus with blue dye. Aided in establishing
the location of the source of the infection by using the dye, Dr
Ebrahim discovered
a total of three sinuses, all of which he opened,
and at the source of which were discovered three further pieces of
the mesh.
In so doing it was necessary for Dr Ebrahim methodically to
work his way through what he described as dense scar tissue in order
to locate the offending pieces of mesh and to remove them. Dr Ebrahim
described the surgery as “
very
difficult high risk surgery”
and
his notes, made at the time, reflect that he was concerned that he
might cause damage to other important physical structures
such as Mr
Vlotman’s iliac vein or artery, epigastric vessels, or that he
might have penetrated into the plaintiff’s
bowel. Any error on
his part in operating on Mr Vlotman would have had obviously
undesirable consequences. Ultimately, there is
no dispute that the
surgical procedure aimed at removing the mesh, which was undertaken
by both Dr Baker and Dr Ebrahim, was intricate,
difficult and
complex.
[6]
It is common cause that the procedure
performed by Dr Ebrahim during May 2013 was successful. Mr Vlotman’s
wound has healed
and he has not had a recurrence of the infection
which had persisted since his hernia was originally operated upon by
Dr Baker
during September 2010.
[7]
During August 2013 Mr Vlotman instituted
these proceedings against Dr Baker in which he claimed damages,
alleging that Dr Baker
had been negligent. The parties agreed that
the questions of liability and causation should be determined
separately from quantum,
and an order to this effect was made in
terms of Rule 33 (4).
[8]
It is apparent from a reading of the
pleadings that the grounds of negligence alleged by Mr Vlotman were,
initially at least, cast
far and wide. The particulars of claim, as
amended, allege that Dr Baker had been negligent in that he had
failed to diagnose the
cause of the symptoms with which Mr Vlotman
and presented post operatively; failed to diagnose that the symptoms
in question were
due to infection associated with the mesh; failed to
conduct adequate special investigations to ascertain the cause of the
persistent
post- operative symptoms; failed to perform the inguinal
hernia repair with reasonable skill, care and diligence; failed to
keep
Mr Vlotman under close, regular and careful observation post
operatively; failed to remove all the mesh from the operation site;
and, finally, failed to act with due care.
[9]
As the case evolved, however, it became
apparent that only two of the grounds of negligence originally relied
upon were in issue.
These were the allegation that Dr Baker had
failed to remove all of the mesh from the site of the hernia repair,
an allegation
that was introduced by way of an amendment on the
second day of the trial, and that Dr Baker had failed to act
with due care.
[10]
What is in issue, therefore, is the
question whether the plaintiff has proved on a balance of
probabilities, that Dr Baker was negligent
in failing to extract all
of the synthetic mesh when he operated upon him during October and
December 2011.
[11]
Two witnesses were called by the plaintiff
to testify on this issue. They were Dr Ebrahim, who, as stated above,
had performed the
successful mesh extraction during May 2013, and
Professor Warren, an expert in the field of surgery. It should be
noted that Dr
Ebrahim was not called to testify as an expert. His
evidence was restricted to what it was that he did when he performed
the successful
mesh extraction surgery during May 2013.
[12]
Referring to a note he had made Dr Ebrahim
testified that he executed the operation by using blue dye to colour
the sinus tracks
and make it possible for him to follow the tracks
accurately. Dr Ebrahim managed to detect side sinus tracks and,
having located
remnants of synthetic mesh, with the use of scissors,
undertook the difficult task of dissecting the mesh from the tissue
in which
it was located. It must be noted that the mesh contains a
large number of tiny perforations, and that as the tissue into which
it is placed heals, the mesh and tissue become almost inextricably
intertwined.
[13]
When questioned about the advisability of
the use of blue dye to assist in the location of a sinus attract Dr
Ebrahim was not willing
to express an opinion that the method which
he chose could be said to be preferred over a surgical technique
which did not entail
the use of dye. He agreed that some surgeons did
not use dye and I understood him to testify that this was a matter of
individual
choice among surgeons.
[14]
Professor Warren testified that the desired
object of the surgery undertaken by Dr Baker would have been to
remove all of the synthetic
mesh. In the end, there was no quarrel
about this. Professor Warren testified that the use of dye would have
facilitated the process
of finding the mesh although he conceded that
some surgeons did not use dye. I did not understand Professor Warren
to suggest that
choosing not to use dye in the procedure was a
decision which could necessarily be criticised. The high water mark
of Professor
Warren’s testimony was that with careful planning,
patience and execution, and reasonable skill, he would have expected
it
to be possible to remove all of the mesh during one operation.
[15]
Drs Baker, Simonz and Stein testified on
behalf of the defendant. Dr Baker described the procedures he had
undertaken during October
and December 2011. He described how he made
an incision around the scar in order to cut the scar out and how he
cut out a wedge
of tissue, dissecting a V shaped opening. He
explained that he used a scalpel as he was accustomed to it and he
felt comfortable
with the use of this instrument. He described the
scar tissue as being dense. Having located the mesh which was
enclosed in a dense
ball of scar tissue he carefully excised it. Dr
Baker described that this required meticulous concentration and care
and that he
was making small excisions, not even 1 mm deep, in order
to gradually expose as much of the mesh as he could. What emerged in
the
evidence is that the mesh becomes “puckered” during
the course of the healing process and that it is not found in the
form of a flat sheet. Eventually, Dr Baker testified that he was
cutting into normal tissue and not infected scar tissue. Dr Baker
then testified that he considered that the time had come to say
enough is enough, to use his words, and he stopped the operation
at
that stage.
[16]
In regard to the second mesh extraction
procedure, performed at the end of December 2011, Dr Baker testified
that he followed the
same procedure as beforehand looking for sources
of infection. He identified a further four small pieces of mesh,
removed them,
and again discovered that he was cutting into healthy
tissue while searching for more mesh. Again, he decided that it was
wiser
to stop operating and considered that at that stage he might
have removed sufficient mesh to prevent the recurrence of infection.
Once again, Dr Baker chose to conduct the procedure without using
blue dye.
[17]
Dr Baker was not able to have regard to any
notes or medical records which had been contemporaneously made to
assist him with his
recollection of the procedures he had conducted.
He testified that although he had made notes he could not locate
them. He suspected
that they had become lost when he moved rooms or
later, when he retired from practice. Counsel for the plaintiff
submitted that
the absence of notes to assist Dr Baker in his
recollection impacted negatively on the reliability of his evidence.
He also pointed
to various inconsistencies in trial particulars which
had been furnished in order to bolster the submission that Dr Baker
was quite
unable to recall what he had done.
[18]
It is self-evident, I think, that Dr Baker
cannot be expected to recall, blow by blow as it were, everything
that he did during
two procedures performed over four years ago. But
it is also clear from the medical evidence taken as a whole that the
procedure
involved essentially the excision, or laying open, of the
sinus through which infected material flowed in order to locate the
source
of the infection. None of the expert witnesses in respect of
whom notices were filed testified to it having been possible to have
performed the procedures in any other materially different way. I do
not think, therefore, that too much turns on the fact that
Dr Baker
was not able to refer to contemporaneous notes in describing the
procedures he had undertaken in minute detail.
[19]
In Dr Baker’s case, having located
the source of the infection, being synthetic mesh, he used a scalpel
to dissect it from
the tissue. In Dr Ebrahim’s case, having
located the source of the infection with the assistance of blue dye,
and after laying
open, as opposed to excising the sinus, Dr Ebrahim
chose to use scissors to dissect the mesh from the tissue. In the end
what differentiated
the two procedures was that Dr Baker, having
concluded that he had removed sufficient infected mesh, made the
decision to stop.
Dr Ebrahim, on the other hand, managed to remove
the remaining three pieces of synthetic mesh which he found in Mr
Vlotman in May
2013.
[20]
Dr Baker explained that his decision to
stop cutting into further tissue was motivated by a number of
factors. Firstly, Mr Vlotman
and had not presented with a dangerous
or life-threatening condition. The discharge of pus from the infected
surgical site was
not a serious medical condition requiring urgent
surgical intervention. Secondly, the operation was intricate and
difficult and
carried with it the risk of causing damage to important
physiological structures at the site of the operation. When he
noticed
that he was cutting into normal healthy tissue he considered
that he had done enough to resolve the persistent infection and
decided
to stop operating further. That decision, as I understood his
evidence, was motivated by a balancing of the advantages of operating
further against the disadvantages of causing other damage with the
resultant surgical complications.
[21]
Drs Simonz and Stein, in their testimony,
described what they thought it would be necessary to do in order to
remove the infected
synthetic mesh. Their evidence was helpful in
gaining an understanding of the physiology of the surgical site, the
difficulties
of the operation, and the risks which went with it. But
both conceded, quite fairly, that they were not able to express an
opinion
about the wisdom of the decision which Dr Baker had made not
to continue with the surgery. Not knowing exactly what Dr Baker was
confronted with meant that they could not say whether his decision to
stop was one which a reasonable surgeon in his position would
have
made.
[22]
It is also necessary to observe that all
the medical experts were agreed that the site of the hernia repair
would have changed over
time and that the condition of the site would
be affected by the degree of the infection which was present. Thus,
immediately after
the hernia had been repaired the wound would have
been fresh and pliable. Over time, new tissue would have infiltrated
the mesh
forming scar tissue. As time progressed, the scar tissue
becomes more dense and tough. Infection adds another dynamic to the
evolving
wound site. Infection causes the tissue to become loose and
degraded and results, even, in the complete separation of the mesh
from the scar tissue, the mesh floating loose, as it were, in a
collection or pool of infected fluid. Thus, mesh located within
fresh
and pliable scar tissue is easier to remove than mesh located within
dense and relatively old scar tissue. And mesh located
within an
infected area containing pus might have separated from the tissue by
itself, without the necessity for dissection. What
this goes to show,
in my view, is that on each of the three occasions on which Mr
Vlotman underwent surgery for the removal of
the infected synthetic
mesh the surgeon was not confronted with an identical set of
circumstances.
[23]
In argument, counsel for Mr Vlotman
submitted that the evidence established,
prima
facie
, a case of deviation from the
reasonable standard of care expected of a surgeon in the
circumstances. It was argued, firstly, that
on the basis that Dr
Baker had failed to remove all the mesh in two operations,
notwithstanding that this was his objective. Secondly,
it was
contended on behalf of the plaintiff, that Professor Warren had
produced evidence of the way in which the procedure ought
to have
been performed for the successful and safe removal of all of the
mesh.
[24]
The relevance of this line of argument lies
in the fact that the plaintiff was not in a position to adduce
evidence regarding what
it was, precisely, that Dr Baker had done or
not done during the course of the two mesh extraction operations he
performed. This
was because of the lack of any written record
relating to the two operations. In the circumstances, and where the
facts are peculiarly
within the knowledge of a defendant, it is well
established that less evidence will suffice to make out a
prima
facie
case (see
Gericke
v Sack
1978 (1) SA 821
(A) at 827). If
a
prima facie
case is made out in these circumstances, then, as was stated in
Goliath v MEC for Health in the Province
of the Eastern Cape
(1084/2012) [2013]
ZAECGHC 72 (14 June 2013) “
our law
places an evidentiary burden on the defendant to indicate for example
what steps were taken to comply with the appropriate
legal standard”
(at para [84]). Of course, none of this changes the onus, which rests
upon the plaintiff throughout.
[25]
That these principles are of application in
medical negligence cases is established. In
Van
Wyk v Lewis
1924 AD 438
Kotzé
JA said (at 452) “…
where a
plaintiff has proved certain facts from which, if not satisfactorily
rebutted or explained, the conclusion may reasonably
be drawn that
there has been an absence of the necessary care or skill on the part
of the medical man, a case of negligence against
the defendant has
been established, rendering him liable in damages.”
[26]
Because of the unreliability of Dr Baker’s
evidence, a question to which I have adverted above, so the argument
went, Dr Baker
had not discharged the evidentiary burden under which
he laboured, and thus even though minimal evidence of negligence had
been
put up by Mr Vlotman, enough had been done to discharge the onus
of proving that Dr Baker had been negligent in failing to remove
all
of the synthetic mesh.
[27]
It would, in my view, be unrealistic to
expect in the absence of notes, that Dr Baker’s recall of every
step taken by him
during the operations in question would be
perfectly accurate. The operations took place over four years ago.
They were difficult
and intricate and required high levels of
concentration. It seems to me to be unlikely that a surgeon
confronted with such a task
could recall with accuracy exactly what
action he took at every step of the procedure. But that does not
mean, in my view, that
Dr Baker’s recall should be entirely
discounted. In particular, I see no reason not to accept that Dr
Baker decided at a
stage during the procedure that, to use his own
words, “
enough is enough”
,
and that the risks inherent in continuing outweighed any benefits
which would thereby be achieved. In fact, as I understood the
evidence, that such a decision was made by Dr Baker, for the reasons
outlined, is common cause. Moreover, save for the fact that
Dr
Ebrahim used dye, and scissors to lay open the sinuses he found, and
that Dr Baker did not use dye, and used a scalpel to excise
the sinus
he found, there is not much, in my view, to differentiate the
procedures decided upon by each doctor.
[28]
The real issue, then, is whether it can be
said that Dr Baker was negligent in taking the decision to stop
cutting further. Before
dealing with that question it is necessary to
deal with a proposition put to me in argument by counsel for Dr
Baker. I was referred
in argument to a statement of Denning MR in
Whitehouse v Jordan and Another
[1980] 1 ALL ER 650
at page 658 where it was said that “
we
must say, and say firmly, that, in a professional man, an error of
judgment is not negligent….”
[29]
However, what was not addressed in
argument, was that the case went on appeal to the House of Lords
where that statement was expressly
disapproved of. The judgment of
the House of Lords is reported as
Whitehouse
v. Jordan
[1980] UKHL 12
;
[1981] 1 All ER 267
(HL). In
the House of Lords Lord Edmund-Davies said this: “
The
principal questions calling for decision are: (a) In what manner did
Mr. Jordan use the forceps, and (b) was that manner consistent
with
the degree of skill which a member of his profession is required by
law to exercise? Surprising though it is at this late
stage in the
development of the law of negligence, counsel for Mr. Jordan
persisted in submitting that his client should be completely
exculpated were the answer to question (b), " Well, at worst he
was guilty of an error of clinical judgment ". My Lords,
it is
high time that the unacceptability of such an answer be finally
exposed. To say that a surgeon committed an error of clinical
judgment is wholly ambiguous, for, while some such errors may be
completely consistent with the due exercise of professional skill,
other acts or omissions in the course of exercising "clinical
judgment" may be so glaringly below proper standards as
to make
a finding of negligence inevitable.
”
[30]
It is thus clear that the exercise of
judgment in a medical context is not exempt from scrutiny and that
the exercise of judgment
made by medical and other professionals
receives no special treatment in our law.
[31]
How, then, does our law require that the
decision of Dr Baker to cease operating upon Mr Vlotman be treated?
In
Van Wyk
Wessels JA said this about the standard of care expected of a
surgeon: “…
The surgeon
will perform the operation with such technical skill as the average
medical practitioner in South Africa possesses and
that he will apply
that skill with reasonable care and judgement…
(he)
is not expected to bring to bear on the
case entrusted to him the highest possible professional skill but is
bound to employ reasonable
skill and care and is liable for the
consequences if he does not”
(at
456). The learned judge went on to say: “
We
cannot determine in the abstract whether a surgeon has or has not
exhibited reasonable skill and care. We must place ourselves
as
nearly as possible in the exact position in which the surgeon found
himself when he conducted the particular operation and we
must then
determine from all the circumstances whether he acted with reasonable
care or negligently”
(at 461 to
462)
.
[32]
Also apposite to this case is the following
statement in
Van Wyk
:
“
It is therefore necessary for a
plaintiff who seeks to recover compensation for the damage done to
him to show that the defendant
was in all the circumstances of the
case in the wrong when he left the swab in abdomen after he sewed it
up and that in so doing
he had failed to use that reasonable skill,
care and judgement which it was incumbent upon him to employ. ‘
If at the end
he leaves the case in even scales and does not satisfy
the court that it was occasioned by negligence or fault of the other
party
he cannot succeed…’”
(at
462).
[33]
Much reliance was placed by counsel for the
plaintiff on the fact that Dr Ebrahim had successfully managed to
remove all the mesh,
although it was not suggested, I should add,
that that fact in itself suggested that Dr Baker had been negligent
in failing to
remove the mesh. It is common cause that Dr Ebrahim
exhibited a high degree of skill in performing the mesh extraction
surgery
during May 2013. But to compare what Dr Ebrahim did with the
operations performed by Dr Baker is not, in my view, entirely
helpful.
He was not faced with exactly the same circumstances as
those which confronted Dr Baker when he operated during October and
December
2011.
[34]
Firstly, the wound site, having been the
subject of three previous surgical procedures, would in the process
of healing have changed.
As I understood the evidence of the medical
experts that change could have involved either the toughening of scar
tissue or the
weakening of scar tissue where mesh surrounded by pus
was found to be present. Although Dr Ebrahim described the scar
tissue he
encountered to be extremely dense it is not possible, in my
view, to draw reliable conclusions about whether or not it was
denser,
or less dense, than the tissue encountered by Dr Baker. Nor
can one safely draw conclusions about the effects on the tissue and
entrapped mesh brought about by the presence persistent infection.
Secondly, Dr Ebrahim managed to locate the three remaining pieces
of
mesh by following each of three sinuses. Dr Baker had been confronted
with one large and intact piece of mesh at the end of
only one sinus.
And thirdly, Dr Ebrahim had less mesh to remove than Dr Baker,
because Dr Baker had managed previously to remove
some of the mesh.
[35]
I have referred to these differences in the
circumstances confronted by Dr Baker and Dr Ebrahim because it was
made clear in
Van Wyk
,
in the passage quoted at paragraphs [31] and [32] above, that it is
necessary to examine the circumstances of each case in order
to
determine whether or not a surgeon has acted negligently. Thus using
what was done by Dr Ebrahim as a measure to judge what
was done by Dr
Baker is, as stated above, not entirely helpful.
[36]
Some emphasis was placed on the fact that
Dr Ebrahim had used dye to assist him to locate and follow the sinus
to the source of
the infection, and scissors and not a scalpel to
excise the mesh from the tissue in which it was located. To turn,
then, to question
whether a reasonable surgeon in the position of Dr
Baker would have used blue dye, to locate and follow the sinus, and
scissors,
as opposed to a scalpel, with which to perform the surgery.
[37]
The difficulty which the plaintiff faces in
regard to these questions is that Professor Warren who was called to
give medical expert
evidence on his behalf did not express any
opinion about them in the expert summary filed in respect of his
testimony, nor was
the question addressed in any of the joint minutes
filed by the medical experts. To the extent that these questions were
touched
upon in the expert evidence it became clear that there are a
range of techniques and instruments available to a surgeon performing
an operation and that, in many respects, what a particular surgeon
chooses to use is a matter of choice and preference, and that
choice
cannot be said to unreasonable simply because another surgeon using
different instruments or techniques achieved a more
satisfactory
result. In the result it appears to me that there is no evidence to
suggest that Dr Baker’s choice of technique
and instrument can
be said to have been one a reasonable surgeon in his position would
not have made.
[38]
For these reasons I am not satisfied that
the plaintiff has discharged the onus of proving that Dr Baker was
negligent, and that
he should be therefore be held liable for any
damages which might be proved. This being the case, questions of
causation do not
arise.
[39]
As to costs I see no reason why they should
not follow the result. The case could not have proceeded with without
assistance from
medical experts. Although I was not addressed by any
of the parties in regard to the qualifying expenses of the expert
witnesses
I think it is fair and reasonable that these be included in
such costs.
[40]
I therefore make the following order:
The
defendant is not liable for the damages claimed by the plaintiff in
this case.
The
plaintiff must pay the defendants costs of suit, such costs to
include the qualifying expenses of the witnesses in respect of
whom
the defendant filed notices in terms of Rule 36(9)(a) and(b).
KOEN
AJ
APPEARANCES
For the
Applicant: Mr J.A. van der Merwe SC
Instructed
by: Malcolm Lyons & Brivik Inc
For the
Respondents: Mr G.P. van der Merwe
Macrobert
Inc