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[2016] ZAWCHC 74
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Daniels v Minister of Defence (8462/2012) [2016] ZAWCHC 74; 2016 (6) SA 561 (WCC) (21 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 8462/2012
DATE:
21 JUNE 2016
REPORTABLE
In
the matter between:
PETER
ALLESANDRO FORELLI
DANIELS
........................................................................
Plaintiff
And
MINISTER
OF
DEFENCE
.....................................................................................................
Defendant
JUDGMENT:
21 JUNE 2016
ALLIE,
J:
1.
Plaintiff, a corporal in the South African
Airforce, instituted an action for damages arising out of the alleged
negligent medical
treatment he received at 2 Military Hospital,
Wynberg, Cape Town.
2.
The determination of the merits of the
claim is being adjudicated separately from the determination of the
quantum of plaintiff’s
claim.
3.
This court is seized only with the
determination of the merits at this stage
The
grounds of negligence alleged by plaintiff
4.
The medical practitioners that treated the
plaintiff at 2 Military Hospital, allegedly failed to:
4.1.
diagnose a perforation of the bowel and the
resultant sepsis;
4.2.
perform or cause to be performed any and/or
adequate special investigations to determine the cause of Plaintiff’s
symptoms;
4.3.
keep Plaintiff under close , careful and
regular observation so that his symptoms could be treated timeously
and appropriately;
4.4.
pay any and/or adequate regard to
Plaintiff’s persistent symptoms;
4.5.
provide appropriate treatment for the
perforation of the bowel timeously, adequately or at all;
4.6.
act with due care;
4.7.
diagnose and treat a bowel obstruction;
4.8.
carry out further and/or special
investigations, including,
inter alia,
a
laparotomy or laparoscopy to establish the cause(s) of the bowel
obstruction and to treat Plaintiff accordingly;
4.9.
diagnose that the bowel obstruction was
caused by a volvulus and treat Plaintiff accordingly; and
4.10.
provide appropriate treatment timeously or
at all so as to avoid further complications such as perforation of
the bowel.
5.
Plaintiff alleges in his particulars of
claim that as a result of the negligent conduct of Defendant’s
employees, Plaintiff
suffered the following
sequelae
:
5.1.
a perforation of the bowel and sepsis of
his abdomen resulting in a prolonged period of recuperation;
5.2.
he incurred hospital and medical expenses,
which he would otherwise not have incurred;
5.3.
he will in the future incur hospital and
medical expenses;
5.4.
he sustained shock, pain, suffering,
discomfort and a loss of amenities of life;
5.5.
he has in the past and will in the future
suffer loss of earnings.
Defendant’s
denial of negligence
6.
Defendant, in its plea, denied Plaintiff’s
allegations of negligence and alleged the following:
6.1.
Defendant denied that there was any failure
to diagnose the perforation of the bowel and resultant sepsis of the
bowel as there
was no clinical or any other diagnostic indication
that the Plaintiff had suffered a perforation of his bowel or sepsis
whilst
the Plaintiff was under Defendant’s care;
6.2.
Defendant denied any failure to perform
special investigations because Defendant’s employees performed
a whole array of special
investigations to determine the cause of
Plaintiff’s ongoing symptoms;
6.3.
Defendant alleged that on or about July and
August 2011, surgeons in the employ of Defendant offered to perform a
diagnostic laparoscopy
but Plaintiff refused to give his consent to
the laparoscopy after being requested to do so;
6.4.
Plaintiff accordingly failed to mitigate
his losses by declining the diagnostic laparoscopy;
6.5.
Defendant avers that Plaintiff was kept
under close careful and ongoing regular observation and provided
timeous, appropriate and
ongoing treatment for the Plaintiff and
attention to his symptoms;
6.6.
Defendant denies that there was any
clinical, diagnostic or any other medical indication that the
Plaintiff had perforated his bowel
whilst under Plaintiff’s
care;
6.7.
Defendant denies that it breached any
agreement between itself and Plaintiff and any legal duty that it had
towards Plaintiff.
7.
In response to specific questions contained
in Plaintiff’s request for Trial Particulars concerning when
the laparoscopy was
offered to Plaintiff, which surgeons offered it
and why Plaintiff refused to give consent to it, Defendant stated
that it was offered
between 8 to 12 July 2011 by Dr Marais in
consultation with all doctors attending the surgical ward round and
that Plaintiff should
be asked why he refused to consent.
Chronology
of Plaintiff’s illness and treatment
8.
The facts are briefly as follows.
9.
Plaintiff became ill on board a vessel on
22 May 2011. He was treated on the vessel when he complained of a
swollen and painful
stomach, nausea and vomiting. The doctor on board
the ship considered intussusception, i.e. When a part of the
intestine
prolapses into the other part. It was arranged for
him to be airlifted to 1 Military Hospital in Pretoria.
10.
That is where he had a sonar and a
gastroscopy. 1 Military Hospital noted that he had abdominal pain and
vomiting for 2 days.
11.
The reason given for the request for the
abdominal ultrasound and pelvic sonar are as follows:
’
?
? abdominal obstruction??”
This
is a query of bowel obstruction.
12.
”
The pelvic sonar report showed: “
Clear ascites visualized in the
right and left iliac fossa++ Dilated loops large .”bowel loops
seen pelvic.? ileus ?
obstruction.
”
13.
The abdominal ultrasound revealed the
following: “
There is a small
amount of clear fluid in the lower abdomen. The bowels appear dilated
+ stillstanding in keeping with ? ileus ?
subacute obstruction. No
obvious appendix mass or abcess visualized. This does not exclude
acute appendicitis. An X-ray is indicated.
”
14.
The request for an X-ray on 25 May 2011
shows the following: “
26 year old
presenting with abdominal pain. Distended bowel loops on ultrasound.
? bowel obstruction.
”
15.
The radiologist/sonographer report dated 27
May 2011 reveals the following;
“
severe
gastritis and multiple small ulcers.”
16.
He was discharged from 1 Military
Hospital on 27 May 2011 and he took a flight to Cape Town while still
in plain and vomiting.
17.
When he first went to 2 Military Hospital
upon his return to Cape Town, Plaintiff was given a drip, X-rays were
taken and they sent
him home without admitting him.
18.
He returned to hospital on 2 June 2011 and
he was admitted until 7 June 2011.
19.
He had a CT Scan of the abdomen and pelvis
which showed the following:
“
Distended
fluid and gas-filled loops of the small bowel are seen. Appearance of
slight thickening of the wall of the small bowel
is seen but it can
be due to under distension of the small bowel loops.? Infective
ileitis?”
Clearly the
radiologist was querying a possible infective ileitis at that stage,
but was also concerned about the distended bowel
loops.
20.
On 6 June 2011, a request was made for a
private practitioner’s services to be used to conduct a small
bowel study and follow
through because the machine at 2 Military
Hospital wasn’t working but the Plaintiff did not have the
small bowel follow through
study with a private practitioner but had
to wait until the Defendant’s machine was operational.
21.
At 01h50 am on 8 June, Plaintiff was back
at 2 Military Hospital complaining of severe abdominal pain and
vomiting. He was seen
by Dr Y. Parker in casualty who discussed his
condition with Dr Boggenpoel of the surgery department. Dr Parker
noted the following
after the discussion: “
Patient
not for admission; element of malingering; all tests done for patient
already; Give i/v i Panteloc and i/v i Stemetil.
”
22.
Plaintiff remained on sick leave but he was
re-admitted to 2 Military Hospital on 24 June 2011 until 18 July 2011
after his admission
was initially refused on 23 June 2011. He
returned on 24 June 2011 after being referred to hospital by his
Commanding Officer.
23.
The clinical notes of 23 June 2011 show he
was seen on 2 June 2011 with abdominal cramps and discharged on 7
June 2011 after a CT
scan of the abdomen and a gastroscope. He was
discharged with a diagnosis of gastritis and on 23 June 2011, he
again presented
with the same problems. His abdomen was noted to be
slightly tender. He was discharged on Buscopan, Tramadol and Lacson
and noted
to still have Losec and Aciban. He was to return on 30 June
2011 for another gastroscope.
24.
On 8 July 2011 a small bowel study and
follow through was eventually carried out. It showed, inter alia, the
following: “
Delayed transit time
with dilated featureless loop with a maximum diameter of
5,5cm…Dilated featureless distal ileal loop.
An internal
transomental small bowel hernia is a diagnostic consideration
.”
25.
On 11 July 2011 a further gastroscopy was
performed on Plaintiff.
26.
Plaintiff went home on a pass from the
hospital from 12 to 14 July 2011 and again from 14 to 18 July 2011.
27.
On 18 July 2011 Plaintiff was sent to the
dietician after the morning ward round by the doctors and discharged.
28.
On 21 July 2011, Plaintiff saw Dr
Marais as an outpatient for a follow-up consultation. Dr Marais
recorded the following: “
Abdominal
pain, nausea, vomiting investigated extensively, no cause found. Now
improved. Tolerated food well. Still in pain over
bladder when he
urinates. Sometimes epigastric pain. Was seen by a dietician. Still
needs to gain weight. Citrus soda prescribed.”
29.
On 24 July 2011, Plaintiff had a
consultation at the Psychology Department of 2 Military Hospital.
30.
On 3 August 2011, Plaintiff saw Dr Du Toit
at the Urology Department of the hospital. This doctor noted a weight
loss of 20kg and
“
abdominal
pain since June. Also suprapubic pain, dysuria, penile pain, left
orchialgia all started while in hospital. No nocturia
no frequency &
severe dysuria, perineal pain while urinating and left flank pain…
? internal hernia ? laparoscopy.
The
urologist was also querying a possible internal hernia and whether a
laparoscopy should be performed.
31.
On 10 August 2011, the Plaintiff was seen
at the Urology Department of the hospital again by Dr Theron who
recorded the following:
“ …
Still
pain left inguinal area. Audible bowel sounds. ? Femoral hernia
left, internal hernia.. Send to Surgery. Strongly consider
diagnostic
laparoscopy/laparotomy.”
32.
On 15 August 2011 Plaintiff was
admitted to Tygerberg Hospital for an emergency laparotomy.
33.
Tygerberg Hospital’s histology report
records,
inter alia
,
the following:
“
Clinical
finding is a sealed off terminal ileum and perforation of unknown
reason.
Macroscopic
specimen
consists of a part of terminal ileum. The entire specimen measures
300mm. The medial part of the small bowel shows a twisted
area with
perforation… A small part of the omentum is present.
Microscopic
sections
of the strangulated bowel is in keeping with ischemic colitis,
characterised by mucosal sloughing with haemorrhage into
the lamina
propria. The subepithelial layers are also undermined and show
extensive granulation tissue with organizing inflammation
as well as
perotinitis.
Comment:
The
histology is in keeping with the macroscopic description of a
volvulus.
Diagnosis:
Colectomy
Ischemic colitis.
”
34.
Plaintiff was discharged from Tygerberg
hospital on 14 September 2011 and the diagnosis was given as bowel
obstruction
Defendant’s
Medical Expert
35.
Dr Marais testified as one of the doctors
attending to the Plaintiff, the doctor under whose supervision the
other doctors in the
Surgical ward attended to the Plaintiff and as
an expert witness for the defendant
36.
Dr Marais acknowledged that Plaintiff’s
mother complained to him about Dr Motale and other medical personnel
being abrupt
with Plaintiff. He undertook to speak to his staff,
which he did.
37.
Dr Marais accepted that it was
inappropriate for medical personnel to label the Plaintiff as a
malingerer and not take his complaints
seriously but he denied that
the personnel at 2 Military Hospital behaved in that manner.
38.
Dr Marais testified that Plaintiff’s
symptoms included nausea and vomiting which were constant but the
pain he experienced
appeared to vary in its locality and intensity. A
previous gastroscope undertaken at 1 Military Hospital showed
duodenal ulceration
and plaintiff had gastritis. He said that the
Plaintiff also had symptoms that could be attributed to a bladder
problem and appendicitis.
He accordingly could not make a definitive
diagnosis. He didn’t see any fluid in the stomach which is what
he would expect
to see if there was a bowel obstruction. The ulcers
were caused by the Helicobacter Pylori bacteria, which was treated
with antibiotics
and by the time the Plaintiff had a third
gastroscope, the ulcers had healed. The Plaintiff was referred to a
Urologist because
his suprapubic pain was indicative of a need for
urological investigation. He explained that bowel pain is a diffused
pain and
is not easy to pin point because it is located over a large
area. He explained that an ileus is an effect of another cause such
as diverticulitis, perforation or infected appendix which could all
lead to an ileus. He says the Plaintiff’s symptoms and
the
results of the gastroscope, X-ray and ultra sound did not support a
provisional diagnosis of a small bowel obstruction.
39.
Dr Marais disagreed with Plaintiff’s
expert, Dr Lebos that Plaintiff had a transomental hernia of the
small bowel.
40.
He said that a volvulus which is a twisting
of the bowel was not shown on the barium meal and follow through nor
on the CT scan.
He believed that the pathologist had no grounds for
concluding that a volvulus existed as seen on the Tygerberg Hospital
histology
report because the volvulus would have to be a clinical
finding. That report also states that the cause of the perforation is
unknown
and therefore he doesn’t believe that the perforation
was caused by a transomental hernia.
41.
Although the results of the bowel follow
through study came back with abnormalities, it didn’t show the
existence of an obstruction.
He said that he initially thought he
should investigate the small bowel but the Plaintiff had an infection
and he thought that
it would settle on antibiotics but it didn’t
and so he wanted to conduct a further investigation, namely a
laparoscopy/laparotomy.
42.
Dr Marais said that on 7 July 2011, after
he had the result of the x-rays and he knew the results of the follow
through, he discussed
with the Plaintiff that the next procedure to
conduct would be the laparoscopy/laparotomy and he explained what the
procedure entailed.
He merely asked Plaintiff at that stage to think
about having that procedure and he would discuss it with the
Plaintiff again later.
He said that when the Plaintiff returned to
hospital on 14 July 2011 after being away on pass from 12 July, he
would have discussed
the laparoscopy/laparotomy with the Plaintiff
during the ward round. He however made no notes that he
discussed it with plaintiff.
43.
According to Dr Marais, the plaintiff was
booked to be seen by the anaesthetist on 14 July 2011 and thereafter
he was given a pass
to go home for the weekend and return on Monday
18 July 2011 for the laparoscopy/laparotomy procedure.
44.
He said that informed consent is usually
taken from patients in the afternoon before the procedure.
45.
He said that in his letter to the
Plaintiff’s Commanding Officer dated 13 July 2011, he alleged
that he explained to the Plaintiff
the need to perform a
laparoscopy/laparotomy and he went home to discuss it with his
parents. Presumably this was during the period
12 to 14 July 2011,
when Plaintiff was on pass.
46.
Dr Marais however said in his evidence in
chief that he would have discussed the laparoscopy/laparotomy with
the Plaintiff finally
at the ward round on 14 July 2011. The notes
pertaining to that ward round contains mention of a dietician and
that the Plaintiff
would be on pass for the weekend but no mention of
the Plaintiff being booked for surgery on 18 July 2011.
47.
Dr Marais admitted that he made no notes of
a discussion with the Plaintiff concerning the procedure that he
offered nor of the
Plaintiff’s alleged refusal to have the
procedure.
48.
Dr Marais said that because the procedure
was entered in the surgical diary for 18 July 2011 and crossed out,
he must have offered
the procedure to the Plaintiff.
49.
At the follow-up consultation that Dr
Marais had with the Plaintiff after he was discharged, Dr Marais made
no note of having discussed
with the Plaintiff the consequence of his
refusal to have the laparoscopy/laparotomy nor did he mention that
procedure at all.
50.
Dr Marais said the following during cross
examination.
51.
Dr Marais agreed that abdominal pain,
nausea and vomiting could also be symptoms of a partial or complete
bowel obstruction.
52.
He said that the results of the abdominal
x-ray of 2 June 2011, show features that could indicate
radiologically, a possible bowel
obstruction but the
laparoscopy/laparotomy is an invasive procedure and would not be
undertaken before prior investigations.
53.
Dr Marais said that when the Plaintiff
returned to hospital in the early hours of 8 July 2011 and he was
rolling around in pain,
his bowel was not distended and he would
expect a complete bowel obstruction when the patient complains of
severe abdominal pain
and in that instance, there ought to have been
bowel distension. Dr Marais admits that it was incorrect for the
doctors to tell
the plaintiff that all the relevant tests had already
been conducted and they didn’t have a diagnosis and for them to
refuse
to admit the plaintiff and send him home instead.
54.
He conceded that after the small bowel
follow through on 7 July 2011, part of the bowel was dilated and
there was delayed transit
time.
55.
Dr Marais said that its wise but not
imperative to record in writing a discussion with the patient in
which he/she is advised of
the risks and consequences of having the
procedure and of refusing to have the procedure.
56.
Dr Marais said that he discussed with
Plaintiff that if he didn’t do the laparoscopy/laparotomy, he
would not have a diagnosis.
He allegedly didn’t discuss the
likelihood of a perforation with plaintiff because in partial
obstruction, one rarely finds
a perforation. He was challenged on how
he could remember what he discussed with the plaintiff concerning
consent to the procedure
4 and1/2 years ago without any notes having
been made of that discussion. He could not support his alleged
independent recollection
with any collateral evidence. He could not
recall on which date he had the discussion with the plaintiff but he
believed it was
on 8 July 2011 after the plaintiff had the follow
through study.
57.
He agreed that his letter to plaintiff’s
Officer Commanding dated 13 July 2011, in which he said that a
laparoscopy/laparotomy
was a last option, contained an unfortunate
choice of words and he should have said that the procedure was “the
remaining
option.”
58.
Dr Marais maintained that he and all the
medical staff believed that the plaintiff was going to have the
procedure after he saw
the anaesthetist on 14 July 2011, even though
the plaintiff had not given written consent or signed an
acknowledgement of the intended
procedure.
59.
Dr Marais said that on 12 July 2011, the
plaintiff was given a pass to go home and discuss the intended
procedure with his parents
and return on 14 July, 2011, the Friday
before the Monday that the procedure was allegedly scheduled for. He
could not explain
when and how the plaintiff’s decision
concerning whether to continue to have the procedure was meant to be
conveyed to him
nor when and how the plaintiff’s alleged
refusal to have the procedure was conveyed to him and the theatre
staff.
60.
Dr Marais agreed that in those
circumstances, it was important to write down that the patient
refused the procedure but he could
give no explanation for it not
being recorded anywhere in the medical records of the plaintiff.
61.
On 11 July 2011, Dr Du Toit, notes that he
would discuss a laparoscopy with Dr Marais and Dr Marais couldn’t
explain in his
evidence why it was being considered on 11 July 2011,
if Dr Marais already offered the procedure as the next step in the
investigation
of the patient’s condition on 7 or 8 July 2011,
as he alleged.
62.
Dr Marais was convinced that he saw the
plaintiff on 18 July 2011, the day the procedure was scheduled, but
he made no note that
Plaintiff refused the procedure and the theatre
diary and slate contains no note of such refusal either.
63.
Dr Marais saw the plaintiff as an
outpatient on 21 July 2011, 3 days after he was scheduled to have the
procedure according to defendant,
yet Dr Marais made no note of the
scheduled procedure nor of the plaintiff’s refusal to have it.
64.
Dr Marais said that its only an assumption
that the perforation and subsequent resection of the plaintiff’s
small bowel could
have been avoided, if the laparoscopy had been
carried out while the plaintiff was under his care, because he
doesn’t know
the ultimate cause of the perforation.
65.
It was put to Dr Marais whether the
plaintiff had a transomental hernia, partial or complete bowel
obstruction or an ileus, the
plaintiff would nonetheless require a
laparoscopy/laparotomy to identify it or exclude it. Dr Marais
agreed.
66.
Dr Marais persisted with his evidence that
the plaintiff did not present with signs of bowel obstruction while
under his care, despite
several medical practitioners querying bowel
obstruction as outlined in the chronology of treatment above.
Plaintiff’s
Medical Expert
67.
Dr Lebos, plaintiff’s expert,
testified as follows.
68.
The pelvic sonar of 24 May 2011 showed
ascites, i.e. fluid in the abdomen and dilated loops of bowel. At the
time, the possibility
of an ileus or obstruction was queried.
69.
On 25 May 2011, the ultrasound results
referred to distended bowel loops and again a query of bowel
obstruction was raised.
70.
On 6 June 2011 a CT scan was performed and
the report refers to distended fluid- and –gas filled loops of
small bowel with
a query of infective ileitis.
71.
The queries related primarily to a need to
investigate a possible obstruction and/or inflammation of the small
bowel, yet the medical
doctors attending to the Plaintiff sought to
exclude several other possible causes other than conducting an
investigation of the
small bowel.
72.
A small bowel follow through study was
conducted on 7 July 2011 which revealed a delayed transit time with a
dilated featureless
distal ileal loop, which was distended to a
diameter of 5,5cm. Dr Lebos said that the normal diameter is 2 to
2,5cm. A query was
raised that there may be a small bowel hernia but
this was not followed up.
73.
According to Dr Lebos the study showed a
pathology associated with the small bowel and an investigation and if
needs be, intervention
was required.
74.
On 3 August 2011, when Plaintiff was seen
by a urologist as an outpatient, a laparoscopy was suggested but not
actually arranged.
75.
On 10 August the urology department again
suggested a diagnostic laparoscopy/ laparotomy but again it was not
arranged nor scheduled
then.
76.
Eventually Plaintiff underwent an emergency
laparotomy at Tygerberg Hospital on 15 August 2011 where a terminal
ileum and perforation
of the distal small bowel of unknown cause was
found. He had a resection of the small bowel and reconnection of part
of the small
intestine.
77.
Dr Lebos holds the view that the findings
of the laparotomy are consistent with the symptoms and complaints of
the Plaintiff all
along.
78.
Dr Lebos concluded that plaintiff was not
treated with the necessary care and skill in the following respects:
78.1.
Further investigations in the form of a
laparoscopy/laparotomy were not carried out immediately after the
Plaintiff was admitted
to 2 Military Hospital, for eg, when the
reports of the CT scan, abdominal X-ray reports, gastroscopy and the
barium meal
and small bowel follow through study were known,
especially when those reports are considered together with the
queries raised
by the doctors at 1 Military Hospital and by the
radiologists at 2 Military Hospital;
78.2.
By 6 June 2011 the barium meal and follow
through was not conducted although permission to do it privately was
sought;
78.3.
Although the perforation of the bowel would
not have occurred until shortly before the Plaintiff was admitted to
Tygerberg Hospital,
all the indications are that the Plaintiff had a
small bowel pathology and had the laparoscopy/laparotomy been carried
out earlier,
the perforation of the bowel and the resulting sepsis
could have been avoided. In that instance, there would have been no
need
to do a resection of part of his small bowel and the recurrence
of future bowel obstruction would have been less likely because
there
is a 30 per cent recurrence due to adhesions of the bowel after a
resection.
79.
Dr Lebos agrees with the initial
investigative measures followed at 1 Military hospital, some of which
were duplicated at 2 Military
hospital, namely, an ultrasound,
followed by an abdominal X-ray, a CT scan, followed by a barium meal
and follow through study
and a gastroscopy. He however believes that
after all those tests together with the doctors’ clinical
observations and the
patient’s complaints, remained, those
factors ought to have caused the treating doctors to do a
laparoscopy/laparotomy soon
after the follow through study’s
results were known and it was clear that further investigations were
required.
80.
Dr Lebos doubts that the Plaintiff had
Helicobacter Pylori bacteria and had to be treated for it and for the
consequential ulceration
because the symptoms that Plaintiff had
could not be explained solely by ulceration.
81.
Dr Lebos believes that treating the
Plaintiff for gastritis was merely treating symptoms without
establishing the cause of the gastritis-like
symptoms. Dr Lebos
agreed that the Plaintiff’s complaint of abdominal pain is
non-specific but he believes that after all
the tests were complete
and the doctors still didn’t discover a cause, while the
results of the investigations show a possibility,
although not
conclusive, that a bowel obstruction could be occurring, it was
necessary for the doctors to exclude the bowel obstruction
as a
possible cause, hence the need for a laparoscopy/laparotomy..
82.
He is of the view that the Plaintiff ‘s
ability to tolerate the barium, indicates that there was a partial
obstruction at
that stage and the bowel was herniated then.
83.
The fact that the Plaintiff lost 20kg
according to the medical notes, led Dr Lebos to believe that the
Plaintiff had a gastro-intestinal
problem.
84.
According to Dr Lebos the most likely
explanation for the Plaintiff’s recurring pain, nausea and
vomiting is the following:
there was an internal hernia that caused
the bowel to twist on its own axis and then un-twist and that process
continued until
a section of the bowel twisted to such an extent that
it caused the blood supply to that section to be cut off which led to
a perforation.
85.
Dr Lebos took issue with the way Dr Marais
wrote to Plaintiff’s Officer commanding about offering the
laparoscopy/laparotomy
to the Plaintiff because Dr Marais said that
he explained to Plaintiff that a last option would be to do a
laparoscopy/ laparotomy.
According to Dr Lebos, that description ties
in with Dr Marais’ attitude that there was no haste in doing a
laparoscopy/
laparotomy.
86.
Dr Lebos agrees with Dr Marais that a
volvulus in the small bowel is very rare.
87.
He disagreed with the proposition put to
him on behalf of Dr Marais that a twisted area of the small bowel
could occur without a
volvulus and as a result of an adhesion by two
parts of the bowel. He explained that the mechanism of adhesion was
different to
the mechanism of twisting on its own axis.
88.
It was put to Dr Lebos that Dr Marais would
say that he considered Crohn’s disease, Yersinia Enterocolitis,
infective ilieutis
or a lymphoma of the small bowel throughout the
period of treatment. Dr Lebos rejected that proposition because
Plaintiff’s
medical records do not contain notes supporting
those as possible diagnostic considerations nor were there any tests
performed
which support those considerations.
89.
Concerning Dr Marais’ testimony that
he did inform the Plaintiff about the benefits of having a
laparoscopy/laparotomy, and
Plaintiff nonetheless refused to have it,
Dr Lebos referred to the Health Practitioners Council of South Africa
(HPCSA)’s
guidelines for a health practitioner taking informed
consent from a patient.
90.
Dr Lebos is of the view that a patient must
be fully informed of the risks and benefits of having the procedure.
In the event of
a patient refusing consent, the patient ought to be
counselled about the consequences of his/her decision. Dr Lebos is of
the view
that it is sound practice to have a patient sign a document
recording his refusal to consent to the procedure, despite having
been
informed of the risks associated with such refusal.
Plaintiff’s
evidence
91.
He is now a 31 year old, aircraft mechanic.
92.
Before he became ill, he was athletic but
he is no longer as active as then.
93.
The day after he arrived back in Cape Town
after being discharged from 1 Military Hospital, he had extreme pain
and vomiting and
his parents took him to the casualty section at 2
Military Hospital on 29 May 2011. He was put on a drip, sent for
x-rays and sent
home in the early hours of the morning.
94.
The following day, he again had severe pain
and vomiting and his parents took him back to the casualty section,
where he was given
a drip and medication and again sent home.
95.
On 2 June 2011 he went back to hospital
with severe symptoms and he was admitted until 7 June 2011, when he
was discharged.
96.
On 8 June 2011, he was taken back to
hospital with the same symptoms but he wasn’t admitted. He was
sent home with medication
and told that he was malingering.
97.
On 24 June 2011, after returning to
work, he felt tremendous pain and nausea and he was taken back to
hospital where he was admitted.
98.
He saw a dietician in hospital who also
accused him of malingering. He was very upset because his symptoms
were real and not imagined.
99.
By 10 August 2011, when he saw the
urologist as an outpatient, his cramps would come and go.
100.
He lost 20 kg in weight and his arms were
swollen from the many drips he had.
101.
He denied that any doctor at 2 Military
Hospital offered to perform a laparoscopy/laparotomy on him and that
he refused that procedure.
102.
He felt despondent about the lack of
effective treatment, lack of a firm diagnosis and the attitude of Dr
Motale and the dietician
who accused him of malingering.
103.
He initially thought that he went on pass
from the hospital only on 14 to 18 July 2011, but he was referred to
additional medical
records that were discovered late and which show
that he also went on pass on 12 to 14 July 2011. He conceded that he
went on pass
both times.
104.
He denied that he was booked to have the
laparoscopy/laparotomy on 18 July 2011 and that he refused to have
the procedure.
Applicable
Legal Principles
105.
The plaintiff bears the onus of proving
that the doctors in the employ of defendant that treated him, did not
meet the requisite
standard of care and how their alleged failure to
do so caused the Plaintiff’s medical condition.
106.
Defendant bears the onus of establishing
that Plaintiff failed to mitigate his damages by his refusal to give
his consent for a
laparoscopy/laparotomy.
107.
It is trite that a plaintiff in a delictual
claim is obliged to prove negligence, causation and harm.
108.
The
test for causation encapsulates a two stage inquiry, namely, a
factual test and an inquiry into the close connection between
the act
or omission and the harm
[1]
:
“
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is a
factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This has
been referred to as
'factual causation'. The enquiry as to factual causation is generally
conducted by applying the so-called 'but-for'
test, which is designed
to determine whether a postulated cause can be identified as a causa
sine qua non of the loss in question.
In order to apply this test one
must make a hypothetical enquiry as to what probably would have
happened but for the wrongful conduct
of the defendant. This enquiry
may involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical
course of lawful conduct and the
posing of the question as to whether upon such a hypothesis
plaintiff's loss would have ensued
or not. If it would in any event
have ensued, then the wrongful conduct was not a cause of the
plaintiff's loss; aliter, if it
would not so have ensued. If the
wrongful act is shown in this way not to be a causa sine qua non
of the loss suffered, then
no legal liability can arise. On the other
hand, demonstration that the wrongful act was a causa sine qua non of
the loss does
not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is
basically
a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called 'legal
causation'.”
109.
Causation
has to be proved on a balance of probabilities.
[2]
110.
In
Minister
of Safety and Security v Van Duivenboden
[3]
[2002]
ZASCA 79
,
the
court held that:
“
A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.”
111.
It
has been held that the “but for” test requires
flexibility and a common sense approach when the issue of causation
has to be decided on the ground of an alleged negligent omission as
opposed to negligent commission. It has been stated as follows:
[4]
“
[48] While
it may be more difficult to prove a causal link in the context of a
negligent omission than of
a commission, Lee explains that
the “but-for” test is not always the be-all and end-all
of the causation
enquiry when dealing with negligent omissions.
The starting point, in terms of the “but-for” test, is to
introduce
into the facts a hypothetical non-negligent conduct of the
defendant and then ask the question whether the harm would have
nonetheless
ensued. If, but for the negligent omission, the
harm would not have ensued, the requisite causal link would have been
established.
The rule is not inflexible. Ultimately, it
is a matter of common sense whether the facts establish a
sufficiently close link
between the harm and the unreasonable
omission.”
112.
In
Loureiro’s
case
[5]
, the court made the
distinction between the test for wrongfulness and negligence clear,
in the following manner:
“
Did
Mr Mahlangu act wrongfully and negligently? The enquiries into
wrongfulness and negligence should not be conflated. To
the extent
that the majority judgment of the Supreme Court of Appeal did not
distinguish between these, it is incorrect.
The wrongfulness
enquiry focuses on the conduct and goes to whether the policy and
legal convictions of the community, constitutionally
understood,
regard it as acceptable. It is based on the duty not to cause
harm – indeed to respect rights – and
questions the
reasonableness of imposing liability. Mr Mahlangu’s subjective
state of mind is not the focus of the wrongfulness
enquiry.
Negligence, on the other hand, focuses on the state of mind of the
defendant and tests his or her conduct against
that of a reasonable
person in the same situation in order to determine fault.”
113.
The
standard of care the courts expect from a doctor is not the highest
standard but rather a reasonable standard. In
Mitchell
v Dixon
[6]
it was held to be as follows:
“
A
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill,
but he is bound to employ reasonable skill and care; and he is liable
for the consequences if he does not
.”
114.
The
degree of care and skill expected of a diligent medical practitioner
in the position that defendant’s employees found
themselves,
namely, as doctors treating a patient with continuous and unresolved
symptoms and complaints, all of which remained
constant, save for the
exact location of pain in the abdomen, which varied, is that of a
reasonably skilled practitioner.
[7]
115.
The
test is ultimately how would reasonable medical practitioners in the
position of defendant’s employees have conducted
themselves,
[8]
what procedures would they follow, what information would they impart
to the patient, how would they disclose that information
and at what
pace and with what amount of rigour would those measures be employed
for it to constitute reasonable and diligent conduct.
116.
A further consideration is the level of
insight that a diligent and reasonable practitioner in the position
of the treating doctors
ought to possess and ought to demonstrate in
taking account of the likely consequences occasioned by a delay in
making a definitive
diagnosis and in sending a patient home without
such a diagnosis before a patient can receive treatment for a
definitive diagnosis.
117.
A
court can’t absolve a defendant merely because medical evidence
shows a sound medical practice. If professional opinion
overlook an obvious risk, it will not be a reasonable practice.
[9]
118.
A
failure to act in accordance with an awareness of possible danger as
a reasonably skilled and careful doctor ought to, has been
found to
constitute negligence.
[10]
119.
The
National Health Act
[11]
applies to all medical practitioners who are healthcare providers and
applies to defendant’s employees at 2 Military Hospital.
120.
The
Act makes specific provision for a patient to be adequately informed
of his/her status unless it will be adverse to the patient’s
health if he/she were so informed, the range of diagnostic procedures
and treatment options available, the risks, benefits, costs
and
consequences associated with such options, the patient’s right
to refuse health services and the implications, risks,
obligations of
such refusal.
[12]
121.
The
Act further provides for a patient to be given sufficient information
about the recommended procedure and/or treatment to enable
a patient
to make an informed decision and accordingly give informed consent or
be aware of all the requisite information should
he/she refuse to
give consent.
[13]
122.
The HPCSA has formulated ethical guideline
for: Seeking Patient’s Informed Consent: The Ethical
Considerations. Those guidelines
are applicable to all healthcare
practitioners registered with the HPCSA.
123.
The guidelines provide that: “
these
guidelines form an integral part of standards for professional
conduct against which a complaint of professional conduct will
be
evaluated.
”
124.
The guidelines incorporate the provisions
of the National Health Act which, together with the guidelines,
constitute a yardstick
against which standards of professional
conduct can be measured.
125.
The guidelines provide further as follows:
“
3.3.1
Patients have a right to information about any condition or
disease from which they are suffering. This
information should
be presented in a language that the patient understands. The
information which patients want or ought
to know, before deciding
whether to consent to treatment or an investigation, includes:
3.1.3.1
Details of the diagnosis and prognosis, and the likely
prognosis if
the condition is left untreated, must be made clear to the patient;
3.1.3.2
Uncertainties about the diagnosis, including options for
further
investigation prior to treatment;
3.1.3.3
Options for treatment or management of the condition, including
the
option not to treat;
3.1.3.4
The purpose of a proposed investigation or treatment;
details
of the procedures or therapies involved, including subsidiary
treatments such a methods of pain relief; how the patient
should prepare for the procedure; and details of what the
patient might experience during or after the procedure including
common and serious side effects;
3.1.3.5
For each option, explanations of the likely benefits and
the
probabilities of success, and discussion of any serious or frequently
occurring risks, and of any lifestyle changes which may
be caused or
necessitated by the treatment;
…
3.1.3.10
a reminder that patients can change their minds about a decision at
any time;
3.1.3.11
a reminder that patients have a right to seek a second opinion;
3.1.3.12
… ”
126.
On the subject of “PRESENTING
INFORMATION TO PATIENTS” the guidelines provide:
3.4.1
“Obtaining informed consent cannot be an isolated event.
It involves a continuing
dialogue between heath care practitioners
and their patients which keeps them abreast of changes and conditions
of patients and
the treatment or investigation the practitioner
proposes. Whenever possible, healthcare practitioners should
discuss treatment
options at a time when the patient is best able to
understand and retain the information.
3.4.2
To be sure that their patients understand, healthcare practitioners
should give clear explanations
and give the patient time to ask
questions. In particular, healthcare practitioners should:
3.4.2.1
Use up to date written material, visual and other aids to explain
complex aspects of
the investigation, diagnosis or treatment where
appropriate or practicable; …
3.4.3.2
Where appropriate, discuss with patients the possibility of being
accompanied by a relative
or friend, or making a tape recording of
the consultation;
3.4.2.4
Explain the probabilities of success, or the risk of failure of, or
harm associated
with options for treatment, using accurate data;
…”
127.
As to the “MEANING OF INFORMED
CONSENT” the guidelines provide:
“
4.1
The South African courts have held that legally for a proper informed
consent the
patient must have:
4.1.1
Knowledge of the nature or extent of the harm or risk;
4.1.2
Appreciated it and understood the nature of the harm or risk;
4.1.3
Consented to the harm or assumed the risk; and
4.1.4
The consent must have been comprehensive, (i.e. extended the entire
transaction, inclusive of
its consequences).”
128.
The Guidelines stipulate that the patient
must furnish an “EXPRESS CONSENT” to the procedure or
investigation and they
provide:
“
13.
EXPRESS CONSENT
13.1
Patients can indicate their informed consent either orally or in
writing;
13.2
In some cases, the nature of the risks to which the patient might be
exposed make it important
that a written record is available of the
patient’s consent and other wishes in relation to the proposed
investigation and
treatment.
This
helps to ensure later understanding between the healthcare
practitioner, the patient an anyone else involved in carrying out
the procedure or providing care.
…
13.4
Healthcare practitioners must use the patient’s case notes or
the consent form to
detail the key elements of the discussion with
the patient, including the nature of the information provided,
specific requests
by the patient, and details of the scope of the
consent given.”
129.
On Dr Marais’ evidence, he and the medical staff acting under
his supervision clearly didn’t comply with
the letter or the
spirit of the guidelines fully.
Evaluation
of Expert Evidence
130.
A court has to evaluate expert evidence in
the following manner:
“
What
was required of the trial Judge was to determine to what extent the
opinions advanced by the experts were founded on logical
reasoning
and how the competing sets of evidence stood in relation to one
another, viewed in the light of the probabilities
.”
[14]
131.
Before I embark on that evaluation, it is
necessary to discuss the independence of the defendant’s
medical expert. I am not
entirely convinced that the State Attorney’s
modus operandi
,
which may well be linked to ostensible cost saving measures, which
involves using the medical practitioner whose conduct is the
subject
of the litigation, to testify as the attending or supervising doctor
and as an expert, is a sound and acceptable practice
for an officer
of the court to embark upon.
132.
An expert witness is meant to assist the
court in its findings on issues pertaining to medical expertise.
133.
The attending or supervising doctor, does
not comply with the requisites of an independent expert witness.
He/she is not able to
bring to bear his /her independent expert
opinion based on his/her knowledge, skill and experience, which must
be clouded by his
own personal involvement in the treatment of the
patient on the facts of the case and to provide the court with a
sound medical
basis, for his/her conclusions. A witness who is
integrally linked with the medical treatment of a patient will find
himself in
a position where he feels compelled to justify his
decisions and conduct.
134.
The
duties of an expert witness is aptly stated by Justice Cresswell in
National
Justice Compania Naviera SA v Prudential Assurance
Company Limited
(also known as the “
Ikarian
Reefer” case
)
[15]
as follows:
“
THE
DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES
The
duties and responsibilities of expert witnesses in civil cases
include the following:
1.
Expert evidence presented to the Court should be, and should be seen
to be, the independent product
of the expert uninfluenced as to form
or content by the exigencies of litigation.
2.
An expert witness should provide independent assistance to the Court
by way of objective unbiased
opinion in relation to matters within
his experience.
3.
An expert witness should state the facts or assumption upon which his
opinion is based, He should
not omit to consider material facts which
could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue fall outside his expertise.
”
Summary
of the Alleged Failure to Exercise a Duty of Care
135.
On 24 May 2011, while the plaintiff was in
1 Military Hospital, a bowel obstruction was considered as a possible
diagnosis when
the pelvic sonar results were considered.
136.
The report on the abdominal
ultrasound/sonar of 24 May 2011, also shows that the radiologist
queries a possible sub-acute obstruction.
137.
The clinical findings shown on the
abdominal x-ray results dated 25 May 2011 state: “
Distended
bowel loops on ultrasound
”. This
is a further reference to a need to investigate the bowel and why it
had distended loops. The rationale for requesting
the x-ray is given
as possible bowel obstruction.
138.
When plaintiff was admitted to 2 Military
Hospital from 2-7 June 2011, he had a CT scan of the abdomen and
pelvis which showed
inter alia
,
“
distended and fluid- and-gas-
filled loops of small bowel”.
139.
The hospital obtained authorisation to have
an emergency small bowel follow through study carried out privately
as 2 Military Hospital’s
machine wasn’t working. The
authorisation was granted on 6 June 2011 but despite the
authorisation, plaintiff was discharged
on 7 June 2011 without
performing the study.
140.
Even though plaintiff came back to hospital
in the early hours of the morning of 8 June 2011 with complaints of
severe abdominal
pain and vomiting, he wasn’t admitted but
treated with a drip and medication and sent home without definitive
diagnosis and
without the emergency bowel follow through study having
been conducted.
141.
Dr Marais conceded that on 8 June 2011, the
doctor who treated the Plaintiff ought to have admitted him and
should not have sent
him home under those circumstances.
142.
The diagnostic procedure that ought to have
been conducted at that stage was a small bowel follow through study
and a laparoscopy/laparotomy.
143.
The plaintiff remained on sick leave until
he returned to work where his pain and nausea were so intolerable
that he was taken back
to hospital on 24 June 2011 because his
Officer Commanding communicated with the hospital on his behalf.
144.
In the 25 days that plaintiff remained
under the care of 2 Military Hospital from 24 June to 18 July 2011,
no definitive diagnosis
was made but he was seen by a team of
doctors during daily ward rounds, by a dietician and a psychologist
at the request
of the attending doctors
145.
Eventually, on 7 July 2011, a small bowel
follow through study was carried out. It showed that the small bowel
was more than double
its normal size and there was a delayed transit
time, all of which indicated, at least a need to investigate the
internal condition
of the small bowel with a laparoscopy/laparotomy.
That procedure was not carried out at 2 Military Hospital.
146.
Plaintiff was discharged on 18 July 2011
without a definitive diagnosis having been made.
147.
Plaintiff saw Dr Marais in a follow-up
consultation on 21 July 2011, but no mention was made in the notes
concerning that visit,
of a laparoscopy/laparotomy.
148.
On 3 August 2011 and 10 August 2011, the
Plaintiff saw doctors in the urology department at 2 Military
Hospital who both strongly
recommended admission to the surgical ward
for a laparoscopy/laparotomy but nothing to that effect was arranged
for the plaintiff.
149.
On 15 August the plaintiff was admitted to
Tygerberg Hospital where he had an emergency laparotomy where a
perforation of his distal
small bowel was found.
Evaluation
150.
In
Oppelt
v Head: Health, Department of Health Provincial Administration:
Western Cape
[16]
the following extract from the majority judgment set out the
approach a court should adopt to the evaluation of expert evidence
as
follows:
“
[36]
The correct approach to the evaluation of medical evidence is the one
laid down by the Supreme Court of Appeal in Linksfield where
it held that—
‘
it
is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the court itself to
determine
on the basis of the various, and often conflicting, expert
opinions presented. As a rule that determination will not
involve
considerations of credibility but rather the examination of
the opinions and the analysis of their essential reasoning,
preparatory
to the court’s reaching its own conclusion on the
issues raised.
.
. .
Although
it has often been said in South African cases that the governing test
for professional negligence is the standard of conduct
of the
reasonable practitioner in the particular professional field, that
criterion is not always itself a helpful guide to finding
the answer.
.
. .
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning. That is the thrust of the
decision of the House of Lords in the medical negligence case
of Bolitho v City and Hackney Health Authority
[1997]
UKHL 46
[1997] UKHL 46
; ;
[1998]
AC 232
(H.L.(E.)).
With the relevant dicta in the speech of Lord
Browne-Wilkinson we respectfully agree. Summarised,
they are to
the following effect.
The
court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical
practice.
The court must be satisfied that such opinion has a
logical basis, in other words that the expert has considered
comparative risks
and benefits and has reached ‘a defensible
conclusion’ (at 241G-242B). If a body of professional
opinion overlooks
an obvious risk which could have been guarded
against it will not be reasonable, even if almost universally held
(at 242H).
A
defendant can properly be held liable, despite the support of a body
of professional opinion sanctioning the conduct in issue,
if that
body of opinion is not capable of withstanding logical analysis and
is therefore not reasonable. However, it will
very seldom be
right to conclude that views genuinely held by a competent expert are
unreasonable. The assessment of medical
risks and benefits is a
matter of clinical judgment which the court would not normally be
able to make without expert evidence
and it would be wrong to decide
a case by simple preference where there are conflicting views on
either side, both capable of logical
support. Only where expert
opinion cannot be logically supported at all will it fail to provide
‘the benchmark by reference
to which the defendant’s
conduct falls to be assessed’ (at 243A-E).
.
. .
This
essential difference between the scientific and the judicial measure
of proof was aptly highlighted by the House of Lords in
the Scottish
case of Dingley v The Chief Constable, Strathclyde Police
2000
SC (HL) 77
and
the warning given at 89D-E that:
[O]ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.’ ”
151.
The treating doctors in the surgical ward
at 2 Military Hospital clearly did not consider the plaintiff’s
condition to be
sufficiently serious nor sufficiently urgent to
warrant a laparoscopy/laparotomy in the days immediately following
the small bowel
follow through study which was conducted on 7 July
2011.
152.
On Dr Marais, evidence, he eventually
considered that the Plaintiff may have a partial obstruction of the
small bowel but he didn’t
consider it to be so serious that it
would cause a perforation because in his view, partial obstructions
don’t result in
perforations.
153.
That particularly imprudent approach taken
by Dr Marais, is not supported by the
prima
facie
view of a bowel obstruction taken
by the medical practitioners at 1 Military Hospital at a much earlier
stage nor by the radiologists
at 2 Military Hospital, nor by the
urology department’s doctors at 2 Military Hospital nor by
plaintiff’s expert, Dr
Lebos.
154.
The attitude adopted by the doctors in the
surgical ward and the casualty doctors in consultation with the
surgical ward’s
doctors towards the treatment and care of the
plaintiff is a particularly cavalier one.
155.
Dr Marais failed to explain why he deemed
it prudent to even allow the plaintiff to go on pass for 5 days in
one week, namely, the
last week of plaintiff’s stay in the
hospital without first establishing a definitive diagnosis, nor has
he adequately explained
why plaintiff was discharged on 7 June 2011
without a definitive diagnosis and again on 18 July 2011 without a
definitive diagnosis,
all the while, without recording the
Plaintiff’s alleged refusal to have the laparoscopy/laparotomy,
particularly since he
knew that plaintiff had returned to hospital
more than once with the same complaints, and he knew that those
complaints started
in May 2011 and were still being made in July
2011.
156.
Dr Marais’ failure to record the
discussion he allegedly had with plaintiff about giving informed
consent for the procedure
is inexplicable in view of his knowledge
that the Plaintiff’s Commanding Officer considered plaintiff’s
complaints
seriously enough to warrant his intervention on
plaintiff’s behalf.
157.
The decisions taken by the doctors treating
Plaintiff as outlined above, are not supported with reference to
sound medical procedure
and protocol nor does it accord with the
common sense and logic required to avert a small bowel perforation.
158.
Their attitude is indicative of either a
cavalier approach or an overemphasis on cost saving at the expense of
the wellbeing of
the patient. The failure to have the bowel
follow through study performed by a private hospital appears to be a
cost saving
measure.
159.
The negligence of the doctors treating the
plaintiff at 2 Military Hospital was evidently a continuous series of
omissions and failure
which culminated in the necessary procedure not
being performed timeously and at all.
160.
The attending doctors’ treatment of
the plaintiff is fraught with behaviour which demonstrates their
remiss-ness, which is
amply demonstrated by the following questions,
for example:
160.1
How could the doctors discharge him the day
after they obtained authorisation to have a small bowel follow
through study done privately?
160.2
How could they discharge him without a
definitive diagnosis?
160.3
How could they send him home without
admitting him on 8 July 2011?
160.4
How could they only do the small
bowel follow through study on 7 July 2011 which is more than 30
days after he was considered
to be a candidate for it to be carried
out on an emergency basis?
160.5
How could they not consider it imperative
to do a laparoscopy/laparotomy by 8 July 2011 but instead send him on
pass on 12 July?
160.6
When he returned on 14 July 2011, how could
they not establish before he was sent to the anaesthetist whether he
will consent to
the laparoscopy/laparotomy?
160.7
How could they not record his refusal of
consent and their discussion with him about the procedure?
161
One explanation for the treating doctors’
conduct as outlined above is the laissez faire approach that those
doctors had towards
plaintiff’s complaints and symptoms.
162
Dr Marais accepts that the next procedure
that he had to perform on plaintiff to establish a definitive
diagnosis, was a laparoscopy/laparotomy
which would determine how the
internal mechanisms of the small bowel of plaintiff was functioning.
163
Dr Marais had ample time and opportunity to
conduct that investigation because the plaintiff remained under his
care from 7 July
2011 when he had the bowel follow through study
until 18 July 2011.
164
Dr Marais, on his own evidence, saw no
cause for acting speedily in having the procedure scheduled.
165
In that respect, Dr Marais’ failure
to arrange a laparoscopy/laparotomy is an omission, which, led to the
plaintiff being
discharged while his signs and symptoms remain
unresolved.
166
Dr Marais placed great store on the
allegation that the plaintiff’s abdominal pain wasn’t
constant as it moved around
to different loci in the abdomen and it
varied in its intensity. No mention is made of the obvious
symptomatic relief that the
medication prescribed to plaintiff would
have given plaintiff and the extent to which the medication may have
masked his pain.
After all, if a patient is treated with
anti-spasmodic and pain relieving medication, one would expect the
pain to vary.
167
The treating doctors’ failure to act
expeditiously in arriving at a definitive diagnosis appear to have
been influenced by
their perception that plaintiff’s symptoms
were to some extent improving, albeit, only mildly and temporarily.
168
It follows logically, that if the root
causes of the pathology are not addressed, the disease/illness will
become more pronounced
as time passed.
169
Dr Marais refused to accept that the
untreated small bowel pathology caused the perforation because he
alleged that he does not
know what caused the perforation.
170
Dr Lebos interpreted the histology report
of Tygerberg Hospital which contained,
inter
alia
, clinical findings that the
perforation was caused by a volvulus. Dr Marais agreed that
even if the plaintiff had a transomental
hernia, partial or complete
bowel obstruction or an ileus, the plaintiff would nonetheless
require a laparoscopy/laparotomy to
identify it or exclude it.
171
In view of that concession, the defendant’s
disavowel of the cause of the perforation is of no moment.
172
Dr Lebos was emphatic that plaintiff
exhibited symptoms consistent with a bowel obstruction. While Dr
Marais’ response thereto
is that the symptoms were largely
non-specific.
173
The investigations conducted by the
treating doctors, together with the symptoms and signs exhibited by
plaintiff ought to have
motivated those doctors to conduct further
investigation as a matter of urgency, since plaintiff had been
suffering for two months
by the time he was finally discharged from 2
Military Hospital.
174
I, find that the negligent failure of the
treating doctors in the employ of defendant extended to a failure to
adequately and expeditiously
investigate, the cause of plaintiff’s
small bowel pathology timeously and at all.
175
The moral convictions of society and the
National Health Act and ethical considerations require medical
practitioners to treat patients
promptly and without fail, to
establish the cause of an illness or refer the patient to someone who
can attempt to establish that
cause and to explain to a patient, the
consequences of not making a definitive diagnosis.
176
A conflict of interest may arise when a
medical practitioner is in the employ of the patient’s employer
and has to practice
within a framework of cost saving measures, for
the benefit of the employer.
177
An example of such measures occurred when
the follow through study couldn’t be performed promptly because
the machine was
inoperable and authorisation for the study to be
conducted with a private institution was granted but not acted upon.
178
Ultimately a medical practitioner’s
oath demands of him/her to place the interests of the patient before
any cost saving considerations
or other conditions of employment.
A failure to do so is wrongful conduct.
179
Causation has been established with Dr
Lebos’ evidence that a laparoscopy/laparotomy conducted at an
earlier stage would have
revealed that the small bowel was twisting
on its own axis and in danger, at least, of perforating. Dr Marais’
disagreed
with what caused the perforation but he could not deny,
that laparoscopy/laparotomy would have revealed the nature of the
pathology,
in the small bowel.
180
Dr Lebos’ evidence that the
perforation, if left untreated would cause bile and other impurities
to leak into the abdomen,
causing sepsis and ultimately death, could
not be gainsaid by Dr Marais.
181
Dr Lebos’ testimony that a patient
who has had a resection of his bowel, is more susceptible to
adhesions in the bowel thereafter
and is more likely to require
surgery again in the future was not challenged with reference to
medical authority that disproved
it.
182
The plaintiff has, in my view, discharged
the onus of proving that the defendant’s failure to do a
laparotomy/laparoscopy
led to the eventual perforation and emergency
surgery.
Informed
Consent allegedly withheld
183
The issue of informed consent began to loom
large in this case when the defendant produced new documents not
previously discovered
that included a theatre diary and list with the
plaintiff’s name on which had been deleted. The date of the
page in the diary
is 18 but no month is stated on the page.
184
No reason is provided on the page in the
diary for the plaintiff’s name having been deleted from the
theatre list.
185
The plaintiff did not need to plead
that defendant didn’t follow the HPCSA’S Guidelines read
together with the
National Health Act because the Act and
Guidelines form part of the legal framework for the standard of care
and prescribed
procedure that all health care practitioners must
comply with.
186
Dr Marais gave contradictory evidence about
several different stages during plaintiff’s period of admission
when he allegedly
broached the topic of a laparoscopy/laparotomy but
he failed to record any, even oblique reference to those discussions.
187
When Dr Marais was pressed for an answer
during cross examination about why he didn’t explain the
adverse consequences to
plaintiff of not having a
laparoscopy/laparotomy, he said that it wasn’t his
modus
operandi t
o force a patient to consent.
This answer raises more questions than answers. If he felt that he
was bound to abide the plaintiff’s
decision to allegedly refuse
consent, all the more reason for him to have recorded that fact,
particularly since he had been called
upon, only the day before,
namely 13 July 2011, to provide a full and detailed written report on
Plaintiff’s treatment plan
and health status to plaintiff’s
Commanding Officer.
188
The defendant’s allegation that a
laparoscopy/laparotomy was scheduled for 18 July 2011 but refused by
the plaintiff on 14
July 2011 after he saw the anaesthetist does not
accord with the probabilities nor is it supported by any collateral
evidence other
than Dr Marais’ expressed intention to perform a
laparoscopy/laparotomy which he mentions in his letter of 13 July
2011 and
which was sent to the plaintiffs’ Commanding Officer.
189
I find that the defendant’s medical
staff failed to inform the plaintiff of the importance of having a
laparoscopy/laparotomy
and of the adverse consequences of refusing to
have the procedure.
190
I find further, that defendant’s
evidence that the laparoscopy/laparotomy was scheduled for 18 July
2011 but cancelled because
plaintiff refused it, is too improbable to
be believed, particularly since the plaintiff had by then persevered
with treatment
by defendant’s medical staff, in an attempt to
be cured for the best part of two months.
191
In my view, defendant has not shown on a
balance of probabilities, that plaintiff failed to mitigate the harm
he suffered.
IT
IS ORDERED THAT:
1.
The Defendant is liable for such damages as
Plaintiff may prove to have arisen out of the Defendant’s
employees’ negligent
treatment of Plaintiff at 2 Military
Hospital over the period 2 June to 10 August 2011; and
2.
The Defendant failed to discharge the onus
of proof that the Plaintiff failed to mitigate his damages by
refusing to furnish his
consent to the carrying out of a laparoscopy
and/or laparotomy.
3.
A costs order in the following terms is
made:
3.1
Defendant is liable for the following costs
on an attorney and client scale;
3.1.1
Plaintiff’s costs in opposing
Defendant’s application to adduce further documentary evidence;
3.1.2
The cost of the trial set down for 2 and 3
December 2015;
3.1.3
The reasonable and necessary preparation
and consultation costs for the trial and costs of counsel for 2 and 3
December 2015;
3.1.4
The costs of the trial on 18 and 19 April
2016;
3.2
Save for the Orders set out above,
Defendant is liable for Plaintiff’s costs of suit, on a party
and party scale, including
the costs of counsel and the reasonable
and necessary traveling, accommodation and qualifying expenses of Dr
Lebos, general surgeon.
R.
ALLIE
[1]
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A)
at 700 E - I; Siman & Co (Pty) Ltd v Barclays National Bank
Ltd
1984
(2) SA 888
(A)
at 915B-H; and Minister of Police v Skosana
1977
(1) SA 31
(A)
at 35C-E.
[2]
Lee
v Minister of Correctional Services
2013 (2) SA 144
(CC) at para 39
[3]
2002
(6) SA 431
(SCA)
at para 25
[4]
Oppelt
at para 48
[5]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394
(CC)
[6]
1914
AD 519
at 525
[7]
Mitchell
v Dixon supra; Castell v de Greef
1993 (3) SA 501
(C );
Pringle v Administrator
Transvaal
1990 (2) SA 379
(W); Joubert; LAWSA Vol 17, Part 2 page 39
[8]
Buls
v Tsatsarolakis
1976 (2) SA 891
(T) at 94 C - E
[9]
Michael
v Linksfield Park Clinic (Pty) Ltd
2001 (3) SA 1188
(SCA) at para 37
[10]
Blythe
v Van den Heever
1980 (1) SA 191
(A) at 220 H – 221 G
[11]
Act
61 of 2003
[12]
Section
6
[13]
Section
7
[14]
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) at para 27
[15]
[1993]
2 Lloyds Rep 68.
[16]
2016
(1) SA 325
(CC) at para 36