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[2018] ZAWCHC 64
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Clarke v MEC for Health Western Cape and Another (13724/14) [2018] ZAWCHC 64 (8 March 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 13724/14
In
the matter between:
FARIEDA
CLARKE
Plaintiff
and
MEC
FOR HEALTH WESTERN
CAPE
First Defendant
PREMIER
OF THE WESTERN
CAPE
Second Defendant
JUDGMENT
DELIVERED ON 8 MARCH 2018
KUSEVITSKY,
AJ
Introduction
:
[1]
The Plaintiff, Ms Farieda Clarke brought an action against the First
and Second Defendants (“the Defendants”) arising
out of
injuries allegedly sustained by her when she underwent a laparoscopic
cholecystectomy which was converted into an open cholecystectomy
on
30 November 2011. It is not in dispute that the surgeons who
performed the operations did so during the course and scope of
their
employment with the Defendants. The Plaintiff alleges that during
this operation, the surgeons negligently and in breach
of their duty
of care, caused an injury to the Plaintiff’s colon which,
injury later resulted in the perforation of the Plaintiff’s
colon on 3 December 2011.
[2]
It is the Plaintiff’s case that the injury was either as a
result of a diathermy injury caused by the surgeons,
alternatively
a serosal injury to the right colon, which injury it is
claimed the surgeons failed to notice and/or repair.
[3]
The Defendants’ defence is that a serosal injury is an
acceptable consequence of a laparoscopic cholecystectomy surgical
procedure, which was converted to an open cholecystectomy by means of
the Kocher’s Incision. Secondly, they state that it
is standard
teaching and procedure at Groote Schuur Hospital to use scissors when
dividing adhesions to the bowel, or in close
proximity to any hollow
organ. Diathermy is therefore, not used for purposes of dissection in
these circumstances. They further
state that at no stage during
either the laparoscopic cholecystectomy, or the open cholecystectomy,
was a diathermy utilised in
such a way that it could have caused
injury to any part of the colon.
[4]
The trial proceeded on both merits and quantum. Before dealing with
the evidence presented, it is important to set out the factual
matrix.
The background
[5]
During July 2011, Plaintiff presented at Groote Schuur Hospital and
was admitted on 15 July 2011, where she underwent an Endoscopic
Retrograde Cholangio-Pancreatogram which is a procedure to examine
the pancreatic and bile ducts. During her admission and on 20
July
2011, she was diagnosed with acute cholecystitis, which is an
inflammation of the gall bladder usually associated with gall
stones.
She was scheduled for a laparoscopic cholecystectomy on 30 November
2011, and subsequently booked for admission on 29 November
2011.
[6]
On 29 November 2011, Plaintiff was examined and diagnosed with
cholecystitis. She signed an informed consent form which
was
part of the hospital records on 29 November 2011, in respect of a
laparoscopic cholecystectomy with the option of converting
to an open
cholecystectomy.
[7]
On 30 November 2011, Plaintiff underwent a laparoscopic
cholecystectomy which was performed by Dr Petrus Salomon Rautenbach,
a Registrar of the Department of Surgery and Dr Colin McGuire, a
post-fellow Senior General Surgeon Registrar at Groote Schuur
Hospital.
[8]
During the procedure, the laparoscopic cholecystectomy was converted
into an open cholecystectomy by means of a Kocher’s
incision.
It was not disputed that Drs Rautenbach and McGuire called in Mr
Suleiman Hoosen Bhaila to assist. Mr Bhaila is a Registered
Specialist Surgeon with registered sub-speciality in
gastro-enterology and Head of General Surgery in the Metro-West Area
which
included Groote Schuur Hospital. His experience (and why he is
not referred to as “
Dr”
becomes evident later on).
[9]
The surgeons then performed a sub-total cholecystectomy on the
recommendation of Mr Bhaila. A sub-total cholecystectomy refers
to
the removal of only a portion of the gall bladder. During the open
procedure, a 3mm tear of the duodenum was noted and repaired
and a
pencil drain was inserted via a Morrison’s pouch.
[10]
According to the hospital notes, the Plaintiff was stable on 1 and 2
December 2011. On 3 December 2011, at around 10h15am,
faecal material
was noted in the pencil drain and Dr Kloppers was informed. At
11h20am, Plaintiff was taken to surgery. An
injury to the hepatic
flexure of the large bowel was diagnosed and treated surgically on 3
December 2011, by means of a right hemicolectomy
and ileostomy with a
transverse colon mucous fistula. A colostomy bag was inserted.
[11]
On 6 June 2012, Plaintiff underwent a reversal of the ileostomy and
the colostomy bag was removed.
[12]
Plaintiff alleges that had it not been for the 4cm perforation of the
colon, it would not have been necessary for her to have
undergone the
two further surgeries, and that the injury to the colon which caused
the delayed 4cm perforation was as a result
of the negligence of the
surgeons who conducted the surgery on 30 November 2011.
The
issues
:
[13]
It is common cause that the first basis of the Plaintiff’s
claim
[1]
for
negligence was based on the premise that the surgeons who conducted
the surgery of 30 November 2011, lacked the qualification
and
competence to perform the surgery, and to this end, relied on a
medico-legal report of Dr David Stein which was dated 09 June
2014.
In this report, Dr Stein stated the following:
“
The
laparoscopic cholecystectomy was performed on 30-11-2011. The surgeon
was Dr.B Rautenbach (Surgical Registrar) assisted by Dr.
C McGuire
and a Mr. Bayki. (Probably a student or intern.)… The
operation was obviously very difficult and only a sub-total
cholecystectomy (a partial removal of the gallbladder) was
performed…At no stage was a senior consultant surgeon called
in to help with this difficult operation.”
[14]
He further stated in this report that the decision to only do a
partial cholecystectomy due to the difficulty of the operation
was
acceptable, however, he questioned the expertise of the surgical
team, and suggested that the procedure may have been completed
had a
fully qualified specialist surgeon been involved with the operation.
[15]
Subsequent to the filing of this medico-legal report, Prof PC
Bornman, expert for Defendants and Dr Stein compiled a joint
minute.
In terms of this joint minute, Dr Stein conceded that the surgeons
and in particular Dr Bhaila, who conducted the
second part of the
surgery on 30 November 2011, were all suitably qualified and had the
necessary expertise to perform the surgery.
When Dr Stein was
questioned about this, given that his report was the very basis of
Plaintiff’s claim, he stated as follows:
“
Yes
I didn’t know who these people were at the time of this
original report but since then I have altered my opinion.”
[16]
What is immediately striking is that Dr Stein sought to rely on the
inferred incompetence (lack of expertise and medical judgment
as
referred to in his report) of the surgeon who performed the operation
and impute this opinion, without verification, into a
cause of
action. The Plaintiff rightly conceded in argument that
this ground was no longer in dispute.
[17]
On the 14 September 2016, Prof PC Bornman filed his expert report on
behalf of Defendants. His view was that injuries to the
duodenum and
colon, and in particular, the missed injury of the colon was
considered an acceptable complication, even in experienced
hands
where there are dense adhesions and inflammation between the
gallbladder to the adjacent duodenum and hepatic flexure of
the colon
as a result of previous attacks of acute cholecystitis. He was
of the view that there was a real possibility that
the perforation of
the colon did not occur during the operation of/on the 30 November
2011, but that it developed during the early
post-operative period as
a result of an injury to the serosa of the colon with associated
ischaemia.
[18]
On the 12 October 2016, Dr Stein and Prof Bornman compiled a Joint
Minute. It is evident that it was at this meeting that the
possibility of a diathermy injury was first raised, and accordingly,
Dr Stein was of the view, as recorded in the Joint Minute,
that
although the cause of the delayed perforation remained speculative,
on a balance of probabilities it was as a result of a
diathermy
injury in the vicinity of the colon.
[19]
On the 8 March 2017, the Plaintiff amended her Particulars of claim,
still relying on Dr Stein’s June 2014 report. Paragraphs
3.5
and 3.6 of the amendment reads as follows:
“
3.5
During the laparoscopic part of the procedure
alternatively
during the operation, the surgeons caused a diathermy injury to the
hepatic flexure (right colon) and failed to notice or repair
the
diathermy injury to the right colon.
ALTERNATIVELY
During
the operation the surgeons caused a 4cm serosal injury/ischaemic
damage to the hepatic flexure (right colon) and failed to
notice or
repair the serosal injury / ischaemic damage to the right colon.
3.6 As
a result of the diathermy injury alternatively serosal injury to the
right colon which was not timeously identified and repaired
during
the operation, the Plaintiff suffered a delayed 4cm perforation of
the right colon during or on 2 December 2011.”
[20]
As I have mentioned above, that report solely laid the blame of
negligence at the doorstep of the supposedly inexperienced
surgeons.
Dr Stein in that report, notably also stated that it was not possible
to decide whether the damage to the colon or duodenum
was done prior
to the decision to convert to the open procedure “but the
timing of when the damage occurred,
is
not too important as the main problem occurred because the tear in
the colon was not seen at the open operation
.”
[21]
As mentioned before, Dr Stein and Professor Bornman prepared a Joint
Minute wherein the following was agreed relating to the
colon
perforation:
21.1
Without having first-hand information on what transpired during the
cholecystectomy on 30 November
2011, both doctors can only surmise as
to the timing and nature of the colon injury;
21.2
Bearing in mind the Plaintiff’s clinical course after the
cholecystectomy, the perforation did
not occur at the time of the
cholecystectomy, but sometime thereafter, probably on the morning of
3 December 2011 when her clinical
condition deteriorated;
21.3
An iatrogenic perforation of the colon during the difficult
cholecystectomy, as was the case here,
is an acceptable complication
as long as this is recognised and repaired at the time. It is
very unlikely that Prof Bhaila,
who was called for assistance, would
have missed a perforation;
21.4
It is not always possible to identify a partial thermal, or serosal
injury to the colon at the time
of the cholecystectomy, especially
when there is severe inflammation at the site where the colon is
adherent to the gall bladder.
21.5
The cause of the delayed perforation of the colon remains speculative
but that on a balance of probability,
it could have been either the
result of a diathermy injury in the vicinity of the colon, or a
serosal injury/ischaemic damage when
the colon was dissected free
from the inflamed gall bladder. If the injury was caused by
diathermy this would probably have
occurred during the laparoscopic
phase of the operation.
[22]
They also agreed, that during the performance of a cholecystectomy,
every precaution should be taken to avoid a thermal injury
to an
adjacent viscus, i.e. colon and duodenum. If such an injury can
be proven, then it can be regarded as a technical error
and,
depending on the circumstances, be construed as an act of negligence.
[23]
A faecal fistula following a cholecystectomy is a rare complication.
[24]
Dr Stein also admitted the following statements made by Prof Bornman
in relation to his report dated 14 September 2016.
He agreed
that:
24.1 In addition to the
dense adhesions between the gall bladder, the liver, and transverse
colon, the gall-bladder was also adherent
to the duodenum.
24.2 The Plaintiff was
doing well post-operatively until the morning of 3 December 2011.
Until then she was apyrexial, her abdomen
was soft and there was
minimal bloodstained drainage from the abdominal drain. On the
morning of 3 December 2011, she spiked
a temperature, she was tender
in the right upper quadrant, and faecal material was noticed in the
abdominal drain. The Plaintiff
was then taken to theatre
without delay.
24.3 Dr McGuire was
already qualified as a specialist surgeon; that Dr Rautenbach was
assisted by Dr McGuire, who at the time was
a qualified specialist
surgeon with sufficient experience to assist with the performance of
an laparascopic cholecystectomy, and
when it became apparent that the
operation remained difficult to complete after they converted to an
open operation, Drs Rautenbach
and McGuire called in the Head of the
Emergency Surgical Unit, Mr Bhaila to assist with the operation.
It was under his guidance
that the decision was taken to modify the
operation to a sub-total cholecystectomy. The latter operation
is the recommended
operation in the setting regardless of the
surgeon’s experience to avoid
inter alia
a major bile
duct injury.
24.4
To convert the laparoscopic procedure to an open operation is a
perfectly acceptable one. It would be difficult to determine
at what
stage the duodenum and colon injury occurred. Dr Stein conceded that
the timing of the injuries are not important as the
main problem is
that the colon injury was missed at the time of the operation on 30
November 2011.24.5 The questions that remain,
are whether the
injuries to the duodenum and colon, as well as the missed injury to
the latter can be construed as an act of negligence.
24.6
Injuries of this nature is an acceptable complication, even in/with
experienced hands, when there are dense adhesions/inflammation
between the gall bladder to the adjacent duodenum and hepatic flexure
of the colon.
24.7 The fact that the
Plaintiff was significantly overweight with a BMI of 33.3 (height
1.5m; weight 75kg) added to the difficulties
in performing the
operation. As for the missed colon injury,
even this may be
difficult to detect in the presence of severe adhesions/inflammation
and obesity
. What also needed to be considered is that a
complete laceration of the colon may not have occurred at the time of
the operation
on 30 November 2011. (“my emphasis”)
24.8 Injury to the serosa
of the colon may occur during the dissection of the inflamed gall
bladder which can then result in a delayed
perforation on an
ischaemic basis.
24.8
In addition, a distended colon, which is a normal
post-operative event, may also contribute to the perforation under
the circumstances. It is noteworthy that the Plaintiff’s
observations during the first two post-operative days appear
to be
uncomplicated. Her abdomen was soft and there was minimum
serosanguinous draining from the abdominal drain. It
was only
on day three that her abdominal pain increased and only then faecal
material was noted in the abdominal drainage bag.
[25]
The Defendants argued that based on the concessions made by Dr Stein
in the joint minute, Dr Stein’s first report could
be of no
assistance to the Plaintiff. They further pointed out that Dr Stein
did not file a supplementary report subsequent to
receiving the
report of Professor Bornman, and it was therefore, Plaintiff that had
to make out a case for negligence based on
Dr Stein’s oral
evidence.
[26]
The oral evidence that was procured from the experts, Dr Stein and
Prof Bornman, relates specifically to whether it is more
probable
that the cause of the delayed perforation of the colon was the
diathermy injury or the serosal injury.
[27]
The issues in dispute therefore, seem to be specifically related to
the cause of the injury to the Plaintiff’s right
colon during
the surgery of 30 November 2011, that led to the delayed 4cm
perforation, i.e. whether the injury was as a result
of a diathermy
injury or a serosal/ischaemic damage. It is the Plaintiff’s
case that the injury to the colon was due to a
diathermy injury.
[28]
I will firstly deal with the evidence of the witnesses that testified
in relation to the merits of the matter. Each party relied
on the
expert evidence of one independent expert witness and in the case of
Defendants, an additional witness Mr Baila was called
who was one of
the surgeons who performed the initial operation of the 30 November
2011.
SUMMARY
OF THE EXPERT EVIDENCE:
Evidence
of Dr David Stein
:
[29]
Dr Stein started his career in 1954 and was employed as a general
surgeon at Somerset Hospital where he became chief of surgery
before
his retirement from that position. He did not examine the Plaintiff,
and his opinion is based solely on the hospital records.
His
evidence related to his opinion on the operation of 30 November 2011,
and specifically to express his opinion on the cause
of the
perforation of the Plaintiff’s colon on 3 December 2011. His
view was that the injury to the colon was either caused
by a
diathermy injury or a serosal injury. With regards to his evidence
surrounding a possible serosal injury, Dr Stein conceded
during
cross-examination that he could only surmise as to when this injury
would have occurred as it was possible that the injury
to the serosa
of the colon might have occurred during the dissection of the gall
bladder which can result in a delayed perforation
on an ischaemic
basis. He stated that this was not a routine cholecystectomy, but a
rather difficult one. If it was a serosal tear
or injury, surgeons
generally do not comment on it as small serosal tears are not
considered a problem. If the injury was as a
result of a serosal
tear, then under these circumstances, it was acceptable to have
either caused or missed a non-penetrative injury
to the colon. He
also testified that it was not always possible to identify a partial
thermal, or serosal injury to the colon at
the time of the
cholecystectomy, especially when there is severe inflammation at the
site where the colon is adherent.
[30]
With regards to the use of diathermy, Dr Stein opined that diathermy
was used during the laparoscopic stage of the dissection.
He was of
the view that while the surgeon was attempting to do the gallbladder
removal, that he found this difficult and that is
when the surgeon
left a little wall of the gallbladder behind. This was known as a
subtotal cholecystostomy where the surgeon,
whilst he was doing the
gallbladder removal decided that it would be too difficult and
dangerous to proceed. Diathermy, he says,
would have been used during
the laparoscopic portion of the dissection as there would not have
been a way in which the surgeon
would have known that it could not be
removed. His evidence was that the surgeon tried to remove it, but
found that he could not
and then decided to convert it to an open
cholecystectomy.
[31]
Dr Stein was of the view that some of the damage to the colon may
have been caused prior to the open procedure, and that the
probable
damage was the diathermy burn during the laparoscopic procedure
because then diathermy is used extensively.
[32]
He expressed the view that the higher likelihood is probably the burn
injury because damage to the serosal tissue to the bowel
is commonly
seen and surgeons often just used to leave it. He testified
that these days some people do repairs, but that
is not uncommon
unless it is very large. When asked about the statement in the joint
minute that “
if
the injury was caused by a diathermy, this would probably have
occurred during the laparoscopic phase of the operation
”,
he testified that both he and Prof Bornman both agreed that if it was
due to a burn – however, they are not saying
that it did occur
– but that these are possibilities. However, neither of them
were there at the time of the surgery so they
could only speculate.
[33]
When asked about his report stating that the large tear in the colon
was not seen or repaired during the first operation, Dr
Stein
testified that there was no tear present at that stage. He stated,
“
Well
there wasn’t one almost certainly there wasn’t one
”.
This was canvassed with him again during cross-examination and he
again acknowledged that there was no perforation at the
time of the
first operation. The surgeon did not see a tear in the colon, so they
did not repair anything, stating “
what
is there to repair if it was not seen
”.
There was no hole in the colon at that stage, i.e. into the lumen of
the colon. He conceded that at the time that
he did his report, he
had not considered the serosal damage. He said it was what he
discussed with Prof Bornman that he thought
it was always due to the
burn, but he agreed with Prof Bornman that it could have also been
due to serosal damage. He conceded
that there was no tear in the
colon to see, and there was therefore nothing to repair.
[34]
Dr Stein testified that they were speculating between two causes and
only two causes, not that there were no causes. They concluded
that
the delayed perforation was caused either, by the burn which was not
identified, or the serosal injury.
[35]
During cross-examination, he was referred to his report of 9 June
2015, where he did not mention that diathermy was a possible
type of
injury, but only that there was an injury. He maintained that the
cause of the delayed perforation remained speculative
and that there
two possible causes. He could not say for sure if the delayed
perforation was due to the burn, or the serosal
injury. It was either
the burn that was not identified or the serosal injury which was not
properly identified. He conceded
that a serosal tear would have
been caused when the gall bladder was dissected from the colon. He
also noted that the diathermy
injury in the laparoscopic phase would
not have been caused necessarily by dissecting the gall bladder from
the colon, but rather
an accidental burn, i.e. if a surgeon places
his foot on the pedal that can cause a diathermy hook to burn the
colon for whatever
reason. He conceded that it was not always
possible to identify a partial thermal or serosal injury to the colon
at the time of
the cholecystectomy.
[36]
There was specific reference to the joint minute of the experts
wherein they stated that an estrogenic perforation of the colon
during a difficult cholecystectomy is an acceptable complication as
long as this is recognised and repaired at the time. Dr
Stein
testified that both he and Prof Bornman agreed that the cause of the
delayed perforation remained speculative, but on the
balance of
probability, Dr Stein held the opinion that it was more likely to
have been a diathermy injury in the vicinity of the
colon. Prof
Bornman held the opinion, that it was more likely to have been
serosal damage when the colon was dissected free from
the inflamed
gallbladder.
[37]
As to the probable cause of a perforation of the colon three days
post operation, Dr Stein held the view that there was no
complete
laceration at the time of the operation, but some injury must have
occurred. He stated that both, he and Prof Bornman
agreed that
the only two possibilities are a burn which was not noticed at the
time. When tissue gets burnt, the tissue dies (necrosis)
and the heat
changes the protein. He is of the opinion that such a burn will
not be noticeable in the large bowel that is
inflamed.
[38]
Referring to the second probable cause, Stein testified that an
injury to the serosa of the colon may occur during the dissection
of
the inflamed gallbladder, but stated that they occur quite often and
usually they are not repaired unless there is a very big
tear, a very
big dissection of the serosa and the underlying muscle, then it must
be repaired.
Evidence
of Prof PC Bornman
:
[39]
Professor Bornman testified that he was a semi-retired surgeon
currently working predominantly at the University of Cape Town
Private Academic Hospital. He was appointed as a consultant surgeon
with the Department of Surgery at Groote Schuur Hospital in
1977, and
had been there up until his retirement in 2008. He then took up
various positions amongst others as Head of the HPB Surgical
Unit
which includes all forms of surgery on the liver, pancreas, and
gallbladder. Prof Bornman reviewed the hospital records of
the
Plaintiff to provide an opinion with regards to the Defendants’
liability. Prof Bornman agreed that this was a very difficult
surgery, and stated that the Plaintiff suffered from gallstone
cholecystitis with associated dense adhesion. These were
situated between the liver, traverse colon and the second part of the
duodenum. This, he said was a very common problem that surgeons
saw
in State hospitals where patients for various reasons presented late
and where they have had several previous attacks of cholecystitis,
as
was the case with Plaintiff. He agreed with Dr Stein that where there
were a few adhesions, the operation would generally be
easy and
straightforward. However, in this instance, the Plaintiff had an
inflamed gallbladder and that it was adherent to the
liver, the
traverse colon and the duodenum.
[40]
Prof Bornman also presented slides and video footage on PowerPoint to
show the court what a laparoscopic cholecystectomy procedure
entailed, although the footage was not of the actual surgery under
discussion.
[41]
Prof Bornman then sought to demonstrate a dissection on a very
inflamed gallbladder without the use of diathermy. However,
when Dr
Stein testified he indicated that diathermy was in fact used after
the blunt dissection to divide the cystic duct during
the video
clip. Whilst in that video it was evident that the gallbladder
was very inflamed, and that diathermy was in fact
used to free one
thick adhesion. When asked in that instance at what stage would the
procedure be converted to an open cholecystectomy,
he answered that
it would not, as it was a standard laparoscopic cholecystectomy. He
stated that if the surgeons could not have
identified the cystic duct
or secure the safety clips, only then would one convert it because
then the surgeons would be constantly
concentrating on not damaging
the common duct. Essentially Prof Bornman testified that diathermy
was only used when it was safe
to do so, and it was not done where
one was working close to vital structures, or where the colon was
adherent to the gall bladder.
In the Plaintiff’s case, there
were dense adhesions between the gall bladder and the colon and also
between the duodenum
and part of the gall bladder, so the gall
bladder was adherent to the colon and to the duodenum as is evident
from the operation
note.
[42]
He testified that in this instance, the surgeons were concerned that
they could not clearly identify the anatomy due to this
inflammation
process around the gall bladder which also involved the colon, so
they decided to do an open procedure. They
would use more of a
blunt dissection technique which they would have also attempted
initially with the laparoscopic procedure.
The surgeons felt
that it was not going to be safe to do a standard removal of the gall
bladder and opted for the sub-total
cholecystectomy.
[43]
Regarding the cause of the colon injury, neither he, nor Dr Stein
could tell exactly what caused the delayed perforation. There
were
two possibilities, either a diathermy injury, or a serosal injury
that caused ischaemic damage.
[44]
When asked where he thought the perforation might have occurred, he
was of the view than in order to mobilise the gall bladder,
the
surgeons had to first separate the bowel, then the colon and
thereafter the duodenum from the gall bladder. It was during
this
dissection he assumed a blunt dissection was done when there
would be a serosal tear to the colon and a more complete
laceration
of the duodenum which was recognised. He emphasised how difficult the
surgery must have been that there were actually
two injuries that
occurred during the procedure and that, that can happen quite easily
as have happened to him during these procedures.
[45]
The important thing, he said, is to recognise and to correct it when
you recognise it at that time - which is not always possible.
The
cause of the delayed perforation remains speculative and that they
just don’t know what the cause was. It was either
a
diathermy or a serosal ischaemic damage.
[46]
Regarding whether the diathermy will be used in the standard
procedure at Groote Schuur Hospital, Prof Bornman testified that
they
teach not to use a diathermy where there are adherent structures and
where there is inflammation.
[47]
Regarding the comment in the joint minute, that if the injury was
caused by a diathermy, this would probably have occurred
during the
laparoscopic phase of the operation. Prof Bornman’s evidence
was that if the diathermy was used during that early
stage of the
laparoscopic operation then he would accept that it was probably more
likely the cause of the injury, but as he testified
before, there was
no evidence that this had been used and this is not the practice.
The technique that they used in the video
was blunt dissection and
not diathermy to separate the colon or whatever is attached to the
gall bladder. This is just not
done.
[48]
Regarding Dr Stein’s evidence that there must have been a burn
because there was no obvious tear on the colon, that the
delayed
perforation could only have been caused by a thermal burn, Prof
Bornman’s evidence was that if a diathermy touches
the bowel
and if it is a normal bowel, then it turns white for lack of a better
term. If a diathermy is used and there is
a lot of inflammation
and often during the dissection there can be a bit of bleeding, then
one could get charring of the skin.
He pointed out that they
knew that in this case there was a lot of bleeding and it was quite a
difficult operation, so it would
be extremely difficult to pick up
any form of injury, or that kind of injury that he and Dr Stein are
saying happened.
[49]
As regards why the injury was not present or visible at the time,
Prof Bornman explained the difficulties in identifying injuries
of
this nature in the presence of severe inflammation between the gall
bladder and the colon in this matter and of course duodenum.
Both he
and Dr Stein had agreed that this is an acceptable complication.
[50]
Commenting on Dr Stein’s evidence that it is less likely that a
perforation will occur if there is a small serosal tear
as opposed to
a large serosal tear, Prof Bornman’s stated that they accept
that the larger the serosal tear the higher the
risk there
would be of a perforation, but that did not mean that a small tear
could not perforate as well since the pathology
was the same.
[51]
Regarding the injury, Prof Bornman was of the view that it was most
likely due to a serosal tear and the reason for that is
that the
diathermy is not used for that dissection of freeing the colon from
the gall bladder and is the classic injury that you
get if you use
blunt dissection to separate the inflamed colon from the gall bladder
or
vice
versa
.
Regarding Dr Stein’s evidence that a diathermy could have
accidentally touched the colon, Prof Bornman testified that
it is
difficult for him to reconcile that kind of injury with a delayed
perforation and the size of the delayed perforation that
was found at
the second operation. While it is possible, he cannot reconcile
these two possibilities. He accepted that there
was no evidence of
any diathermy used in this case and that it is just speculation.
[52]
He stated that the eventual management with regard to the appropriate
process and protocol that should have been followed regarding
the
duodenum and colon was that it was handled according to what one
would expect of a qualified team of surgeons managing this
complication. It is a serious complication and he thought that
all the steps were taken and that the timing thereof was appropriate.
[53]
Regarding the issue of negligence, based on the fact that the cause
of the injury that led to the 4cm delayed perforation is
speculative,
despite having sympathy for the Plaintiff about her suffering for
these complications that occurred, his view was
that these are to him
quite acceptable under the circumstances and it cannot be construed
as being negligence.
[54]
His belief is that it was caused during the blunt dissection, or
whatever procedure was done during the mobilisation of the
colon from
the gall bladder and that it was not caused by a diathermy or at
least there is no proof that it was caused by a diathermy.
[55]
Regarding what entails a serosal injury, Prof Bornman testified that
the serosal layer and the muscular layer of the colon
are both thin
and he agreed that if there is a tear of the serosa it is more often
than not, that the muscle layer is also separated,
or there is a
tear. This happens often he said, but it did not mean that it will
necessarily perforate. Some form of injury
must have been
present to cause the delayed perforation three days later. However,
there was no injury present so they did not
repair. They did
not see it, this is why they did not repair it. One cannot
repair something that you have not seen.
He stressed that an
unidentified serosal injury to the colon that most likely caused the
delay perforation is an acceptable complication
of a cholecystectomy.
It is also acceptable not to identify it because even in the full
thickness, perforations under those circumstances
can be missed.
Evidence
of Mr SH Bhaila
[56]
Mr SH Bhaila is a registered surgical gastroenterologist. He
explained that the reason why he is not referred to as “
Dr”
is because once one has completed a fellowship from one of the Royal
colleges in the United Kingdom, in his case from the Royal
College of
Surgeons of Glasgow, then one automatically reverts back to being
called “
Mister”
.
He was the head of General Surgery in the Metro West Area which
included UCT and Groote Schuur Hospital. He conducted the
open
cholecystectomy surgery that was performed on the Plaintiff on 30
November 2011. When it turned out that Drs Rautenbach and
McGuire
could not continue with the laparoscopic cholecystectomy, they called
for Mr Bhaila’s expertise and he attended at
the surgery to
assist with the open cholecystectomy.
[57]
With regard to the use of diathermy, Mr Bhaila testified that
diathermy is not used at the beginning of a procedure but right
at
the end. When surgeons make the four holes to do the laparoscopy,
diathermy is not one of the ports that is inserted at the
start. They
initially insert the Maryland which is a blunt instrument for
dissection. He stated that there is often no reason to
use a
diathermy and to say one would use it on adhesions in the
laparoscopic situation is not correct. He did not think anyone
ever does that because the instrument is not designed to bring down
adhesions. He would use blunt dissection, or sharp dissection
but not a diathermy.
[58]
When the laparoscopic procedure was converted into an open procedure,
Mr Bhaila was referred to the operation form, and he
questioned
whether, based on the operation notes, that there would have been
enough time to use a diathermy. Based on these
notes, which
were completed by the theatre sister, he testified that the
anaesthetist started at 8am to put the patient under general
anaesthetic and only gave the surgeons permission to start the
surgery at 8.25am. At 8.25am, the surgeons took over and the scrub
sister would start to prep the patient’s abdomen, cleaning it
and draping it. That process he says, takes five to ten
minutes
so it would be 8.30 to 8.35am. The checking of the equipment takes
another five to ten minutes. They would then insert
the first port
and have to be very careful not to cause damage, so that takes five
to ten minutes to set up and get the port in,
which would take it up
to 8.45am. Once the camera is in they have to wait because they have
to distend the peritoneal cavity so
that the interior abdominal wall
is pushed away from everything so that the gut is not hit. They then
run gas through the telescope
which takes about two to three minutes,
and that takes it up to 8.47 to 8.48am. They then insert the
operation port and the gall
bladder retractor port and that takes two
to three minutes so it would take one upto 8.50am.
[59]
Mr Bhaila was then referred to the anaesthetist record, and he
testified that at 09h00, the anaesthetist recorded that the
laparoscopic cholecystectomy was converted from a laparoscopic to a
laparotomy where they use a Kocher’s incision. He concluded
that during this phase of preparation, by the time the laparoscopy
was all set up, which would have been around 8.50 am, the surgeons
would have had about 2 to 5 minutes to explore, but not much longer
than that, and they soon realised that this method was not
going to
work laparoscopically. He concludes that
in
that 7 to 10 minutes before the laparoscopy was converted, it would
have been impossible to use a diathermy because that instrument
is
used mainly for gall bladder dissection. He testified that at
most, they would have used the
Maryland
,
an instrument to dissect and which is like forceps, which they would
put through the operative port. They would have tried
or used
the suction or irrigation tube to try to tease things away and
conceded that it would be suicide to use use diathermy at
that stage
as they would not know what they were burning.
He
could not see the diathermy being used in the 7 to 10 minutes before
the
laparoscopic
cholecystectomy was
converted. It was too short a time, and in any event, it was
not at a stage where they could have used
a diathermy. He concluded
that based on the time factor and the theatre records and given the
fact that diathermy usually occurs
right at the end when the gall
bladder is removed, diathermy would not have been used prior to the
conversion.
[60]
During
cross examination he however, conceded that by the time that he had
scrubbed in, the Plaintiff’s bowels were already
exposed,
that is to say after the laparoscopic part was commenced and
abandoned and after the Kocher’s incision was
made, that the
surgeons were alone in theatre for a better part part of an hour
prior to his arrival. He therefore could not factually
testify as to
what they did during the laparoscopic phase.
[61]
It
was also conceded that factually, Mr Bhaila could not testify as to
whether diathermy was used or not, as he was not present.
He did
admit that diathermy was present in the theatre but stated that it
would be rare to use it until the very end of a laparoscopic
procedure.
[62]
Regarding
the operation sheet, Mr Bhaila’s also noted that there were
very dense adhesions to the liver, transverse colon
and the second
part of the duodenum. These dense adhesions to the liver were as a
result of the Plaintiff’s recurrent attacks
of cholecystitis.
The Plaintiff also had an abdominal hysterectomy which means that
both the ovaries and the uterus were removed.
That alone, he
says, would have caused adhesions, so she was already someone with
previous adhesions together with recurrent attacks
and would have had
more adhesions forming, so these adhesions were dense, which means
they are pretty tough.
[63]
Regarding
the “
retrograde
dissection of the gall bladder from the liver
”,
Mr Bhaila explained that he was called in at that point because the
surgeons were unsure about the anatomy in the area
of the common bile
duct. If they could not see the cystic duct and they could not
safely clamp it and cut and clean the gut
in a clean fashion, they
would start at the other end of the gall bladder, the balloon end and
they would start to dissect towards
the common bile duct which is
much safer and this is what he guided them through. They would
reach a point where they would
now say they need to stop because they
do not know where the cystic duct is and if they go any further they
could harm the Plaintiff
as they put a clamp across and cut out the
gall bladder, which is why it was a sub-total as pointed out by Prof
Bornman.
This ensured that they did not harm the common bile
duct.
[64]
A pencil drain was inserted to be safe and according to Mr Bhaila, it
is not standard practice in a cholecystectomy to insert
such a drain
but under the circumstances of the Plaintiff’s surgery it was
deemed prudent and standard.
[65]
He
testified that he would have recommended the subtotal cholecystectomy
to them in order to avoid harm to the common bile duct.
They left the
gall bladder remnant behind in order to avoid injury to the common
bile duct. He testified that there was an iatrogenic
injury to the
duodenum of 3mm which was recognised and repaired. Iatrogenic means
an injury caused by the surgeon.
[66]
As
to when the injury to the duodenum would have occurred, he thinks it
was most likely that there were the dense adhesions and
the gall
bladder had to be separated from both the colon and from the
duodenum. In the process a tiny hole in the duodenum
in the
second part was made, recognised and closed.
[67]
Regarding
whether, they at any stage noticed a tear in the colon, Mr Bhaila’s
evidence was that if they saw the duodenum injury,
they would have
started questioning themselves about any other injuries. Because of
all the blood, in order to do their investigation
they would wash the
abdomen thoroughly using litres of normal saline until they can see
that the fluid is clear. They would have
washed the colon. He
testified that with four sets of eyes focussed on this area being
him, Dr McGuire, Dr Rautenbach and the scrub
sister, they looked and
also placed a pencil drain in that area, the Morrison’s Pouch,
which is right below the liver close
to the hepatic flexure of the
colon. With all the adhesions, it would be very difficult to identify
things. They washed it, cleaned
it and got it all clear and he did
not smell anything untoward because faeces would smell. He accepted
the evidence of Prof Bornman
that the injury might have been there
and that they could have missed it, but stressed that with all of the
adhesions, it would
have been possible to have missed it.
[68]
He testified, that there might have been a serosal tear of the colon,
but that this would have been almost impossible to identify
with the
amount of dense adhesions present.
If
they had seen a hole in the colon, they would have immediately looked
at it and there would have been options on how to repair
it and
whether it was safe to do so. It has been accepted by Dr Stein that
the perforation of the colon was delayed and Mr Bhaila
accepted that,
saying that the injury was not there.
[69]
With
regards to the teachings at Groote Schuur Hospital regarding the use
of diathermy, his evidence was that they are taught to
stay far away
from a diathermy if they are not sure where they are, especially if
they are close to vital structures, nerves, arteries,
veins, gut and
spleen. They do not fiddle with a diathermy unnecessarily and
use blunt instruments instead in order to avoid
harm and that they
also use blunt instruments gently. Mr
Bhaila
stated that diathermy would have been used during the open part of
the surgery and said that they could have used it to do
the
retrograde dissection safely.
[70]
Regarding
when and how the colon injury was caused, Mr Bhaila’s evidence
was that the fact that both the duodenum and the
colon were injured,
suggested that the surgeons dissected the gall bladder off both the
colon and the duodenum in order to separate
them so that there was
ease for removing the gall bladder without harming any structures.
The duodenum injury perforated and they
repaired it the moment they
realised that there was a perforation. These injuries (colon and
duodenum) would have occurred at the
time after they converted from
the laparoscopic surgery to the open surgery and it is most likely
that it occurred during the open
surgery.
[71]
The
colon injury, unlike the duodenum injury, never perforated until
three days later. This suggests that it was a serosal injury
which
exposed the mucosa that had not perforated at the time of the
surgery. In this case, they never saw the tear. He accepted
Prof
Bornman’s evidence that if even a small serosal tear could end
up being a large serosal tear due to perforation.
[72]
During cross-examination, Mr Bhaila conceded that diathermy was
present through-out the surgery. He could not however, factually
testify as to what happened during the laparoscopic phase. He
conceded that diathermy is in fact used at Groote Schuur Hospital
for
laparoscopic as well as open cholecystectomies. According to him it
is also used if it safe to do so during dissection. He
however,
emphasized that they must be careful when using diathermy when
working close to organs and the gut, and specifically the
colon. He
testified that if you were dissecting with a diathermy it would be
wrong and that it might compromise the bowel which
might then
manifest later and that an unintended diathermy injury to a colon is
a mistake and it should not happen.
[73]
Mr Bhaila agreed that there must have been an injury to the colon
sometime between 08:00 and 10:40 on the day of the first
operation.
He could only testify factually that he did not observe an injury
during the second part of the operation where he was
present. He
testified that if you go looking for damage, you might see a
diathermy injury but you might miss it too.
[74]
In this matter, the court is clearly faced with two conflicting
opinions. Plaintiff bears the onus on a balance of
probabilities
to show that the injury was either as a result of a
diathermy injury caused by the surgeons,
alternatively
a serosal injury to the right colon, which injury, it is claimed the
surgeons failed to notice and/or repair.
[75]
Insofar as the alternative claim relating to the serosal injury, both
Dr Stein and Professor Bornman agreed during their testimony
and in
the joint minutes, that if it was a serosal injury or ischaemic
damage, then this type of injury was an acceptable consequence
of a
very complicated and difficult surgery. Under the circumstances of
dense adhesions and inflammation, such an injury would
not be
considered negligent. In light of this concession, the only aspect
which the court has to establish, is whether, the Plaintiff
has on a
balance of probabilities proved, that the surgeons negligently used a
diathermy in the circumstances as claimed.
[76]
As mentioned before, the respectively experts, both eminently
qualified in this field, have two opposing views. It is trite
that a
court faced with conflicting opinions of experts in highly scientific
or technical issues, must determine whether and to
what extent the
opinions advanced by the experts are founded on logical reasoning or
has a logical basis.
[2]
[92]
In
Mitchell
v Dixon
the following was said with regard to medical negligence
[3]
:
“
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. The burden of
proving that the
injury of which he complains, rests throughout on the Plaintiff. The
mere fact that the accident occurred was
not
prima
facie
proof of negligence.”
[93]
Where there were two mutually exclusive versions, the court has to
make one enquiry: is it more probable than not that
the
diathermy injury caused the delayed 4cm perforation? If the
court finds that it is more probable than the serosal injury,
then
the burden is discharged. If the probabilities are equal, then
the burden is not discharged.
[94]
Ultimately the question is whether the onus on the party, who asserts
a state of facts, has been discharged on a balance of
probabilities
and this depends not on a mechanical quantitative balancing out of
the pans of the scale of probabilities but, firstly,
on a qualitative
assessment of the truth and/or inherent probabilities of the evidence
of the witnesses and, secondly, an ascertainment
of which of two
versions is the more probable. See
Maitland
and Kensington Bus Co (Pty) Ltd v Jennings
1940 CPD 489
at 492
where
Davis J stated
[4]
:
'For
judgment to be given for the plaintiff the Court must be satisfied
that sufficient reliance can be placed on his story for
there to
exist a strong probability that his version is the true one….
As
to the degree of probability that is sufficient for plaintiff to
discharge the onus, the remarks of Denning J in
Miller
v Minister of Pensions
[1947] 2 All ER 372
(KB) at 373
cited
in
Ocean
Accident and Guarantee Corporation Ltd J v Koch
1963 (4) SA 147
(A)
at 157D
is
applicable. If the acceptable evidence is such that I can safely say
'I
think that it is more probable than not' the burden is discharged,
but
if the probabilities are equal, it is not
.”
[5]
(“My
emphasis”)
[77]
In
Medi-Clinic v Vermeulen
[6]
the
Supreme Court of Appeal held that what is required in the evaluation
of the expert’s evidence is to determine to what
extent:
“
Provided a
medical practitioner acts in accordance with a reasonable and
respectable body of medical opinion, his conduct cannot
be condemned
as negligent merely because another equally reasonable and
respectable body of medical opinion would have acted differently.”
[78]
An important observation was made in the matter of
F
M v Member of the Executive Council, Department of Health, Eastern
Cape.
In that case a plaintiff, who had also undergone a laparoscopic
cholecystectomy, sustained two perforations to her common bile
duct
as a result of which bile leaked into her abdominal cavity causing
her to become very ill. Revelas J, referring to a
dictum
by Brand JA from Buthelezi v Ndaba
[7]
,
commented as follows:
[8]
“
After all,
as Lord Denning MR observed in Hucks v Cole
[1968] 118 New LJ 469
([1993]
4 Med LR 393):
'With the best will in the world
things sometimes went amiss in surgical operations or medical
treatment. A doctor was not to be
held negligent simply because
something went wrong.'
Or as Scott J said in Castell v De
Greef
1993 (3) SA 501
(C) at 512A – B:
'The test remains
always whether the practitioner exercised reasonable skill and care
or, in other words, whether or not his conduct
fell below the
standard of a reasonably competent practitioner in his field. If the
error is one which a reasonably competent practitioner
might have
made, it will not amount to negligence.'
[79]
Ultimately, what this court has to decide, is whether it was more
probable than not, that the surgeons used a diathermy when
it was
unsafe to do so, and that the diathermy injury caused the delayed 4cm
perforation to the Plaintiff’s colon which led
to the second
and subsequent surgeries and
sequelae
. Before I evaluate
the evidence, I should perhaps point out, that this is not the case
pleaded on the papers. According to
paragraph 3.5 of Plaintiff’s
Particulars of Claim, it is alleged that
during the laparoscopic
part of the procedure alternatively during the operation, the
surgeons caused a 4cm diathermy injury to
the hepatic flexure (right
colon)
. This is not as I understand the issue to be on
strictly speaking the Plaintiff’s claim should be dismissed on
this
basis alone.
[80]
The second issue to be established is whether, the failure by the
surgeons to notice, or repair the diathermy injury was negligent.
Both parties presented independent expert evidence. In addition
thereto, the Defendants presented the evidence of Mr Bhaila, who,
as
I mentioned previously, conducted the second stage of the open
cholecystectomy and would be classified as an eye witness expert.
[81]
Ms Ellis for Plaintiff, submitted that with regard to his evidence,
that because he was called as a factual witness, the only
evidence
that the court should consider is his evidence of fact, and of what
transpired in his presence on the particular day of
the surgery.
[82]
Ms Mahomed for Defendants argued that the question which arises here
is whether this matter turns on expert evidence or lay
evidence,
particularly, where there are mutually exclusive versions. In this
regard, I was referred to the case of
Abdo
NO v Senator Insurance Company
[9]
where
a court was faced with two mutually destructive versions, with expert
and eye witness evidence on both sides. The following
approach was
adopted from
Putzier
v Union and SWA Insurance Co Ltd 1793 ECD (unreported)
where
Addeleson J was faced with such a problem and held that:
“…
unless
the opinion of the experts is either uncontroverted or
incontrovertible, the evidence of the eye witness should be examined
first. If such eye witness/es are unacceptable, the Court is
bound to decide, if possible,
which
of the opinions of the various experts is preferable and to found its
judgment on such opinion
.
On the other hand, where a choice can be made on a balance of
probabilities and on the accepted principles between two sets
of eye
witnesses, the Court should first make a provisional assessment of
which of the versions of the eye witnesses is acceptable.
In
this regard, where the onus is on the Plaintiff and where there is a
dispute between the experts, if the eye witnesses favour
the
Plaintiff, the evidence of the Defendant must be shown to have
displaced that of the Plaintiff’s eye witnesses; but,
if the
eye witnesses favour the Defendant, the Plaintiff must show that the
evidence of his experts must be accepted in preference
to the experts
and the eye witnesses of the Defendant
.
If, at best, the Court is left in doubt as to whether the experts for
the Plaintiff have advanced opinions preferable to
those of the
Defendant, then it seems that the Plaintiff would have failed to
displace on the findings made in respect of the eye
witnesses and
would have consequently failed to discharge the onus on him
.”
(“My
emphasis”)
[86]
I was also referred to the matter of
Motor
Vehicle Assurance Fund v Kenny
[10]
where
the court held that direct and credible evidence of what happened…
must carry greater weight that the opinion of the
expert, however
experienced he may be, seeking to reconstruct the event from his
experience and scientific training. Strange
things often
happen… and it is practically impossible for anyone…to
give a minute and detailed description of the
incident in question.
An expert’s view of what might probably have occurred must give
way to assertions of the direct and
credible evidence of an
eyewitness. It is only where such direct evidence is so
improbable that its very credibility is impugned,
that an expert’s
opinion as to what may or may not have occurred can persuade the
court to his view. The Defendants argued,
that as the evidence of an
expert witness is inevitably based on reconstruction, it cannot
conceivably bear the same weight as
direct, eyewitness testimony of
the event in question
[11]
.
[87]
Direct and credible evidence regarding what occurred during an
incident carries greater weight than the opinion of an expert
irrespective of his experience. A court is required to weigh up
all the evidence before it and decide whether the Plaintiff
has
discharged the onus of proof on a balance of probabilities
[12]
.
Did
the surgeons cause a 4cm diathermy injury during the operation of the
30 November 2011?
[88]
All the witnesses agreed that this was a difficult procedure. It was
also not disputed that Drs McGuire and Rautenbach, both
qualified
specialist surgeons, had opted to convert the procedure from a
laparscopic cholecystectomy to an open procedure when
it became
apparent that the operation would be difficult to complete. There is
also no evidence that there was a 4cm diathermy
injury at the time of
the first injury. However, the likely scenario preferred by all of
the experts was that there was some sort
of injury and that it
ultimately perforated into a 4 cm tear.
[89]
This would also support the contention by all, that in all
likelihood, the injury was not of such a nature that was seen on
the
30 November 2011. It is very unlikely that Mr Bhaila, knowing that
there had been an injury to the duodenum and having repaired
it,
would not have looked for other possible injuries. In fact, his
evidence was that knowing that there was this injury, they
would have
questioned themselves about the possibility of other injuries. With
four pairs of eyes, the probabilities are unlikely
that they would
not have done so. In fact, Prof Stein conceded that if Mr Bhaila did
not see the injury, there was nothing to repair,
and that it was
unlikely that Mr Bhaila would have missed the injury. Mr Bhaila
himself testified about what a surgeon was faced
with during such an
operation, and thanks to the video footage, the court was also
apprised of what the inside of a person’s
bowel looked liked,
especially in a patient who had severe adhesions.
[90]
Dr Stein conceded that the injury could have been small or big, but
he reiterated on several occasions that all he and Prof
Bornman could
do, was to speculate as to what would have happened. His approach to
the merits of this matter was questioned by
the Defendants. They
argued that his evidence should be considered together with his
report of 9 June 2014, wherein he makes no
reference to a diathermy
being used, or being the cause of the injury. In fact, in the
report, his whole basis of the negligence
revolved around the
incompetence of unskilled surgeons who conducted the surgery. Based
on this it was argued, that Dr Stein could
not rely on his report to
prove negligence. They argued further, that it was clear from the
evidence procured at trial, that Dr
Stein was trying his best to
assist the Plaintiff, and that in the circumstances, it is doubtful
whether his opinion could be accepted.
Defendants further argued,
that despite what Dr Stein testified in court about his views of the
cause of the delayed 4cm perforation,
he did not categorically say
that the diathermy was the most probable cause of the injury.
He conceded on more than one occasion
that both he and Professor
Bornman could only speculate, and that both causes are equally
possible / plausible. Thus, given the
above, the Defendants argued
that his evidence could not be accepted.
[91]
Given this concession, a court is thus faced with seeking answers
from the surgeon that was present. Could a diathermy have
been used
in the circumstances as claimed. Mr Bhaila testified that it would
have been suicide for surgeons to have used diathermy
under
circumstances where there were dense adhesions. He stated that the
teachings at Groote Schuur hospital went against the use
of diathermy
under those circumstances. During cross-examination, when it was put
to him that he was not present at the first stage
of the operation
and he could not testify as to what had happened. This argument, to
my mind, is flawed. Even if Mr Bhaila was
not present at the first
stage of the procedure, the evidence before this court is that the
surgeons, following protocols and procedures,
chose to convert the
laparoscopy to an open procedure. It would be highly improbable that
they would not have followed protocol
and teachings prior to that and
used diathermy in circumstances that were unsafe. It was Mr Bhaila’s
evidence that diathermy
is only used at the end of the process, once
all of the structures have been neatly pinned away and the common
bile duct identified.
The evidence is that the surgeons had not
reached that stage, hence their decision to convert the procedure.
To view these
stages as separate and as isolated events to my mind is
not appropriate. Mr Bhaila testified what organs which were burnt –
looked like. Had there been an injury to the colon, he would also
have smelled the faecal material. He also testified that there
would
have been no time to have used the diathermy. But ultimately, when
all of this, viewed cumulatively is taken into account,
the
probabilities weigh heavily against diathermy having been used during
the first part of the operation.
[92]
As to the second part of the operation, Mr Bhaila is a factual eye
witness. He admitted that diathermy was present during the
open phase
of the surgery. He testified that diathermy was not used during the
open phase of the operation and that the more likely
scenario the
injuries occurred when the duodenum and colon was being dissected
from the gallbladder. He impressed upon the court
as being a very
good witness, making the necessary concessions where necessary. I
therefore have no hesitation accepting his evidence.
[93]
The Plaintiff’s claim is based upon negligence, that is, upon
the absence of that reasonable skill and care which the
law requires
under the circumstances.
[13]
The
Plaintiff must prove some definite act of negligence.
[14]
[94]
On every point in which negligence was suggested, the evidence was in
favour of the Defendants that being the expert qualifications
of the
surgeons; the agreement that if they did not see ask anything, then
nothing could be repaired; the concession that if it
was a serosal
injury that it would be an acceptable complication; and the
concession that it was unlikely that Mr Bhaila would
have missed an
injury during the open phase of the operation.
[95]
Both experts testified that they were merely speculating as to what
might have happened. There are no reasonable grounds on
the available
evidence for finding that the surgeons were negligent during the
operation of 30 November 2011. In fact, the evidence
suggests that
every effort was taken to ensure that the most conservative approach
was taken during her operation when they were
experiencing
difficulty. The evidence also suggests they followed protocol and
procedures by converting the laparoscopic cholecystectomy
to an open
procedure. In following these protocols and procedures, one would
question why they would then deviate from the teaching
when both
experts and Mr Bhaila testified that diathermy is not used when it is
not safe to do so. And most importantly, cognisance
must be taken of
the admission made in the joint minutes that it was unlikely that Mr
Bhaila would miss a diathermy injury.
[96]
In
FM
v Member of the Executive Council
[15]
,
Department
of Health, Eastern Cape
,
Revelas J held that:
“
The human
body and its reaction to surgical intervention are far too complex
for it to be said that, because there was a complication,
the surgeon
must have been negligent in some respect. Logic dictates that there
is even less room for application of the maxim
in a case like this,
where it has not even been established what went wrong; and where the
views of experts are all based on
speculation
— giving rise to various but equally feasible possibilities —
as to what might have occurred.”
[97]
The court also referred to the
Medi Clinic
case
supra
,
and held that where experts hold opposite views, the following was
stated:
“
Experts may
legitimately hold diametrically opposed views and be able to support
them by logical reasoning. In that event it is
not open to a court
simply to express a preference for the one rather than the other and
on that basis to hold the medical practitioner
to have been
negligent. Provided a medical practitioner acts in accordance with a
reasonable and respectable body of medical opinion,
his conduct
cannot be condemned as negligent merely because another equally
reasonable and respectable body of medical opinion
would have acted
differently.”
[98]
Mr Bhaila’s evidence was clear, concise and uncontroverted.
Given the time that the anaesthetist administered to the
Plaintiff by
the surgeons which was at 8:25am to the time that they actually
commenced the laparoscopy, which was at approximately
8:50am to the
time that they converted to an open cholecystectomy at 9:00am.
Factually speaking, there is no way that the diathermy
would have
been inserted into one of the ports for the purposes of dissection at
that stage, especially since it is common cause
that the Plaintiff
had severe adhesions. Dr Stein’s evidence regarding an
adhesion being loosened by way of a diathermy
in the video, was under
circumstances where the cholecystectomy was a normal one and where
the entire procedure was done by way
of laparoscopy with no
conversion to open surgery. In this case, there was
insufficient time between commencing the laparoscopy
and converting
it to an open cholecystectomy to have utilised a diathermy. The
conversion was done during the exploration
phase and not dissection
stage. There could therefore not have been an “
accidental
”
burn of the colon by the diathermy at the laparoscopic phase. Mr
Bhaila also testified that during the open cholecystectomy,
only when
all the vital organs had been safely dissected from the gall bladder
by means of blunt dissection, then they would have
used a diathermy
to remove the gall bladder. The diathermy, if it was used at
all, would only have been used right at the
end of the open
cholecystectomy to remove the gall bladder after it was safe to do
so. This was admitted by Dr Stein as well.
[99]
Dr Stein admitted that since he was not present at the surgery, he
could only speculate as to time that the injury to the colon
occurred
and the cause of the injury. Accordingly, the lay evidence of Mr
Bhaila together with the evidence of Professor Bornman,
the
Defendant’s expert, both favour the Defendant’s defence
that a diathermy was not used at all during the laparoscopic
phase of
the surgery, or the open cholecystectomy for the purpose of
dissecting the vital organs from the gall bladder.
[100]
It was submitted that Dr Stein could not support his own contentions
that a diathermy was definitely used at the laparoscopic
phase and
that the diathermy possible caused an “accidental” burn
of the colon during this time. As such, this
creates doubt as
to whether Dr Stein’s version can be sustained particularly
given Mr Bhaila’s evidence read with the
note from the
anaesthetist as to how quick the laparoscopy was converted into the
open cholecystectomy as well as from the operation
note. It is clear
that what transpired at the open cholecystectomy phase of the
surgery, is that the surgeons attended to dissecting
the colon, the
duodenum and the liver free from the gall bladder before conducting
the retrograde removal of the gall bladder.
There is no note to
suggest that any dissection or removal of the gall bladder took place
during the laparoscopic phase of the
cholecystectomy. I am therefore
of the view that Plaintiff has not discharged the onus of proving
that the surgeons used diathermy
in a manner which caused a diathermy
injury to the hepatic flexure or right colon of the Plaintiff.
Was
it negligent to have failed to notice or repair the diathermy injury?
[101]
This question can only be answered if I find that on the balance of
probabilities, that Plaintiff has proven that the injury
was in fact
caused by a diathermy injury to the right colon. Since I have found
this not be the case, it is not necessary for me
to deal with this
aspect. In any event, it was already accepted by Dr Stein that in all
likelihood, Mr Bhaila would not have missed
an injury during the open
surgery. In the circumstances, the onus has not been discharged in
this regard.
[102]
I am therefore of the view that the Plaintiff has failed to discharge
her onus of proving that diathermy was used during the
procedure of
30 November 2011.
[103]
Since no negligence on the part of the Defendants employees could be
established, it is not necessary for me to deal with
the evidence of
the Plaintiff and the remaining witnesses who were called in support
of an assessment on
quantum
.
Lastly, The Plaintiff in this instance also sought to take issue with
consent, or rather the lack thereof in the second operation.
The
question of informed consent is attached to the requirement of
wrongfulness in the Aquilian action. Since negligence is a
requirement, where no negligence has been proven, the question of
wrongfulness does not arise.
[16]
[104]
Consequently, the following order is made:
The
Plaintiff’s action against the Defendants is dismissed with
costs.
________________
KUSEVITSKY, AJ
Acting Judge of the High
Court
[1]
Paragraphs 4.1 and 4.3 of the Plaintiff’s
Amended Particulars of Claim
[2]
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) paras 36 and 37.
Louwrens v Oldwage 2006 (2) 161 (SCA) para 27
[3]
1914 AD 519
at 525
[4]
The South African Bank of Athens v 24 Hour Cash
CC (unreported judgment) A3027/2016 (GLD) at pg 4
[5]
Ibid
Para 9 at page 5
[6]
2015 (1) SA 241
(SCA) at 243 para 5
[7]
2013 (5) SA 437
SCA at para 15-17
[8]
At p 23
[9]
1983 (4) SA
721
E at 725D-726A
[10]
1984 (4) 432
(EC) at 436H-437B-reference made to
Mapota
v Santam Versekeringsmaatskapy Bpk
1977 (4) SA 515
AD at 527-528
[11]
Van Eck v
Santam
1996
(4) SA 1226
CPD
[12]
Vervoedingskommisaris
v Multilaterale Motorvoertuigongelukkefonds
1998
(3) All SA 155 EO
[13]
See Mitchell v Dixon 1914 AD at 525
[14]
(Ibid at 521)
[15]
Case No. 273/2013 at para 40
[16]
FM supra at para 44 ; Castell v De Greef
1994 (4)
All SA 63
(C) at 426 D-H