Chapeikin and Another v Mini (103/2015) [2016] ZASCA 105 (14 July 2016)

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[2016] ZASCA 105
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Chapeikin and Another v Mini (103/2015) [2016] ZASCA 105 (14 July 2016)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 103/2015
DATE:
14 JULY 2016
Not
Reportable
In
the matter between:
DR
S
CHAPEIKIN
................................................................................................
FIRST
APPELLANT
DR
J
SHER
.......................................................................................................
SECOND
APPELLANT
And
LORETTA
CHARMAINE
MINI
..................................................................................
RESPONDENT
Neutral
citation:
Chapeikin v Mini
(103/2015)
[2016] ZASCA 105
(14 July
2016)
Coram:
Mpati P, Cachalia and Wallis JJA and Tsoka and Kathree-Setiloane
AJJA
Heard:
19 May 2016
Delivered:
14 July 2016
Summary:
Delict ─ medical malpractice ─
general practitioners ─ whether failure to refer patient with
unusual stroke to
hospital for specialised treatment constitutes
negligence ─ causation ─ whether patient’s sequelae
could have
been prevented by referral to hospital ─ no causal
link between the alleged negligence and sequelae.
Practice
and procedure ─ Rule 33(4) of the Uniform rules ─ trials
─ order separating merits from quantum not desirable
where
issues are inextricably linked.
ORDER
On
appeal from
Western Cape Division of
the High Court, Cape Town
(Schippers J sitting
as court of first instance):
1
The appeal is upheld with costs.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
plaintiff’s claim is dismissed with costs.’
JUDGMENT
Kathree-Setiloane
AJA (Mpati P, Cachalia and Wallis JJA and Tsoka AJA
concurring):
[1]
It is estimated that in South Africa about 360 people per day have a
stroke. Of those about 110 die and about 90 are left with
a
life-changing disability. Strokes are thus the leading cause of
disability and the fourth most common cause of death.
[1]
On 17 April 2007 at about 16h00, while she was at work Ms Loretta
Charmaine Mini (Ms Mini), the respondent, exhibited symptoms
possibly
attributable to a stroke. She consulted the first appellant, Dr
Chapeikin on the same day at approximately 19h15. He diagnosed
her as
having hypertension and anxiety. At approximately 12h15 the next
afternoon (18 April 2007), she consulted the second appellant,
Dr
Sher, who diagnosed her as having suffered a mild stroke, which had
completed. Both appellants are general practitioners. The
essence of
Ms Mini’s complaint against each of them is that they
misdiagnosed her condition and failed to refer her to hospital
for
appropriate treatment. As a result, she contends that by the
following day her condition had deteriorated rapidly, until she
was
admitted to hospital on 20 April 2007 with complete hemiplegia (right
side paralysis). Despite receiving intensive rehabilitative
therapy
for almost two months thereafter, she remained permanently disabled
and was eventually found to be unfit to continue her
career as a
legal secretary.
[2]
Ms Mini instituted action against Drs Chapeikin and Sher in the
Western Cape Division of the High Court, Cape Town (the high
court)
for damages in the sum of R922 638 basing her claim in contract,
alternatively delict, in respect of the sequelae which
she had
suffered as a result of the stroke. The pleaded sequelae are that she
experienced deteriorating symptoms of weakness on
the right side of
her body; that she is unable to walk without assistance and confined
to a wheelchair; that she suffers from hemiplegia
(right side
paralysis); that she suffers from attention and concentration
difficulties; and that she suffers from limitations in
abstract and
complex reasoning, problem solving and information processing.
[3]
At the commencement of the trial, the parties agreed to separate the
issues of liability (negligence, wrongfulness and causation)
from
those relating to quantum and the trial proceeded on that basis. At
the end of the trial, the high court found that both appellants
had
been negligent. The finding of negligence against Dr Chapeikin was
that he should not have excluded the diagnosis of a stroke
which had
resolved either partially (because of undetected subtle signs) or
totally. Instead he ought to have appreciated that
he was dealing
with the possibility of a stroke developing and to have foreseen the
possibility of further deterioration of Ms
Mini’s condition. He
should therefore have referred her to hospital and not sent her home.
The finding of negligence against
Dr Sher was that he should have
been alive to the fact that Ms Mini’s condition had
deteriorated since the previous day;
that it could deteriorate
further; and that her blood pressure readings were alarmingly high
requiring urgent specialised management,
treatment and control, and
he should therefore also have referred her to hospital.
[4]
The high court found the appellants liable as joint wrongdoers ‘for
such damages which Ms Mini can prove’. In relation
to Dr
Chapeikin, the high court found that his failure to refer her to
hospital for specialised assessment and treatment materially

contributed to her deterioration and ultimate sequelae. In addition,
it found that in as much as timely admission and treatment
would have
made the effects of her stroke less severe, the evidence established
a causal connection between Dr Chapeikin’s
failure to refer her
to hospital and her sequelae.
[5]
In relation to Dr Sher, the high court found that the evidence
established that had he referred Ms Mini to hospital, it was
likely
that she would have received hypertensive emergency treatment and
blood pressure control including stabilisation and reduction
in a
controlled clinical environment. It found that these measures would
have prevented a further elevation of her blood pressure
and
prevented further deterioration of her condition. And it,
accordingly, held that Dr Sher’s failure to refer Ms Mini to

hospital probably materially contributed to her deterioration. The
appellants appeal to this court against the high court’s
order.
They do so with the leave of this court.
Factual
background
[6]
Ms Mini testified in the high court and relied on four witnesses in
support of her case. They were Ms Colleen Bathurst (Ms Bathurst),
Dr
APJ Botha (Dr Botha), a specialist physician, Professor DA Hellenberg
(Professor Hellenberg), a general practitioner and Dr
FG Hemp (Dr
Hemp), a clinical psychologist. Both Drs Chapeikin and Sher also
testified in the high court and relied on Dr SM Kesler
(Dr Kesler), a
neurologist, in support of their case.
[7]
Ms Mini’s testimony was broadly this. She was 53 years old when
she suffered the stroke. She was a legal secretary at
a firm of
attorneys in Cape Town at the time. She had suffered from
hypertension since 2004 for which she took Adco-Retic tablet,
an over
the counter tablet with diuretic and antihypertensive effect. In 2005
she was treated for hypertension at Goodcare Medical
Centre,
Claremont (Goodcare) where her son, Darren Mini (Darren), worked as a
practice manager. Both her parents had suffered from
hypertension.
Her mother had died in 2004 as a result of a stroke. Her father, who
was 84 years old at the time of the trial, had
also suffered a stroke
in 2006. He was fortunate to have survived and had fully recovered.
[8]
On the morning of 17 April 2007, Ms Mini travelled to work by train
from Plumstead to Cape Town. She had not taken her Adco-Retic
tablet
that morning and nor had she eaten breakfast. At about 10h00 she
experienced a feeling of light-headedness. She ate breakfast
and took
an Adco-Retic tablet. A few minutes later she felt better and
returned to her desk where she continued with her typing
for the day.
At about 11h00 she tripped twice while fetching documents from a
printer. She continued typing until about 16h00,
when she realised
that she was typing ‘a whole lot of nonsense’. She became
concerned and decided to alert her friend,
Ms Bathurst, the
receptionist to her condition. As she stood up at her desk she felt
dizzy. She experienced difficulty walking
to the reception area and
held onto the furniture. She described her walk as ‘lopsided to
my right; it felt as though I wanted
to fall to my right’. On
reaching the reception area, she informed Ms Bathurst that she was
unable to travel home by train
as she was unwell.
[9]
Ms Bathurst testified that on seeing Ms Mini she noticed that
something was ‘seriously wrong’ as she seemed
disorientated,
walked in a lopsided manner, slouched while standing
and spoke unusually slowly. Since Ms Bathurst’s mother had
suffered
two strokes, she was able to recognise Ms Mini’s
symptoms and informed her that she was having a stroke. She suggested
to
Ms Mini that she see a doctor. She then helped Ms Mini walk back
to her desk. Ms Mini supported herself by holding onto the wall
as
she walked. A short while later they returned to the reception area
and Ms Mini called her friend (Errol) to fetch her from
work. Errol
arrived at about 18h00. Although Ms Bathurst assisted Ms Mini by
guiding her down the stairs to the car and into the
car, Ms Mini was
able to walk on her own. Errol drove Ms Mini to her son Darren’s
home in Wynberg to tell him about her condition.
Darren was concerned
and suggested that she see a doctor in Landsdowne. Errol then drove
Ms Mini to Dr Chapeikin’s surgery
in Landsdowne. At that point
Ms Mini’s speech was slightly slurred. They arrived just before
19h00. Ms Mini completed the
details on the medical file, paid a fee
of R150 and waited to see Dr Chapeikin. The consultation with Dr
Chapeikin took place at
approximately 19h15. He came into the
reception area before walking back into his consulting room. On Ms
Mini’s version,
she followed him into his consulting room by
holding onto the wall for support as she felt unsteady. The
consultation lasted about
half an hour.
[10]
Ms Mini’s version of the consultation with Dr Chapeikin was
this. Dr Chapeikin took her blood pressure and asked her
to provide a
urine sample which she did. He asked her what her symptoms were and
she told him about her dizziness at 10h00 that
morning, as well as
how she felt at 16h00 that afternoon when she realized that she was
typing ‘nonsense’. She told
him that she felt dizzy when
she stood up at her desk and that she had experienced difficulty
walking to the reception area at
work. Dr Chapeikin tested her eye
reflexes using his finger. She complained of a slight earache. He
examined her ears and indicated
that she seemed to have an imbalance.
She described the right side of her body as feeling lopsided and
asked him if she was experiencing
a stroke. Dr Chapeikin dismissed
that suggestion with a hand motion, as if to suggest that it was not
a stroke. On Ms Mini’s
version, he did not ask and she did not
tell him about previous strokes in her family. He prescribed Prexum
for her high blood
pressure and Mitil for her imbalance. Dr Chapeikin
booked her off work until 23 April 2007. He told her to go home for
the evening,
but that if her condition deteriorated she should return
on Monday the following week.
[11]
When Ms Mini left the consultation she walked at a slower pace than
before. On the way home, Errol stopped at a pharmacy where
she bought
only the Mitil, because she did not have sufficient money to buy the
Prexum. Darren brought the Prexum to her the next
morning. She felt
very ill when she arrived home and felt worse the next morning (18
April 2007). The entire right side of her
body from shoulder to foot
felt heavier. She could not write properly and there was a slight
drag on her foot. At approximately
08h30, she telephoned her
employer, Ms Nicola Caine (Ms Caine), who arranged for her to see Dr
Sher. She consulted Dr Sher at about
12h30. She said she supported
her right arm with her left arm, as it felt heavy. Her walking was
slightly worse than the day before.
She felt unsteady and held onto
the wall for support, as she followed Dr Sher into his consultation
room. She related the events
of the previous day to him, including
that she had consulted Dr Chapeikin who prescribed Prexum and Mitil.
She also informed Dr
Sher that her hand felt lame; that her leg did
not feel quite right; that she struggled to walk; and that the right
side of her
body felt heavy.
[12]
Ms Mini’s version of the consultation with Dr Sher was that he
took her blood pressure and examined her legs. He asked
her to bend
her right knee, and examined both her foot and ankle. He advised her
that she had suffered a ‘slight stroke’.
He instructed
her to continue taking the Prexum and to take half a Disprin as well.
He did not refer her to a hospital and there
was no discussion about
hospitals. Instead, he asked her to return on Monday, 23 April 2007.
He did not ask her about previous
strokes in her family. After the
consultation Dr Sher called Ms Caine with Ms Mini’s consent
and, in her presence, reported
to Ms Caine that Ms Mini had suffered
a slight stroke and would be put off work for two to three weeks.
Before leaving, she made
an appointment to see Dr Sher again on 23
April 2007, as instructed.
[13]
Ms Mini’s condition deteriorated sharply after she was sent
home by Dr Sher. According to Ms Mini, the right side of
her body
became totally lame by the morning of 19 April 2007. She telephoned
Ms Bathurst at work and asked her to contact Dr Sher.
On Ms Mini’s
version, she was told by Ms Bathurst that Dr Sher had advised that
she continue taking the Prexum tablets, and
that she would feel
better after four days. She was dissatisfied with Dr Sher’s
advice as she was ‘totally lame’
by that stage. Ms Mini,
thereafter, phoned Darren at Goodcare. He put Ms Mini in touch with
Dr Noor, who advised her that she should
have been referred to a
hospital on account of the stroke that she had suffered. Dr Noor
informed Ms Mini that she would hand Darren
a note referring her to
Victoria Hospital in Wynberg. She only went to Victoria Hospital on
the evening of 20 April 2007 as she
had to first wait for Darren to
bring her the referral note and, thereafter, wait for Errol to finish
work before driving her to
the hospital. Both Darren and Errol
carried her to the car as she was unable to walk. She was admitted to
Victoria Hospital at
about 20h30 that evening and remained there
until 26 April 2007. The relevant clinical notes record that she was
referred to a
physician as a result of a cerebral vascular accident
(CVA) and right-sided hemiplegia (paralysis).
[14]
On 14 May 2007, Ms Mini was admitted to the Western Cape
Rehabilitation Centre (the rehabilitation centre) where she received

physiotherapy, occupational therapy and counselling to treat her
right sided hemiplegia. The medical notes from the rehabilitation

centre indicate that upon admission Ms Mini had difficulty washing
and dressing herself and was unable to cook. She was able to
walk but
had to hold onto furniture for support. She eventually had to use a
walking frame. She was fully continent and had good
movement in her
right arm. The plan on admission was to improve her mobility (gait
rehabilitation) and to monitor her blood pressure.
By 22 June 2007,
she showed some improvement in the functioning of her upper limbs
and, although wheelchair bound, was in the process
of gait-regaining.
She was discharged on 5 July 2007. Ms Mini returned to work on 9 July
2007. However, on her return she worked
on the switchboard and not as
a legal secretary. Following an examination by Dr Hemp (the clinical
psychologist) to assess her
progress, Ms Mini was boarded, in October
2012, because she could no longer cope at work or meet the
requirements of her position.
[15]
When Ms Mini consulted Dr Chapeikin, on 17 April 2007, he had been
practising as a general practitioner for more than 40 years,
and had
treated numerous stroke patients. Dr Chapeikin’s version of the
consultation with Ms Mini was as follows. Ms Mini
informed him about
the history of her symptoms and what happened at work that day. She
was anxious that she might be having a stroke
and informed him that
both her parents suffered from hypertension; that her mother had
passed away as a result of a stroke and
that her father had suffered
a stroke as well.  When Ms Mini complained about a lame feeling
on her right side and slight
dizziness, the first thing that came to
his mind was a stroke. He observed her as she stepped onto the two
step ladder to get onto
the examining bed, which she managed ‘quite
simply’. He also observed her as she walked to the toilet to
produce a
urine sample. Her gait was normal. Although initially
denying this, under cross-examination Ms Mini stated that she could
not recall
whether she had to hold onto anything for support while
walking to the toilet.
[16]
Dr Chaipeikin tested for nystagmus (dancing eyes), the presence of
which would have explained the dizziness and ear imbalance,
but there
was none. There were no signs of muscle weakness or neurological
abnormality, and her reflexes and sensations were normal.
Her pulse
was regular and there was no atrial fibrillation. Ms Mini’s
blood pressure (160/100) was not alarmingly high. There
were no
bruits
[2]
and her
cardio-vascular system was normal. Her chest and abdomen, and
haemoglobin were normal. He diagnosed her as having hypertension,
an
ear imbalance and anxiety. He prescribed Prexum for her blood
pressure and Mitil for her dizziness and anxiety. He advised her
that
should the symptoms persist or get worse, she should contact him
immediately. He put her off work for hypertension. He was
satisfied
that there were no signs of stroke. He said that had she come to see
him earlier that day when the signs of stroke were
evident, he would
have immediately referred her to hospital, but in the absence of
clear signs of a stroke, Ms Mini’s condition
did not warrant
referral to a specialist physician or a hospital. He made his
clinical notes after she had left his consultation
room.
[17]
When Ms Mini consulted with Dr Sher, on 18 April 2007, he had been
practising as a general practitioner for almost 40 years.
He first
practised in Oudtshoorn for about 20 years and, since 1992, had been
practising in Claremont. He had experience treating
stroke patients.
Ms Mini was referred to him by Ms Caine, a patient of his and a
senior attorney at the firm at which Ms Mini had
been employed. He
had treated Ms Caine’s children as well as her parents who were
good friends of his. According to Dr Sher,
Ms Mini had walked unaided
into his consultation room. He disputed that she had held onto the
wall and explained that the paintings
on the wall, and the chairs
alongside it, would have prevented her from doing so. He described Ms
Mini’s complaint, in his
clinical notes, as ‘a residual
weakness of her right hand during the day which spread to her right
leg’, because she
told him that her right hand had improved
dramatically from the previous day. He observed Ms Mini getting onto
the examination
bed by stepping on a two-step ladder, unaided. He was
able to recognise that he was dealing with a stroke from her history
of weakness
in the right hand that spread to the right leg, and from
her neurological symptoms.
[18]
Dr Sher examined Ms Mini’s upper limbs. The reflexes in her
arms appeared to be identical. He found no definite sign
of weakness
in the right hand and there was no difference between the strength in
her right and left hands. Having regard to power,
tone and reflexes,
he was able to detect neurological damage to the right leg. Her left
leg was stronger than the right, and the
knee reflex in her right leg
was weaker than the left. He found a residual weakness in Ms Mini’s
right leg, which indicated
to him that it had been worse the previous
day. He found signs of long-standing hypertension by examining her
eyes. He measured
Ms Mini’s blood pressure with a baumanometer
− the well-known blood pressure machine with a bulb, cuff and a
column
of mercury. He took six readings with this instrument and
recorded a blood pressure reading of 185/120, which he underlined in
his clinical notes as being the average of the six readings taken.
Next, he measured Ms Mini’s blood pressure using a digital

blood pressure machine, in order to demonstrate to Ms Mini that her
blood pressure was very high and that uncontrolled blood pressure
was
the underlying cause of her stroke. He obtained readings of 199/130
and 181/127, respectively.
[19]
Dr Sher concluded that Ms Mini had suffered a mild stroke that had
reached its zenith. He reached this conclusion because she
was able
to walk; sit down; provide a full history of her symptoms without any
speech defect; undress herself; get onto the examination
bed; and her
condition had improved to the point where there were only signs of
residual weakness. Dr Sher prescribed Prexum in
conjunction with a
diuretic and half a Disprin. He could not remember whether Ms Mini
had told him that she was already taking
Prexum. He booked Ms Mini
off work for two to three weeks and asked her to see him again, for a
follow-up consultation, on Monday,
23 April 2007.
[20]
Dr Botha and Professor Hellenberg, on whose testimony Ms Mini relied,
were of the opinion that the assessment of Ms Mini as
recorded in the
clinical notes of Dr Chapeikin was inadequate as he recorded no
diagnoses, and his failure to refer her to hospital
for further
assessment and thrombolytic therapy deviated from the standard of
care expected from a general practitioner. Dr Botha
explained the
difference between a transcient ischaemic attack (TIA) and an
ischaemic or thrombotic stroke. He explained that a
TIA is
technically not a stroke but may be viewed as ‘a threatening
stroke’ where there is an insufficient supply of
blood to the
brain and the symptoms last for a short period of time (no longer
than 24 hours). He said that an ischaemic or thrombotic
stroke occurs
from impaired circulation in one or more blood vessels of the brain
due to thrombosis or embolism causing a cerebral
infarct (stroke). He
said that in some cases, the blood vessel ruptures and the blood
flows into the brain causing the blood to
clot (haemorrhagic
infarct). He said that intravenous thrombolytic treatment was
indicated for ischaemic or thrombotic strokes
as it helped dissolve
the clot quickly. Administering thrombolytic therapy within three to
four and a half hours of the onset of
stroke could help limit stroke
damage and disability. Dr Botha, however, conceded that although he
had treated hundreds of stroke
patients, he had relatively little
experience in administering thrombolytic therapy to them. He also
conceded that the stroke which
Ms Mini had suffered was not a
‘regular’ ischaemic stroke but rather a ‘stroke in
evolution’, which has
a ‘stuttering’ progression.
He said that a ‘stroke in evolution’ is ‘a less
well-defined concept’
because there are no clear statistics. He
acknowledged that thrombolytic treatment in the context of a ‘stroke
in evolution’
was questionable, because of the difficulty in
defining the ‘time window’. In addition, he accepted that
although physicians
were involved in the treatment and management of
stroke, this fell within the area of specialty of neurologists.
[21]
Dr Kesler, on whose testimony the appellants relied, was of the
opinion that Dr Chapeikin’s failure to diagnose the stroke
was
reasonable on the basis that Ms Mini had suffered a ‘stroke in
evolution’ as opposed to a ‘regular’
stroke and, in
the circumstances, had taken the best possible action. He said that
even if Ms Mini had been referred to hospital
by Dr Chapeikin on the
night of 17 April 2007, she would have not qualified for thrombolytic
therapy because the onset of her stroke
occurred outside of the three
hour window period. He said that since thrombolytic therapy had to be
preceded by a computerised
tomography (a CT scan), it was unlikely
that Ms Mini would have made the cut-off time of three hours to
qualify for it, and would
likely have been turned away and not
admitted to hospital.
[22]
In relation to Dr Sher, Dr Botha maintained that although he had
diagnosed Ms Mini as having suffered a stroke, he was negligent
in:
(a) overlooking Ms Mini’s elevated high blood pressure readings
coupled with her neurological symptoms, and (b) failing
to refer her
to hospital where she would have, in all probability, received
hypertensive emergency treatment and blood pressure
control,
stabilisation and reduction in a controlled clinical environment. Dr
Kesler, on the other hand, was of the opinion that
because Ms Mini
had suffered a ‘stroke in evolution’ and not a ‘regular’
stroke, it was not unreasonable
for Dr Sher to have misdiagnosed her
condition as a stroke that had reached its zenith and completed. He
said that in view of the
history that Ms Mini had given to Dr Sher
relating to her condition, on the day, it was not unreasonable for Dr
Sher to have concluded
that the stroke had completed. He was of the
opinion that it is impossible for a doctor to detect that a stroke
has not completed
and would proceed to become worse because there are
no indicators to that effect. He maintained that even if Dr Sher had
referred
Ms Mini to hospital, her blood pressure would not have been
reduced aggressively because, in the case of an acute stroke, this is

contraindicated as it could cause renal or heart failure or increase
the size of a stroke (infarct). While Dr Kesler was prepared
to defer
to a physician on the question of reducing a patient’s high
blood pressure aggressively where it was not accompanied
by a stroke,
he was not prepared to do so in relation to an acute stroke. He said
that one of the consequences of an acute stroke
is that elevated
levels of blood pressure eventually come down to treatable levels.
Issues
in the appeal
[23]
As stated, the claim was brought in both contract and delict, however
in argument before us, it was only pursued in delict.
Thus, the
issues that arise for determination are whether the failure of the
appellants to correctly diagnose, treat and refer
Ms Mini to hospital
for further specialised assessment and treatment deviated from the
standard of care expected of a general practitioner
and, if so,
whether this failure caused or contributed to the sequelae that she
ultimately suffered. Whether the appellants are
delictually liable
requires a consideration of whether the elements of wrongfulness,
negligence and causation have been established.
Wrongfulness
[24]
Although
the appellants deny wrongfulness in their plea, wrongfulness was not
in issue before the high court or in this court. This,
in my view,
was a judicious concession because assuming the appellants could have
prevented further deterioration (in the form
of the pleaded sequelae
setting in) of Ms Mini’s condition by referring her to hospital
but negligently failed to do so,
then as matter of public or legal
policy, the appellants should be held liable for the damages arising
from their omission.
[3]
Negligence
[25]
In
Kruger
v Coetzee
[4]
this court articulated the proper approach for establishing the
existence of negligence as follows:
‘
For
the purposes of liability
culpa
arises if -
(a)
a
diligens
paterfamilias
in the position of the
defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’
[26]
In a recent re-statement of the test in
Oppelt
v Department of Health
[5]
Cameron J explained what it involves:
‘
In
our law
Kruger
embodies the classic test. There are two steps. The first is
foreseeability ─ would a reasonable person in the position of

the defendant foresee the reasonable possibility of injuring another
and causing loss? The second is preventability ─ would
that
person take reasonable steps to guard against the injury happening?
The
key point is that negligence must be evaluated in light of all the
circumstances. And, because the test is defendant - specific
(“in
the position of the defendant”), the standard is upgraded for
medical professionals. The question, for them, is
whether a
reasonable medical professional would have foreseen the damage and
taken steps to avoid it. In
Mitchell v Dixon
the then
Appellate Division noted that this standard does not expect the
impossible of medical personnel:
“
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.”
This
means that we must not ask: what would exceptionally competent and
exceptionally knowledgeable doctors have done? We must ask:
“what
can be expected of the ordinary or average doctor in view of the
general level of knowledge, ability, experience, skill
and diligence
possessed and exercised by the profession, bearing in mind that a
doctor is a human being and not a machine and that
no human being is
infallible”. Practically, we must also ask: was the medical
professional’s approach consonant with
a reasonable and
responsible body of medical opinion? This test always depends on the
facts. With a medical specialist, the standard
is that of the
reasonable specialist.’ (Footnotes omitted.)
[27]
A medical practitioner diagnosing and treating a patient is expected
to adhere to the level of skill, care and diligence possessed
and
exercised at the time by the members of the branch of the profession
to which he or she belongs.
[6]
Since the appellants were both general practitioners when they
treated Ms Mini in April 2007, their conduct must be assessed against

the standard of the reasonable general practitioner.
[28]
As alluded to above, the nub of the dispute concerning the
appellants’ liability relates to their failure to make a
correct diagnosis and to refer Ms Mini to hospital for specialised
observation, assessment and treatment.  In
Mitchell
v Dixon
,
[7]
Innes ACJ said as follows in relation to the liability of a
practitioner for making a wrong diagnosis:
‘
A
practitioner can only be held liable . . . if his diagnosis is so
palpably wrong as to prove negligence, that is to say, if his
mistake
is of such a nature as to imply absence of reasonable skill and care
on his part, regard being had to the ordinary level
of skill in the
profession . . . . ’
Similarly,
a practitioner’s error in making the wrong choice or following
the wrong course is not necessarily negligent. The
test is always
whether the practitioner exercised reasonable skill and care or, put
differently, whether or not his or her conduct
fell below the
standard of a reasonably competent practitioner in the field. If the
‘error’ is one that a reasonably
competent practitioner
might have made, it will not constitute negligence.
[8]
[29]
Central to the determination of whether the appellants met the
required standard of care in failing to correctly diagnose,
treat and
refer Ms Mini to a hospital, is the nature of the stroke which she
suffered. Although little attention was given to this
question by the
high court, the evidence reveals that the condition that Ms Mini
suffered was not a ‘regular’ or ‘normal’

stroke, but rather a ‘stroke in evolution’ which started
on 17 April 2007 (sometime prior to her having seen Dr Chapeikin)
and
took several days to complete. Dr Kesler dealt comprehensively, in
his testimony, with the manifestation of a stroke in general
and, in
particular, a ‘stroke in evolution’ which he also
described as ‘stroke in progress’, ‘evolving

stroke’ or ‘stuttering stroke’. He provided a
logical basis for concluding that Ms Mini had suffered the latter

type of stroke. In differentiating ‘a stroke in evolution’
from a ‘normal’ stroke, he explained that a
stroke in
evolution:
(a)
is a rare and unusual phenomenon which is difficult to evaluate
whilst happening and can only be diagnosed with hindsight;
(b)
differs from other forms of strokes (such as embolic or ischaemic),
where a rapid onset of stroke is found, and a patient is
expected to
reach maximum disability literally within a minute or two or an hour
or two at the most;
(c)
normally demonstrates maximum disability (retrospectively evaluated)
within a day or two at most ─ many patients will
show a
fluctuating clinical course within the first hours of the onset of
the event, present with a mild deficit, thereafter improve
slightly
and then, despite standard basic treatment, demonstrate much more
severe stroke syndrome within a day or two.
[30]
Dr Kesler furthermore explained that in Ms Mini’s case, the
‘stroke in evolution’ presented in an atypical
fashion
since it appeared to have a stuttering course over a period of at
least three days. He described the stroke that afflicted
Ms Mini as
‘one long unusual stroke in evolution’. Dr Botha, on
whose testimony Ms Mini relied, struggled to offer
a different
explanation for the manner in which her stroke presented itself.
After some vacillation, he provided the following
explanation for Ms
Mini’s clinical course, which was consistent with the opinion
expressed by Dr Kesler:
‘
The
only rational explanation that I have, [is] that there must have been
a step-wise stroke progression, or a stuttering stroke.
I know that
we wanted to move away from the terminology, and Dr Kesler, we took
it up with him as well, he was not happy with it,
because its concept
is very vaguely described in the literature, and most people want to
move away from it. So that is our problem
with that . . .. But that
would make perfect sense for me, because I don’t have any other
explanation why she progressed
in that way.’
[31]
The high court assessed the conduct of each of the appellants and, in
particular, their failure to refer Ms Mini to hospital
against the
South African National Guidelines on Stroke and Transient Ischaemic
Attack (TIA) Management (the National Guidelines),
[9]
which applied to the management of strokes by medical practitioners
in South Africa at the time of Ms Mini’s stroke. Its
primary
purpose was to facilitate optimum care of patients suffering from
stroke by early diagnosis and appropriate therapy with
the aim of
preventing any secondary complications. The National Guidelines
emphasised that:
[10]
(a)
Any cerebrovascular event lasting less than 24 hours with full
recovery should be treated as a minor stroke (TIA).
(b)
The objectives of TIA treatment are to treat the condition as an
emergency (since TIA is the occurrence of an impending stroke)
and to
prevent progression of the condition to an established
cerebro-ischaemic event by way of initiating early therapy.
(c)
All health professionals including general practitioners should be
capable of identifying signs and symptoms of strokes including
minor
strokes.
(d)
A minor stroke is a powerful predictor of a more serious stroke.
(e)
A minor (TIA) should not be ignored. Patients with TIA must not be
sent home.
(f)
A minor or major stroke is a medical emergency. If possible, initial
contact with the patient should be in hospital. Home management

should be avoided as the first port of entry.
(g)
Every stroke patient (irrespective of where first seen) requires
basic urgent emergency treatment to improve cerebral performance.
(h)
It is essential to treat TIA or minor stroke in order to prevent a
second stroke or consequent permanent disability.
[32]
The standard of treatment advocated by the National Guidelines was
that patients be referred to hospital for specialised treatment
and
preventative treatment with a view to preventing a secondary stroke
or consequent permanent disability. Dr Botha and Professor
Hellenberg
endorsed the National Guidelines as representing the standard of
practice expected of a general practitioner. Although
Dr Kesler was
critical of the National Guidelines in certain respects, he
acknowledged that they were operative and constituted
a clinical
protocol and standardised care regime.
[33]
Having found that Ms Mini suffered a further or consecutive stroke,
the high court concluded that the appellants were remiss
in not
administering treatment aimed at preventing a further or secondary
stroke. This finding was premised on the central purpose
of the
National Guidelines, which was the prevention of further or secondary
strokes. In respect to Dr Chapeikin in particular,
the high court
found:
‘
Chapeikin’s
conduct is inconsistent with the standards set out in the National
Guidelines on Stroke – a reasonable competent
general
practitioner would have regarded the plaintiff’s symptoms as a
medical emergency and referred her to hospital, to
prevent further
deterioration or a secondary stroke’.
However,
on the basis of the evidence of Drs Kesler and Botha that Ms Mini
suffered a ‘stroke in evolution’, there was
simply no
basis for a finding by the high court that further or consecutive
strokes were involved. In my view, the conduct of treating
medical
practitioners cannot be critically examined for negligence without
reference to the causal sequence or aetiology of the
disease or
medical condition from which a patient actually suffered at the time
of presentation and treatment. For that reason,
it was essential for
the high court to make a firm finding in relation to the precise
nature of Ms Mini’s condition.
[34]
However, it appears that in spite of what the evidence established,
the high court steered away from making a finding on whether
Ms Mini
suffered various separate strokes with the passage of time (with the
onset of the first one being prior to her visit to
Dr Chapeikin and
the others sometime thereafter), or whether she suffered a ‘stroke
in evolution’ which started at
approximately 16h00 on 17 April
2007 and ran its course over the next three days. Rather
ambivalently, it made allowance for the
eventuality that Ms Mini
suffered a secondary stroke after consulting with the appellants, or
a further stroke that was in the
process of developing by the time
she consulted with Dr Chapeikin. In so doing, it indicated that Dr
Chapeikin appreciated that
he was dealing with the possibility of ‘a
stroke developing’ and conceded that the problem with sending a
patient with
stroke home, was that the practitioner might not be able
to take steps to prevent a secondary event such as a subsequent
stroke.
In addition, it emphasised the need for the administration of
treatment designed to prevent a second stroke or secondary event and

criticised Dr Sher for saying that Ms Mini did not suffer ‘another
stroke’ and, for ascribing her deteriorating condition
to the
pattern of her stroke. The high court concluded that had Dr Chapeikin
referred Ms Mini to hospital (for monitoring) her
further
deterioration ‘or the onset of a further stroke’ would
have been detected early. This aspect was again touched
upon in the
judgment in the application for leave to appeal. There, the high
court not only appeared to favour the onset of a ‘later
serious
stroke’, but it also declared that there was ‘nothing
unusual’ about the stroke which Ms Mini had suffered.
Moreover,
it found that the deterioration of her condition ‘in the form
of a more serious stroke ─ was an entirely
predictable event’.
[35]
These findings are, to my mind, inconsistent with the expert
evidence. Except for a minor difference of opinion concerning
the
exact label that should be given to the nature of the stroke in
question, the two experts were in agreement that Ms Mini suffered
a
single stroke that evolved or progressed over time in a ‘stuttering’
fashion. The finding that there was nothing
unusual about the stroke
that Ms Mini suffered is also inconsistent with their evidence. It
seems to me that what the high court
failed to acknowledge, is that
both appellants were at different junctures confronted with a patient
suffering from a highly abnormal
condition and that liability,
especially liability based merely on a wrong diagnosis, could not
ensue unless it was clear that
the diagnoses were palpably wrong.
[11]
Its’ failure to appreciate that the appellants were confronted
with a ‘stroke in evolution’ led the high court
to
express views and make findings premised on measures designed to
prevent a secondary or subsequent stroke − which plainly
did
not eventuate.
[36]
Furthermore, the high court’s failure to recognise that Ms Mini
was all along in the throes of one continuing stroke
in progress, led
it to disregard the testimony of Dr Kesler that in respect of a
‘stroke in evolution’ the prevention
of a secondary
stroke does not come into play (at least not during the acute stage,
which was when the appellants were involved).
Essentially, what the
high court was required to determine was not what steps the
appellants ought to have taken in order to prevent
a secondary event,
but rather what steps they reasonably should or could have taken in
an effort to arrest or reverse the progress
of the evolving stroke.
On this aspect, the high court ignored the testimony of Dr Kesler
that Ms Mini was out of time for thrombolytic
treatment, the
administration of which (on Dr Botha’s version) is in any event
questionable in a patient who is in the throes
of a ‘stroke in
evolution’. As Dr Kesler explained, even if Dr Chapeikin had
referred Ms Mini to hospital it would
have made no difference to her
outcome as nothing special could be done for her ─ other than
to give her Prexum (and angiotensin-converting-enzyme
inhibitor (ACE
inhibitor)) which was in any event also what Dr Chapeikin had
prescribed.
[37]
In relation to the use of aspirin (one of the ‘other management
therapies’ generally prescribed to address the
progression of
stroke) which was purportedly withheld from Ms Mini due to Dr
Chapeikin’s failure to refer her to a hospital,
Dr Kesler
explained that although it is standard treatment for secondary
prevention of stroke, its administration in the context
of an acute
stroke is controversial. Dr Kesler’s opinion on this aspect was
consistent with the American Heart Association’s
Guidelines for
the Early Management of Adults with Ischaemic Stroke (the AHA
Guidelines) which state that (a) the primary effect
of aspirin seems
to be the prevention of recurrent events and (b) it is not clear
whether that agent limited the neurological consequences
of the acute
ischaemic stroke itself.
[12]
Notably, the American Academy of Neurology affirmed the value of the
AHA Guidelines as an education tool for neurologists.
The
AHA Guidelines were canvassed in the evidence of Dr Kessler, but not
challenged.
[38]
Dr Kesler testified that even in the case of a ‘normal’
stroke there is little that can be done to halt its progression
other
than thrombolytic therapy which must be administered within three
hours of the onset of a stroke. Principally for this reason,
he
maintained that the National Guidelines were overly generous in
suggesting that patients with stroke should be urgently sent
to
hospital after TIA or minor stroke (in the absence of other
complications such as, for instance, an inability to swallow,
incontinence,
immobility or the danger of aspiration). Significantly,
in this regard, Dr Kesler explained:
‘
I
might say that I’ve had patients in hospital who presented with
a stroke and despite being in hospital under let’s
say near
optimum circumstances have continued to deteriorate in front of one’s
eyes and although many of the recommendations
[in the National
Guidelines] are part fact and generalist in recommending that
patients . . . go to hospital if they show signs,
there’s not
terribly much that can be done even in hospital where the patient is
lying there before your eyes.’
[39]
The high court’s finding that Dr Chapeikin’s conduct was
inconsistent with the standards set out in the National
Guidelines as
a basis for concluding that a reasonably competent general
practitioner would have regarded her condition as a medical
emergency
and referred her to hospital is, therefore, not supported by the
evidence.  Crucially, the high court failed to
consider the
evidence of Drs Kesler and Botha who agreed that the diagnosis of the
‘stroke in evolution’ can only be
made ex post facto,
with the wisdom of hindsight once the stuttering stroke has come to
an end. The high court also failed to have
due regard to Dr Kesler’s
testimony that because Ms Mini was alert, able to walk and
communicate with no demonstrable signs
of weakness at the time she
saw Dr Chapeikin, she would probably not have been admitted had he
referred her to Groote Schuur or
Victoria hospitals.
[40]
The high court found that Dr Chapeikin’s testimony that he was
satisfied that there were no signs of stroke even if subtle,
was
unsupportable because he knew that Ms Mini’s symptoms were
indicators of a developing stroke and he foresaw a deterioration
of
her condition. There is no basis for this finding on the evidence as
Dr Chapeikin was alive to the serious risk that Ms Mini’s

symptoms might be indicative of a stroke. Not only was this his own
assessment of the possibility, but Ms Mini had directly raised
this
with him and referred him to her family history. The high court
acknowledged as much when it found:
‘
In
the circumstances, and despite the fact that Chapeikin’s
clinical notes are deficient, I do not think it can be said that
his
(or Dr Sher’s) failure to follow the three-stage assessment
constitutes non-compliance with the required standard of
care, or
negligence.
For
these reasons, it is unnecessary to decide the question whether
Chapeikin failed to elicit a proper history from [Ms Mini].
Moreover,
nothing turns on this as Chapeikin’s evidence is that he was
aware of the fact that both [Ms Mini’s] parents
had suffered a
stroke. It is also not disputed that [Ms Mini] was anxious because
she thought that she was having a stroke and
that she conveyed this
to Chapeikin.’
Dr
Chapekin testified that after Ms Mini had expressed anxiety about
having had a stroke and related her family history to him,
he tested
for all the relevant signs of a stroke and found none present. He was
concerned about the level of Ms Mini’s blood
pressure and in
light of her complaint of dizziness, concluded that medication for
high blood pressure and anxiety should be prescribed.
That is what he
did, and he rightly and properly indicated to her that if her
condition worsened she should call him immediately.
However, when her
condition did deteriorate, she failed to call him. He said that if
she had done so, he would have immediately
referred her to hospital.
He likewise said that had she come to see him three hours earlier
when the signs of stroke were evident,
he would have referred her to
hospital.
[41]
The high court rejected the evidence of Dr Chapeikin on the further
basis that to accept that he had not found signs of stroke
on
examination of Ms Mini, would suggest that she was either mistaken or
was lying about the symptoms she was experiencing or that
they must
have resolved. In arriving at these conclusions, the high court
disregarded the evidence of Dr Botha that, at the time
when Ms Mini
was seen by Dr Chapeikin, the neurological deficit might have been
such that it was too early for the physical weakness
to have
developed. Notably, it was common cause that at the time of her
consultation with Dr Chapeikin, Ms Mini was very anxious
and that Dr
Chapeikin was of the view that her presenting symptoms could have
been caused by anxiety, which is a common explanation
for symptoms
such as dizziness and lameness of which she complained. He,
therefore, prescribed Mitil (an agent used to alleviate
dizziness,
especially if there is anxiety) and advised her that if this reduced
her anxiety, then her symptomology would improve.
The high court
furthermore disregarded the evidence of Dr Kesler that the symptoms
which Ms Mini complained of, namely dizziness
and a focal lameness or
a feeling of numbness affecting only one side ─ the arm, are
known to be common symptoms of anxiety
which mimic stroke symptoms.
[42]
Turning then to Dr Sher’s conduct, he diagnosed Ms Mini as
suffering from hypertension with a mild stroke. He testified
that he
was aware that he was dealing with a stroke because of Ms Mini’s
history (which she related to him) of weakness in
her right hand
which had spread to her right leg. He said that on examining Ms Mini,
he focussed on her neurological symptoms but
it was difficult to find
any definite sign of weakness in her right hand; the strength in her
right hand was no different from
her left. He, however, went on to
say that having tested the strength, tone and reflexes in her legs,
he found neurological damage
to the right leg. Although Ms Mini had
described her right leg as being worse the previous day, on
examination Dr Sher found that
the weakness had improved and that
only a residual weakness remained. Hence, in his clinical note he
wrote:
‘
C/o
weakness (R) hand yest am –> (R) leg. O/E Residual weakness
(R) leg ± R hand’.
Dr
Sher explained the note to mean that Mini told him:
‘
(T)hat
since the previous morning she had experienced a weakness in the
right hand and during the day and I haven’t put a
timeframe on
this in my notes this spread to her right leg.’
He
also explained that on examination (O/E) it was difficult to find any
sign of weakness in the right hand ‘and hence in
my notes you
will see a plus or minus right hand’.
From
a description of Ms Mini’s history coupled with the results of
his extensive examination of her, Dr Sher concluded that
she had
suffered a stroke the previous morning which had gone through various
phases and had improved to the point where there
were only residual
signs, thus indicating that it had reached its zenith. He did not
consider that it would worsen because the
signs indicated
improvement.
[43]
The high court found that Ms Mini was subjected to a detailed
cross-examination on her version of her consultation with Dr
Sher but
did not deviate from her account. It accordingly rejected the history
of Ms Mini’s medical course, as recorded in
Dr Sher’s
clinical notes, in favour of Ms Mini’s version. It found that
Dr Sher was remiss in the management of Ms
Mini as he had no reason
to consider that her condition had stabilised and that her stroke had
reached its zenith when he examined
her. I consider these findings to
be clearly wrong as there was no evidentiary basis for the high court
to disbelieve Dr Sher on
this aspect. What the high court failed to
take into account were the decisive concessions made by Dr Botha that
at the time of
consulting with Ms Mini: (a) Dr Sher could not have
foreseen that her stroke would progress into a serious one and; (b)
clinically,
there was no way for him to establish the further
progression of her stroke (into the future); and (c) Dr Sher was,
factually,
in a position to diagnose the stroke as having completed.
The high court also failed to have regard to Dr Kesler’s
testimony
that it is clinically impossible for a medical practitioner
to detect that a stroke has not completed as there are no indicators

to that effect.
[44]
Moreover, the high court failed to take into account that Ms Mini’s
version of the events was contradicted by her response
to the
appellants’ request for further particulars, where she
unequivocally stated that the manner in which her symptoms
had
manifested were as ‘noted by Dr Sher in his consultation and
examination note’ − the very document which
the high
court rejected as containing an untruth. The high court made no
mention of this pivotal concession in its judgment. It,
furthermore,
failed to take into account the note written by Dr A Khan (Dr Khan),
an independent practitioner who had treated Ms
Mini at the
rehabilitation centre and had no relationship with Dr Sher. Dr Khan
wrote in the note, which he drafted a few months
after Ms Mini’s
stroke, that although Ms Mini felt some weakness in her right hand on
the day in question (17 April 2007)
she nevertheless continued to
work. The contents of the note undermine Ms Mini’s denial that
her symptoms manifested as a
feeling of weakness in her right hand on
the morning of 17 April 2007. Ms Mini conceded in cross-examination
that Dr Khan wrote
the note at her request and that she proofread it,
and corrected certain typing errors, before obtaining the final
version from
him. This, the high court simply ignored.
[45]
It must be borne in mind that Dr Sher was called upon by Ms Caine (Ms
Mini’s employer at the time) to give a second opinion.
She was
a longstanding patient of his and an attorney who specialised in
medical negligence matters. As such, the probabilities
dictate that
he would have been thorough in his examination of Ms Mini, and would
have taken detailed clinical notes in order to
be able to give Ms
Caine proper feedback, which he duly did. Aside from Dr Sher’s
own testimony of his telephonic discussion
with Ms Caine on 18 April
2007 concerning Ms Mini’s condition, there is no evidence on
record in relation to what Ms Caine
had said to him in this regard.
Accordingly, the high court’s finding that it is improbable
that Ms Caine would not have
told Dr Sher what had happened to Ms
Mini at work the previous day is, in my view, based on mere
conjecture as Ms Caine did not
testify at the trial. In any event, Ms
Caine could never have told Dr Sher what Ms Mini’s symptoms
were the previous day,
as it is clear from Ms Bathurst’s
testimony that she did not tell Ms Caine what Ms Mini’s
symptoms were on 17 April
2007 or at what time, on that day, she
first experienced them.
[46]
The high court also erred in rejecting Dr Sher’s explanation:
(a) for why the two blood pressure readings recorded in
his clinical
notes (‘199/130’ and ‘181/127’ respectively)
were not to be trusted, and (b) that he based
his decision, in
relation to the management of Ms Mini’s high blood pressure, on
the first recorded reading (185/120) he
obtained by using a
baumanometer and not on the last two readings, from the digital
instrument. The latter finding was inconsistent
with Dr Sher’s
unchallenged evidence that he took about six readings using a
baumanometer and recorded a blood pressure of
185/120, which he
underlined in his notes as being the average of the six readings that
he took. And it was on this reading that
he based the management of
Ms Mini’s blood pressure. The former finding was also
inconsistent with Dr Sher’s unchallenged
evidence of the reason
for taking the last two readings with the cheap and unreliable
digital device which had been given to him
by a pharmaceutical
company. He explained that he used the digital device because, unlike
the baumanometer, it had a screen that
displayed the blood pressure
readings which he could show to Ms Mini in order for her to see the
readings for herself. He said
that when he took these readings he was
not concerned with their accuracy, but:
‘
My
main and only purpose was to show Ms Mini the nature of her
underlying cause of her stroke which was her uncontrolled blood
pressure.’
He
said that the inaccuracy of the readings was illustrated by the
difference in the two systolic readings where one was 199 and
the
other 181. He explained further that:
‘
There
is a difference between the two [readings] and I think that 18
millimetres is not an accurate result and this is an example
of why I
say the [digital] machine is not very reliable.’
When
asked which of the readings he would use in the future management of
Ms Mini’s condition, he responded:
‘
I
would totally ignore the digital readings, I would use my own mean
(average) reading that I took great trouble in establishing.’
In
cross-examination he said:
‘
The
readings confirmed she had high blood pressure, in fact the readings
were higher than the readings that I had obtained taking
them
correctly [with a baumanometer] but it’s a way of me
cross-checking myself that I’m not making a mistake in my

assumption. So it’s just a bit of backup on my part, it’s
not something that I would solely use to treat hypertension.
I do not
give it enough weight to be that reliable.’
It
is clear from this that Dr Sher did not use the readings taken with
the digital device in the management of Ms Mini’s high
blood
pressure. I, therefore, see nothing implausible in his explanation
for taking the additional readings with the digital device.
His
explanation is consistent with the expert testimony of Dr Kessler
that the inexpensive digital device used by Dr Sher (for
the last two
readings) was at times not very accurate and should not be relied
upon. Thus, having regard to Dr Sher’s unchallenged
evidence on
this aspect, I consider the high court to have erred in
characterising Dr Sher’s explanation for taking the last
two
readings as an afterthought to justify his failure to send Ms Mini to
the hospital on the basis of the high blood pressure
readings.
[47]
For these reasons, I consider the high court to have erred in finding
that the appellants were negligent for failing to correctly
diagnose
Ms Mini’s condition and for failing to refer her to hospital
for specialised observation, assessment and treatment.
Causation
[48]
In the ordinary course a finding that the appellants are not
negligent would conclude the enquiry into their delictual liability,

but here I find it necessary to consider the element of causation
simply to illustrate that even if it were found that the appellants

were negligent, Ms Mini would still not have succeeded in proving
that they were liable, as she had failed to establish a causal
link
between their failure to refer her to hospital and her pleaded
sequelae. That said, it is common cause that Ms Mini’s
stroke
was not caused by any act or omission on the part of the appellants,
but that it was the result of long-standing hypertensive
disease or
poorly controlled hypertension.
[49]
The test to be applied to the question of causation is the well-known
‘but-for test’ as formulated in
International
Shipping Co (Pty) v Bentley
.
[13]
In
ZA
v Smith
[14]
this court reiterated what the enquiry entails by stating as follows:
‘
What
[the but-for test] essentially lays down is the enquiry – in
the case of an omission – as to whether, but for the

defendant’s wrongful and negligent failure to take reasonable
steps, the plaintiff’s loss would not have ensued. In
this
regard this court has said on more than one occasion that the
application of the “but-for test” is not based on

mathematics, pure science or philosophy. It is a matter of common
sense, based on the practical way in which the minds of ordinary

people work, against the background of everyday-life experiences. In
applying this common sense, practical test, a plaintiff therefore
has
to establish that it is more likely than not that, but for the
defendant’s wrongful and negligent conduct, his or her
harm
would not have ensued. The plaintiff is not required to establish the
causal link with certainty (see eg
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) ([2002]
3 All SA 741
;
[2002] ZASCA 79)
para 25;
Minister of Finance & others v Gore
NO
2007 (1) SA 111
(SCA) ([2007]
1 All
SA 309
;
[2006] ZASCA 98)
para 33. See also
Lee
v Minister of Correctional Services
2013 (2) SA 144
(CC)
(2013 (2) BCLR 129
;
[2012] ZACC 30)
para 41.)’
The
Constitutional Court has recently reaffirmed the continued relevance
of this approach to causation.
[15]
In accordance with the ‘but-for test’, the high court
prefaced it’s enquiry into causation by asking whether
it could
be said that it was more probable than not, that but for the
negligence of the appellants, Ms Mini’s sequelae would
have
been reduced had she been referred to hospital for specialised
assessment, observation and treatment. Then on the basis of
certain
concessions made by Dr Chapeikin, it found that it was likely on the
evidence, and a sensible retrospective analysis of
the situation,
that early intervention in Ms Mini’s condition by referral to
hospital would materially have affected the
outcome of her stroke, as
it was likely that she would have received care and management,
including the immediate administration
of anticoagulant agents such
as aspirin, prevention of dehydration and her blood pressure would
have been controlled and monitored.
[50]
With respect to Dr Sher, the high court found that the evidence
established that had he referred Ms Mini to hospital, it was
likely
that she would have received hypertensive emergency treatment and
blood pressure control; stabilisation and reduction in
a controlled
clinical environment, and thus further elevation of her blood
pressure would have been prevented. These findings,
in my view, are
not borne out by the evidence. The finding concerning the need to
have Ms Mini submitted to hypertensive emergency
treatment (which
only impacts on the liability of Dr Sher) fails to take into account
the evidence of Dr Kesler that the administration
of aggressive
hypertension therapy on a stroke patient (in the absence of other
life-threatening complications such as aortic dissection,
pulmonary
oedema, acute heart failure or renal failure) is highly contentious.
The high court also failed to have regard to the
caution sounded in
the National Guidelines
[16]
which
state:
‘
Do
not lower blood pressure
…
Only
lower blood pressure in situations of emergency hypertensive
complications e.g. aortic dissection or pulmonary oedema. A blood

pressure drop of
more than 15%
in 24 hours is likely to extend the infarct’.
Similarly,
the South African Hypertension Guideline, 2006,
[17]
which were also relied on by Ms Mini and canvassed with Dr Kesler, in
cross-examination, state that:
‘
Severe
hypertension is common in the setting of acute stroke. There is a
debate about whether or not this should be treated, and
if so, to
what immediate goal BP. . . .
Do
not lower BP in acute stroke or use antihypertensive medication
unless the BP is SBP>220mmHg or DBP>120mm Hg, as a rapid
fall
may aggravate cerebral ischemia and worsen the stroke.’
[51]
Dr Kesler emphasised, in his testimony, the dangers inherent in
lowering the blood pressure of a patient with acute stroke
as it
might extend the stroke (infarct) and worsen the outcome. He gave
compelling reasons why it is acceptable practice that blood
pressure
of patients in acute stroke should only be lowered in situations of
life threatening emergency, which was not the case
with Ms Mini. He
furthermore explained that he would in general not treat stroke
patients’ blood pressure before expiry of
a week following
acute stroke. Dr Sher, who subscribed to this view, explained how he
had, with the passage of time through personal
experience and on the
basis of trial and error, found that stroke patients deteriorated
when their blood pressures were lowered.
He had come to the
conclusion that rapid lowering of blood pressure was deleterious to
the patient.  It follows from this
that the high court’s
finding that had Ms Mini been referred to hospital she would have
been managed as a case of ‘hypertensive
emergency’ is not
supported by the evidence.
[52]
In
Medi-Clinic
Ltd v Vermeulen
[18]
this court, citing its earlier decision in
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
,
[19]
stated that:
‘…
[W]hat
is required in the evaluation of the experts’ evidence is to
determine whether and to what extent their opinions are
founded on
logical reasoning. It is only on that basis that a court is able to
determine whether one or two conflicting opinions
should be
preferred. An opinion expressed without logical foundation can be
rejected. But it must be borne in mind that in the
medical field it
may not be possible to be definitive. 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 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.’
The
evidence established that Dr Kesler had practised as a neurologist
since 1988. His expertise was in general aspects of neurology,
which
included management and treatment of stroke patients. As conceded by
Dr Botha, the management and treatment of strokes is
the specialist
field of practice of neurologists and not physicians like himself.
The testimony of Dr Botha concerning the aggressive
lowering of blood
pressure, through the administration of intravenous anti-hypertension
agents, in a patient with an acute stroke
was contradictory and at
odds with protocols presented to the high court. Dr Botha approached
the matter on the basis that Ms Mini
was a hypertensive patient as
opposed to one who was in the throes of a stuttering or evolving
stroke. Dr Botha furthermore paid
no attention to the risks involved
in aggressively lowering the blood pressure of a patient in the
throes of a stroke. Dr Kesler,
on the other hand, in accordance with
hypertension protocols and best practice, stated that it was
extremely dangerous and negligent
to administer intravenous
hypertensive therapy to a patient in the throes of a stroke.
[53]
Dr Kesler, in my view, provided a credible and logical basis for
concluding why aggressively reducing the high blood pressure
in a
stroke setting is contraindicated. Not only had the high court erred
in preferring the evidence of Dr Botha over Dr Kesler
on this aspect,
but it also erred in failing to take into account the evidence of Dr
Kesler that he, in any event, agreed with
the acute
pharmacological/drug management that had been prescribed by the two
appellants − in the case of Dr Chapeikin, an
ACE inhibitor
Prexum and, in the case of Dr Sher, the addition of half a Disprin in
view of the level of the blood pressure which
Ms Mini presented with
at the time. More importantly, the high court simply disregarded Dr
Kesler’s testimony that this was
the line of treatment that Ms
Mini would have received had she been referred to hospital as in fact
occurred after she was admitted
to hospital on 20 April 2007.
Accordingly, the high court ought to have rejected the evidence of Dr
Botha on this aspect as not
being a credible and logical basis for
the administration of hypertensive therapy to Ms Mini.
[54]
The high court’s finding on causality is also contradicted by
the evidence concerning the effect of available and acceptable

treatment options for acute stroke. It bears repetition that Ms
Mini’s primary cause of complaint against Dr Chapeikin was
that
he ought to have referred her to hospital for thrombolytic treatment.
The question as to whether Ms Mini was a candidate for
such therapy
was the main focus of the evidence presented by Dr Botha, to the
extent that Dr Chapeikin was concerned. It became
abundantly clear
from the established evidence that Ms Mini was not a candidate for
such therapy, firstly, due to the mildness
of her condition and
secondly, due to the fact that she arrived at Dr Chapeikin’s
practice at a time when the window of opportunity
had already
expired. The high court, however, dismissed this issue by recording
that in the light of its other findings it was
not necessary to
determine whether or not Ms Mini would have been a candidate for
thrombolytic therapy.
[55]
The high court, in my view, erred in so doing as the question of the
role that thrombolytic therapy plays in the treatment
and cure of
acute stroke (in the sense of arresting or reversing the effects of
stroke as opposed to prophylactic treatment which
is aimed at
reducing the risk of a secondary event), is central to the issue of
causation. The evidence clearly shows that even
if Ms Mini had
received thrombolytic treatment, which according to the expert
testimony was the only remedy of note available to
address the
consequences of stroke, it would not have made any measurable
difference since on Ms Mini’s own version, she
had only arrived
at Dr Chapeikin’s practice some three hours and a quarter after
the onset of the stroke. It must be borne
in mind, in this regard,
that thrombolytic treatment can only be administered by specialists
in the environment of an intensive
care unit after radiological
studies have been performed, which would have logically taken time to
procure and arrange. In the
scenario most favourable to Ms Mini,
taking into account factors such as travelling time, and assuming
that she would have been
attended to and accepted as a patient by a
hospital facility forthwith and that scanning facilities would have
been readily available,
the intravenous administration of
thrombolytic agents would probably only have been commenced with in
the region of four and a
half hours after the onset of her stroke.
That means that Ms Mini would, at a stretch, have fallen into what
was described in the
evidence as the three to four and a half hour
window of opportunity.
[56]
Dr Kessler testified that thrombolytic therapy is:
‘
a
very, very useful treatment and it’s incredibly gratifying to
see patients who were, you know, a few minutes ago lying there
with a
severe complete paralysis of an arm, unable to speak and come back
half an hour later and see them enormously better. So
it’s
really the first thing that we’ve ever had in the treatment of
stroke that has been useful. However, in fact,
the gains are overall
fairly modest. Although statistically significant, they are not –
it’s not as if everybody who
receives it will do well and
return to normal function.’
Dr
Botha, who endeavoured to convince the trial court that Dr Chapeikin
was remiss in not referring Ms Mini for thrombolytic treatment
was
forced to concede that the results of published clinical trials
proved that thrombolytic therapy, although being the only effective

cure for stroke available in medical science, is anything but a
‘miracle cure’. That the results are extremely modest,
is
borne out by his evidence, where he confirmed the results of a
well-known and comprehensive trial (ECASS 3
–
where 821 patients were randomised to
thrombolytic treatment or placebo) which had been performed to test
the benefit of intravenous
thrombolytic therapy in the three to four
and a half hour window:
‘
The
number needed to treat for one more patient to have a normal or near
normal outcome was 14 and the number needed to treat 1
more patient
to have an improved outcome was 8. Overall for every 100 patients
treated within the 3 to 4.5 hour window, 16 had
a better outcome as a
result and 3 had a worse outcome.’
[20]
Dr
Botha was driven to concede that the results of the ECASS 3 trial
showed that the proportion of patients with minimal or no disability

increased from 45 per cent with placebo to 52 per cent with
thrombolytic therapy − a mere 7 per cent absolute
improvement.
[21]
The finding
that specialised assessment and supervised care in itself would have
made a material difference to the outcome of Ms
Mini, to the extent
that she, in all likelihood, would not have suffered the sequelae as
pleaded (or even, on the test that the
high court applied, that she
would have been materially better off) is thus untenable.
[57]
It is a matter of common sense that if the best available treatment
would have rendered the low success rate as illustrated
above, the
chances are overwhelmingly stacked against the assumption that
assessment and supervised care (and even controlled lowering
of blood
pressure) would have made any appreciable difference (taking into
account that 45 per cent of the patients on placebo
ended up with
minimal or no disability in any event).
[58]
In concluding that upon referral to hospital by Dr Sher, hypertensive
emergency treatment and blood pressure control would
probably have
prevented further deterioration of Ms Mini’s condition, the
high court failed to have due regard to the evidence
of Dr Botha
regarding the probable outcome of hypertensive treatment on patients
with acute stroke. Even though Dr Botha’s
opinion was premised
on the assumption that, after seeing Dr Sher, there was a ‘further
deterioration’ because of Ms
Mini’s blood pressure, his
evidence failed to demonstrate that there was a likelihood of a
better outcome. In this regard,
he was pertinently asked by the court
how the outcome for Ms Mini would have been affected if Dr Sher had
referred her to a hospital
with high care or an intensive care unit.
He replied by saying that he had no simple response other than to say
it was desirable
that blood pressures at that level should be treated
in a regulated environment. When the court asked: ‘What is that
better
outcome?’ He responded:
‘
Also
difficult. It’s a dilemma . . . because I think . . . if we
assume that there was a further deterioration because of
the blood
pressure, some of the literature says that strokes can extend or
further progress with about 20 to 40%. So it’s
a wide range. So
my understanding would be, there would be about a 20 to 40% better
outcome, if we can tie up or link up the secondary
deterioration to
the very high blood pressure. That   would have been the
outcome according to my interpretation.’
That
there was no evidence linking Ms Mini’s secondary deterioration
to her high blood pressure and that Dr Botha was ‘basically

speculating’ is plain from the following concession which he
made, when again asked to clarify whether her deterioration
would
have been avoided had she been referred to hospital:
‘…
I
cannot say it in a guaranteed manner, because I don’t think
there are studies in a similar population of patients ever done.
All
I was saying from the beginning, is that it is standard practice for
a doctor . . . when faced with blood pressure readings
of that
magnitude, not to send the patient home, to get that patient in an
environment where they can be monitored and safely treated
by
whichever means. But I cannot give you a figure, or a guarantee that
nothing could have happened. She may have been lucky, and
she was to
a certain extent lucky, in the sense that nothing much was done,
virtually nothing was done and her blood pressure did
come down.’
The
testimony of Dr Botha, on which Ms Mini’s case rested, cannot
serve as a basis for finding that there was a likelihood
of a perfect
(or even a better) outcome. Accordingly, even had there been evidence
justifying a finding that either Dr Chapeikin
or Dr Sher had been
negligent, there was no evidence that this had any causative effect
on Ms Mini’s condition. On that ground
also the appeal had to
succeed.
Separation
of Issues
[59]
Ms Mini was required to show on a balance of probabilities that the
outcome for her would have been different had either of
the two
appellants referred her to hospital. That she had not done so, is due
in part to the separation of the quantum from the
merits that was
agreed between the parties and made an order of court. Since the
record of the proceedings in the high court does
not contain an
order, it remains unclear on what terms the separation of issues was
ordered. All we have is the pre-trial minute
which records that the
trial would proceed in respect of issues relating to the liability of
the appellants for damages allegedly
suffered by Ms Mini ‘ie on
issues relating to wrongfulness, negligence and causation’ and
that issues relating to calculation
of damages must stand over.
[60]
This type of separation has been criticised by this court in
Denel
(Edms) Bpk v Vorster
[22]
where it stated as follows:
‘
.
. . . Rule 33(4) of the Uniform Rules − which entitles a Court
to try issues separately in appropriate circumstances −
is
aimed at facilitating the convenient and expeditious disposal of
litigation. It should not be assumed that that result is always

achieved by separating the issues. In many cases, once properly
considered, the issues will be found to be inextricably linked,
even
though, at first sight, they might appear to be discrete. And even
where the issues are discrete, the expeditious disposal
of the
litigation is often best served by ventilating all the issues at one
hearing, particularly where there is more than one
issue that might
be readily dispositive of the matter. It is only after careful
thought has been given to the anticipated course
of the litigation as
a whole that it will be possible properly to determine whether it is
convenient to try an issue separately.
But, where the trial Court is
satisfied that it is proper to make such an order - and, in all
cases, it must be so satisfied before
it does so - it is the duty of
that Court to ensure that the issues to be tried are clearly
circumscribed in its order so as to
avoid confusion. The ambit of
terms like the “merits” and the “
quantum
”
is often thought by all the parties to be self-evident at the outset
of a trial, but, in my experience, it is only in the
simplest of
cases that the initial
consensus
survives. Both when making rulings in terms of Rule 33(4) and when
issuing its orders, a trial Court should ensure that the issues
are
circumscribed with clarity and precision . . . .’
[61]
This criticism is well founded and applies equally to the approach
adopted by the high court in this matter. This is illustrated
by the
terms of the order made by the high court where it finds the
appellants liable, but fails to identify the consequences for
which
they are each liable. Differently put, the court failed to deal with
the extent to which the alleged negligent conduct of
each of the
appellants contributed to Ms Mini’s pleaded sequelae or
deterioration. As indicated, Ms Mini’s complaint
is not that
the appellants caused her stroke, but rather that they failed to
diagnose and treat her condition correctly and refer
her to hospital
for specialist observation, assessment and treatment.  In view
of the complaint, it was not sufficient for
Ms Mini to merely prove
that her condition deteriorated as a result of their failure on the
grounds alleged, but it was incumbent
upon her to demonstrate that
diagnosing and treating the disease differently would have prevented
the pleaded sequelae from setting
in. Ms Mini alleges in her
particulars of claim that had she been referred to hospital, the
treatment that would have been administered
would have included
providing support and care; contacting a specialist; diagnosing the
nature of her stroke; performing an angiogram;
embolising the blood
vessel if a leak is identified and administering appropriate
medication. The sequelae resulting from the purported
negligence of
the appellants is listed in paragraph 15 of her particulars of claim.
To reiterate, the critical allegations are
that she suffered from
deteriorating symptoms of weakness on the right side of her body;
that she is unable to walk without assistance
and confined to a
wheelchair; that she suffers from hemiplegia; that she suffers from
attention and concentration difficulties;
and that she suffers from
limitations in abstract and complex reasoning, problem solving and
information processing. Whilst most
of these sequelae appear to be
substantiated by the evidence of Dr Hemp, the clinical psychologist
who testified in support of
Ms Mini’s case, no attempt was made
to link those sequelae to any absence of treatment that she suffered.
Ms Mini, furthermore,
failed to lead evidence to prove that the
consequences of the appellants’ alleged negligence were the
pleaded sequelae. Nor
was there any evidence concerning the extent to
which, if any, her sequelae would have improved if she was given the
appropriate
treatment.
[62]
Ms Mini has led no evidence which vaguely suggests that because of
the appellants’ failure to refer her to hospital she
was denied
treatment, which if made available to her, would have prevented those
sequelae. Ms Mini furthermore led no evidence
to demonstrate that but
for the negligence of the appellants, she would have suffered no
impairment at all. Although touched upon
by Dr Botha in his expert
summary, none of this was substantiated in his expert testimony.
There was accordingly no evidential
basis for the high court to hold
the appellants liable for Ms Mini’s impairment.
[63]
However, in the application for leave to appeal, the high court
maintained that that question relates to quantum and falls
to be
determined in that phase of the proceedings. The effect of that
finding is that the damages recoverable would be proportional
to the
cogency of proof of causation. This approach is wrong. Supposing the
appellants are unsuccessful on appeal and that the
matter proceeds on
the question of quantum, then Ms Mini would have to present evidence
establishing the extent to which she would
have been less impaired
had the appellants not acted negligently. Quite apart from the fact
that that evidence will not relate
to calculation of damages but
rather go to the root of causation, this would mean that the parties
would have to revisit the very
matters on which they have already led
evidence, despite the fact that Ms Mini presented no evidence, in the
first place, to discharge
the onus relating to how different her
outcome would have been had she been referred to hospital by one or
both of the appellants.
This is precisely the kind of ‘confusion’
on separation that this court sought to caution against in
Denel
.
[23]
[64]
In a last attempt at overcoming this evidential impediment, Ms Mini
sought support in the finding of the Constitutional Court
in
Lee
v Minister of Correctional Services,
[24]
that even if the substitution approach was found to be suited to the
enquiry into factual causation in a particular case, a plaintiff

would not be required to provide evidence to prove what the
non-negligent lawful conduct of the defendant should have been, but

rather ‘what is required is postulating hypothetical lawful,
non-negligent conduct, not actual proof of that conduct’.
[25]
[65]
Ms Mini’s reliance on
Lee
is misplaced, since as recently stated by the Constitutional Court in
Mashongwa
v
Passenger Rail Agency of South Africa
:
[26]
‘
Lee
never sought to replace the pre-existing approach to factual
causation. It adopted an approach to causation premised on the
flexibility
that has always been recognised in the traditional
approach. It is particularly apt where the harm ensued is closely
connected
to an omission of a defendant that carries the duty to
prevent the harm. Regard being had to all the facts, the question is
whether
the harm would nevertheless have ensued, even if the omission
had not occurred. However, where the traditional but-for test is
adequate to establish a causal link it may not be necessary, as in
the present, to resort to the
Lee
test.’
This
is precisely the difficulty which Ms Mini faces in this appeal,
because even if the omission (the appellants’ failure
to refer
her to hospital) had not occurred, there is simply no way of saying
that she would have been admitted to hospital, that
she would have
received treatment that was any different from what Drs Sher and
Chapeikin administered, and that she would have
been administered
with emergency hypertensive therapy or thrombolytic therapy. Even, on
the most benevolent reading of
Lee
this is an intractable case in insofar as causation is concerned
because there is a complete absence of evidence which demonstrates

that referring Ms Mini to hospital would in fact have had any
beneficial effects whatsoever. For these reasons the appeal must

succeed.
[66]
I make the following order:
1
The appeal is upheld with costs.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
plaintiff’s claim is dismissed with costs.’
F
Kathree-Setiloane
Acting
Judge of Appeal
APPEARANCES:
For
Appellants: A de V La Grange SC
Instructed
by: Bowman Gilfillan Inc, Cape Town
Matsepes
Inc, Bloemfontein
For
Respondent: J van der Merwe SC (with him A D Branford)
Instructed
by: Malcolm, Lyons & Brivik, Cape Town
Lovius
Block, Bloemfontein
[1]
http://www.mystroke.co.za
/About
(accessed on 25 May 2016).
[2]
A
sound, especially an abnormal one, heard through a stethoscope.
[3]
Hawekwa
Youth Camp & another v Byrne
[2009] ZASCA 156
;
2010
(6) SA 83
(SCA) para 22;
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[2014] ZACC 28
;
2015 (1) SA 1
(CC) paras 20-22;
ZA
v Smith & another
[2015] ZASCA 75
;
2015 (4) SA 574
(SCA) paras 14-20.
[4]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-H.
[5]
Oppelt
v Department of Health, Western Cape
[2015]
ZACC 33
;
2016
(1) SA 325
(CC) paras 106-108. Dissenting judgment of Cameron J and
Jappie AJ. The test for negligence was not in issue in the dissent.

At paragraph 60 of the majority judgment, the Constitutional Courts
endorsed the test formulated in
Kruger
as ‘[t]he proper approach for establishing the existence or
otherwise of negligence’.
[6]
Topham
v Member of the Executive Committee for the Department of Health,
Mpumalanga
[2013]
ZASCA 65
; 2013 JDR 1059 (SCA) para 6.
[7]
Mitchell
v Dixon
1914
AD 519
at 526.
[8]
Mitchell
v Dixon
at
526;
Castell
v De Greef
1993 (3) SA 501
(C) at 512A.
[9]
The
National Guidelines were published by the National Department of
Health in 2001. They were prepared in collaboration with
the
Provincial Departments of Health, universities, other tertiary
institutions and the Stroke Foundation of South Africa.
[10]
The
National
Guidelines at 6-8.
[11]
Mitchell
v Dixon
at
526, referred to in
Louwrens
v Oldwage
[2005] ZASCA 81
;
2006 (2) SA 161
(SCA) at 171A-B. A diagnosis is
‘palpably wrong’ if it is one that could not be arrived
at by a reasonably competent
general practitioner.
[12]
H
Adams MD et al ‘Guidelines for the Early Management of Adults
with Ischemic Stroke: A Guideline From the American Heart

Association/American Stroke Association Stroke Council, Clinical
Cardiology Council, Cardiovascular Radiology and Intervention

Council, and the Atherosclerotic Peripheral Vascular Disease and
Quality of Care Outcomes in Research Interdisciplinary Working

Groups: The American Academy of Neurology affirms the value of this
guideline as an education tool for neurologists’ (2007)
at
1681.
[13]
International
Shipping Co v Bentley (Pty) Ltd
[1989] ZASCA 138
;
1990 (1) SA 680
(A) at 700E-J.
[14]
ZA
v Smith & another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) para 30.
[15]
Mashongwa
v Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 65.
[16]
The
National
Guidelines at 8.
[17]
Y
K Seedat et al ‘
South
African Hypertension Guideline 2006’ (2006) 96 No 4 (Part 2)
South
African Medical Journal
335 at 353-354.
[18]
Medi-Clinic
Ltd v Vermeulen
[2014] ZASCA 150
;
2015 (1) SA 241
(SCA) para 5.
[19]
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
[2001]
ZASCA 12
;
2001 (3) SA 1188
(SCA) paras 37-39.
[20]
J L Saver MD, FAHA, FAAN et al ‘Thrombolytic Therapy in
Stroke, Ischemic Stroke and Neurologic Deficits’ (2012)
Medscape
.
[21]
Above at 2.
[22]
Denel
(Edms) Bpk v Vorster
[2004]
ZASCA 4
;
2004 (4) SA 481
(SCA) para 3.
[23]
Denel
,
para 3.
[24]
Lee
v Minister of Correctional Services
[
2012]
ZASCA 30; 2013 (2) SA 144 (CC).
[25]
Lee
,
p
ara
56.
[26]
Mashongwa
v Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 65.