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[2017] ZAGPJHC 465
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M N v Member of the Executive Council for Health and Social Development of the Gauteng Provincial Government (2016/07322) [2017] ZAGPJHC 465 (29 September 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2016/07322
In
the matter between:
M
N PLAINTIFF
And
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
AND
SOCIAL DEVELOPMENT OF THE GAUTENG
PROVINCIAL
GOVERNMENT DEFENDANT
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
The plaintiff in this matter, an adult female born on […] June
1961, instituted action against the defendant in his capacity
as the
authority responsible for the Department of Health and Hospitals in
the Province of Gauteng. The plaintiff claims damages
as a result of
the alleged negligence of the doctor/doctors and nursing staff on
duty during the performance of a parathyroidectomy
procedure on 1
December 2014 at Chris Hani Baragwanath Hospital (“the
hospital”).
[2]
It is not in dispute that Dr Bombil, the surgeon who performed the
procedure and the other hospital staff who assisted him,
acted within
the scope and course of their employment with the defendant.
[3]
Merits and quantum have been separated and it was agreed that the
matter would proceed on the issue of merits only.
[4]
Essentially, the plaintiff’s claim (which proceeds in delict)
hinges on two aspects:
4.1 Firstly, that the
doctors and nursing staff involved in her parathyroidectomy procedure
owed her a duty of care in accordance
with generally accepted
standards and as a result of their negligence, the plaintiff
sustained injuries of the following nature:
4.1.1
Paralysis of the left vocal cord;
4.1.2
Damage to the left recurrent laryngeal nerve; and
4.1.3
Hoarseness of voice.
4.2
Secondly, the defendant failed to obtain the
plaintiff’s informed consent to
the surgery in that it:
4.2.1
Failed to inform the plaintiff of all reasonable
risks of and complications associated with parathyroidectomy surgery,
particularly
those possible complications which, although rare or
infrequent in experienced hands, may have serious consequences to the
plaintiff’s
life and general well-being.
4.2.2
Failed to inform the plaintiff that the person
that was allocated to perform the relevant surgery did not have
sufficient experience
in performing a parathyroidectomy.
THE
EVIDENCE
[5]
The plaintiff testified and was the only witness called. The
defendant called two witnesses, namely, Dr Bombil and Dr Komeni.
[6]
The plaintiff was referred to the hospital by the Soweto Community
Health Care Centre with a clinical history of memory loss
and
confusion, general body pains and forgetfulness. On 19 November 2014,
the plaintiff was subsequently admitted to ward 20 at
the hospital,
where she presented with various symptoms in that she complained that
she felt dizzy, could not walk and that “her
head was not
alright”. A provisional diagnosis of EARI and Alzheimer’s
disease was recorded.
[7]
The plaintiff underwent numerous tests and investigations during her
stay in hospital. On 26 November 2014 a medical practitioner
in the
employ of the defendant started questioning the possibility of a
diagnosis of hyperthyroidism/adenoma, and the plaintiff
was placed on
the theatre schedule for 30 November 2014.
[8]
A plan setting out the treatment of the plaintiff being “CMP”,
“RVD consented”, “TSH”, “CRP”,
a
psych review plus “input & output” are all listed in
the plaintiff’s medical records.
[9]
On 30 November 2014, an informed consent document was completed and
signed by the plaintiff with the assistance of Dr Komeni.
A
layman’s consent form was subsequently also completed by the
plaintiff, wherein the plaintiff provided a description
of what she
understood would occur during the surgery.
[10]
The plaintiff’s evidence lacked particularity and she had no
genuine recollection of her hospitalisation except for the
fact that
she suffered from “calcium” and that blood samples had
been drawn from her repeatedly. The plaintiff was
however able to
remember that she was “awake” during the surgical
procedure and she observed the actions of the medical
practitioners
as well as their support staff. She stated that her medical condition
and treatment thereof was never discussed with
her. The plaintiff
testified that she would have refused to undergo the surgical
procedure had she known she would have temporary
hoarseness of her
voice as a possible complication of the surgery.
[11]
The plaintiff suffered from memory loss prior to the surgery and
testified that she continued to suffer from memory loss
post-operatively.
[12]
The plaintiff had employed two experts but elected not to call them.
No agreements or admissions were sought by the plaintiff
on the
status of the expert reports that were filed.
[13]
Dr Bombil, who testified on behalf of the defendant, is an
experienced surgeon. His evidence can be summarized as follows:
13.1 He was the chief
medical practitioner of the relevant unit at the hospital and
explained the procedure from the plaintiff’s
referral and
admission up to and including the decision to perform surgery as set
out in the hospital records.
13.2 Amongst other tests,
an HIV test was performed on the plaintiff. He also dealt with
aspects of the plaintiff’s post-operative
care and the
complication suffered by the plaintiff and the temporary hoarseness
of her voice.
13.3 As the treating
surgeon, he testified that medical practitioners obtained informed
consent from patients “as a team”.
13.4 He testified that
the nurses who undertook the recording of the laymen’s consent
form are not aware of the nature of
the surgical procedure to be
undertaken.
13.5 The plaintiff was
initially going to be placed under anaesthesia during the operation
but subsequently a decision was made
that the plaintiff would receive
local anaesthesia so that the plaintiff would not be completely
sedated during the surgical procedure.
13.6 The plaintiff had an
excessive concentration of calcium in her blood. Such a condition was
known as hypercalcemia. Hypercalcemia
impairs the body’s
ability to carry out its normal functions. Extremely high levels of
calcium can be life threatening. Severe
cases of hypercalcemia can
cause neurological symptoms such as depression, memory loss,
confusion, dementia and coma, which can
be fatal. Hypercalcemia
causes damage to the kidneys, limiting their ability to cleanse the
blood and eliminate fluid. Calcium
levels affect bones leading to
individuals experiencing bone pain. A patient suffering from
hypercalcemia may experience headaches,
fatigue, muscle cramps and
twitches.
13.7 One of the causes of
hypercalcemia is an overactive parathyroid gland which is referred to
as hyperparathyroidism by medical
practitioners. Hyperparathyroidism
can stem from a small, benign tumour or enlargement of one or more of
four parathyroid glands.
13.8 The plaintiff’s
diagnosis of hyperparathyroidism informed his decision to perform a
parathyroidectomy on the plaintiff.
13.9 On 1 December 2014,
a surgical procedure constituting of a local excision of a
parathyroid ademona was performed by him and
Dr Mitchell by means of
a blunt dissection around the thyroid gland through a left neck
incision of around one centimetre in diameter.
13.10 Dr Bombil explained
the positioning of the parathyroid glands in relation to the
positioning of the laryngeal nerves. He also
explained that the
stretching of these nerves could occur as a complication during the
procedure.
13.11 Hoarseness of the
voice was the expected fall out from a stretched laryngeal nerve. He
explained that the severing of the
laryngeal nerve can result long
term and even permanent vocal cord paralysis.
13.12 Dr Bombil testified
that an injury to the nerve could take as long as eighteen months to
heal completely.
13.13 He denied that the
procedure took unduly long even though the need of a scan arose to
detect the glands. According to him,
the anatomical position of the
parathyroid glands differs from patient to patient.
13.14 Post-operatively,
Dr Bombil testified to the fact that the plaintiff developed a hoarse
voice.
[14]
Dr Komeni also testified on behalf of the defendant. He was given the
task to explain the informed consent form to the plaintiff
in her
language of preference, as well as the risks and complications
associated with a parathyroidectomy. He testified that he
first had
sight of the plaintiff’s medical records on 30 November 2014
when the plaintiff was finally approved for surgery.
He further
testified that he did not peruse the plaintiff’s medical
records completely. Between 4 December 2014 and 5 December
2014, Dr
Komeni referred the plaintiff for speech therapy.
[15]
Dr Komeni’s testimony was criticised and he was accused of
merely testifying that which he told the plaintiff. He attracted
further criticism when he testified that, as an intern, he researched
what a parathyroidectomy procedure entailed and that he apprised
himself of the risks associated with such a surgical procedure before
completing the informed consent document with the plaintiff.
[16]
Counsel for the plaintiff submitted during cross examination of the
defendant’s witnesses, that not a single, meaningful
discussion
took place with the plaintiff regarding the inherent risk factors of
surgery, and in particular the positioning of the
laryngeal nerves in
the area of surgical procedure. It was also put to the witnesses that
the plaintiff would never have undergone
the procedure had she known
what the complications would be. It was contended that there was a
deep misunderstanding of the need
for the operation at the time and
that there was a lack of informed consent.
[17]
Both Dr Bombil and Dr Komeni denied that the plaintiff was not aware
of the risks involved in performing the procedure and
confirmed that
the necessary consent was obtained before the procedure was done.
THE
ARGUMENTS
[18]
In argument, counsel for the plaintiff, Ms Letzler, suggested that
should the court find that there was no negligence on the
part of the
defendant during the performance of the procedure and/or before and
after admission and/or treatment of the plaintiff,
that the common
law needs to be developed to allow for “
a patient orientated
approach
” in medical treatment as opposed to the former
patriarchal relationship between doctor and patient and the uneven
distribution
of power this brought about.
[19]
It was maintained that Dr Komeni conducted various investigations
into the health and well-being of the Mrs Ntuli prior to
him seeking
and obtaining the plaintiff’s informed consent, and as such
these investigations were performed in contravention
of The National
Health Act
[1]
, and infringed on
the patient’s health and well-being. It was submitted that
there was no meaningful engagement between the
plaintiff and medical
practitioners in so far as discussing the surgical procedure and its
associated risks and complications,
and that the consent obtained by
the plaintiff to perform the surgical procedure was inadequate. It
was submitted that the task
of obtaining informed consent from the
patient in this case was reduced to a mere clerical task.
[20]
It was suggested by Advocate Letzler that the plaintiff may not have
had the necessary mental capacity to consent to the surgical
procedure. This suggestion was strongly objected to by counsel on
behalf of the defendant which objection was upheld. It was not
the
plaintiff’s evidence and it does not form part of the pleaded
case.
[21]
The court was referred to literature compiled by The Health
Professions Council of South Africa (“HPSCA”), namely,
booklet 3 which deals with the Patient’s Rights Charter and
booklet 4 which canvasses the topic of informed consent by counsel
on
behalf of the plaintiff. Ms Letzler further amplified her argument
with reference to The Consumer Protection Act
[2]
.
It was submitted
that the defendant is vicariously liable for any actions taken by a
clinic, hospital or its staff in contravention
of the Consumer
Protection Act. It was submitted that in terms of this Act the
patient may not waive any obligation or assume any
right in terms of
service delivery. The obligation is on the hospital staff to
adequately inform the patient and not for the patient
to ask
questions. It can then also never be correct to state that a patient
“has to be grateful” for the treatment
received, as the
patient as a consumer has the various important rights none of which
the defendant adhered to in their alleged
attempts to obtain informed
consent.
[22]
Counsel for the defendant contended that the court should reject the
plaintiff’s evidence. She simply denied discussing
her health
and treatment with medical practitioners and that they did not
explain any of the procedures to her, but were unable
to provide
specific details. She suffered from memory loss for a substantial
period of time prior to the surgery and she testified
that she still
suffered from memory loss. As a result the plaintiff’s evidence
cannot be relied upon by the court especially
in light of some of the
responses elicited from the plaintiff during cross-examination. It
was submitted that defendant’s
evidence was reliable and
straight forward and Dr Bombil’s evidence was unchallenged.
The defendant’s main contention
is that the plaintiff has
not proven any negligence on the part of Dr Bombil or any of the
other medical staff during the operation.
NEGLIGENCE
[23]
It has long been recognized in our law that an operation on a person
is a violation of his bodily integrity and therefore it
is
prima
facie
unlawful. This is also embodied in s 12(2) of our Constitution. Upon
proof of the act of an operation the
onus
shifts to the defendant to prove justification. In this instance the
justification relied upon is consent. The well-known ground
of
justification is expressed as
volenti
non fit iniuria
.
The question whether consent is present in a given case, is one of
fact which has to be proved. If the defendant thought that
consent
had been given while in fact it was absent, no ground of
justification existed and the act would be wrongful. In such a
case
liability may be evaded on the ground of lack of fault.
[3]
[24]
A delict consists of five elements, all of which must be present
before the conduct complained of can be classified as a delict.
Those
elements are an act, wrongfulness, fault, harm and causation.
[25]
The main issue in my view, before lack of consent is considered, is
whether the plaintiff has discharged the onus of establishing
negligence. The test for negligence appears in the following dictum
of Holmes JA in
Kruger
v
Coetzee
[4]
:
“
There
is only one enquiry, namely whether the plaintiff having regard to
all of the evidence in the case, has discharged the onus
of proving
on the balance of probabilities, the negligence averred against the
defendant.”
The
ultimate analysis is whether in the particular circumstances the
conduct complained of fell short of the standard of a reasonable
person or, in this matter, the appropriate standard for the relevant
medical personnel applicable.
[26]
In Van Wyk v Lewis
[5]
, Wessels
JA said the following on the standard of competence of a surgeon:
“…
the
surgeon will perform the operation with such technical skill as the
average medical practitioner in South Africa possesses and
that he
will apply that skill with reasonable care and judgment…(he)
is not expected to bring to bear on a case entrusted
to him the
highest possible professional skill but is bound to employ reasonable
skill and care and is liable for the consequences
if he does not.”
[27]
In this matter the laryngeal nerve of the plaintiff was inadvertently
stretched during a parathyroidectomy procedure performed
on the
plaintiff, and as a result the plaintiff developed a hoarse voice. It
was not disputed by the plaintiff that such a complication
may occur
during a parathyroidectomy. The question is whether on the
appropriate test (viewed in the circumstances as set out above),
the
surgeon and the relevant support staff conducted themselves in a
manner constituting negligence.
[28]
In my view, the plaintiff has set an unreasonably high standard for
surgeons. In
Buthelezi
v Ndaba
[6]
,
Brand JA held the following:
“
After
all, as Lord Denning MR observed in Hucks v Cole
[1968] 188 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 held to
be
negligent simply because something went wrong.’
[29]
The test for negligence was neatly summarized as follows in the
matter of
Castell
v De Greef
[7]
,
wherein Scott J held as follows:
“
The
test remains always whether the practitioner exercised reasonable
skill and care or, in other words, whether or not his conduct
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.”
[30]
No evidence was placed before the court to prove any negligence on
the part of Dr Bombil or Dr Komeni. The plaintiff had two
experts
available but decided not to call them. The evidence of Dr Bombil is
undisputed. It was conceded by Ms Letzler during argument
that the
plaintiff failed to prove that Dr Bombil or Dr Komeni was negligent
during the performance of the procedure on the plaintiff.
Ms Letzler
is however of the view that negligence had been established in that
the doctors failed to obtain the necessary informed
consent before
performing the procedure. She contends that medical negligence and
the absence of informed consent are and should
be acknowledge as
independent alternative claims.
[31]
The plaintiff’s case is set out in the particulars of claim.
The allegation during cross examination of the witnesses
and during
argument that the “
various investigations into
the
health and well-being of the plaintiff were performed in
contravention of The National Health Act, and infringed on the
patient’s
health and well-being”
does not form part
of the plaintiff’s pleaded case and are irrelevant to the
issues at hand. The submission that the defendant
is vicariously
liable for any actions taken by a clinic, hospital or its staff in
contravention of the Consumer Protection Act
was also not pleaded and
is therefore also irrelevant in determining the real issues between
the parties. The plaintiff is bound
to her pleadings which are based
on the alleged negligence of the hospital personnel during the
performance of the procedure.
[32]
In
Sibisi
v Maitin
[8]
,
the
appellant contested the court
a
quo’s
finding on negligence. The appellant also argued that the common law
on informed consent should be developed. Lewis JA subsequently
held
that it was unnecessary to determine the test for informed consent
because negligence had not been established, and accordingly
there
was no need to consider wrongfulness or grounds excluding
wrongfulness. The appeal was consequently dismissed.
[33] Ms Letzler contended that the
decision in
Sibisi
was incorrect and that the SCA conflated
the issues. She submitted that applying the
Sibisi
judgment in
future would almost certainly result in legally unsound consequences.
[34]
I have considered the arguments on behalf of plaintiff. I have no
reason to doubt the correctness of the reasoning in
Sibisi,
I
agree with it, and I intend following it. The plaintiff in this
matter has not proved negligence as pleaded in paragraph 8.1 to
paragraph 8.6 of the particulars of claim.
[35]
In the result the following order is made:-
35.1 The plaintiff’s
action against the defendant is dismissed with costs.
________________________________
L
WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
Attorney
for plaintiff: Maria Phefadu Attorneys
Counsel
for plaintiff: Advocate M. Letzler
Attorney
for defendant: Office of the State Attorney, Johannesburg
Counsel
for respondent: Advocate N. Makopo
Date
matter heard: 14 June 2017, 15 June 2017, 19 June 2017, 22 June 2017
& 25 July 2017.
Judgment
date: 29 September 2017
[1]
Act 61 of 2003
[2]
Act 68 of 2008
[3]
Neethling
Potgieter and Visser
Law of Delict, 7
th
ed p 111.
[4]
1966 (2) SA 428 (A)
[5]
1924 AD 438
at 456
[6]
2013 (5) SA 437 (SCA)
[7]
1993 (3) SA 501
(C) at 512A - B
[8]
2014 (6) SA 533
(SCA)