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[2020] ZAGPJHC 203
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F M v Member of the Executive Council for Health Gauteng Provincial Government (2016/03425) [2020] ZAGPJHC 203 (6 May 2020)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2016/03425
In
the matter between:-
M,
F
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH GAUTENG PROVINCIAL
GOVERNMENT
Defendant
JUDGMENT
FMM SNYMAN (AJ)
Introduction
[1]
The plaintiff, a 53 year old male, was
admitted to Far East Rand Hospital on 21 May 2013 for a scheduled
surgery to remove a suspicious
malignant tumour on the left side of
his face. The tumour was situated under the plaintiff’s
left ear.
[2]
An excision of the left submandibular gland
was performed on 21 May 2013 and the plaintiff was discharged 6 days
post-surgery on
27 May 2013. The laboratory results indicated
the tumour to be benign.
[3]
After the surgery the plaintiff
experienced
facial palsy as the left side
of his face was numb or “droopy”. Since then, the
plaintiff has no control over
the left side of his mouth, he
experiences difficulty with chewing and eating and he is unable to
completely close his left eye.
[4]
It deems to be mentioned at this stage
already that two different facial glands are referred to and
distinguished between frequently
in this judgment, which two glands
were also prominent subject matters during the trial. The first
gland to identify is the
parotid gland which is - roughly described -
situated in front of a person’s ear. The second gland is
the submandibular
gland, situated under the jaw (mandible).
[5]
The plaintiff issued summons against the
defendant for being vicariously liable for the conduct of the medical
personnel in negligently
injuring the plaintiff’s left
facial
nerve
during the surgery, resulting in the
facial nerve palsy.
[6]
The facial
nerve is the seventh cranial nerve, or simply CN VII. It
emerges from the pons of the brainstem, controls
the muscles
of facial expression, and functions in the conveyance of
taste sensations from the anterior two-thirds of
the tongue
.
There are two facial nerve stems, one on the left and one on the
right side of the human face. This matter concerns only
the
left
seventh
cranial nerve
(“facial
nerve”).
[7]
Regarding the anatomy of the facial nerve,
the trunk of the facial nerve stems from the brain and is exposed (in
that it is not
covered by the scull) for a very short distance right
under the ear. Thereafter it enters into the parotid gland from
below,
surfaces to the mid parotid gland and whilst still in the
parotid gland, divides in five different branches to serve the
various
facial nerves.
[8]
The trunk of the facial nerve (or
interchangeably referred to as the “facial nerve stem”)
leaves the brain through a
tunnel of bone structure situated
approximately 1 – 2 cm or 2 – 3 cm deep from the skin,
situated under the earlobe.
[9]
The matter was set down for determination
on the merits only.
[10]
The issue of
quantum
is postponed
sine dies
by
agreement between the parties.
The
disputes
[11]
The defendant disputes whether there is an
injury to the left facial nerve (a factual enquiry); and
[12]
If the nerve is injured, the defendant
disputes whether the surgery performed on 21 May 2013 caused the
facial nerve injury.
Causation of the injury (a legal enquiry)
is thus disputed.
[13]
The plaintiff has the onus to prove both
the above issues on a preponderance of probabilities.
[14]
Should both these questions be answered in
the positive, the defendant would be liable for the damages suffered
by the plaintiff
as a result of the surgery and merits would be found
in favour of the plaintiff.
[15]
The defendant does, however, admit that
the facial nerve of the plaintiff is paralysed. This paralysis,
so the argument goes,
were not caused by any actions during the
surgery, but is due to another unknown cause, such as a stroke
resultant from high blood
pressure, or Bell’s Palsy resultant
from a virus.
[16]
In the context of this matter (and not
necessarily in accordance with medical terminology) the difference
between an “injury”
and “paralysis” is that
injury to the facial nerve would result in permanent damage, whereas
paralysis would be of
temporary nature and may improve over time.
The
surgery
[17]
The facts of this case are largely common
cause. As with any matter relating to medical issues, it has to
be kept in mind
that the human anatomy is not a fixed subject with
hard and fast rules.
[18]
The plaintiff visited his local clinic
after an unsightly and visible gland under his left ear developed.
The gland extended
to under the plaintiff’s jaw. He
underwent a sonar examination during November 2012 after being
examined, and so recommended,
by doctor Seape on 7 November 2012.
[19]
The radiology report is dated November 2012
and
refers to a mass situated
medial-infra-parotid gland, which indicates the lower region of the
parotid gland. The radiology
report repeatedly refers to the
parotid gland
and reads as follows:
“
A large 27.4 x 32.8 x 22.8 mm)
heterogeneous, hypervascular hypoechocic mass lesion noted
medial-infra-
parotid
gland (LT)
?
Parotid
mass ? Lymph node.
Parotid
gland
LT = 35.2 x 34.1 x 27.4mm = appears symmetrical as compared to RT.
Reactive, small (subcm) nodes noted at bilat. Neck. It
would be
helpful to do a biopsy; CT scan to further assess.”
(own
emphasis)
[20]
Doctor Seape testified that he did not deem
it necessary to have a biopsy or a CT scan done. His evidence
was that the plaintiff
wanted to have the mass removed, and as such
the next step would be the surgery. According to him it would
be nonsensical
to embark on two separate surgeries (that of a biopsy
and an excision) where an excision would remove the gland and a
post-surgical
biopsy can be done.
[21]
The “Consent to Operation Form”
reflects that the surgery was conducted by doctor Seape as assisted
by doctor Pratt.
In line with doctor Seape’s evidence, it
also reflected that the nature of the surgery was “
excision
of submandibular gland.”
[22]
During the surgery a tumour was indeed
found in the plaintiff’s submandibular gland and was
in
toto
encapsulated within the
submandibular gland. Under a microscope or an x-ray both the
submandibular and parotid gland look
similar. Both these glands
are salivary glands.
[23]
Since the submandibular gland is located
under the jaw, a surgery to remove such gland would not venture near
the facial nerve trunk.
The joint expert report with the plaintiff’s
expert witness professor D Pantanowitz (Specialist Surgeon / Vascular
Surgeon)
and defendant’s expert witness doctor E T Mabaso
(Maxillo Facial and Oral Surgeon) reflects that there is “
No
disagreement”
between the experts
and both agree that “
It is
unacceptable to transect the trunk of the 7
th
cranial nerve (
facial nerve
)
during an operation to excise the submandibular salivary gland”
.
[24]
However, with the parotid gland located in
front of the ear and the nerve stem below the earlobe, the surgeon
would have to take
extra care with any parotid gland surgery to
identify and isolate the facial nerve since the
facial nerve is located under and within the parotid gland.
According to standard practice, surgery to the parotid gland
will commence with an incision in front of the ear and extend
vertically alongside the ear and down the neck.
The
surgical notes
[25]
The theatre notes of the plaintiff’s
surgery on 21 May 2013 reflect the commencement of the surgery at
10:25 and 10:40 respectively
and conclusion of the surgery at 12:45
and 12:55 respectively. It is unsure which times refer to
actual theatre time or time
of anaesthetics. Doctor Seape
testified that the surgery for a submandibular gland would, in the
absence of any complications
have a duration of approximately 45
minutes. At the very least, the duration of the plaintiff’s
surgery was approximately
2 hours.
[26]
The content of the theatre notes read as
follows:
“
Operation: Excision of submandibular
gland
Surgeon: Dr Seape
Assistant: Dr Pratt
Anaesthetist: Dr Neohoff
Procedure: Pt positioned supine. Beard
shaved, patient cleaned + draped. Horizontal incision made below L
inferior margin of mandible
±
10 cm. Platysma M incised, blunt
dissection done + submandibular gland visualised. Blunt
dissection done to mobilise gland.
Stensons duct identified +
ligated c. 3.0 chromic. Branches of facial artery ligated +
haemostasis easily achieved. Pencil
drain inserted. Plaserva M
+ subcutaneous tissue approximated + closed c vicryl. Skin closed c
vicryl. Skin closed c subcutaneous
stiches. Dressings applied, gauze
+ opsite.
Specimen sent off for histology
P T/F pt to ward. Analgesics (signed
Dr Pratt)”
[27]
The surgical notes indicted that an
incision of
±
10 cm was made. The surgical notes also referred to the
“stensons” duct, which is situated in the parotid gland,
whereas the “whartons” duct is situated in the
submandibular gland.
[28]
When the plaintiff woke up after the
surgery, his face was swollen at the left side, which is normal after
a submandibular gland
removal.
[29]
The hospital records reflect:
[29.1] On 21 May 2013 the day of the surgery it
is noted that the blood pressure of the plaintiff was 166/107 prior
to the surgery.
This is a relative high blood pressure, the
norm being 120 / 80.
[29.2] An unknown doctor noted on 23 May 2013
post excision of submandibular gland, that the plaintiff had a
swollen jaw and inability
to close his left eye. It was also
noted that his blood pressure remained high.
[29.3] On 24 May 2013 mention is made of a “
Dr
Thomas”
and it is also recorded that the plaintiff is
“
still unable to close”
his left eye properly.
[29.4] On 25 May 2013 it is noted that the
plaintiff complained of a headache. The plaintiff’s blood
pressure is recorded
as 171/106.
[29.5] On 26 May 2013 an unknown doctor noted
“
VII palsy (? Neuropraxia)”
. In July 2013 an
unknown doctor noted “
signs and symptoms suggestive of
facial nerve injury”
.
[29.6] On 1 July 2013 the hospital records
reflect “
53y Pt underwent a Lt submandibular gland excision
and is …..(illegible)… and symptoms suggestive of Lt
forced nerve
injury.”
[29.7] In the hospital records dated 22 July
2013 it is noted by doctor Seape that: “
Submandibular
salivary gland excised. Please get histology. (signature) Note
the VII nerve palsy – following the surgery.”
Here doctor Seape’s notes indicate that the nerve palsy follows
the surgery.
[29.8] On 21 August 2013 Doctor Seape again
notes “
7
th
nerve palsy
”,
and it is also noted by an unknown doctor on 18 November 2013 on the
left side of plaintiff’s face “
7
th
nerve palsy”
.
[29.9] The hospital records by doctor Nyembe
dated 26 February 2014 refer to drooping of the plaintiff’s
face on the left
side and that the plaintiff cannot close his left
eye lid. It is also noted the 5
th
and 7
th
palsy secondary to a questioned “
?
Iatrogenic surgical injury
”.
Doctor Nyembe wrote under treatment: “
advice
Tape for L eye at night. Counsel patient on condition.”
An iatrogenic injury is an injury
caused by a medical professional
.
[30]
Professor Pantanowitz testified that under
regular circumstances with no complications the scar for a
submandibular gland removal
would be approximately 4 – 5 cm.
The theatre notes indicated a horisontal incision of
±
10 cm was made to remove the gland. Doctor
Seape’s evidence was that the length of the incision is
discretionary to
the surgeon’s decision.
[31]
To test the functioning of the facial
nerves after a surgery, the surgeon would conduct the following
“stress” tests:
to ask the patient to smile, to clench
his/her teeth, to close both his/her eyes tightly, to look up with
both eyes while keeping
his/her head still, and/or to stretch the
eyes as large as the patient can. This would immediately
indicate unresponsiveness
of a nerve.
[32]
When a nerve is damaged or severed
during a surgical procedure, the nerve is unresponsive immediately
after surgery and will not
recover unless a nerve reconstruction is
done. No reconstruction of the nerve was done in this matter.
[33]
When a nerve is paralysed, it can be due
to a virus or injury, and the responsiveness of the nerve may recover
over time.
The
disputes
[34]
The plaintiff questions the extent and
nature of the surgery that actually took place, namely whether it was
surgery to the submandibular
gland only, or a hybrid form of surgery
that extended to both the submandibular and parotid glands which
injured the facial nerve
trunk.
[35]
The plaintiff’s case is that the
surgery of the submandibular gland probably extended to the parotid
gland and as such caused
the nerve damage.
The
plaintiff’s case is further that the parotid gland was probably
dissected during the surgery and the facial nerve trunk
was injured
when the surgery ventured near the parotid gland.
[36]
The defendant’s case is that the
surgery was a left submandibular gland excision only
and
did not extend to the parotid gland. T
he
surgeon who performed the surgery, doctor Seape, testified to that
effect. The defendant held other unknown causes to be
the
origin of the facial palsy, such as Bells’ Palsy or a stroke.
The defendant denies that the paralysis or injury of the
facial nerve
is a result of the surgery.
[37]
The
defendant’s expert was not called to testify, but his report
was entered into evidence by agreement between the parties.
He
diagnosed the plaintiff with Lagophthalmos, which is the inability to
close his left eyelid completely. He also
explains that
the interesting phenomenon of excessive sweating that occurs when the
plaintiff eats, is called Frey’s syndrome
which is mainly
caused by injury to the auriculotemporal nerve which is a branch of
the trigeminal nerve. He states that
this nerve is usually
injured by surgeries in the parotid and submandibular region.
[38]
The two questions remain: whether the
facial nerve has been injured (thus damaged or severed), and if so,
whether the surgery is
the cause of the facial nerve palsy.
The
evidence
[39]
The first witness to testify on behalf
of the plaintiff was the expert witness instructed by the plaintiff,
professor Pantanowitz.
He is a
specialist-
and vascular surgeon
.
[40]
The experience and expertise of
professor Pantanowitz is in question. He testified that he
examined the plaintiff and noted
a surgical scar on the left side of
the plaintiff’s face, under the jaw, which curved up to the
left ear of the plaintiff,
ending right under the earlobe of the
plaintiffs’ left ear.
[41]
Professor Pantanowitz also testified
that the scar, in his opinion, was not a scar typical with that of a
submandibular surgery.
His evidence was that it appears that an
incision was made with the intention of performing a submandibular
surgery, under the
jawline, and went up to the left ear ending below
the left earlobe. According to professor Pantanowitz’s
evidence the
incision should have ended under the jaw, far from the
ear. His evidence was that the scar was too long for a
submandibular
gland removal, as the length of a normal scar for such
removal would be a maximum of 4 - 5 centimetres.
[42]
Professor Pantanowitz postulated that
the surgeon might have removed the submandibular gland, thought he
did not get the tumour,
and extended the surgery to the lower region
of the parotid gland. He further postulated that the surgeon
might have pulled
the parotid gland down, in order to examine whether
the tumour might be in the parotid gland or attached to the lower
part of the
parotid gland. With this examination of the parotid
gland, so the hypothesis goes, the nerve trunk or several of the
facial
nerves would become exposed and at risk to be injured and/or
cut.
[43]
Professor Pantanowitz referred to the
radiologist report and the theatre notes in support of his
hypothesis. I will refer
to these notes when analysing the
evidence rendered in this matter.
[44]
In his report professor Pantanowitz
reached the following conclusion which was echoed in his evidence :
“
Facial nerve injury (permanent) from
operative damage resulting in disfigurement of the peri-oral aspect
of the face. This
nerve trunk is never damaged during
submandibular surgery: this is the first time I have seen this
complication. Only the
mandibular branch is at risk with
submandibular surgery. Thus the surgeon must have performed
parotid gland surgery thinking
that the tumour was in the
submandibular gland, while it was actually in the parotid gland.”
[45]
The location and extent of the scar is
in dispute. The defendant alleges that the scar does not go up
to the earlobe of the
plaintiff, but ends far away from the earlobe
in the plaintiff’s neck. The line that professor
Pantanowitz alleges
is a scar, is according to the defendant a
skin-fold. The photograph of the plaintiff’s scar and
other pictures handed
in as evidence was helpful in determining the
difference between the two versions, but a factual finding on whether
the extension
to the ear is a scar or skinfold could not be made from
the documents.
[46]
I found that a physical inspection would
be necessary to examine the plaintiff’s skin and the scar under
sufficient lightning
and up close in order to come to a conclusion on
whether the line is a surgical scar or a skinfold.
[47]
After professor Pantanowitz testified,
the court adjourned to conduct an inspection
in
propria persona
on the scar of the
plaintiff in the judges’ chambers with a torch used for
additional lighting. Both parties’
representatives,
professor Pantanowitz, doctor Seape as well as the interpreter and
plaintiff were present.
[48]
I have recorded the findings in the
inspection of the scar as follows in a sketch:
[See
PDF for image]
[49]
It is not clear on the above sketch, but
the incision starts under the plaintiff’s jaw. Both
parties agree that point
A is where the incision started. Point
C is where the defendant alleges the incision ends, and point B is
where the plaintiff
alleges the incision ends. The distance
between point A and point B is
±
10 cm, and the distance between point A and point C is
±
10 cm.
[50]
The plaintiff testified next. He
woke up after the surgery with pain in his jaw and a head-ache.
The plaintiff noticed
that he could not close his left eye when he
wanted to sleep. He used his finger to press the left eyelid
down, but had to
ask the nurses for assistance when the eyelid did
not stay down. The nurses closed his eyelid with the
application of a band-aid
on the eyelid.
[51]
The plaintiff further testified that he
found that his mouth was weirdly twisted. He also noticed
that he sweats profusely
when he eats anything. This sweating
started immediately after the surgery and remains consistent years
after the surgery.
[52]
The plaintiff testified that a doctor
named “Thomas” came to see him after the surgery, and
asked him to smile.
When he smiled, he could feel his mouth was
twisted. The doctor informed the plaintiff that he is “not
right”
and should stay in the hospital for a week after the
surgery.
[53]
The plaintiff testified that he is
suffering from the same symptoms despite the fact that several years
have passed. He conceded
under cross-examination that the
symptoms became better, but he maintained that he could still not
completely close his left eye,
use the left side of his mouth and
that the left side of his face remained droopy and numb. Having
heard the evidence of
the plaintiff, I find that the plaintiff’s
symptoms have improved marginally.
[54]
The plaintiff closed his case after the
evidence of professor Pantanowitz and the plaintiff.
[55]
The defendant called one witness, namely
doctor Seape who was the Head of the Department: Surgery during the
period of 2013 at the
Far East Rand Hospital. He testified that
he performed the surgery together with doctor Pratt, who was an
intern assisting
in the surgery. The theatre notes reflects the
sequence of the events during the surgery. Doctor Seape would
give running
commentary, or instruct doctor Prat during the surgery
to perform some surgical tasks. Doctor Seape testified that he
would
be teaching during the surgery.
[56]
Doctor Seape conceded that the theatre
notes of the surgery mentioned the incorrect gland by referring to
the incorrect duct.
He testified that “
as
surgeons, we get carried away sometimes. We might give a wrong
name to the duct”
in response
to why the stetsons duct (in the parotid gland) was referred to as
opposed to the whartons duct (in the submandibular
gland). He
could not recall whether he noticed the mistake on the notes, or
whether he named the incorrect duct during surgery.
He
was however consistent in his evidence that he performed an excision
of the submandibular gland and not the parotid
gland.
[57]
Doctor Seape confirmed that a doctor
Thomas worked in the hospital, and testified that any complications
of the surgery would have
been recorded in the hospital records.
[58]
Doctor Seape confirmed that he made the
inscription in the hospital records on 23 July 2013 “
VII
nerve palsy – following the surgery”
and on 21 August 2013 “
7
th
nerve palsy Submandibular salivary gland
excision
.
Please get histology VII nerve palsy following surgery.”
He
signed the hospital records on 21 August 2013.
[59]
Under cross-examination, doctor Seape
conceded that he cannot recall the specific surgery and he had no
independent recollection
of the surgery itself. Doctor
Seape also conceded under cross-examination that the surgical
incision, having regard
to the photograph of the plaintiff in
relation to the cadaver picture used as evidence during the trial,
would have exposed the
parotid gland. Put differently, he
conceded that the incision with the endpoint marked as “B”,
would have exposed
the parotid gland.
[60]
After finalisation of doctor Seape’s
evidence, the defendant closed its case.
Documentary
evidence
[61]
The radiologist report dated November
2012 refers to the parotid gland. Professor Pantanowitz
testified that the ultrasound
of the plaintiff’s face on 10
October 2012 (which is 7 months prior to the surgery) described “
L
side of the face ? parotid mass”
.
This ultrasound thus referred to the parotid gland which is in line
with the evidence of professor Pantanowitz regarding
the probability
that the surgery extended to the parotid gland.
[62]
Doctor Seape denied any controversy over
the wording of the ultrasound, laboratory report and the theatre
notes in as far as it
might be indicative thereof that the surgery of
the submandibular gland extended to the parotid gland.
According to doctor
Seape the references to the parotid gland and the
parotid duct (stensons duct) were done mistakenly and/or
co-incidentally and
the reports should have reflected submandibular
gland and submandibular duct (whatsons duct). Doctor Seape held
the view
that there is nothing to it that the incorrect gland has
been referred to, and it is inconsequential in the matter.
Is
there an injury or a paralysis to the plaintiff’s left facial
nerve?
[63]
The defendant’s case is that the
facial palsy of the plaintiff is not related to an injury to the
facial nerve sustained during
surgery, but that the facial nerve is
paralysed due to an unrelated issue and might recover fully.
[64]
I need not look further than the
defendant’s own expert report where doctor ET Mabaso (maxillo
facial and oral surgeon) finds
that the plaintiff exhibits muscle
weakness on his left forehead, has a lagophthalmos on his left eye
and weakness of his left
cheek muscles and is unable to move his left
lower lip or show his left lower incisor teeth. Doctor Mabaso
finds that the
plaintiff is unable to close his eye because of a weak
orbicularis oculi muscle, which is innervated by the zygomatic and
temporal
branches of the facial nerve.
[65]
During the plaintiff’s evidence
under cross-examination, he was challenged by counsel acting for the
defendant stating that
the plaintiff was blinking (or was able to
wink) his left eye during his evidence. The plaintiff became
upset and denied
that he can blink his left eye. Doctor Mabaso,
the expert for the defendant, has examined the defendant and found
that the
plaintiff is not able to close his left eye. Counsel
for the defendant, by making such a statement to the plaintiff,
appears
to distance herself from the defendant’s own expert’s
finding. However, counsel for the defendant pursued the
point
that she saw the plaintiff blinking during his evidence, and argued
that the plaintiff’s condition is improving which
is in line
with the defendant’s case that the facial nerve is paralysed
and the paralyses improves with time.
[66]
After the statement was put to the
plaintiff under cross examination that he has function in blinking
his left eye, I deemed it
necessary to verify whether the plaintiff
is indeed able to close his left eye. The evidence for the
plaintiff continued
to the next subject of cross-examination when I
requested the translator, who was standing to the left of the
plaintiff, to move
and stand on the right hand side of the
plaintiff. With this change in positioning, I had a complete
and undisturbed view
of the plaintiff’s facial movements and
more specifically his eye movements. My observation was that
the plaintiff
is able to move his left eye (the eye-ball itself) when
looking up or down. However, it was clear to me that the
plaintiff’s
left eyelid did not blink, which is consistent with
the findings of both parties’ experts that the plaintiff cannot
close
his left eye. The movement of the plaintiff’s
eye-ball, and the subsequent movement of the eyelid in line with the
movement of the eye-ball itself might have created the impression
that the plaintiff had voluntary control over his left eyelid.
As mentioned, my finding after observation confirms the reports
of both parties’ experts in relation to the existence
of facial
palsy in the left eye of the plaintiff.
[67]
Doctor Mabaso continued in his report to
find that the plaintiff is unable to blow and depress his left cheek
due to a weakness
to his buccinators muscle which is innervated by
the buccal branch of the facial nerve. Doctor Mabaso also finds
that the
plaintiff is unable to control his left lower lip because of
a loss of function of the left depressor labii inferioris, depressor
anguli oris and mentalis muscles due to loss of function or
innervations of the left marginal mandibular branch of the facial
nerve. In both experts’ reports it have been
emphasised that all the branches of the left facial nerve have been
affected and that the plaintiff has facial palsy due to the failure
of the left facial nerve to function properly.
[68]
In his evidence, professor Pantanowitz
stated that there is no prospect of the facial nerve regaining
function, some 7 years after
the surgery. According to
professor Pantanowitz the current state of the plaintiff’s
facial palsy is also indicative
there-of that the trunk of the facial
nerve was injured, or severed, during the surgery. Professor
Pantanowitz persisted
in cross-examination that any other cause of
the palsy would be highly unlikely as the facial palsy occurred
directly after the
surgery.
[69]
When conducting a factual enquiry in
establishing whether the onus of proof has been met, all other
available and independent evidence
must be regarded objectively.
This principle was confirmed by the Supreme Court of Appeal in the
matter of
Anglo Platinum Management
Services (Pty) Ltd v Commissioner, South African Revenue Service
2016 (3) SA 406
(SCA) on page 411:
“
[10] It is a question of fact in each
case whether a salary sacrifice agreement was achieved. In this
regard a court is not concerned
with the subjective belief of the
parties to the agreement — no matter how genuine this belief
may be — but with
whether the facts, objectively
viewed, establish that this result was attained. It must thus
consider the oral and documentary
evidence to assess the
probabilities.
The taxpayer bears the burden of proving
that the Commissioner's decision to disallow its objection to the
assessments was wrong.
And where, as in this case, the taxpayer's is
the only oral evidence, it must be considered carefully in the light
of the available
documentary evidence, before a court is able to
conclude whether or not the taxpayer has discharged the onus.”
(own
emphasis)
See:
Erf 3183/1 Ladysmith (Pty) Ltd and Another v Commissioner for
Inland Revenue
[1996] ZASCA 35
;
1996 (3) SA 942
(A) at 950I – 951C.
[70]
I have had regard to the hospital
records, the medical expert reports as well as the evidence of the
plaintiff, the surgeon doctor
Seape and professor Pantanowitz.
[71]
The hospital records and both expert
reports support the case of the plaintiff that the facial nerve has
indeed been injured or
severed.
[72]
Counsel on behalf of the defendant
argued that the facial nerve has not been damaged or severed due to
the fact that professor Pantanowitz
conceded that he is not a
neurologist and he did not do a nerve conducting study or examined
the actual facial nerve. I cannot
find this to be a valid
argument. The damage of the nerve can be established by
clinical examination of the plaintiff, which
professor Pantanowitz
confirmed he has done.
[73]
Counsel on behalf of the defendant
further argues that, due to the absence of a nerve conducting study
or examination of the physical
nerve, the conclusions of professor
Pantanowitz are based on speculations and should accordingly be found
inadmissible. This
argument similarly holds no water. Two
clinical assessments, conducted by both parties’ medical
experts, confirmed
damage to the nerve.
[74]
Having observed the plaintiff during the
rendering of his evidence as well as his communication with me when
obtaining permission
to inspect the surgical scar in the judges’
chambers, there is no doubt in my mind that the facial nerve has been
damaged
or severed.
[75]
The plaintiff has mentioned some
improvement to the facial palsy from after the surgery to the trail,
but it is so marginal over
some 7 odd years that I cannot find that
there is any room for further improvement or full recovery. This
was also confirmed
by professor Pantanowitz. The deformity of
the plaintiff’s face, due to the lack of facial muscle use,
furthermore
confirms that the facial nerve would in all probabilities
not recover.
[76]
I subsequently find that the plaintiff’s
left facial nerve has indeed been injured or severed and is not
paralised.
Causality
between the nerve palsy and the surgery
[77]
Having found that the facial nerve of
the plaintiff has been severed or injured and not paralysed, the next
enquiry is whether the
actions or inactions of the surgeon during the
surgery caused the facial nerve palsy.
[78]
The success of a delictual claim is subject
to proof of a causal link between a defendant's actions or omissions,
on the one hand,
and the harm suffered by the plaintiff, on the other
hand. The test utilised in establishing such a link, has been
dubbed
the 'but-for' test. Legal causation has to be
established by the plaintiff on a balance of probabilities.
[79]
The plaintiff testified that this facial
palsy started directly after the surgery, when he woke up in the
hospital room. The
hospital records dated 23 May
2013, some 2 days after the surgery, reflect that the plaintiff is
unable to close his left eye.
The hospital records of 24 May
2013 also reflect that the plaintiff is unable to properly close his
left eye. Counsel on
behalf of the defendant argued that the
absence of any record reflecting facial palsy on the day of the
surgery or the day there-after,
is indicative there-of that the
facial nerve was not injured during the surgery.
[80]
Both doctor Seape and professor
Pantanowitz agree that it might have been difficult to diagnose
facial palsy right after surgery,
as the plaintiff’s jaw was
swollen and covered with bandages.
[81]
On 22 July 2013 it is written in the
hospital records by doctor Seape that “
VII
nerve palsy following the surgery”
.
This inscription is indicative thereof that doctor Seape links the
nerve palsy to the surgery. In addition thereto,
the fact
that it has been recorded that the plaintiff is unable to properly
close his left eye 2 and 3 days after the surgery,
is further
indicative thereof that the facial palsy is most probably resultant
from the surgery.
[82]
Doctor Mabaso (the expert for the
defendant) finds that he is unable to correlate the weakness of the
zygomatic and buccal branch
of the left facial nerve with the
surgical procedure that was performed to remove the left
submandibular gland without adequate
hospital records, especially
surgical notes preoperatively and postoperatively.
[83]
Doctor Mabaso thus cannot find any
causation of the damage in the facial nerves in relation to the
surgery without preoperative
surgical notes. The postoperative
notes in the form of hospital records do exist, and it is unknown
whether Doctor Mabaso
has had sight of the notes in the light of his
comment that he required surgical notes postoperatively. Doctor
Mabaso
was not called to testify.
[84]
The Supreme Court of Appeal confirmed in
Jacobs and Another v Transnet Ltd t/a
Metrorail and Another
2015 (1) SA
139
(SCA) in paragraph 14 that, where the high court was faced with
conflicting expert opinions, it is for the court to decide which,
if
any, to accept. This principle was also referred to in
Buthelezi v Ndaba
2013 (5) SA 437
(SCA) para 14.
[85]
The value of expert reports during
trials have recently been discussed by Davis J in
Modise
obo a Minor v Road Accident Fund
2020 (1) SA 221
(GP) as follows:
“
Expert
reports are, unless an agreement has been reached between the
parties, simply what they purport to be — an opinion
expressed
by a person who, by virtue of his qualifications and expertise, is
regarded as an expert in a specific field, which renders
his opinion
admissible and which opinion and conclusion might assist a court in
adjudicating a case.
See
Holtzhausen v Roodt
1997
(4) SA 766
(W) and
Visagie v Gerryts en 'n Ander
2000
(3) SA 670
(C).”
[86]
In the joint minutes both medical
experts agree that it is unacceptable to transect the trunk of the
facial nerve during a surgery
to excise the submandibular gland.
Professor Pantanowitz on behalf of the plaintiff, qualified this
agreement in his evidence
that the facial nerve cannot be damaged, or
reached, during a submandibular gland excision. This is so
since the submandibular
incision (under the jaw) is a distance away
from the facial nerve trunk (under the earlobe). Having found
that the facial
nerve has been injured, and both experts agree that
injury cannot result from a submandibular surgery, it follows that
the plaintiff
in all probabilities did have a submandibular excision
that extended to the parotid gland.
[87]
It is trite that the court must regard
the evidence rendered during the trail as a complete unit and not be
distracted or focussed
on isolated evidence rendered by experts.
This principle was again confirmed recently in the matter of
Life
Healthcare Group (Pty) Ltd v Suliman
2019 (2) SA 185
(SCA) as follows:
“
[15] Judges must be careful not to
accept too readily isolated statements by experts, especially when
dealing with a field where
medical certainty is virtually impossible.
Their evidence must be weighed as a whole and it is the exclusive
duty of the court
to make the final decision on the evaluation of
expert opinion.”
[88]
In the matter of
Minister
of Justice and Constitutional Development v X
2015 (1) SA 25
(SCA) the test for determining negligence were
confirmed as follows:
“
[20] The test for determining
negligence was formulated as follows by Holmes JA in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E – F:
'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;
(ii) would take reasonable steps to guard
against such occurrence; and
(b) the defendant failed to take such
steps.'
[21] As emphasised by Harms JA in Carmichele
(SCA) para 45, it should not be overlooked that, in the ultimate
analysis, the true
criterion for determining negligence is whether in
the particular circumstances the conduct complained of falls short of
the standard
of the reasonable person. See also
Sea Harvest
Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty)
Ltd and Another
2000 (1) SA 827
(SCA) ([2000]
1 All
SA 128)
para 21.”
[89]
The Constitutional Court has confirmed
that the requirements for causality is to be established on a balance
of probabilities in
Oppelt v
Department v Department of Health, Western Cape
2016
(1) SA 325
(CC) as follows:
“
[35] A successful delictual claim
entails the proof of a causal link between a defendant's actions or
omissions, on the one hand,
and the harm suffered by the plaintiff,
on the other hand. This is in accordance with the 'but-for' test.
Legal causation
must be established on a balance of probabilities.
The vital question is whether, as a matter of probability, the
applicant's
paralysis would not have occurred or been rendered
permanent had the reduction procedure been performed promptly and
within a time
that was reasonably likely to prevent permanent
quadriplegia. The answer lies in the Supreme Court of Appeal's
evaluation of the
expert medical testimony.
[36] The correct approach to the evaluation
of medical evidence is the one laid down by the Supreme Court of
Appeal in
Michael and Another v Linksfield Park Clinic (Pty) Ltd
and Another
2001 (3) SA 1188
(SCA) where it held that —
'it is perhaps as well to re-emphasise that
the question of reasonableness and negligence is one for the court
itself to determine
on the basis of the various, and often
conflicting, expert opinions presented. As a rule that determination
will not involve considerations
of credibility but rather the
examination of the opinions and the analysis of their essential
reasoning, preparatory to the court's
reaching its own conclusion on
the issues raised.
. . .
Although it has often been said in South
African cases that the governing test for professional negligence is
the standard of conduct
of the reasonable practitioner in the
particular professional field, that criterion is not always itself a
helpful guide to finding
the answer.
. . .
That being so, what is required in the
evaluation of such evidence is to determine whether and to what
extent their opinions advanced
are founded on logical reasoning. That
is the thrust of the decision of the House of Lords in the medical
negligence case of
Bolitho v City and Hackney Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL(E)). With the
relevant dicta in the speech of Lord Browne-Wilkinson we respectfully
agree. Summarised, they are to the following
effect.
The court is not bound to absolve a
defendant from liability for allegedly negligent medical treatment or
diagnosis just because
evidence of expert opinion, albeit genuinely
held, is that the treatment or diagnosis in issue accorded with sound
medical practice.
The court must be satisfied that such opinion has a
logical basis, in other words that the expert has considered
comparative risks
and benefits and has reached a defensible
conclusion (at 241G – 242B).”
[90]
Further, also in
Oppelt
v Department of Health, Western Cape
2016
(1) SA 325
(CC) it is specified in paragraph 48 that the 'but for'
test requires flexibility and a common-sense approach when the issue
of
causation has to be decided on the ground of an alleged negligent
omission, as opposed to a negligent commission:
“
[48] While it may be more difficult
to prove a causal link in the context of a negligent omission than of
a commission, Lee explains
that the "but-for" test is not
always the be-all and end-all of the causation enquiry when dealing
with negligent omissions.
The starting point, in terms of the but-for
test, is to introduce into the facts a hypothetical non-negligent
conduct of the defendant
and then ask the question whether the harm
would have nonetheless ensued. If, but for the negligent omission,
the harm would not
have ensued, the requisite causal link would have
been established. The rule is not inflexible.
Ultimately, it is a matter of common sense
whether the facts establish a sufficiently close link between the
harm and the unreasonable
omission.”
[91]
The scar on the plaintiff’s neck
provides valuable evidence and an indication of the incision made for
the surgery and the
extent of the surgery.
[92]
Regarding the physical examination of
the plaintiff in chambers, as well as the evidence of both professor
Pantanowitz and doctor
Seape, I find that the scar remaining from the
incision starts at point “A” and splits in a “Y”
under the
left jaw and ear. The one leg of the “Y”
ends in position “B” with an upward curve to the
plaintiff’s
ear, and the second leg of the “Y” ends
in position “C”. I find the line on the plaintiffs
jaw which
goes up to the plaintiff’s ear, to be a scar and not
a skinfold as testified by the defendant’s witness, doctor
Seape.
[93]
Any incision that was made under the
left ear of the plaintiff, would risk injury to the facial nerve.
As I have found the
line from point “A” to “C”
to be a surgical scar and not a skinfold, and a surgical scar is
proof that
an incision was made, it follows that the surgery in all
probabilities extended to the parotid gland.
[94]
In
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 25 the court held that:
'A plaintiff is not required to establish
the causal link with certainty, but only to establish that the
wrongful conduct was probably
a cause of the loss, which calls for a
sensible retrospective analysis of what would probably have occurred,
based upon the evidence
and what can be expected to occur in the
ordinary course of human affairs rather than an exercise in
metaphysics.'
[95]
Factual causation can be difficult to
prove. It was held in the Supreme Court of Appeal in
Life
Healthcare Group (Pty) Ltd v Suliman
2019
(2) SA 185
(SCA) that factual causation must be demonstrated in that
“
but for”
the
doctor's action or inaction harm would not have occurred. The
question to be asked is whether the plaintiff would have
suffered
with left facial palsy, had the surgery been conducted by a
reasonable precautious surgeon whom has had proper regard
to the
facial nerve stem.
[96]
In the event that the origin of the facial
palsy is a stroke, or Bell’s palsy, the facial palsy would have
occurred irrespective
of the surgery. There is no evidence
before court to find that the facial palsy had any other origin than
the surgery.
The statements made during cross-examination of
the plaintiff’s expert witness, does not constitute evidence in
itself.
The plaintiff’s version remained constant.
[97]
Doctor Seape is not an independent
witness as he was the surgeon conducting the surgery. He
reasonably conceded that he has
no independent recollection of the
surgery itself which was more than 7 years ago.
[98]
The evidence of professor Pantanowitz is
more probable, namely that the surgeon has made the incision, removed
the submandular gland
and may have been unsure whether the complete
tumour was removed. This is particularly so due to the fact
that the tumour
was completely encapsulated in the submandibular
gland and the surgeon would not have been able to physically see the
tumour which
was inside the submandibular gland.
[99]
The documentary evidence supports the
evidence of professor Pantanowitz and not that of doctor Seape.
The hospital records,
the surgical scar of the plaintiff and the oral
evidence of the plaintiff and professor Pantanowitz are sufficient to
discharge
the onus that rests on the plaintiff.
[100]
In short, the plaintiff has proven that
the surgery to the submandibular gland caused the facial palsy.
The next investigation
is for this court to determine whether the
damage to the facial nerve was caused negligently.
[101]
The plaintiff put up a case for the
defendant, which the defendant is called on to answer.
[102]
In
Stargrow
(Pty) Ltd v Ockhuis and Others
2018
(1) SA 298
(LCC) p 309 – 310 the question of
prima
facie
proof provided by the
applicant, were found as follows:
“
[53] The necessary consequence of
this is that if an applicant, in an application for eviction under
ESTA, contends in the first
instance that the respondents are not
ESTA occupiers, it needs to allege and put up evidence (at least of a
prima facie nature)
of this. Such prima facie evidence would
generally call for an answer on the part of the respondents which
would place an evidentiary
burden upon them. If not effectively
answered, the prima facie evidence put up by the applicants would
become sufficient proof
that the respondents are not ESTA occupiers.”
[103]
The defendant’s case that the
palsy had some other origin, not relating to the surgery, is not
supported by any hospital records,
other evidence or expert opinion.
It was also
not
pleaded by the defendant that the facial palsy was caused independent
of the surgery. The plea of the defendant is a bare
denial and
the plaintiff is put to the proof of his claim.
[104]
Counsel for the defendant argued that a
stroke or Bell’s palsy could have caused the facial palsy.
It is so that the
plaintiff did have high blood pressure, as
indicated in the hospital records. Despite recording the high
blood pressure,
there is no indication that the plaintiff suffered
from a stroke. None of the medical personnel who examined the
plaintiff
after the surgery made any mention that the high blood
pressure puts the plaintiff at risk of a stroke.
[105]
There is no basis for any finding that a
stroke was the cause of the facial palsy. In contradiction
thereto, several doctors,
including doctor Seape himself, linked the
surgery to the facial palsy.
[106]
In relation to the argument by
defendant’s counsel that the facial palsy can be as a result of
Bell’s palsy, it was
testified by professor Pantanowitz that
the symptoms of the palsy would improve over time. Professor
Pantanowitz testified
that the initial diagnosis of facial palsy
would exhibit similar symptoms than facial nerve palsy after the
surgery. He did
however qualify that statement in saying that
Bells’ palsy would improve over a period of time, and had the
plaintiff suffered
from Bell’s palsy, he would have completely
or very close to completely, recovered.
[107]
The defendant further pleaded that
damage to the facial nerve branches is a known complication of
surgery involving the parotid
gland region. It was, however,
not the defendant’s case that there was surgery to the parotid
gland. On trial,
the evidence of the defendant was that a
submandibular gland excision was performed. As such, it is not the
defendant’s case
that nerve palsy was a known complication of
the surgery, as the defendant insisted that surgery was performed on
the submandibular
gland. The evidence of doctor Seape, in as
far as he testified that he recalled the surgery, was that the
surgery was definitely
limited to the submandibular gland.
[108]
Had the surgery been to the parotid
gland, the risk of complications would be much higher and the surgeon
performing such surgery
should have identified the facial nerve
intraoperatively and should have taken definitive steps to isolate
and preserve the facial
nerves and facial nerve trunk. This was
not the evidence of doctor Seape, as the same precautions and risks
do not exist
with a surgery of the submandibular gland.
[109]
In
Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
(SCA) the Supreme Court re-emphasised that the question
of reasonableness and negligence is one for the court itself to
determine
on the basis of the expert opinions presented. The
court has to examine the opinions of the experts and analyse their
essential
reasoning, and on that basis reach its own conclusion.
[110]
Doctor Seape conceded that he could not
recall whether he was the surgeon performing the surgery, or whether
it was doctor Pratt
who performed the surgery under his guidance.
Doctor Seape also struggled to explain why the theatre notes
incorrectly refer
to the stensons duct which is part of the parotid
gland. I cannot find that a senior surgeon with 18 years of
experience
in the surgical field, will easily confuse the stensons
duct with the whartons duct. I can furthermore not accept the
evidence
of doctor Seape that the surgical scar up to “B”
is a skinfold.
[111]
The probabilities that the surgery
started off as an excision of the submandibular gland and then
ventured to the parotid gland
is overwhelming. In application
of the principle set out above in
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA), I find that the plaintiff has established a causal
link that the wrongful conduct was probably the cause of the
plaintiff’s
loss of his left facial nerve. I have made a
sensible retrospective analysis of what could probably have occurred,
based
on the evidence presented and what can be expected to occur in
the ordinary course of a surgery to remove a tumour in one (or more)
of the salivary gland(s).
[112]
As confirmed in
Daniels
v Minister of Defence
2016 (6) SA
561
(WCC) the standard of care the courts expect from a surgeon is
not the highest standard but rather a reasonable standard. The degree
of care and skill expected of a diligent medical practitioner in the
position that the defendant's employees found themselves,
namely as
doctors treating a patient with a tumour referring to under his left
ear is not that of a reasonably skilled practitioner.
A
reasonably skilled surgeon would have taken the necessary precautions
should the surgery have to extend to the parotid gland.
[113]
Professor Pantanowitz testified that the
incision for a surgery to the parotid gland would be done in front of
the ear to minimise
any possible damage to the facial nerve.
This was not done, as the incision was done from below, extending in
one leg of
the “Y” right under the plaintiff’s left
earlobe, which is where the trunk of the facial nerve is situated.
This incision from below did not carry with it the normal safety
measures when operating on the parotid gland: the incision should
be
done in front of the ear with identification of the nerve stem before
removing or cutting from the parotid gland. When
cutting from
below, it would be difficult to identify the facial nerves situated
in the parotid gland.
[114]
I find that the medical personnel at the
Far East Rand Hospital had conducted themselves negligently in that
the injury to the plaintiff’s
facial nerve could have been
avoided, had reasonable care been taken when the surgery ventured
near the parotid gland.
I
make the following order:
1.
The
defendant is liable to the plaintiff for 100% of his proven or agreed
damages caused as a result of the surgery on 21 May 2013.
2.
The
issue of
quantum
is
postponed
sine dies
by agreement between the parties.
3.
The
defendant is ordered to pay the costs of the plaintiff on a scale as
between party and party, including but not limited to:
a.
The reasonable
costs of the report of professor Pantanowitz;
b.
The preparation
costs of professor Pantanowitz including the cost of the joint
meeting with doctor Mabaso;
c.
The reasonable
costs of expert reports and consultations; and
d.
The cost of the
interpreter during the evidence of the plaintiff.
_________________________________
FMM SNYMAN, AJ
ACTING JUDGE OF THE HIGH COURT
DATE OF HEARING: 17 TO 21 FEBRUARY 2020
DATE OF JUDGMENT: 6 MAY 2020
JUDGMENT
HANDED DOWN ELECTRONICALLY DUE TO COVID 19 RESTRICTIONS
Appearance for the plaintiff: Adv Munro
(Cell:
083
277 1400)
E-mail:
wlmunro@law.co.za
Instructed by Jerry Nkeli & Associates Inc Attorneys
Ref: Mr Nkeli/tm/mn//M0001243
Tel:
011 838 7280
Appearance for the defendant: Adv Manaka
(Cell:
071 622 7240)
E-mail:
adv_nmanaka@law.co.za
Instructed by State Attorney Johannesburg
Ref: BM Mokgohloa/1699/16P4
Tel: 011 330 7785