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[2014] ZASCA 135
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The Head: Health, Department of Health, Provincial Administration: Western Cape v Oppelt (238/2013) [2014] ZASCA 135 (25 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 238/2013
In
the matter between:
THE
HEAD: HEALTH, DEPARTMENT OF HEALTH,
PROVINCIAL
ADMINISTRATION: WESTERN
CAPE
.............................................
APPELLANT
and
CHARLES
OPPELT
.......................................................................................................
RESPONDENT
Neutral
citation
:
Department
of Health: Western Cape v Oppelt
(238/2013)
[2014] ZASCA 135
(25 September 2014)
Coram
:
Lewis, Bosielo, Tshiqi, Willis and Swain JJA
Heard
:
29 August 2014
Delivered:
25 September
2014
Summary
:
‘
But-for’ factual
causation – flexible common sense approach – spinal
injury – subsequent paralysis of respondent
– appellant’s
medical treatment of respondent not a factual cause of paralysis.
Order
On
appeal from:
Western Cape High Court, Cape Town (Van Staden AJ
sitting as court of first instance):
1
The appeal is upheld with costs.
2
Paragraphs 2, 3 and 4 of the order of the court a quo are set aside
and replaced with an order dismissing the plaintiff’s
claim
against the first defendant with costs.
3
In both cases the costs are to include the costs of two counsel.
JUDGMENT
Swain
ja
(
Lewis,
Bosielo, Tshiqi and Willis JJA
concurring):
[1]
The respondent, Mr Charles Oppelt, was
playing club rugby in the position of hooker on the afternoon of 23
March 2002. He was then
17 years old. A contested scrum collapsed
causing a severe injury to his cervical spine, medically described as
a bilateral cervical
facet dislocation of the vertebra.
[2]
The damage to Mr Oppelt’s spinal cord
has for practical purposes left him paralysed below his neck. He is
medically classified
as a quadriparetic. The injury tragically and
irrevocably changed his life.
[3]
In the result Mr Oppelt instituted action
in the Western Cape High Court (Cape Town) against the appellant, The
Head: Health, Department
of Health, Provincial Administration:
Western Cape (the department) as the first defendant. The remaining
three defendants were
organisations responsible for the
administration of the game of rugby at various levels. Their identity
and the grounds of negligence
levelled against them by Mr Oppelt are
not relevant in this appeal, because the action against them was
dismissed by the court
a quo. This finding is not challenged on
appeal.
[4]
Mr Oppelt’s action against the
department on the preliminary issue of liability was however
successful. The central finding
by the court a quo in reaching this
conclusion was that the employees of the defendant had wrongfully and
negligently failed to
treat Mr Oppelt’s spinal injury by way of
a closed reduction procedure, within four hours of its occurrence.
The court a
quo granted leave to the department to appeal to this
court. Leave to cross-appeal was also granted to Mr Oppelt against
the court
a quo’s finding that the department was obliged to
pay only 50 per cent of his costs. This order was granted on the
basis
that only 50 per cent of his costs were expended on the claim
against the department, the remaining 50 per cent being expended on
the claim against the rugby authorities.
[5]
The finding of liability by the court a quo
was based upon the evidence of Dr Dennis Newton, the specialist in
charge of the Conradie
Hospital Spinal Cord Injuries Unit from 1988
to 2002. Dr Newton testified that Mr Oppelt would have had a 64 per
cent chance of
a full recovery if he had been treated by his closed
reduction method of treatment within four hours of the injury
occurring. The
court a quo concluded that the department acted
unreasonably in not taking Mr Oppelt to Conradie Hospital within the
four hour
period and that the inference that the department had
‘acted unlawfully and negligently’ was unavoidable. A 64
per
cent chance of recovery was regarded by the court a quo as
‘causation on a preponderance of the evidence’. The court
a quo found that Dr Newton’s method of treatment was
‘well-reasoned and logical’ and that ‘no acceptable
evidence gainsaying this theory’ was presented by the
department. A critical examination of the court a quo’s
acceptance
of the evidence of Dr Newton is therefore required.
[6]
Dr Newton’s method of treatment was
to subject the patient’s injured spine to traction by the
application of heavy weights
attached to a pulley system, connected
via callipers to the patient’s skull. The patient’s body
was kept immobile by
straps attached to the bed. The movement of the
bones in the spine under traction was monitored by x-rays and
manipulated so that
the dislocated vertebra could be re-aligned in
the spinal column. In layman’s terms the patient’s neck
was stretched
so that the vertebra which had been forced out of
position could be pulled back into alignment. The object was to
relieve the pressure
on the spinal cord by re-aligning the vertebra
and thereby restore the blood supply to the nerve cells in the spinal
cord. Deprivation
of the blood supply eventually causes the death of
these nerve cells which results in paralysis. The period within which
the blood
supply must be restored to the nerve cells in the spinal
cord to ensure their recovery is the critical factor in Dr Newton’s
method of treatment.
[7]
According to Dr Newton, this critical
factor demanded that the pressure on the spinal cord be relieved
within a period of four hours
of the injury occurring. He stated that
the period of four hours was ‘the magic number’, that a
delay longer than four
hours meant ‘the horse was already out
of the paddock’, that the four hours was what ‘makes a
difference’
and that as a general rule if neurological tissue
is without blood for four hours ‘forget it’, because ‘the
clock
is ticking’. Dr Newton’s commitment to a defined
period of four hours was illustrated by his evidence that he would
refuse to sign the expert summary of his evidence which stated ‘the
need for early reduction of facet dislocations within
four to six
hours was well-known in the orthopaedic community at the time that Dr
Newton was practising in South Africa which includes
March 2002’.
He stated that the summary would have to be changed by deleting the
words ‘to six’, because four
hours was ‘the cut-off
time’.
[8]
The empirical scientific evidence which Dr
Newton maintained supported his method of treatment were the results
he achieved by treating
a series of 57 patients suffering from acute
spinal cord injuries caused by cervical facet dislocation, whilst
playing rugby. Of
these 57 patients, 32 were completely paralysed at
the time they were treated using Dr Newton’s closed reduction
technique.
Of these 32 patients, eight were treated within four hours
of injury, and of them five made a full recovery. Of the remaining 24
who were treated after four hours of injury, none made a full
recovery and only one made a partial recovery that was useful. The
conclusion that Dr Newton drew from these results was that ‘a
full recovery is possible and in fact probable’ in about
64 per
cent of cases.
[9]
Dr Newton conceded that there was no
consensus in the medical scientific literature regarding the
relationship between timing of
decompressions and the neurological
outcome following an acute spinal cord injury. In addition, he
conceded that his theory concerning
the four hour cut-off period was
‘brand new’ and there was no authoritative article based
on research supporting his
view. He accepted that according to the
classification of scientific evidence, the evidence he relied upon
was class four, the
lowest form of evidence, described as ‘opinion’.
Since 2001, being the end of the period during which Dr Newton
collected
his evidence, there had been no similar studies into his
theory and consequently no other study which supported it. He also
accepted
that there were other people in the medical field who held
different views to his.
[10]
By reference to an article written by Dr
Newton about his theory, which was in the process of being published
by the Journal of
Bone and Joint Surgery, he stated that certain
words which were underlined indicated alterations which he had made
on the recommendation
of the referees of the journal. For present
purposes the relevant passage reads as follows: ‘To prevent
permanent SCI (Spinal
Cord Injury) after rugby injuries, cervical
facet dislocations should
probably
be reduced within four hours of injury’. Dr Newton
confirmed that this reflected his opinion.
[11]
Dr David Welsh, a neurosurgeon, a
consultant in the Division of Neurosurgery at Groote Schuur Hospital,
a lecturer at UCT in neurosurgery
and in private practice, gave
evidence for the department concerning Dr Newton’s theory. The
spinal cord injuries unit had
been moved from Conradie to Groote
Schuur. He said that Dr Newton’s equipment was no longer in use
at Groote Schuur Hospital.
The preferred treatment at present was to
use MRI and CT scanners to scan patients and operate almost
immediately where appropriate.
Closed reduction, as opposed to
surgical open reduction, was still performed in specific cases but
not necessarily using the rapid
technique with heavy weights espoused
by Dr Newton. In certain situations where they thought appropriate,
they may utilise closed
reduction more slowly over time with fewer
weights, because fewer weights applied over a long period of time
usually had the same
effect.
[12]
Dr Welsh explained that scientific data
fell into one of three categories according to its reliability. Class
one data was the most
reliable data scientifically which was
collected under very stringent conditions. Class three data was the
least reliable form
of scientific data. The way it was collected
allowed for a lot of scientific bias, misinterpretation and
inaccuracy. An example
of this type of data was when a doctor would
go through the records of his patients on a particular subject and
sift out the data
that he wanted. Although the disparity between the
views of Dr Newton and Dr Welsh as to the number of categories of
scientific
data was not explored in evidence, it appears Dr Newton’s
concession that his evidence fell within the least reliable category
would place it within Dr Welsh’s third category.
[13]
Dr Welsh confirmed that there was no
consensus in the medical literature with regard to the relationship
between the time of decompression
and the neurological outcome
following acute spinal injury. He stated that one could not
generalise about four hours being the
cut-off period for the survival
of neurological tissue starved of a blood supply. He stated that was
‘a very, very gross
way of looking at it’. He conceded
that the theoretical need to restore the blood supply to central
nervous system tissue
did import a sense of urgency in the treatment
of spinal cord injury patients. He agreed that where there is
bilateral facet dislocation
there was some support based upon class
two evidence to support urgent early reduction. There was, however, a
lack of consensus
as to whether early treatment was better than later
treatment for spinal cord injuries.
[14]
Dr Welsh explained that there was a lack of
consensus whether doing something affects the outcome. In addition,
there was a lack
of consensus that if something is to be done, when
it should be done. In other words, there was a lack of consensus as
to the action
as well as its timing. He accepted that the general
feeling was that early decompression was better than late, but there
was an
ongoing inability to define the time when intervention should
take place. The current practice in regard to incomplete spinal cord
injuries that may be reduced, was to try and do so as soon as
possible. The four hour limit espoused by Dr Newton did not exist
in
the widespread literature and was not something which was applied
generally.
[15]
A proper evaluation of Dr Newton’s
theory requires an examination of two issues. Firstly, the
reliability of the evidence
upon which it is based and secondly Dr
Newton’s process of reasoning. The proper approach in assessing
an expert witness’
opinion is described by Wessels JA in
Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 371F-G in the
following terms:
‘
As
I see it, an expert’s opinion represents his reasoned
conclusion based on certain facts or
data
,
which are either common cause, or established by his own evidence or
that of some other competent witness. Except possibly where
it is not
controverted, an expert’s bald statement of his opinion is not
of any real assistance. Proper evaluation of the
opinion can only be
undertaken if the process of reasoning which led to the conclusion,
including the premises from which the reasoning
proceeds, are
disclosed by the expert.’
[16]
The evidence that Dr Newton gave as to the
results of his treatment was that of 32 paralysed patients, eight
were subjected to this
treatment within four hours of which five made
a full recovery. The remaining 24 patients who were not treated
within four hours
did not recover. This is the only evidence upon
which his theory is based.
[17]
Dr Newton conceded that the reliability of
his evidence would be classified as the lowest form of scientific
data namely that which
is described as ‘opinion’. Dr
Welsh confirmed that this was the least reliable form of scientific
data. The risk of
scientific bias, as well as misinterpretation and
inaccuracy was present. Accordingly, the scientific evidence which is
said by
Dr Newton to support his theory is at the very least
questionable.
[18]
Dr Newton’s process of reasoning
based upon this evidence appears to be that because five out of eight
patients recovered
completely, it may be stated as a general
proposition that 64 per cent of the patients treated by his method,
will also probably
recover. Although five patients recovering out of
eight produces a success rate of 62.5 per cent, the percentage of 64
per cent
derives from a success rate of nine patients out of 14
contained in the details of the presentation produced by Dr Newton to
publicise
his theory. The distinction between these sets of figures
arises from the fact that five of the patients who recovered were
completely
paralysed (Frankel level A) before treatment, whereas the
other four who recovered were not completely paralysed before
treatment
(varying between Frankel level B and D). This is obviously
a very small sample from which to generalise. In addition, it gives
insufficient weight to the fact that of the other three patients who
were treated by his method, one did not improve at all and
one only
improved from a Frankel level A to a Frankel level C. Dr Newton
explained that Frankel level A signified complete lack
of motor and
sensory function below the level of the injury. Frankel level B was
slightly better in that there was sensation below
the injury but no
motor function. Frankel level C was ‘motor useless’ and
Frankel level D was ‘motor useful’.
Frankel level E meant
that the patient was normal. The third patient unfortunately passed
away. Consequently, the results obtained
in 25 per cent of the
patients treated by Dr Newton’s method (two out of eight) do
not support his theory. This again emphasises
the inadequacy of the
size of the sample.
[19]
This inadequacy is not ameliorated by Dr
Newton’s evidence that of the 24 patients who were not treated
by his method within
four hours, none recovered. To argue that the
outcome in these patients was caused solely by the fact that they
were not treated
within four hours is to assume that which has to be
proved. That they remained paralysed does not necessarily lead to the
conclusion
that if they had been treated within four hours, they
probably would have recovered. It simply means his method was not
tested
on them. If it had been tested, the results obtained may have
contributed to a more meaningful assessment of the validity of his
theory.
[20]
Dr Newton’s theory is not supported
by any other study and no independent study into his theory has been
conducted in the
last 13 years. According to Dr Welsh, the theory has
not been accepted by the medical profession which does not generally
apply
it in practice. Seen in this context, Dr Newton’s opinion
as an expert as to the probable success of his method of treatment
on
patients generally, and Mr Oppelt in particular, has little probative
evidentiary value. The court a quo accordingly erred in
finding that
Dr Newton’s theory was valid.
[21]
I consequently find that Mr Oppelt failed
to prove on a balance of probabilities the validity of Dr Newton’s
method of treatment,
the success of which was expressly restricted by
Dr Newton to a period of four hours after the injury is inflicted.
[22]
This
conclusion has as its consequence that Mr Oppelt failed to prove that
he probably would have recovered, but for the fact that
he was not
treated by the department’s employees with Dr Newton’s
method of treatment, within four hours of his injury.
It cannot be
found that this was ‘probably a cause’ of his
paralysis.
[1]
Common sense
dictates that a failure to prove the validity of Dr Newton’s
theory means that a failure to apply it could not
be a factual cause
of Mr Oppelt’s paralysis.
[2]
This does not mean that Mr Oppelt had to prove the causal link with
certainty, or mathematical precision, but simply on a balance
of
probabilities, which he failed to do.
[3]
[23]
The evidence reveals that Mr Oppelt’s
injury was unsuccessfully treated by closed reduction 14 hours after
he was injured.
Whether he would have recovered either fully or
partially, if he had been treated in this way at an earlier stage,
cannot be determined
on the evidence. Although the general consensus
in the medical world is that early intervention was preferable in the
case of an
injury of the type suffered by Mr Oppelt, there is no
consensus as to when this should occur. In any event, this was not
the cause
of action advanced by Mr Oppelt, restricted as it was to
intervention being required within four hours of the injury
occurring.
[24]
A finding that the conduct of the
department’s employees was not a factual cause of his
paralysis, renders an examination
of the issues of wrongfulness and
negligence on the part of the department’s employees
unnecessary. In any event, if the
validity of Dr Newton’s
method of treatment is not accepted, there was no legal duty on the
part of the employees of the
department to administer it within the
requisite four hour period. Their conduct in not doing so would not
be wrongful.
[25]
Similarly, a reasonable doctor in the
position of the employees of the department would not foresee the
possibility that a failure
to apply Dr Newton’s method of
treatment within a period of four hours of Mr Oppelt’s injury,
would result in his paralysis.
In not doing so their conduct would
not be negligent. The court a quo accordingly erred in finding that
the conduct of the employees
of the department was unlawful and
negligent.
[26]
In the light of these conclusions, it is
unnecessary to examine the evidence led by both parties as to the
reasonableness or otherwise
of the time it took to convey Mr Oppelt
to the Conradie Hospital where he was treated. An enquiry as to
whether he could reasonably
have been treated within four hours is
likewise irrelevant.
[27]
The success of the appeal has as its
consequence that Mr Oppelt’s cross-appeal against the form of
the order of costs granted
in his favour falls away.
[28]
The following order is made:
1
The appeal is upheld with costs.
2
Paragraphs 2, 3 and 4 of the order of the court a quo are set aside
and replaced with an order dismissing the plaintiff’s
claim
against the first defendant with costs.
3
In both cases the costs are to include the costs of two counsel.
K
G B SWAIN
JUDGE
OF APPEAL
Appearances:
For
the Appellant: T Potgieter SC (with him M Salie)
Instructed
by:
The State Attorney,
Cape Town
The
State Attorney, Bloemfontein
For the Respondent:
WRE Duminy SC (with him JA Van der Merwe)
Instructed
by:
Scheibert
Attorneys, Cape Town
Lovius
Block, Bloemfontein
[1]
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 25.
[2]
Minister
of Finance & others v Gore NO
2007 (1) SA 111
(SCA) para 33.
[3]
Minister
van Polisie v Van der Vyver
(861/2011)
[2013] ZASCA 39
(28 March 2013) para 33,
Crafford
v South African National Roads Agency Ltd
(215/12)
[2013] ZASCA 8
(14 March 2013) para 21.