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[2014] ZASCA 150
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Medi-Clinic Limited v Vermeulen (504/13) [2014] ZASCA 150; 2015 (1) SA 241 (SCA) (26 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 504/13
DATE: 26
SEPTEMBER 2014
Reportable
In the matter
between:
MEDI-CLINIC
LIMITED
............................................................
APPELLANT
And
GEORGE
VERMEULEN
........................................................
RESPONDENT
Neutral
citation
:
Medi-Clinic
v Vermeulen
(504/13)
[2014] ZASCA 150
(26 September 2014)
Coram:
Ponnan, Wallis, Pillay and Zondi JJA and
Dambuza AJA
Heard:
22 August 2014
Delivered:
26 September 2014
Summary:
Medical negligence ─ hospital and
its nursing staff ─ whether bedsore and sciatic nerve injuries
sustained by patient
avoidable ─ two schools of thought on
proper treatment of patient ─ correct test of liability.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Mothle J sitting as court of first
instance):
1
The appeal is upheld with costs including the costs of two counsel.
2
The cross-appeal is dismissed with costs.
3
The order of the court below is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs including the costs
of two counsel.’
JUDGMENT
Zondi
JA
(Ponnan, Wallis, Pillay JJA and
Dambuza AJA concurring):
[1]
No one can be unmoved by the disaster which has befallen Mr
Vermeulen, the respondent in this appeal. Mr Vermeulen was
hospitalised
on 17 May 2007 at Medi-Clinic Nelspruit Hospital, which
is operated by the appellant (the defendant). He contracted cerebral
malaria
while on holiday in Mozambique during April 2007. As he was
gravely ill on admission, he was treated in the Intensive Care Unit
(ICU) where he remained from 17 May 2007 until 24 July 2007.
Thereafter he was transferred to a general ward for further treatment
until his discharge on 21 October 2007. Shortly after he was admitted
and while he was still in the ICU he developed a pressure
sore to the
sacral area and heels of his feet. As a result of the sacral bedsore
he suffered bilateral sciatic nerve injuries with
severe impediment
of his mobility. Mr Vermeulen became paralysed and is now
wheelchair-bound.
[2]
Mr Vermeulen sued the defendant for damages in the North Gauteng High
Court, Pretoria contending that the injuries he sustained
were caused
by the negligence of the defendant’s nursing staff. He alleged
that the nursing staff failed to take sufficient
preventative
measures to avoid the onset of the sacral bedsore. He said they ought
to have prevented a bedsore from developing
by regularly turning him
so as to remove continuous pressure from his sacrum. The defendant
denied that its nursing staff were
negligent in their treatment of Mr
Vermeulen. It contended that, given Mr Vermeulen’s
predisposition to sustaining a bedsore
and gravely ill condition, the
development of the bedsore was unavoidable. In any event, as the only
effective preventative measure,
namely turning would have further
endangered his life during the period of critical illness, the
defendant contended that it was
medically inadvisable to engage in
such treatment. By agreement between the parties the trial judge
(Mothle J) was asked to determine
only the question of liability. He
found in favour of Mr Vermeulen and ordered the defendant to pay
costs. The learned trial judge
granted the defendant leave to appeal
to this Court against his judgment and Mr Vermeulen against costs
which he disallowed.
[3]
As neither the court below nor counsel addressed the legal test to
apply in the determination of the issue of medical negligence,
I
consider it necessary to begin by setting out the applicable test. It
was pointed out by this Court in
Mitchell v Dixon
1914 AD 519
at 525 that:
‘
a
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill
but he is bound to employ reasonable skill and care.’
In
deciding what is reasonable, this Court in
Van Wyk v Lewis
1924
AD 438
at 444 held that the court will have regard to the general
level of skill and diligence possessed and exercised at the time by
the members of the branch of the profession to which the practitioner
belongs.
[4]
In
Michael & another v Linksfield Park Clinic (Pty) Ltd &
another
2001 (3) SA 1188
(SCA) (para 35) it was observed that the
Van Wyk v Lewis
test is not always a helpful guide in
determining the liability of a doctor for medical negligence. The
reason is that, in the
absence of evidence of the general practice
prevailing in a specialist field, or a collective or representative
opinion in relation
to that practice it is difficult to determine the
general level of skill shown by practitioners in that field. The
court is often
faced with conflicting medical opinions in regard to
what constitutes proper treatment of a patient with the particular
condition
under treatment. It must then evaluate this conflicting
expert testimony.
[5]
At paras 37-39, the court held that what is required in the
evaluation of the experts’ evidence is to determine whether
and
to what extent their opinions are founded on logical reasoning. It is
only on that basis that a court is able to determine
whether one of
two conflicting opinions should be preferred. An opinion expressed
without logical foundation can be rejected. But
it must be borne in
mind that in the medical field it may not be possible to be
definitive. Experts may legitimately hold diametrically
opposed views
and be able to support them by logical reasoning. In that event it is
not open to a court simply to express a preference
for the one rather
than the other and on that basis to hold the medical practitioner to
have been negligent. Provided a medical
practitioner acts in
accordance with a reasonable and respectable body of medical opinion
his conduct cannot be condemned as negligent
merely because another
equally reasonable and respectable body of medical opinion would have
acted differently.
[6]
This approach was first enunciated by McNair J in
Bolam v Friern
Hospital Management Committee
[1957] 2 All ER 118
(QB) at 122 and
later adopted by the House of Lords in
Bolitho v City and Hackney
Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL);
[1997] 4 All ER 771
(HL). In
Bolam
McNair J, in summarising the true test for establishing
negligence on the part of the doctor in medical negligence cases said
(at
122B─C):
‘
A
doctor is not guilty of negligence if he has acted in accordance with
a practice accepted as proper by a responsible body of medical
men
skilled in that particular art. I do not think there is much
difference in sense. It is just a different way of expressing
the
same thought. Putting it the other way round, a doctor is not
negligent, if he is acting in accordance with such a practice,
merely
because there is a body of opinion that takes a contrary view. At the
same time, that does not mean that a medical man can
obstinately and
pig-headedly carry on with some old technique if it has been proved
to be contrary to what is really substantially
the whole of informed
medical opinion. Otherwise you might get men today saying: “I
don’t believe in anaesthetics.
I don’t believe in
antiseptics. I am going to continue to do my surgery in the way it
was done in the eighteenth century”.
That clearly would be
wrong.’
[7]
In
Bolitho
Lord Browne-Wilkinson, with regard to the treatment
of expert evidence in cases where a doctor’s negligence is
sought to be
established, stated (at 778d-g):
‘
.
. . in my view, the court is not bound to hold that a defendant
doctor escapes liability for negligent treatment or diagnosis
just
because he leads evidence from a number of medical experts who are
genuinely of opinion that the defendant’s treatment
or
diagnosis accorded with sound medical practice. In
Bolam’s
case
[1957] 2 All ER 118
at 122,
[1957]
1 WLR 583
at 587 McNair J stated that the defendant had to have acted
in accordance with the practice accepted as proper by a “
responsible
body of medical men” (my emphasis). Later he referred to “a
standard of practice recognised as proper by a competent
reasonable
body of opinion” (see
[1957] 2
All ER 118
at 122,
[1957] 1 WLR 583
at 588; my emphasis). Again, in
the passage which I have cited from
Maynard
’s
case, Lord Scarman refers to a “respectable” body of
professional opinion. The use of these adjectives ─
responsible, reasonable and respectable ─ all show that the
court has to be satisfied that the exponents of the body of opinion
relied on can demonstrate that such opinion has a logical basis. In
particular, in cases involving, as they so often do, the weighing
of
risks against benefits, the judge before accepting a body of opinion
as being responsible, reasonable or respectable, will need
to be
satisfied that, in forming their views, the experts have directed
their minds to the question of comparative risks and benefits
and
have reached a defensible conclusion on the matter.’
[8]
After referring to various cases such as
Hucks v Cole
(1968)
(1993) 4 Med LR 393
and
Edward Wong Finance Co Ltd v Johnson
Stokes & Master (a firm)
[1984] AC 296
,
[1984] 2 WLR 1
, Lord
Browne-Wilkinson summarised the legal position as follows (at
779d-g):
‘
These
decisions demonstrate that in cases of diagnosis and treatment there
are cases where, despite a body of professional opinion
sanctioning
the defendant’s conduct, the defendant can properly be held
liable for negligence (I am not here considering
questions of
disclosure of risk). In my judgment that is because, in some cases,
it cannot be demonstrated to the judge’s
satisfaction that the
body of opinion relied on is reasonable or responsible. In the vast
majority of cases the fact that distinguished
experts in the field
are of a particular opinion will demonstrate the reasonableness of
that opinion. In particular, where there
are questions of assessment
of the relative risks and benefits of adopting a particular medical
practice, a reasonable view necessarily
presupposes that the relative
risks and benefits have been weighed by the experts in forming their
opinions. But if, in a rare
case, it can be demonstrated that the
professional opinion is not capable of withstanding logical analysis,
the judge is entitled
to hold that the body of opinion is not
reasonable or responsible.’
[9]
I now proceed to deal with the facts. Mr Vermeulen was first seen at
the emergency rooms of Nelspruit Medi-Clinic on 17 May
2007 at about
15h15. He gave a history of having returned from Mozambique two weeks
before. He had been feeling feverish and had
shortness of breath. He
gave a medical history of hypertension. He was transferred to the ICU
at 16h30 with a diagnosis of malaria.
His skin was noted to be
‘intact’ and a Waterlow scale assessment,
[1]
a tool used to assess the risk of development of pressure sores, was
performed. He was scored as being ‘at risk (10 ─
14)’.
In general, when a patient is considered to be vulnerable to
developing pressure sores, interventions to control tissue
loading
such as turning; repositioning at regular intervals; providing a
nimbus mattress, inserting pillows or foams beneath the
sacral area
and heels; or tilting the patient, are used.
[10]
Mr Vermeulen’s condition deteriorated and became worse during
the period 20 May to 24 May 2004, which the parties described
as the
critical period. During this period, he was incapable of turning
himself. It is during this period that the sacral pressure
sore
developed. It became well-established in the period between 23 and 26
May 2007. By the
time the critical period of illness had passed, Mr Vermeulen had a
significant and irreversible sacral bedsore.
[11]
On admission, Mr Vermeulen had a depressed level of consciousness and
was having great difficulty in breathing. His pulse was
130 beats per
minute and he was already showing signs of respiratory failure. He
was thereafter intubated. His blood pressure was
low (at 106/73) and
his temperature was high. Quinine was administered through a
peripheral infusion and a catheter was inserted
into the bladder. Dr
Theron, the treating physician also inserted a venous cannula via the
right jugular vein and an intra-arterial
cannula into the right
radial artery. According to Dr Theron, within 48 hours of his
admission, Mr Vermeulen needed inotropic
[2]
support to sustain his blood pressure. His cardiac output started
dropping on 19 May 2007 and his blood pressure dropped to an
extremely low level. He required an adrenalin infusion in an attempt
to raise his blood pressure. It was noted on 20 May 2007 that
his
peripheral perfusion was poor, his extremities cold and his pedal
pulses weak. Skin lesions were also noted. There is a note
on 21 May
2007 that he had poor capillary refilling in his right leg. He was
hyperglycaemic and insulin had to be administered.
It appears that
renal failure developed and dialysis was started on 21 May 2007.
During the course of the third day Mr Vermeulen’s
condition
worsened and it was during that period that the possibility of him
developing a bedsore existed unless he was turned
regularly.
[12]
On 20 May 2007 at about 23h30 a nurse noted that the ‘skin
still intact appear very reddish and sacral allewyn in situ’.
On 22 May blue marks were noted on the sacral area. It would appear
from the assessment form completed on 25 May 2007 that Mr Vermeulen
had lesions on the buttocks measuring 8cm by 8cm, 10cm by 10cm and a
third one of 10cm by 5cm which had turned purple. Dr Botha
recommended that he be treated on a nimbus mattress as he was
concerned that Mr Vermeulen’s skin lesions could develop into
pressure sores having regard to the fact that he weighed 150kg and
the fact that he was on an adrenalin infusion. At 17h20 on 25
May it
was noted that the skin on his sacrum had turned ‘black’.
Mr Vermeulen was eventually moved onto a nimbus mattress
at 23h10 on
25 May 2007. Dr Smit, a general surgeon was consulted on 9 June and
he performed three debridements. According to Dr
Smit’s notes
there was extensive necrosis of the wound and he reported weakness of
the ankles before the procedures.
[13]
As far as the cause of the sciatic nerve injury is concerned, Dr
Retief’s evidence was that it was caused by the pressure
sore,
either via ischaemia due to external pressure or via local sepsis and
must have occurred after the critical period. This
was because the
sacral pressure sore was located directly over the course of the
sciatic nerves. The link between the sciatic nerve
injury and the
sacral pressure sore is to be found also in the evidence of Dr Van
Wyk. He testified that he ‘kon omtrent
‘n driekwart van
my vuis in daardie holte ingedruk het, . . . en die linkerboud kon ek
ook ‘n vuis ingedruk het in
die middel van die wond . . . .’
[14]
The plaintiff’s case as developed at the trial and advanced in
this Court appears to stand on two legs. First, that the
pressure
sores, at the very least regarding their severity if not completely,
were avoidable by the implementation of a pressure
care regimen of
sufficient frequency and adequacy to either remove or relieve
pressure from the sacrum, heels and nerves. The second
was that
despite the fact that Mr Vermeulen was critically ill with malaria,
and despite the presence of factors predisposing him
to pressure
sores, it was eminently possible to implement a pressure care
regimen. It was said that there was no credible evidence
that
haemodynamic instability in fact occurred, or motivated or influenced
the decision not to implement the required pressure
care regimen or
that it was impossible to implement it for fear of causing Mr
Vermeulen’s demise or aggravation of the instability.
[15]
The defendant appeared to have accepted that Mr Vermeulen, who was in
the top 1 per cent risk category for the formation of
a pressure sore
had to be turned on a regular basis for there to be any prospect of
avoiding a pressure sore, but it contended
that it would have been
unreasonable for its nursing staff to have done so in the
circumstances. It said that any interference
with the haemodynamic
stability of a critically ill patient such as Mr Vermeulen would have
been unwise.
[16]
The plaintiff bore the onus of proving that the defendant’s
nursing staff were negligent.
[3]
To that end, he called Dr Martin Lebos, a practising specialist
surgeon, Professor W E Nel, a registered professional nurse and
senior lecturer at the University of Johannesburg; Dr C F Retief, a
neurologist; Dr H S Van Wyk, a general practitioner; Dr Buys,
an
anaesthesiologist and critical care specialist; and Mr F Theron, a
physiotherapist. The defendant called Dr P Theron, a specialist
physician and the consulting physician to Mr Vermeulen and Professor
A R Coetzee, a specialist anaesthesist and critical care specialist,
Executive Head of the Department of Anesthesiology and Critical Care
at the University of Stellenbosch and Tygerberg Hospital.
All the
experts were agreed that Mr Vermeulen was gravely ill during 20 May
to 24 May and that in general, it is unsafe to reposition,
move or
turn a patient who is critically ill if that patient’s mean
blood pressure is low. They were, however, divided on
what would
constitute a life threatening low mean blood pressure in the case of
Mr Vermeulen. Dr Lebos and Dr Theron put it at
60mmHg, while
Professor Coetzee put it at 75mmHg in the light of Mr Vermeulen’s
weight and his alleged undiagnosed diabetes.
[17]
Professor Nel’s evidence was that although most pressure sores
are preventable some are unavoidable. She opined that
the most
effective strategy to prevent a pressure sore from forming, is to
turn the patient every four hours ‘from one side
to another or
on his back’ if he is stable. But she pointed out that this
strategy is unsuitable for ‘extremely unstable’
patients.
She suggested that a pressure sore for such patients can be prevented
by either putting ‘a very soft pillow’
underneath the
buttocks of the patient for half an hour or by treating them on a
nimbus mattress, although its use does not absolve
the nurses from
applying further pressure care. She emphasised that the nature of the
pressure care that was applied to Mr Vermeulen
was inadequate. It was
also her opinion that Mr Vermeulen should not have been left seated
in a Lazy-Boy chair for hours on 3 to
5 June 2007 with clearly
visible lesions. This was also the view expressed by Dr Buys.
[18]
The court below rejected the defendant’s contention that the
onset of the pressure sore was unavoidable. It also rejected
the
evidence of Professor Coetzee that turning him in order to prevent
the development of a pressure sore was medically speaking
unsafe. It
found that there was evidence which demonstrated that during the
critical period Mr Vermeulen was turned on his side
while his mean
blood pressure was less than 60 and that did not result in his
demise. It also rejected Dr Theron’s evidence
that failure by
the defendant’s nursing staff to regularly turn Mr Vermeulen
was as a result of an instruction he had given
to them not to turn
him when his blood pressure was below 60. It held that the case based
on such instruction was not pleaded by
the defendant and neither was
it corroborated. It accordingly concluded that the defendant’s
nursing staff assigned to care
for Mr Vermeulen, failed to provide
adequate care necessary to prevent, alternatively delay the onset of
the pressure sore and
that their ‘negligence was the cause of
the development of pressure sores which resulted in the lesions on
[Mr Vermeulen’s]
back and heels’. In coming to this
conclusion, the court below accepted and relied on the evidence of Dr
Lebos to the effect
that it would have been possible for the nurses
to avoid the onset of the pressure sore by turning Mr Vermeulen in
accordance with
the defendant’s protocol and adopting other
measures as suggested by Dr Buys and Professor Nel. The court below
found that
the defendant’s failure to call the nurses concerned
to testify as to their role and conduct constituted a serious
omission.
[19]
It was submitted on behalf of the defendant that the court below
erred in rejecting Professor Coetzee’s view that during
the
critical period Mr Vermeulen was too ill to be regularly turned so as
to prevent the onset of the pressure sores and that this
could not be
undertaken without endangering Mr Vermeulen’s life. It argued
that Professor Coetzee’s view, which formed
the basis of the
defendant’s defence, could not be said to be illogical or
unreasonable. In arriving at the conclusion that
it would have been
very dangerous to regularly turn Mr Vermeulen when he was seriously
ill, so the submission went, Professor Coetzee
had considered
comparative risks and benefits.
[20]
On the other hand, counsel for Mr Vermeulen, arguing in support of
the court below’s findings submitted that Professor
Coetzee’s
opinion lacked logical reasoning. In short, he submitted that there
was simply no proof of the fact underlying
Professor Coetzee’s
theory. He pointed out that the hospital records and ICU charts
revealed that during the critical period
there were occasions when
the hospital staff turned Mr Vermeulen when his blood pressure was
below 60 and such turning did not
result in his death.
[21]
An analysis of the experts’ evidence, in particular that of Dr
Lebos and Professor Coetzee is necessary to determine
the correctness
of counsel’s submissions bearing in mind that the experts were
agreed that regular turning of Mr Vermeulen
from side to side was the
strategy that the defendant’s nurses had to implement in order
to avoid or delay or minimise the
development of a pressure sore.
[22]
According to Dr Lebos once the patient is in an ICU setting pressure
care is very important ‘you cannot say well, I am
going to save
his life and ignore it’ on the grounds that if he is turned his
blood pressure may fall. He expressed doubt
about the notion that,
turning a critically ill patient such as Mr Vermeulen could
compromise his haemodynamic stability. He said
that the treating
doctor would need to be informed that on moving him there was a
change in his haemodynamic stability and would
need to assess how
significant that change was. He maintained that there is no way to
predict which patients will become unstable
when they are turned, ‘it
just does happen and it can be alarming in certain patients that when
they are turned, they drop
their blood pressure significantly, it can
go as low as half of what it originally was’. He emphasised
that a treating physician
will have to assess the amount of the drop,
‘so unless it is compromising [the patient’s] well-being
he should be turned’.
Although he conceded that certain
pressure sores are unavoidable he said that this was not the position
in this case, because in
his view, Mr Vermeulen ‘was not given
optimum care to prevent pressure sores’. But the thrust of his
opinion was that
he would only take a decision not to turn the
patient if he was convinced that turning him would cost him his life;
not that it
would nearly be life threatening. The basis for his
hypothesis was that in his view the risk of the pressure sore killing
a patient
is 10 per cent and the risk of a critically ill patient’s
blood pressure dropping to a dangerously low level is less than
5 per
cent. In that scenario he would take the option with the lowest risk
and turn the patient, but in doing so, he would pay
no attention to
the patient’s blood pressure levels because in his view whether
or not a critically ill patient should be
turned does not depend on
the blood pressure. But he accepted that for a hypertensive patient
such as Mr Vermeulen he would strive
for a blood pressure of about 65
and would not turn such a patient if his blood pressure fell below
65. He conceded that if Mr
Vermeulen was an undiagnosed hypertensive
patient he would strive for a blood pressure higher than he would for
a patient who was
not an undiagnosed hypertensive.
[23]
Professor Coetzee criticised Dr Lebos’ approach as being too
risky. He pointed out that the problem with Dr Lebos’
approach
is that once a patient has a mean blood pressure low enough to have
resulted in cardiac muscle injury, any further lowering
will cause
greater damage with the risk of acute severe myocardial injury and
even ventricular fibrillation. In developing his
theory, Professor
Coetzee pointed out that if a patient was operating at a perfusion
pressure lower than the acceptable levels
for that patient, he would
only allow turning to be attempted with caution. If the pressure
further fluctuated during the attempt,
he would instruct the nursing
staff not to turn the patient until such time as the perfusion
pressure had improved to safe levels
when another attempt could be
made. He opined that Mr Vermeulen’s history of hypertension was
relevant as the safe mean blood
pressure would then be around 90 (and
not 75) for him to have been safely turned. Given the fact that
during the critical period
a safe mean blood pressure of 90 could not
be achieved it would therefore not have been advisable to turn him.
[24]
In support of his analysis he referred to the notes on the ICU charts
which, he pointed out, showed that from 16h00 on 20 May
Mr Vermeulen
had a critical low mean blood pressure of below 60 at which level it
would have been ill advised to turn him. He said
that if he were a
treating doctor he would have advised the nursing staff not to turn
him, especially if an attempted turn had
already resulted in a
change. Evidence revealed that Mr Vermeulen’s condition as
recorded over each 24 hour period was as
follows: on 21 May the
lowest blood pressure recorded was 47 and the highest 59; on 22 May
the lowest was 48 and the highest 69;
23 May the lowest was 33 and
the highest 78 and on 24 May the lowest was 56 and the highest 89.
Professor Coetzee testified that
where Mr Vermeulen’s mean
blood pressure dropped to 48, which was life-threatening, he would
have given a firm instruction
not to move him at all. He ascribed the
development of the sacral pressure sore to poor perfusion in the
sacral area which was
due to other factors such as Mr Vermeulen’s
low blood pressure in turn resulting in poor perfusion; high tissue
pressure
due to his extreme obesity and finally the disruption to the
tissue integrity due to his critical illness.
[25]
To determine whether or not the defendant’s nurses were
negligent the court below had to have regard to the views of
the
parties’ experts.
[4]
This is so because a court’s preference for one body of
distinguished professional opinion to another also professionally
distinguished is not sufficient to establish negligence. Failure to
act in accordance with a practice accepted as proper in the
relevant
field, is necessary
[5]
and it was for the court to decide that issue. And in doing so, it
had to be satisfied that their opinions have a logical basis
and
whether in forming their views, the two experts had directed their
minds to the question of comparative risks and benefits
and reached a
defensible conclusion on the matter.
[6]
[26]
In my view, the court below erred in accepting Dr Lebos’
opinion and deciding the issue of negligence on the basis thereof.
It
did not subject it to critical analysis with a view to establishing
first, whether it had a logical basis and secondly, whether,
in
forming his views, Dr Lebos directed his mind to the question of
comparative risks and benefits and reached a defensible conclusion
on
whether the pressure sore which Mr Vermeulen sustained was avoidable.
The court below should have been vigilant in assessing
whether
the reasons given by Dr Lebos for the conclusion that Mr Vermeulen
could be safely turned during the critical period were
valid in the
light of Professor Coetzee’s evidence. In other words, in the
assessment of medical risks and benefits undertaken
by Dr Lebos in
reaching his conclusion, the court below had to have regard to the
evidence of Professor Coetzee as the assessment
of medical risks and
benefits is a matter involving clinical judgment. As Lord
Browne-Wilkinson correctly pointed out in
Bolitho
supra (at
779j):
‘
it
is only where a judge can be satisfied that the body of expert
opinion cannot be logically supported at all that such opinion
will
not provide the bench mark by reference to which the defendant’s
conduct falls to be assessed.’
[27]
There are several difficulties with Dr Lebos’ theory. First, it
proceeds from the premise that every bedsore is avoidable,
because
the majority of patients who are treated in critical care units
worldwide do not get a bedsore if they receive pressure
care as part
of their treatment. That flies in the face of the evidence that some
bedsores are unavoidable. Dr Lebos appeared to
have believed that the
fact that Mr Vermeulen sustained a pressure sore, meant that the
defendant’s nursing staff were negligent.
In other words, he
seemed to suggest that the mere fact that Mr Vermeulen sustained a
bedsore during his stay in the defendant’s
hospital was prima
facie evidence of negligence, the effect of which was that the onus
shifted to the defendant to rebut the presumption
of negligence. But
that is to reason backwards from effect to cause or even to apply
res
ipsa loquitur
which is impermissible. Secondly, in his opinion
once a patient is treated in an ICU setting, those treating him have
to administer
to him pressure relief management irrespective of how
critically ill the patient is. A treating doctor cannot ignore it and
focus
on attempting to save the patient’s life because of the
fear that if he attempts to turn the patient his haemodynamic
stability
will be compromised. This approach makes it clear that in
forming his views, Dr Lebos did not direct his mind to the question
of
comparative risks and benefits. Thirdly, Dr Lebos’ opinion
that before taking a decision not to turn a critically ill patient,
there has to be evidence that demonstrates that turning or moving a
patient, affected the patient’s haemodynamic stability,
is too
risky. According to him, he would only take a decision not to turn
the patient if he was convinced that turning him would
cost his life,
not that it would be life threatening, and in taking that decision he
would not take into account the patient’s
blood pressure level
because in his experience ‘there is no figure that says at [a
certain blood pressure level] you should
not turn the patient’.
[28]
It is clear from Dr Lebos’ analysis that in reaching the
conclusion that Mr Vermeulen could be turned, he did not take
into
account Mr Vermeulen’s blood pressure levels which, according
to Dr Theron and Professor Coetzee was a relevant factor
which had to
be taken into consideration in deciding whether or not a critically
ill patient should be turned. Professor Coetzee
explained why the
approach postulated by Dr Lebos was unsupportable:
‘
Is
daar ‘n daadwerklike risiko indien jy ‘n party met
hierdie tipe bloeddruk in die posisie van mnr Vermeulen draai,
dat hy
kan sterf? --- Sonder twyfel is daar so ‘n risiko en ek wou ook
net met die hof bevestig die problem is dat, om te
sien dat die
bloeddruk val, moet jy draai. Nou jy weet nie vooraf hoeveel die
bloeddruk gaan val nie. Nou jy gaan nou deur die
oefeninge en jy
toets die pasiënt en die pasiënt val onderkant die
lewensbehoudende druk, en die hart virbuleer, so,
jy sal eers uitvind
van jou fout as jy dit doen. Derhalwe my versigtige benadering is
nee. Dit is teoreties te laag, moet nie draai
nie, want jy kan die
pasiënt se lewe kos.’
[29]
A decision whether or not to turn Mr Vermeulen during the critical
period required an assessment of the medical risks and benefits
of
doing so. Professor Coetzee was of the opinion that, based on his
blood pressure levels during the critical period and the manner
in
which he reacted to movement, it was unsafe to turn Mr Vermeulen and
accordingly the pressure sore was probably unavoidable.
He explained
why a minimum blood pressure level was critical in deciding whether
or not to turn Mr Vermeulen. He pointed out that
Mr Vermeulen was a
hypertensive patient and that being the case it was important to
maintain his blood pressure within 30 per cent
of his normal blood
pressure. To illustrate this point, he pointed out that if Mr
Vermeulen’s blood pressure was 180 mmHg
systolic, he would aim
for a pressure of 126 mmHg systolic or a 93 mmHg mean.
[30]
As regards the contention that the defendant aggravated Mr
Vermeulen’s injuries by keeping him seated in a chair
(Lazy-Boy)
for hours on 3 to 5 June, it was the opinion of Dr P
Theron and Professor Coetzee that that was part of Mr Vermeulen’s
treatment.
It was directed at ensuring that his lungs functioned
properly. Professor Coetzee explained that Mr Vermeulen had been
intubated
and extubated on 2 June and reintubated on 6 June. He had
been on ventilation for a few days and his lungs were not functioning
properly. He had to be seated upright to achieve that because ‘long
fisiologie dikteer dit is baie beter vir die long’.
[31]
In these circumstances there can be no basis for the conclusion that
Professor Coetzee’s theory is not logically supported
and
should for that reason, be rejected. It is clear from his evidence
that in coming to the conclusion that Mr Vermeulen’s
injuries
were unavoidable he weighed the relative risks and benefits of the
suggested nursing care aimed at avoiding bed sores
and concluded that
such nursing care was medically inadvisable because of the risk it
posed to the patient’s life. Thus on
the evidence adduced at
the trial Professor Coetzee’s cautious approach cannot be said
to be unreasonable. Dr Lebos did not
consider these aspects in
reaching his conclusion. It is clear from Dr Lebos’ evidence
that his theory was directed at preventing
the development of a
pressure sore at all costs irrespective of the risks to the patient’s
life.
[32]
It follows that the court below’s finding that the defendant’s
nursing staff were negligent and that their negligence
caused Mr
Vermeulen’s present condition, cannot be sustained.
[33]
In conclusion, the plaintiff has suffered such terrible consequences
that there is a natural feeling that he should be compensated.
But,
as Denning LJ correctly remarked in
Roe v Ministry of Health &
others
;
Woolley v Same
[1954] EWCA Civ 7
;
[1954] 2 All ER 131
(CA) at 139:
‘
But
we should be doing a disservice to the community at large if we were
to impose liability on hospitals and doctors for everything
that
happens to go wrong. Doctors would be led to think more of their own
safety than of the good of their patients. Initiative
would be
stifled and confidence shaken. A proper sense of proportion requires
us to have regard to the conditions in which hospitals
and doctors
have to work. We must insist on due care for the patient at every
point, but we must not condemn as negligence that
which is only a
misadventure.’
[34]
In the result:
1
The appeal is upheld with costs including the costs of two counsel.
2
The cross-appeal is dismissed with costs.
3The
order of the court below is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs including the costs
of two counsel.’
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: R van Riet SC (with him A D Brown)
Instructed
by: Symington & De Kok, Bloemfontein
Fairbridges
Attorneys, Cape Town
For the
Respondent: W P de Waal SC (with him W L Munro)
Instructed
by: Honey & Partners Inc, Bloemfontein
Adams &
Adams, Pretoria
[1]
A Waterlow scale assessment is used by the nurses in recording the
pre-existing condition of the patient on admission and is
composed
of the following risk areas; build/weight or height, skin type and
visual risk areas, gender and age, appetite, continence,
mobility,
tissue malnutrition, neurological deficit, major surgery or trauma
and medication. The higher the score, the higher
the risk of
pressure sores formation.
[2]
Affecting the force of muscle contraction.
[3]
Van
Wyk v Lewis
supra at 444.
[4]
Buthelezi
v Ndaba
2013
(5) SA 437
(SCA) para 14.
[5]
Maynard
v West Midlands Regional Health Authority
[1985]
1 All ER 635
at 639,
[1984] 1 WLR 634
at 639.
[6]
Bolitho,
supra
at 778.