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[2014] ZASCA 156
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S v Maitin (311/2013) [2014] ZASCA 156; 2014 (6) SA 533 (SCA) (1 October 2014)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 311/2013
In
the matter between:
Mrs
N[…] S[…] S[…]
NO
........................................................................................................
Appellant
and
Dr
D P
Maitin
.........................................................................................................................
Respondent
Neutral
Citation:
S[…]
NO v Maitin (
311/13)
[2014] ZASCA 156
1 October 2014
Coram:
Lewis, Ponnan and
Pillay JJA and Dambuza and Mathopo AJJA
Heard:
27 August 2014
Delivered:
1 October 2014
Summary:
Delict: medical negligence; plaintiff
did not discharge the onus of proving negligence on the part of the
doctor: informed consent
not an issue once negligence is not
established.
ORDER
On
appeal from:
KwaZulu-Natal
High Court, Durban (Penzhorn AJ sitting as court of first instance)
The
appeal is dismissed with costs.
JUDGMENT
Lewis
JA (Ponnan and Pillay JJA and Dambuza and Mathopo AJJA concurring)
[1]
Giving birth is an inherently risky process. Yet prospective parents
take the risks because, usually, the anticipated reward
of having a
child far outweighs the risks. But what if a woman does not know of a
particular, although remote, risk of natural
childbirth because the
doctor to whom she has entrusted her and her baby’s care does
not warn her of the possibility of harm
ensuing, and permanent injury
being caused to the baby, so that she can elect to undergo a less
risky procedure in delivering the
baby? Does the doctor have a duty
to disclose information about remote risks? What test should be used
to determine whether the
duty has been discharged? And if the doctor
is not negligent in failing to disclose the remote risk on what basis
can liability
be founded? These are the questions that Mrs N S S[…],
the appellant, asks this court to determine.
[2]
She asks that we develop the common law so as to recognize that the
test to determine whether a doctor has discharged his duty
to ensure
that the consent to the procedure is properly informed is whether the
reasonable patient in the position of the plaintiff
would regard the
risk as significant and elect not to undergo the procedure or follow
a different mode of treatment. This test
would recognize the
patient’s right to autonomy and bodily integrity.
[3]
Mrs S[…], a teacher by profession, sued Dr Maitin, an
obstetrician and gynaecologist, as the first defendant, and St
Augustine’s Hospital (the hospital) as the second defendant,
for damages in the KwaZulu-Natal High Court (Durban), but withdrew
the action against the hospital. The high court (per Penzhorn AJ)
dismissed the action against Dr Maitin, but granted leave to
appeal
to this court.
[4]
Before dealing with the submissions of the appellant on appeal, I
shall set out the facts that gave rise to the institution
of action
and the nature of the cause of action pleaded. Mrs S[…]
brought the Aquilian action for damages suffered by her
daughter,
Y[…], as a result of the negligent conduct of the respondent,
Dr D P Maitin, in delivering Y[…].
The negligent conduct
alleged had resulted in injury to Y[…]’s brachial
plexus, which had in turn resulted in Erb’s
palsy –
defined in the Oxford Concise Medical Dictionary as ‘weakness
or paralysis of the shoulder and arm caused by
injury to the upper
routes of a baby’s brachial plexus during birth’. The
brachial plexus is a network of nerve fibres
that run from the spine
through the shoulder and down the arm to the hand.
[5]
The injury to the brachial plexus was considered to be a result of
the baby being very large – macrosomic – and
shoulder
dystocia having occurred. Dystocia is, simply put, a difficult
childbirth. Shoulder dystocia occurs when the anterior
shoulder
cannot pass below the pubic symphysis (the cartilaginous joint
uniting the pubic bones) and requires manipulation to release
the
shoulder and allow the baby to pass through the mother’s
pelvis. Y[…] was indeed very large at birth – she
weighed 4.68kg – and her size was, on the probabilities, the
cause of the shoulder dystocia. Dr Maitin did in fact perform
a
manoeuvre, to which I shall return, to release the shoulder and Mrs
S[…] argued that a combination of his failure accurately
to
estimate the weight of the baby, to perform a Caesarean section (a
C-section) instead of proceeding with a trial of labour,
and the
incorrect use of the procedure amounted to negligent conduct that
caused the injury to the brachial plexus and the resultant
Erb’s
palsy.
The
facts that are common cause
[6]
The facts are largely not in dispute. I shall elaborate on those of
significance in due course. Mrs S[…] had been Dr
Maitin’s
patient since the birth of her first child. He had delivered her baby
boy in January 2001. The delivery was normal,
although Mrs S[…]
had had hypertension during that pregnancy. The baby weighed 2.9kg.
In 2005 Mrs S[…] miscarried
a foetus at six weeks. Dr Maitin
attended to her then too. When Mrs S[…] became pregnant for
the third time, in 2006, she
consulted Dr Maitin again for regular
check-ups. He estimated that the date of expected delivery of the
baby was 1 July 2006. She
was booked into the hospital on that date.
[7]
When Mrs S[…] saw Dr Maitin just over a week after the
expected delivery date, on 9 July, she was very uncomfortable.
He
estimated the weight of the baby at that stage to be 4kg – a
big baby by any standard. It was agreed that she be admitted
to the
hospital that evening and that labour be induced.
[8]
The progress and management of Mrs S[…]’s labour is put
in issue by her, and so some detail is required. Most of
it is
recorded in a parthogram (otherwise called a partograph) which
charted various factors from the moment of admission to birth.
Mrs
S[…] was admitted to the hospital at 16h17 and her vital signs
were checked; she was assessed at 17h55 and Prandin Gel
was inserted
vaginally to induce labour. Dr Maitin advised on the further use of
Prandin Gel at 4h00. He also prescribed
a painkiller as Mrs
S[…] was complaining of pain. At 22h30 Pethidine was
administered at his instance. The heartbeat of
the foetus was
measured by means of a cardiograph (referred to in the hospital notes
as a ‘CTG’) from 2h00. At 4h00
a pelvic examination was
done on Mrs S[…], at which stage her cervix was only two cm
dilated.
[9]
Because Mrs S[…] was in great pain an anaesthetist was called
at 6h10 and he administered an epidural anaesthetic at
6h20. By 7h00
mild to moderate decelerations (a deceleration is a slowing down of
the foetal heartbeat) were noted on the CTG.
Dr Maitin was advised of
this and he directed the hospital staff to administer Pitocin to her
at 8h25. Pitocin is a drug that causes
the uterine muscles to
contract: it is contractions that propel the baby down the birth
canal. At 8h30 Mrs S[…]’s
cervix was five cm dilated.
More Pitocin was not administered at that stage as there were still
signs of decelerations, noted at
9h00.
[10]
Dr Maitin saw Mrs S[…] at 9h25 and he ordered a further dose
of Pitocin to be given to her. At 10h00 the midwife,
Sister
Khan, administered oxygen. Dr Maitin visited her again at 11h00 at
which stage the cervix was eight cm dilated and no decelerations
were
reflected on the CTG. He asked for a further assessment to be done
two hours later.
[11]
By 11h30 Sister Khan noted blood in the fluid in the uterus (the
liquor) and then at 12h30 she did a pelvic examination and
noted that
Mrs S[…]’s cervix was fully dilated and that there was
blood in her urine – something that could
have been
attributable to various factors. She advised Dr Maitin of this, and
of the fact that the head of the baby was three-fifths
above the
pelvic rim. He said that he would come to the hospital immediately,
and he arrived at 13h00.
[12]
Dr Maitin first instructed that Mrs S[…]’s legs be put
on lithotomy poles to assist delivery. The epidural anaesthetic
would
have made it difficult for her to move her legs as required. By the
time Dr Maitin examined Mrs S[…] at 13h00 the
head of the baby
was four-fifths above the pelvic rim. This too is significant and I
shall return to it.
[13]
At 13h18 Dr Maitin used a vacuum to extract the baby’s head and
performed an episiotomy – a surgical incision on
the posterior
vaginal wall – which enables the passage of the baby through
the vagina. However, it appeared to Dr Maitin
and Sister Khan that
the anterior shoulder of the baby was stuck and would not pass
through the pelvis without assistance. Dr Maitin
pulled Mrs S[…]
further down on the bed to ensure that he had as much access as
possible to the baby and manoeuvred her
through the pelvis using a
technique described conventionally as the ‘McRoberts’
manoeuvre but with a modification
in that Mrs S[…]’s
legs were attached to the lithotomy poles instead of being pushed
over her abdomen with the assistance
of a third person. Again, as
this was a point of criticism, I shall return to it. It should be
noted at this point, however, that
the McRoberts’ manoeuvre is
employed only in an emergency and to save the lives of the mother and
baby.
[14]
Y[…] was delivered after the manoeuvre, and was immediately
placed in an ambubag (a medical resuscitator) as she had
an Apgar
score of only 4/10 (the score reflects the criteria by which a
new-born baby is assessed: appearance, pulse, grimace,
activity and
respiration). Her condition improved rapidly but Dr Maitin noted that
her right shoulder was not moving, and recorded
that a paediatrician
should see her. He recorded also that the delivery was difficult and
that there was shoulder dystocia.
[15]
Dr Maitin called in Dr Kara, a paediatrician who in turn called a Dr
Balkisson, an orthopaedic surgeon. The latter saw Y[…]
at
15h30 and diagnosed a right brachial plexus palsy resulting from
traction.
[16]
The following day, after Mrs S[…] and Y[…] had been
seen by Dr Maitin, they were discharged. The consequences
of the
injury to the brachial plexus have been very serious indeed for both
Mrs S[…] and Y[…]. At the outset of the
trial the high
court, at the request of the parties ordered a separation of the
issues of liability and quantum of damages in terms
of rule 33(4) of
the Uniform Rules of Court. The extent of Y[…]’s
disability is thus not relevant at this stage. Suffice
it to say that
her right shoulder and arm are paralysed so that she has very little
control and movement, despite ongoing therapy.
And the effect of the
injury at the root of the damaged nerve is that her one eye is
sunken, affecting her appearance.
The
cause of action pleaded
[17]
Initially, Mrs S[…] pleaded that Dr Maitin (and the hospital,
at the outset of the proceedings) had been negligent in
several
respects: he failed to monitor her adequately when she was in labour;
he failed to perform the clinical examination to
estimate the size of
the baby and failed to perform an ultrasound scan for that purpose;
he failed to notice that the baby was
large and that he should thus
have performed a C-section on Mrs S[…]; he failed to assist
her in giving birth in a manner
that was safe for her and the baby;
he failed to notice the presence of shoulder dystocia, which
necessitated the performance of
a C-section; he failed to warn her of
the consequences of a vaginal delivery where the baby is large; he
induced labour when it
was neither safe nor necessary; he failed to
perform the vacuum extraction procedure properly; and he failed to
prevent the injury
to the baby when, by exercising due skill and care
he could have done so. Other grounds of negligence averred have
fallen away.
[18]
Mrs S[…] alleged that Dr Maitin should have foreseen the risks
of vaginal delivery given the size of the baby; that
he was under a
duty to warn Mrs S[…] prior to inducing labour of the
‘material risks and complications which might
flow’ and
of specific alternative procedures which might minimize the risks. He
failed to warn her of the risk of shoulder
dystocia and the
complications and risks that were associated with it, and of
alternative procedures that might have minimized
or reduced the
risks.
[19]
As a result of the negligent conduct alleged, pleaded Mrs S[…],
the baby suffered brachial nexus injury and was permamently
paralysed
in her right arm and hand, which led to further disability and the
need for continued medical treatment.
[20]
The particulars were subsequently amended to include an allegation
that there was a contract between the parties in terms of
which Dr
Maitin owed Mrs S[…] a duty of care and would exercise
reasonable care and skill. She did not plead that she had
a right to
be informed of any risk that was significant or that she would have
regarded as significant. I shall revert to this
too. In his plea Dr
Maitin admitted some of the facts but denied that he was negligent
and asserted that the risks referred to
were not ‘sufficiently
material’ for him to have been under a duty to warn her of
them.
[21]
The high court found, as I have said, that Dr Maitin had not been
negligent in the care of Mrs S[…] and the delivery
of Y[…].
Penzhorn AJ held also that there was no need to develop the common
law in order to recognize a patient’s
autonomy and right to
bodily integrity in making an informed decision as to whether to
proceed with one course of action rather
than the other – in
this case to be advised of the risks of vaginal and C-section
delivery respectively, and to make an informed
decision accordingly.
[22]
On appeal, Mrs S[…] relies principally on her right to have
been informed of the risks of vaginal delivery given the
estimated
size of the baby, and her actual weight. That was not the case
pleaded, however, and it seems to me that even if this
were a proper
case to develop the common law along the lines suggested by Mrs S[…],
she would still have to establish negligence
on the part of Dr Maitin
to succeed in the action. I shall accordingly deal first with the
primary issue, as I see it: was Dr Maitin
negligent in any respect
and did his negligent and wrongful conduct cause the injury to Y[…]?
Negligent
conduct
Misestimation
of Y[...]’s weight
[23]
Mrs S[…] argued that Dr Maitin was negligent in his estimation
of the baby’s weight before he induced her labour.
He estimated
that she weighed 4kg whereas in fact, at birth, she weighed 4,68kg.
He should, it was argued, have taken into account
that Mrs S[…]’s
first baby had weighed 2,9kg only because she had suffered from
hypertension. And again, given the
estimation of the weight at 4kg,
he should have considered the possibility that Mrs S[…]
suffered from diabetes mellitus.
The argument was supported by the
evidence of an expert witness, Dr R E Mhlanga, whose opinion it was
that Dr Maitin was negligent
in assessing the weight at 4kg and in
not excluding the possibility of diabetes. Had she had diabetes a
C-section should have been
performed.
[24]
The latter factor can be discounted immediately. Mrs S[…] had
not ever suffered from diabetes and there was nothing
in her medical
history to suggest that she might be diabetic. Dr Maitin had tested
her urine right through her pregnancy with Y[…],
and although
he had done no blood tests to ascertain whether she did have
diabetes, there was no indication that he should have
done so.
[25]
As to the misestimation of weight, Dr Maitin testified that he was
surprised by the difference between his estimate and the
actual
weight of Y[…]. He said that a doctor could expect to be
‘about 100 to 200 grams’ out but not more. He
considered
that he had failed his own standard. But that does not amount to
negligence. He also testified that once a baby is over
4kg in weight,
it is difficult to be accurate. And he had done ultrasound
examinations on Mrs S[…] and assessed the baby’s
weight
by palpation.
[26]
Although Dr Maitin’s counsel referred to significant literature
about the science of estimating a baby’s weight
before
delivery, much of which suggests that it is an inexact science and
that it is difficult to predict exact weight, especially
with large
babies, it is not necessary to consider it. Dr Mhlanga himself
testified that an experienced obstetrician might over
or
underestimate weight especially where a baby is large, and that an
underestimate by 500g is not surprising.
[27]
Ms D Nyasulu, a senior maternal and child care expert, the first
witness for Mrs S[…], who explained the parthogram
and the
facts recorded earlier to the court, also accepted that an estimate
could be out by 500g or more. She agreed that she could
not say that
the misestimate by Dr Maitin was negligent.
[28]
Dr R Roos, a senior and very experienced gynaecologist and
obstetrician who gave expert evidence for Dr Maitin, also testified
that there is no acceptable medical standard for determining foetal
weight, and that an estimation that was 600g out was not unusual.
He
said that the best that a doctor could do to establish foetal weight
is to palpate in order to ascertain whether the baby was
below
average, average or above average weight. The estimate, he said, was
a ‘fatuous exercise’ because it would not
determine how
one would manage the delivery of a baby. It was thus common cause
that Dr Maitin’s incorrect estimate was not
in itself
negligent.
Mismanagement
of Mrs S[…]’s delivery
[29]
All the allegations of negligent conduct leveled against Dr Maitin
are based on the proposition that he had failed to appreciate
that
the baby was macrosomic (not in itself, as we have seen, negligent)
and had thus failed to appreciate the risks attendant
on a vaginal
delivery. Dr Mhlanga testified that the risks of vaginal delivery of
a macrosomic baby were shoulder dystocia; a poor
rate of dilation;
the slow descent of the foetus’s head; blood in the urine; and
blood in the fluid surrounding the foetus
in utero (the liquor). All
these risks had manifested themselves during Mrs S[…]’s
labour, as had early decelerations
in the foetal heartbeat. Moreover,
the foetus, he said, was in distress, hence the administration of
oxygen to Mrs S[…]
by Sister Khan.
[30]
Had Dr Maitin and Sister Khan appreciated the gravity of the risks,
as they should have done, Dr Mhlanga said, they would have
proceeded
to perform a C-section on Mrs S[…] and thus have averted the
injury to Y[…]. While conceding that it was
too late to
perform a C-section when Dr Maitin arrived at the hospital, because
the baby’s head was four-fifths above the
pelvic rim, Dr
Mhlanga said that given all the potential risks, Dr Maitin should
have been at the hospital attending to Mrs S[…]
at the latest
by 12h30 on the day of the birth. He would then still have been able
to perform a C-section.
[31]
Dr Maitin, Dr Roos and Sister Khan, on the other hand, all considered
that these factors were common during labour and required
nothing
more than monitoring. Dr Roos said that at 11h00, when Dr Maitin had
seen Mrs S[…], there was nothing to suggest
that her labour
was not progressing satisfactorily. Nothing on the CTG indicated that
the well-being of the baby was compromised.
Nothing warranted an
immediate delivery by C-section. Although there were mild
decelerations between 9h00 and 10h30, which had
prompted Sister Khan
to administer oxygen, by 11h00 there were no further decelerations.
In any event, the mild decelerations had
no effect since Y[…]
did not experience any hypoxia: there was no obstruction to the
supply of oxygen to her.
[32]
As far as urine in the blood was concerned, found at 12h30, Dr Maitin
explained that this could have been caused by a stretching
of the
cervix when a vaginal examination was done. This factor too did
not warrant a change in course of action. The view
of Dr Roos was
that at 12h30, when Sister Khan called Dr Maitin, the baby was ready
for vaginal delivery.
[33]
The initial slow descent of the head, also a warning factor according
to Dr Mhlanga, was not, in Dr Maitin or Dr Roos’s
opinions, of
any significance. Medical literature in South Africa, put to Dr
Mhlanga, shows that a slow initial descent of the
head of a baby is
common in African women.
The
foreseeabilty of shoulder dystocia
[34]
In a guideline issued in December 2012 by the Royal College of
Obstetricians and Gynaecologists, dealing with shoulder dystocia,
the
College advised that while there is a relationship between foetal
size and shoulder dystocia, ‘it is not a good predictor.
The
large majority of infants with a birth weight of [more than] 4500 g
do not develop shoulder dystocia and, equally importantly,
48% of
incidences of shoulder dystocia occur in infants with a birth weight
less than 4000 g’. The guideline also pointed
out that clinical
foetal weight estimation is unreliable, and even ultrasound scans
have a ten per cent margin of error.
The
guideline continued:
‘
Elective
caesarean section is not recommended for suspected fetal macrosomia
(estimated fetal weight over 4.5 kg) without diabetes.
Estimation of
fetal weight is unreliable and the large majority of macrosomic
infants do not experience shoulder dystocia. In the
USA, a decision
analysis model estimated that an additional 2345 caesarean deliveries
would be required, at a cost of US$4.9 million,
to prevent one
permanent injury from shoulder dystocia.’
[35]
The guideline was put to Dr Mhlanga by counsel for Dr Maitin. He did
not dispute its validity, but insisted that in this matter,
because
the patient was African, and the studies were done in respect of
Caucasian women, it was not conclusive. He testified that
African
women have smaller pelvises than do Caucasian women, a fact that none
of the medical witnesses disputed. Dr Mhlanga accepted,
however, that
foetal size is not a good predictor of shoulder dystocia. It is
clear, therefore, that there was no reason why Dr
Maitin should have
foreseen that the baby would present with shoulder dystocia.
The
advisability of delivery by C-section
[36]
Dr Mhlanga was adamant that a C-section should have been done by
12h30 at the latest. Doctors Maitin and Roos and Sister Khan,
on the
other hand, considered first that it was not warranted, and second
that it was the less safe procedure. They, and the literature
referred to, considered that a C-section carried inherent risks not
only to a baby but also to a mother. Mrs Nyasula also testified
that
a vaginal delivery was always preferable. And the medical literature
on the subject, put to Dr Mhlanga, was clear that unless
the mother
was diabetic or had a history of problems with shoulder dystocia a
C-section was not advisable.
[37]
Dr Maitin, asked whether he should not have advised a C-section
instead of inducing labour, on the basis that on his own estimate
the
baby was big (4kg), testified that that in itself was not a reason
for doing a C-section. If that route were to be recommended,
he said,
it would entail doing in the region of 2 000 C-sections to prevent
one shoulder dystocia (an estimate borne out by the
guideline
discussed above). And since the risks inherent in the procedure,
including causing septacaemia and the death of the mother,
are high,
the suggestion of Dr Mhlanga, that in all such cases C-sections
should be performed, could not be accepted.
[38]
In any event, by the time Dr Maitin saw Mrs S[…] (at 13h00)
the baby’s head was four-fifths through the pelvic
rim. Even Dr
Mhlanga conceded that it would have been dangerous to perform a
C-section at that stage.
[39]
It is clear, therefore, that there was no mismanagement on the part
of Dr Maitin of Mrs S[…]’s labour, and certainly
no
negligence. The reasonable obstetrician in Dr Maitin’s position
would not have foreseen the possibility of shoulder dystocia
and
would have proceeded on the same basis that Dr Maitin did. Mrs S[…],
as the plaintiff, bore the onus of showing that
an obstetrician with
the reasonable skill and diligence possessed by that branch of the
profession would have foreseen the possibility
of shoulder dystocia
and taken steps to mitigate the risk. (
Van Wyk v Lewis
1924 AD
438
at 444.) She did not discharge that onus.
The
McRoberts’ manoeuvre
[40]
Mrs S[…] contended, however, that even if there were no
negligence in the management of labour, Dr Maitin was negligent
in
performing the McRoberts’ manoeuvre with some modification and
applied excessive force in releasing Y[…]’s
shoulder.
The McRoberts’ manoeuvre is described as follows in the Royal
College Guideline:
‘
[It]
is ‘flexion and abduction of the maternal hips, positioning the
maternal thighs on her abdomen. It straightens the lumbo-sacral
angle, rotates the maternal pelvis cephalad [towards the anterior
part of the head – Collins English Dictionary 2003] and
is
associated with an increase in uterine pressure and amplitude of
contractions. The McRoberts’ manoeuvre is the single
most
effective intervention, with reported success rates as high as 90%.
It has a low rate of complication and therefore should
be employed
first.
Suprapubic
pressure can be employed together with McRoberts’ manoeuvre to
improve success rates. Suprapubic pressure reduces
the bisacromial
diameter and rotates the anterior shoulder into the oblique pelvic
diameter. The shoulder is then free to slip
underneath the symphysis
pubis with the aid of routine traction.’
[41]
The modification of the procedure by Dr Maitin was that he placed Mrs
S[…]’s legs in straps on lithotomy poles
instead of
pushing them down towards her abdomen. He explained that he had to do
this as she had had an epidural anaesthetic and
was unable to control
her legs herself. Dr Roos considered that the objective of the
manoeuvre was achieved in this way: the shoulder
was in fact released
and Y[…] was delivered. Although Dr Mhlanga’s view was
different – he said that an assistant
should have been called
to push down Mrs S[…]’s legs – there was nothing
to suggest that the outcome would have
been any different if the
conventional McRoberts’ manoeuvre had been performed. And Dr
Mhlanga agreed that the hyperflexion
that was necessary was achieved.
Accordingly nothing turns on the fact that a modified procedure was
used.
[42]
The injury to the brachial plexus was caused, in Dr Mhlanga’s
view, by the traction effected by Dr Maitin to dislodge
the shoulder.
He pulled too hard on the baby’s head, Dr Mhlanga said. Again,
that was mere speculation. Dr Maitin said that
he did not appreciate
that he used excessive pressure. He did not think so. But he accepted
that he might have been responsible:
it happened ‘under his
watch’.
[43]
As counsel for Dr Maitin pointed out, the McRoberts’ manoeuvre
is a technique employed to save the baby’s life:
it is a
procedure used in an emergency when the shoulder dystocia is
preventing the delivery. If the baby is not delivered in this
manner
serious neurological damage can result. Dr Roos testified that once
the shoulder is stuck, the obstetrician has only a few
minutes to
dislodge the baby before running the risk of serious brain damage or
even death. He said that the obstetrician faced
with shoulder
dystocia had to use ‘as much force as is required to deliver
that baby. That is the object of the exercise.’
Dr Maitin
succeeded in avoiding the death of the baby. He achieved the
objective of the McRoberts’ manoeuvre.
[44]
In the circumstances it is clear that Mrs S[...] did not discharge
the onus of proving any negligence on the part of Dr Maitin.
As Dr
Roos testified, her labour was managed properly. The high court thus
correctly found that Dr Maitin had not negligently caused
the injury
to Y[...].
Extension
of the common law
[45]
Mrs S[...] argued before this court that we ought to extend the
common law so as to recognize that the test for whether a patient
has
given informed consent to a procedure should be whether the
reasonably prudent patient, given the information about the risks
of
vaginal delivery, would have agreed to it or elected to have her baby
delivered by C-section. It was common cause that Dr Maitin
had at no
time advised her about the possibility of shoulder dystocia occurring
and of a resultant brachial plexus injury, leading
to Erb’s
palsy.
[46]
Our courts have in the past held that in order to determine whether a
doctor is under a duty to disclose the risks of a procedure
we must
determine whether a reasonable doctor, in the position of the
defendant, would have disclosed risks however remote. In
Richter
& another v Estate Hamman
1976 (3) SA 226
(C) Watermeyer J said (at 232G-H):
‘
A
doctor whose advice is sought about an operation to which certain
dangers are attached – and there are dangers attached
to most
operations – is in a dilemma. If he fails to disclose the risks
he may render himself liable to an action for assault,
whereas if he
discloses them he might well frighten the patient into not having the
operation when the doctor knows full well that
it would be in the
patient’s interests to have it.
It
may well be that in certain circumstances a doctor is negligent if he
fails to warn a patient, and, if that is so, it seems to
me in
principle that his conduct should be tested by the standard of the
reasonable doctor faced with the particular problem. In
reaching a
conclusion a Court should be guided by medical opinion as to what a
reasonable doctor, having regard to all the circumstances
of the
particular case, should or should not do. The Court must, of course,
make up its own mind, but it will be assisted in doing
so by medical
evidence.’
[47]
The argument for Mrs S[...] is that this approach leaves the
determination of a legal duty to the judgment of doctors appointed
in
their own cause. In keeping with the rights to autonomy and bodily
protection, now entrenched in the Constitution, the test
should
rather be whether the reasonable patient, in her position, if warned
of the risk, would attach significance to it.
[48]
In
Castell v De Greef
1994 (4) SA 408
(C) a full court
accepted that this should be the test and Mrs S[...] relied on that
as well as the authorities in foreign jurisdictions
cited in that
case. Ackermann J (Friedman JP and Farlam J concurring) said that
South African courts should follow the approach
of an Australian
decision:
Rogers v Whitaker
[1992] HCA 58
;
(1993) 67 ALJR 47
(a decision of
the High Court of Australia). That court also took into account
English and Canadian decisions that have adopted
the same approach.
[49]
Ackermann J said (at 426D-H) that South African courts ought to adopt
the approach in
Rogers
‘suitably adapted to the needs of
South African jurisprudence’. He continued:
‘
It
is in accord with the fundamental right of individual autonomy and
self-determination to which South African law is moving. This
formulation also sets its face against paternalism, from many other
species whereof South Africa is now turning away. It is in
accord
with developments in common law countries like Canada, the United
States of America and Australia, as well as judicial views
on the
continent of Europe. . . .
I
therefore conclude that, in our law,
for a patient’s consent
to constitute a justification that excludes the wrongfulness of
medical treatment and its consequences,
the doctor is obliged to
warn a patient so consenting of a material risk inherent in the
proposed treatment; a risk being material
if, in the circumstances of
the particular case:
(a)
a reasonable person in the patient’s position, if warned of
the risk, would be likely to attach significance to it; or
(b)
the medical practitioner is or should reasonably be aware that
the particular patient, if warned of the risk, would be likely to
attach significance to it.’ (My emphasis)
[50]
This passage makes it clear, however, that the question of informed
consent goes to the wrongfulness element of the Aquilian
action.
Negligent conduct on the part of the doctor will be wrongful if the
patient has not given informed consent. Negligence
is still a
requirement, and in
Castell
it was established. Where there is
no negligence proved, however, the test for wrongfulness does not
even arise.
[51]
In this matter Mrs S[...] did not prove that Dr Maitin was negligent.
In the circumstances there is no need for this court
to determine
which test should be adopted in relation to informed consent.
[52]
In any event no evidence was led to show what the reasonable patient
in Mrs S[...]’s position would have done had she
been warned of
the risk of shoulder dystocia (a risk that was lower than one per
cent), and advised about the choice between a
vaginal delivery or a
C-section. Would she have taken the far greater risks attendant on a
C-section or the very minor risk of
shoulder dystocia occurring? We
do not know. And Mrs S[...] herself said, when asked if she knew
about delivery by C-section, and
about the risks attendant on it,
that she did know of such risks, though not anything about shoulder
dystocia, brachial plexus
injury or Erb’s palsy. It was
suggested to her that both Dr Maitin and she had to weigh up the
respective risks. She responded:
‘
I
don’t believe that. I placed all my trust in him in the sense
that it was he who was going to make a decision as to the
correct
procedure to adopt.’
On
the facts, therefore, it cannot be found that the conduct of Dr
Maitin was wrongful. And since he was not negligent, liability
cannot
be established.
[53]
Accordingly, the appeal is dismissed with costs.
___________________
C H
Lewis
Judge
of Appeal
APPEARANCES
For
Appellants: N Singh SC and T V Norman SC
Instructed
by: Ngubane & Partners Inc, Durban
Phatshoane
Henney, Bloemfontein
For
Respondents: J Marais SC
Instructed
by: McRoberts Inc, Durban
Claude
Reid Inc, Bloemfontein