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[2013] ZASCA 72
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Buthelezi v Ndaba (575/2012) [2013] ZASCA 72; 2013 (5) SA 437 (SCA) (29 May 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 575/2012
In
the matter between:
GABRIEL BUTHELEZI
....................................................................................
APPELLANT
v
PRISCILLA
ZANELE NDABA
......................................................................
RESPONDENT
Neutral citation:
Buthelezi
v Ndaba
(575/2012)
[2013] ZASCA 72
(29 May 2013).
Coram:
Brand, Lewis, Cachalia,
Majiedt JJA
et
Saldulker AJA
Heard:
13 May 2013
Delivered: 29 May 2013
Summary: Alleged medical
malpractice – determination of negligence on the part of the
surgeon – not to be inferred from
concession by surgeon that
something must have gone wrong during the operation – dependent
on evaluation of the reasoning
underlying conflicting expert opinions
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, Pietermaritzburg (Jappie J sitting as court of first
instance):
1 The appeal is upheld with costs.
2 The order of the court a quo is set
aside and replaced with the following:
‘
The
plaintiff’s claim is dismissed with costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA (LEWIS, CACHALIA, MAJIEDT
JJA
et
SALDULKER AJA CONCURRING):
[1] This is a case about alleged
medical negligence. The appellant, Dr Gabriel Buthelezi, practises as
a specialist gynaecologist
and obstetrician in Pietermaritzburg. On
13 February 2006 he performed a surgical operation known as a total
abdominal hysterectomy
on the respondent, Ms Priscilla Ndaba. Some
time after the operation, she began to suffer from urine
incontinence. Further examination
by a urologist revealed the cause
of her problem to lie in what is known in medical parlance as a
vesico-vaginal fistula which
can be described in layman’s terms
as a hole in the posterior wall of the bladder and the contiguous
anterior wall of the
vagina. What happened in these circumstances, so
the medical experts explained, was that urine passed from the bladder
to the vagina
above the control mechanisms which caused the urine
incontinence. Relying on these facts, the respondent instituted an
action against
the appellant in the court a quo for the damages she
suffered in consequence of the vesico-vaginal fistula (the fistula)
which
resulted from his alleged negligence in performing the
hysterectomy operation.
[2] When the matter came before Jappie
J in the court a quo he was asked, by agreement between the parties,
to determine the issues
pertaining to the appellant’s liability
first while the quantum of the respondent’s alleged damages
stood over for
later determination. During the preliminary
proceedings that followed, it became apparent that the only relevant
dispute hinged
on whether or not the appellant was negligent and that
this question in turn depended on an election between the opposing
views
expressed by two medical experts in this regard. On the one
hand Prof R W Green-Thompson testified, on behalf of the respondent,
that in his view the appellant was negligent in performing the
hysterectomy operation. On the other hand, the appellant’s
expert witness, Prof L Snyman, took the position that he was not. At
the end of these proceedings Jappie J upheld the respondent’s
claim on the merits with costs. In consequence he ordered the
appellant to pay the respondent such damages as either agreed on
or
as the respondent may prove at the second stage of the trial. The
appeal against that judgment is with the leave of the court
a quo.
[3] I find it convenient to start the
recital of the facts with an introduction of the medical specialists
involved in the order
that they testified. First, there was Dr Abdul
Dada, a specialist urologist who was called to testify on behalf of
the respondent
and who was responsible for diagnosing and eventually
repairing the fistula that caused the incontinence problem. Secondly,
there
was Prof Green-Thompson, the former head of the department of
obstetrics and gynaecology at the Faculty of Medicine, University
of
KwaZulu-Natal, to whom I have already referred. Thirdly, there was
the appellant himself who testified on his own behalf. Albeit
that he
was not called as an expert witness, it transpired that when he
performed the operation on the respondent, he had practised
as a
specialist in his field for nearly 20 years during which period he
had carried out about 1 000 hysterectomy operations.
Finally
there was the appellant’s expert, Prof Snyman, who held a joint
appointment as professor of medicine at the University
of Pretoria
and the principal specialist at the department of obstetrics and
gynaecology at the Kalafong Hospital in Atteridgeville,
Pretoria.
[4] Before I turn to the differences
in opinion between these medical specialists that emerged during the
trial, I propose to deal
with the large areas of their testimony
which proved to be common cause. First amongst these was the fact
that the fistula of about
one centimetre in diameter, which was
observed by Dr Dada some six weeks later during the remedial
operation, did not occur during
the hysterectomy, nor immediately
thereafter, but that it progressively developed over the ensuing
period. At the same time the
specialists agreed that the development
of the fistula did not start spontaneously, but that it was triggered
by something that
happened during the hysterectomy. On this aspect
they specifically agreed that the following factors, singularly or in
combination,
could not in themselves cause the fistula: the fact that
the respondent was HIV positive; that she suffered from diabetes;
that
she had previously undergone a caesarean section; and that she
had been struggling with chronic pelvic infection at the time. Yet,
they also concurred that because of these factors, the respondent was
at an increased risk of the formation of a fistula.
[5] An abdominal hysterectomy without
complications, so the medical specialists further agreed, involves
the removal of the uterus
from the upper part of the vagina, known as
the vaginal vault, and the subsequent closing of the hole in the
vault caused by the
removal. The bladder lies anterior to the uterus
and although the two organs are in close proximity, they do not share
the same
wall nor the same blood supply. Of critical importance, so
the specialists agreed, is to separate the bladder from the uterus
before
the operation starts and to protect it from harm during the
operation. Normally the separation presents little difficulty,
because
the connection between the two organs consists of what is
described as loose areola tissue. But if the patient had undergone a
previous caesarean section, it is likely that there will be some
tethering or adhesions between the two organs which the surgeon
has
to cut through with some sharp surgical instrument.
[6] Prof Green-Thompson’s thesis
as to what happened in this case is that, during the hysterectomy
operation, some damage
was caused to the blood supply to an area of
the bladder wall. The compromised area then became devascularised –
that is,
deprived of blood – which in turn led to a progressive
tissue necrosis of the bladder wall and eventually to the formation
of the fistula. Because no direct damage to the bladder wall occurred
during the surgery, the problem would not have been noticeable
at the
time. The fistula developed and increased over time through ongoing
tissue necrosis in the devascularised part of the bladder
wall. That
explains why the respondent’s urine incontinence did not
manifest itself immediately subsequent to the operation,
but only
some time thereafter.
[7] As to when and how the damage to
the blood supply of the bladder wall occurred, Prof Green-Thompson
expressed the view that
it happened either when the bladder was
separated from the uterus or when the uterus was removed from the
vaginal vault. In any
event, he said, the problem was caused by the
appellant’s failure to ensure that the bladder was kept
separate and safe during
the course of the operation. If reasonable
precautions had been taken, so Prof Green-Thompson concluded, the
injury to the bladder
would not have occurred. What Prof
Green-Thompson’s opinion thus amounted to, as I understand it,
was that the fact of the
injury to the respondent’s bladder
inevitably gave rise to the inference that reasonable precautions
were not taken and hence
that the appellant was negligent.
[8] The appellant’s independent
recollection of the operation on the respondent was virtually
non-existent and his contemporaneous
notes were not of much
assistance. These recorded only that ‘a standard TAH” ie
a total abdominal hysterectomy was
done; that there was some
difficulty due to oozing of the vaginal vault; and that haemostasis
was secured, ie that the oozing was
stopped. This meant, so the
appellant testified, that it was a straightforward operation; that
there were no complications and
no difficulties, save for the oozing
of the vaginal vault, which had soon been resolved. Whether or not
there were tetherings or
attachments between the respondent’s
uterus and bladder, as a result of her previous caesarean section, he
could not remember.
But if there were, he would not regard it as a
problem worthy of mention because he had encountered it on so many
occasions in
the past.
[9] The reference to a ‘standard
TAH’ in his notes also led him to the inference that he used
the standard technique
which he always applied in the many
hysterectomy operations he performed before and after this one. Part
of his standard procedure,
so the appellant testified, was firstly to
ensure the separation of the bladder from the uterus before the
operation starts and
to protect it from harm. Under cross-examination
he confirmed that he had heard of the remedial operation by Dr Dada
about six
weeks after the hysterectomy and that he then realised that
the fistula which necessitated the operation probably resulted from
something that happened during the hysterectomy. At that time he
therefore gave thought to what he could have done differently
from
what he routinely did during the literally hundreds of other
hysterectomy operations that he had performed, but nothing came
to
his mind.
[10] He further said under
cross-examination that Prof Green-Thompson could be correct in his
thesis that the fistula resulted from
damage to the blood supply to
the bladder during the operation and that this could have happened
either when he separated the bladder
from the uterus, when he removed
the uterus from the vaginal vault, or even when he stopped the blood
oozing from the vault after
the removal of the uterus by putting in
stitches. He also conceded the feasibility of the proposition raised
for the first time
by the respondent’s counsel in
cross-examination, namely, that the fistula could have resulted from
infection which was in
turn brought about by blood collecting in the
area where the oozing occurred and which he did not remove. With
reference to this
possibility, it was not suggested to the appellant
that his failure to remove the accumulated blood would constitute
negligence
on his part.
[11] Further statements by the
appellant which ultimately weighed heavily with the court a quo in
concluding that he was negligent,
emanated from questions by Jappie J
himself. These appear from the following quotation of the evidence in
the judgment of the court
a quo:
‘
You
can’t recall as what you did during the operation in regard to
the bladder wall except to say you would have performed
and used your
standard technique? – Yes. Would that be fair to you?
So
if the bladder and we must accept because it is common cause that the
bladder was compromised, you can only speculate as to how
that may
well have happened? – Yes.
You
can’t take it any further than that? – No I could not.
And if it is suggested to you that it should not have happened,
what
would your response be? – . . . [M]y response would be it
should not have happened, I would agree with that. It should
not have
happened.
But
we know it did happen? – . . . Yes.’
[12] In his testimony Prof Snyman
underscored the fact that no one really knew how the fistula came
about and that all the theories
advanced, including the one by Prof
Green-Thompson, amounted to no more than speculation. Although he did
not deny that Prof Green-Thompson’s
thesis could be valid, his
view was that there were other hypotheses that would have an equal
claim to validity. Amongst these
he seemed to prefer the possibility
of a small cut in the bladder wall which occurred when the bladder
was separated from the uterus,
particularly because of the potential
tetherings or adhesions resulting from the respondent’s
previous caesarean section.
The injury thus caused, he explained,
could have been so small that it was not noticeable during the
operation. Yet, over time
and especially in the light of the
respondent’s diabetes and the chronic pelvic infection from
which she suffered, the small
injury could have developed into the
fistula. Another possibility that he recognised was the one suggested
to the appellant in
cross-examination, to wit, that the fistula
resulted from an infection in the vaginal vault which was in turn
caused by accumulated
blood in the area of the oozing which had not
been removed. With regard to the latter possibility Prof Snyman
stated, however,
that failure to remove the accumulated blood would
not constitute negligence per se because ‘[t]here is good
evidence that
if you do not remove blood after an operation . . . it
does not cause any problems . . . [because] the body absorbs [the
accumulated
blood]’.
[13] What Prof Snyman also emphasized
was that the occurrence of a fistula does not in itself justify an
inference – as Prof
Green-Thompson seemed to suggest – of
negligence on the part of the surgeon. On the contrary, he said, the
development of
a fistula is widely recognised as a consequence of
hysterectomy operations that cannot always be avoided, however
careful the surgeon
might be and whatever precautionary measures he
or she may take. In this regard he referred to international medical
journals that
were placed before the court a quo, which supported his
opinion. In one of these it is stated, for example, that:
‘
[Even
if] the operation . . . [is] performed to an adequate standard . . .
it would be generally agreed that inadvertent bladder
injury is a
recognised complication of hysterectomy and can occur even with
careful surgical technique.’
[14] I have said at the beginning that
the outcome of the dispute as to whether or not the appellant’s
performance of the
surgery, which led to the respondent’s
injury, could be described as negligent, ultimately turns on an
election between the
opposing views of two expert witnesses. It is
true, of course, as the court a quo accentuated in its judgment, that
the determination
of negligence ultimately rests with the court and
not with expert witnesses. Yet that determination is bound to be
informed by
the opinions of experts in the field which are often in
conflict, as has happened in this case. In that event the court’s
determination must depend on an analysis of the cogency of the
underlying reasoning which led the experts to their conflicting
opinions.
[15] That analysis, so it seems to me,
was never undertaken by the court a quo in this case. As I understand
its judgment, the court
was swayed in favour of the respondent’s
expert by what it regarded as an admission of negligence on his part
by the appellant
himself. As appears from the quotation from the
appellant’s evidence by the court a quo, all he admitted,
however, was that
the injury to the respondent’s bladder should
not have happened unless something went wrong during the
hysterectomy. As I
see it, that does not amount to an admission of
negligence. After all, as Lord Denning MR observed in
Hucks v Cole
[1968] 118 New LJ at 469:
‘
With
the best will in the world things sometimes went amiss in surgical
operations or medical treatment. A doctor was not to be
held
negligent simply because something went wrong.’
Or as Scott J said in
Castell v De
Greef
1993 (3) SA 501
(C) at 512A-B:
‘
The
test remains always whether the practitioner exercised reasonable
skill and care or, in other words, whether or not his conduct
fell
below the standard of a reasonably competent practitioner in his
field. If the “error” is one which a reasonably
competent
practitioner might have made, it will not amount to negligence.’
[16]
Turning to the conflicting views of the respective experts, it
appears that Prof Green-Thompson’s underlying reasoning
departs
from the inference that the injury to the respondent’s bladder
would not have occurred if the appellant was not negligent.
To me
that seems reminiscent of an application of the
res
ipsa loquitur
maxim,
which the court a quo quite rightly found inappropriate in this case.
I say quite rightly because, as was pointed out in
the
locus
classicus
on
medical malpractice, ie
Van
Wyk v Lewis
1924
AD 438
at 462, that maxim could rarely, if ever, find application in
cases based on alleged medical negligence. The human body and its
reaction to surgical intervention is far too complex for it to be
said that because there was a complication, the surgeon must
have
been negligent in some respect. Logic dictates that there is even
less room for application of the maxim in a case like this,
where it
has not even been established what went wrong; where the views of
experts are all based on speculation – giving
rise to various,
but equally feasible possibilities – as to what might have
occurred. Moreover, although Prof Green-Thompson
did not deny the
authority of the international publications, put to him in
cross-examination, that contradict his conclusions,
he simply seemed
to ignore their content. In sum I thus find Prof Green-Thompson’s
opinion ill-supported by his reasoning.
[17] By contrast, Prof Snyman’s
opinion, based on his expertise and experience in practice, that this
type of injury may result
from a hysterectomy operation despite
reasonable care on the part of the surgeon, appears to be
well-supported by views expressed
in international journals in the
field. In fact, these publications seem to indicate that this type of
injury to the bladder is
generally accepted as one of the inherent
risks of a hysterectomy operation. In these circumstances, I consider
that the court
a quo erred in finding that negligence on the part of
the appellant had been established.
[18] In the result:
1 The appeal is upheld with costs.
2 The order of the court a quo is set
aside and replaced with the following:
‘
The
plaintiff’s claim is dismissed with costs.’
____________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: J Marais SC
Instructed
by: MacRobert Inc
DURBAN
Correspondents:
Claude Reid
BLOEMFONTEIN
For
Respondent: F M Moola SC
Instructed
by: Sarawan & Co
PIETERMARITZBURG
Correspondents:
Honey Attorneys
BLOEMFONTEIN