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[2016] ZAECPEHC 74
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F.M v Member of the Executive Council, Department of Health, Eastern Cape (273/2013) [2016] ZAECPEHC 74 (13 December 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: 273/2013
In
the matter between:
F
M
Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN CAPE
Defendant
JUDGMENT
REVELAS
J
:
[1]
On
2 March 2010 the plaintiff underwent surgery (a laparoscopic
cholecystectomy, i.e. o the removal of her gallbladder) at the
Livingstone Hospital in Port Elizabeth. During this surgery,
she sustained injuries (two perforations, 2mm in diameter) to
her
common bile duct as a result of which bile leaked into her abdominal
cavity, causing her to become very ill. She was readmitted
to the
Livingstone Hospital, on 9 March 2010, suffering from acute bile
peritonitis. On 11 March a second operation was performed
to repair
her bile duct. The plaintiff was in the hospital’s intensive
care unit for 9 days and remained in hospital for
two weeks. The
plaintiff subsequently, during 2013, instituted an action against the
defendant for damages.
[2]
It
was not in dispute that Dr Vogel, the surgeon who performed both
procedures and the other hospital staff who assisted him, acted
within the scope and course of their employment with the defendant.
Therefore, if the plaintiff succeeds in establishing a delict,
the
defendant would be vicariously liable for the plaintiff’s
damages.
[3]
The
present proceedings were concerned only with the question of
liability since a separation of the merits and quantum was ordered
by
agreement between the parties.
[4]
The
plaintiff’s case was that, in causing the injury, the
defendant’s employees, who bore a duty to conduct a proper
surgical procedure with reasonable professional care, failed in that
duty and were therefore negligent. Had the cholecystectomy
been
performed correctly, and with the correct instruments, she maintained
that her common bile duct would not have been injured.
[5]
The
defendant’s defence to the plaintiff’s allegations was
firstly, the plaintiff had accepted the risks or possible
complications inherent in a procedure of this nature, which were
explained to her prior to surgery, and to which she consented
in
writing. Secondly, the defendant disputed that there was any
negligence on the part of any of its employees, and in particular
Dr
Vogel who performed the procedure. The plaintiff disputed that
she could have consented to an injury to her bile duct
or to
negligence.
[6]
In
2009, the plaintiff had presented with symptomatic gallstones which
necessitated the removal of her gallbladder, a common treatment
for
her ailment. An operation to remove the gallstones was
scheduled for 25 January 2016, but had to be rescheduled to 2
March
2016, because she was suffering from a respiratory tract infection.
[7]
It
was not in dispute that the decision to remove the plaintiff’s
gallbladder by performing a cholecystectomy was correct.
It
must be noted there that it was common cause between the parties that
the refusal of the surgery was not a reasonable
option for the
plaintiff as the operation was necessary.
[8]
The
plaintiff was forty-one years old when she underwent the surgery
presently under discussion. She has two children, both
born by
caesarian section. She suffered from bronchial asthma and as a young
woman, she suffered from tuberculosis that was cured
with medical
treatment. The plaintiff testified that prior to her operation no one
explained the nature of the risks of the operation
to her and only
after the operation was performed, she learnt, to her surprise, that
she had undergone a laparoscopic or “
laser
operation”
.
After her discharge from the hospital on 3 March 2010, she went home
to recuperate but became very ill on 8 March 2008.
Hence her
readmission on 9 March 2010. Apart from being told that her
bowels were obstructed, the plaintiff said she was
never provided
with any information regarding her problem. She was however told by
one of the hospital personnel that Dr Vogel
had committed an error
during her operation. She testified that she took his hands in
hers and told him that since he made
a mistake he should perform the
repair operation.
[9]
A
laparoscopic (keyhole or “
minimum
access”
)
cholecystectomy procedure involves the insertion of four small
operating ports and a gastric tube through very small incisions
in
the abdominal wall. A telescopic video camera and surgical
instruments (in tubes) are placed through the operating ports.
The camera is placed into the abdominal cavity from where it sends an
enlarged image of the inside of the abdominal cavity to a
screen,
providing a close up, two-dimensional view of the tissues and organs
inside the cavity. The surgical procedure is
then performed by
manipulating the surgical instruments through the operating port. The
gallbladder is removed by dissecting the
cystic duct, to which the
gallbladder is attached. The gallbladder is placed into a plastic bag
and pulled through one of the ports
– usually the one below the
patient’s bellybutton.
[10]
When
a laparoscopic procedure is not possible to perform, the only
alternative surgery is an open cholecystectomy, which is a more
invasive procedure, where the gallbladder is removed through a much
larger, Kocher’s incision in the abdominal wall and tissues.
The latter used to be the standard procedure, but has been largely
replaced by the former. Sometimes, for various safety
and
technical reasons a laparoscopic cholecystectomy is converted into an
open cholecystectomy.
[11]
Each
party relied on the testimony of one independent expert witness.
Dr B H Pienaar was called to testify on the plaintiff’s
behalf
and had also prepared a medico-legal report which prefaced his
evidence in court. The defendant’s expert witness,
Professor P
C Bornman, similarly prepared a medico-legal report setting out the
opinions he would be called upon to testify about.
It was
accepted that both Dr Pienaar and Professor Bornman were both highly
qualified and respected surgeons who were very experienced
as
academics and surgeons and both had particular, specialized knowledge
of
inter
alia,
gallbladder
removals and the repair of common bile ducts. The two experts met
with the view to find areas they could agree upon
to narrow the
issues between them, but each adhered to his opinion regarding the
question of alleged negligence on the part of
Dr Vogel.
[12]
Dr
R J Vogel is also an expert witness, but since he has a vested
interest in the outcome of this matter, he ought not to be
categorized
as an independent expert witness. However, his testimony
about the procedure in question and his experience in laparoscopic
surgery
remains highly relevant.
[13]
The
experts agreed on most aspects regarding the procedure which ought to
have been followed in an operation such as the one under
discussion,
but disagreed on those aspects, which , if an error occurred, would
constitute negligence. They did however, find common
ground on some
aspects which were recorded in the minute of their joint pre-trial
meeting. These were:
(a)
The
injury to the common bile duct occurred during the laparoscopic
cholecystectomy performed by Dr Vogel and/or other employees
during
the aforesaid procedure.
(b)
The
injuries were most likely inflicted or caused by Dr Vogel and/or
other employees during the execution of the procedure.
(c)
There
were two defects in the common bile duct, i.e. the two minor
perforations.
(d)
The
injury occurred due to a mechanical laceration with an instrument or
it was an electrothermal injury caused by a failure to
properly
insulate the electrocautery device used during the operation.
[14]
For
purposes of convenience and proper understanding of the evidence, the
relevant areas surrounding and including the gallbladder,
liver and
the bile duct are shown in the image below:
[See
RTF or PDF download for image]
[15]
Dr
Pienaar is a principal specialist at the University of Pretoria and
Steve Biko Academic Hospital where he is head of its colo-rectal
and
laparoscopic surgical unit. His department was instrumental in
the establishing of the laparoscopic cholecystectomy procedures
in
South Africa and he was the first surgeon in the country to perform
such an operation. He still performs the procedure
regularly,
and also with “
some
regularity”
repairs
bile duct injuries. He has been a practicing specialist for the
last 27 years. He also has experience in litigation
dealing
with this type of “
Expert
and Professional Witnessing”
which he obtained in 2001 from the University of Pretoria. He
has never caused any injury to a bile duct.
[16]
Professor
Bornman is formally retired but is an Emeritus Professor of Surgery
at the University of Cape Town. He has also
performed hundreds
of procedures of the type under consideration. Like Dr Pienaar, he
has also published several papers, received
many awards and worked in
numerous other countries. He has extensive experience in
several areas. Dr Vogel had also worked
under him at Groote Schuur
Hospital as a young man.
[17]
Dr
Vogel obtained his degree in medicine (MBChB) in 1989 from the
University of Cape Town. Since December 2005 he has held
the
position of Principal Specialist-General Surgery at the Livingstone
Hospital. Prior thereto he held positions at Groote
Schuur and
Victoria Hospitals in Cape Town, Charing Cross Hospital in London (as
Specialist Registrar – Gastrointestinal
Surgery), the Prince
Phillip Hospital, Wales (Specialist Registrar – General and
Colo-rectal Surgery). Dr Vogel has
also performed hundreds of
laparoscopic cholecystectomies. He testified that the bile duct
injury in question, was the first
he had come across in his career.
The
Plaintiff’s Expert Witness
[18]
Dr
Pienaar was of the opinion that the iatrogenic bile duct injury in
question, was caused negligently, because with the application
of
care, diligence and skill of a reasonable surgeon, if applied by Dr
Vogel and the other employees of the defendant during the
operation,
would have averted the injury of the common bile duct. He also
was of the opinion that an open cholecystectomy
should have been
performed from the onset, instead of opting for a laparoscopic
cholecystectomy, alternatively the procedure initially
adopted by Dr
Vogel (the laparoscopic cholecystectomy), ought to have been
converted to an open cholecystectomy. His criticism
were premised on
the following:
[18.1]
Dr Pienaar emphasized that the injury to the common bile duct was
not noticed by Dr Vogel or any member of his team
while the operation
was in progress, nor when it was being finalized. He noted in his
report that “
an injury caused and not recognized by the
surgeon is regarded as negligence, and major pay-out medical
negligence claims are usually
settled out of court for substantial
amounts of money due to the devastating long term effects of
iatrogenic bile duct injuries”.
[18.2]
The procedure lasted for 80 minutes, which he viewed as far too long
and a clear indication that difficulties, such as poor
visibility,
were experienced by the surgeon (Dr Vogel) who ought to have
converted to an open cholecystectomy once he encountered
these
difficulties. According to Dr Pienaar this type of
operation should only last 30 – 35 minutes.
[18.3]
Dr Pienaar also doubted that the injury to the bile duct could have
consisted merely of the two perforations in question,
based on
the fact that the plaintiff spent nine days in intensive care, her
poor condition and the large volumes of bile
that had to be aspirated
from her suggested that the injuries were of a more severe nature and
extent than two “
punctures”,
as he put it.
He also stated that if the injuries were indeed only two perforations
as suggested by Dr Vogel’s notes
made when conducting the
second repair operation, one would have expected less bile. The
plaintiff drained in excess of 200ml
daily. He also opined that
aspiration or drainage could have been effected laparoscopically by
inserting a stent at the Spinctre
of Oddi, if the injuries were
minor. The whole repair procedure, he believed lasted far too long
(60 minutes) in his view, and
would have been performed
laparoscopically, and not by way of open surgery if the injuries were
indeed of a minor nature.
[19]
It
is common cause that the second repair operation, had commenced as a
laparoscopic procedure but was converted to open surgery.
[20]
In
his report Dr Pienaar opined that “
in
all likelihood”
the injuries were caused by a defective electrocautery device used
during the procedure, which caused “
back
burn”
injuries. This ought to have been noticed by the team.
According to Dr Vogel, who said he did not know how the injury
occurred,
the theatre staff checked the instruments. It was not ruled
out that the injury was caused by Dr Vogel dissecting in the region
of the common bile duct, as suggested by the joint minute of the
expert witnesses’ meeting. One of the alleged failures
on
the part of Dr Vogel, which constituted negligence, according to the
plaintiff, was that he failed to ensure that the electrocautery
device used during the procedure was properly insulated.
[21]
The
use of sharp instruments during the operation is essential for
obvious reasons. Blades, needles and other sharp instruments
are
inserted through the operation ports, in tubes from which they can be
retracted. These sharp instruments are potentially hazardous
and may
cause mechanical laceration of the wrong structure organ. No sharp
instrument should therefore be in the vicinity of the
common bile
duct or any of the other vital ducts. As can be seen from the
image reproduced above, there is an area called
Calot’s
Triangle (the triangle is the triangular space formed by the
surrounding common bile duct, cystic duct, and hepatic
ducts).
According to all the experts who testified, Calot’s Triangle is
a dangerous area. Dr Pienaar termed it a “
no-go
area”
and stated that if the common bile duct was cut with a sharp
instrument, it can only mean that a sharp instrument was
unnecessarily
introduced into Calot’s Triangle near and too
near the common bile duct, which means negligence on the part of the
surgeon.
[22]
Dr
Pienaar explained that it was possible for a surgeon, to sometimes
open the common bile duct, but that would be deliberate act
in a
planned procedure, for a specific reason. During a
cholecystectomy the surgeon’s instruments must be as far away
from the common bile duct as possible. Good visibility was a
primary concern in any laparoscopic procedure. The
cardinal rule (one of “
The
Ten Commandments”
of gallbladder removals) is to properly identify the organs and
anatomical structures. For instance, poor visibility caused
by
adhesions could result in the wrong structure being identified.
A bile duct may be mistaken for a cystic duct (the cystic
duct is
divided when the gallbladder is removed). Poor visibility would
be a good reason to convert to open surgery.
All three experts
were in agreement that the aforesaid rules applicable to the
procedure in question. As I understood
it, these rules
were common practice followed by all surgeons. The
experts agreed on virtually everything pertaining
to the procedure in
general, except on the aspect of when negligence could be inferred.
[23]
Dr
Pienaar concluded that any injury to the bile duct not intended
during a laparoscopic cholecystectomy, whether caused by the
surgeon
or by his defective instrument, is due to negligence. Dr
Pienaar was also of the view that informed consent by the
plaintiff
did not constitute a proper defence as the risks of the procedure
ought to have been conveyed to the plaintiff in writing.
The
Defendant’s Case
[24]
Professor
Bornman could not agree with the conclusions reached by his
colleague. He believes that one should distinguish between
major injuries and minor injuries. As a starting point, he
testified that a surgeon embarking on the procedure in question
must
ensure, before dividing any structure, that the relevant anatomy has
been identified properly. He stated that
it was generally
accepted that a surgeon who divides the bile duct during the
procedure in question has done so negligently because
he identified
the wrong structure. To put it plainly, if the surgeon confuses
the cystic duct with the bile duct, the only
possible explanation is
that he failed to properly identify the correct duct. He emphasized
that Dr Vogel had identified the correct
structure (the cystic duct)
he intended to dissect. Therefore there was no confusion caused
by a failure to identify the
structure correctly from the beginning
of the operation. Accordingly, there could be no negligence, since
the rest of the operation
was properly performed.
[25]
When
preparing his medico-legal report, Professor Bornman had due regard
to Dr Pienaar’s opinions and carefully, in a very
structured
manner, dealt with each of Dr Pienaar’s assertions.
[26]
The
fact that the bile duct injury was not detected at the time of the
operation was, according to Professor Bornman, not an indication
of
negligence. He stated that it is well recorded that such injuries are
missed in the majority of cases. An injury
of this nature
would have been even more difficult to identify unless there was a
bile leak at the time, and none was noted by
Dr Vogel.
[27]
In
response to the inferences drawn by Dr Pienaar in respect of the
duration of the procedure (80 minutes), Professor Bornman pointed
out
that the time it takes to complete a laparoscopic cholecystectomy may
vary greatly from case to case. He added that 80 minutes
is an
acceptable time to perform the operation in the presence of
adhesions. Professor Bornman also, with reference to recent
studies where more than half of the bile duct injuries occurred
during a conversion to open surgery, added that a conversion to
open
surgery is not always the answer to dealing with adhesions. Dr
Vogel was of the opinion that Dr Pienaar’s estimate
of a
minimum period of 30 minutes for the execution of the procedure was
unrealistic.
[28]
Plaintiff
was clearly in poor health after the operation. Bile
peritonitis is a most unfortunate and very serious condition
to be
suffering from. Professor Bornman, who works in a department at
Groote Schuur, which is mostly concerned with bile
duct repairs, did
not consider the plaintiff’s condition inconsistent with a
minor injury. A major injury to the bile duct
would have caused the
plaintiff to present with drastic symptoms and much sooner than six
days after the procedure.
[29]
With
regard to Dr Pienaar’s conclusions about the possible causes
for the injuries (too close dissection with an electrocautery
device
or a fault in the hook diathermy instrument) Professor Bornman opined
that the injury could have been caused by a “
teasing
method”
when
inflamed tissue around the cystic duct and Calot’s Triangle is
“
stripped
downwards”
with
blunt dissection to obtain a critical view of safety before clipping
and dividing the cystic duct. Dr Vogel believes
this is how the
procedure was indeed performed. Professor Bornman
conceded that in the present case, dissection must
have occurred too
close to the bile duct causing the injury, (by whatever method).
He added that it may sometimes be difficult
“
to
avoid this level of dissection to achieve safe removal of the
gallbladder without causing a major injury to the bile duct”.
[30]
Professor
Bornman regarded Dr Pienaar’s theory that the injury to the
bile duct must have been far more serious than the two
punctures, as
“
conjecture”
.
Firstly, he explained, the fact that no stenting was done (which
would have been the procedure with a minor injury) could
be
challenged because “
[t]he
open repair had to be done because of the inability to place a stent
at the time of the ERCP”
(the second procedure). Secondly, the large volumes of bile
drained from the plaintiff did not necessarily indicate more
extensive injuries. He pointed out that bile is very thin, not
unlike water, and large quantities can leak through to small
perforations. It would depend on many factors.
[31]
As
to the plaintiff’s long stay of 14 days in hospital, Professor
Bornman pointed out that there was nothing “
inordinate”
about
the delay of 36 hours before the repair was done. The
right diagnosis first had to be found. Professor Bornman
concluded that all the correct steps were taken by Dr Vogel and his
team. He also pointed out that in some instances, a surgeon
has
to dissect out of Calot’s Triangle in order to identify and
find the cystic duct and artery, in which case the dissection
would
be close to the bile duct. In such circumstances he believed it
would be harsh to criticize the surgeon for being in
that area.
Professor Bornman testified that he himself has never caused a bile
duct injury because he followed the rules.
Counsel for the
plaintiff also pointed out that according to Dr Vogel’s
operation report, he incorrectly used the hook diathermy
after the
cystic duct was divided when he removed the gallbladder.
Professor Bornman conceded that this was not what he taught,
but he
did not regard it as negligence.
[32]
Professor
Bornman agreed with Dr Pienaar that in principle that in many cases
an injury of this kind can be regarded as neglectful,
but qualified
this statement by adding that negligence is usually associated with
major bile duct injuries where there was complete
bile duct
transection. In other words the wrong duct was identified (i.e.
the cystic duct was missed). Professor Bornman
believed that
the injury in question was minor, if one looks at the whole case in
its totality. Since nothing can be
perfect in surgery, he
concluded that Dr Vogel was not negligent.
[33]
Dr
Vogel explained that when operating in Carlot’s Triangle, as is
done in some cases, the tissue is teased off with a blunt,
slight
curved forceps to expose the cystic duct and artery. This
had to be the case in the procedure in question.
Hook diathermy
was used according to his notes, to remove the gallbladder off the
liver bed or surface (the fossa).
He emphasized that it
is most important, when dissecting in Calot’s Triangle, is to
dissect the cystic duct on the gallbladder
side of the cystic duct
and keep away from the common hepatic duct and the common bile duct.
He also explained that fatty
tissue or fibrosis may impair one’s
view, but the position of those ducts must always be ascertained.
He testified
that he always followed these rules, and that is
consistent with his track record.
[34]
It
was common cause between the experts that after the cystic duct and
gallbladder are separated by dissection, two clips are placed
on the
cystic duct and artery. Thereafter the gallbladder is
extracted through the umbilical port (in a plastic bag).
This
was done in the present matter.
[35]
In
a nutshell, the disparate views held by the two experts can be
summoned up as follows: Dr Pienaar believes that any injury
to
the bile duct, whether caused by the surgeon or by a defective
instrument, is negligent
per
se
.
Professor Bornman believes that negligence on the part of the surgeon
ought to be inferred with due regard to the severity
and extent of
the injury to the bile duct.
Legal
Principles
Experts
[36]
A
court faced with conflicting opinions of experts in highly scientific
or technical issues, must determine whether and to what
extent the
opinions advanced by the experts are founded on logical reasoning or
has a logical basis.
[1]
In
Medi-Clinic
v Vermeulen
[2]
the
Supreme Court of Appeal held that what is required in the evaluation
of the expert’s evidence is to determine to what
extent:
“
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.”
[37]
Credibility
hardly plays any role in this determination.
[3]
In this matter it is especially true since the experts were both very
experienced specialists in their field and they
agreed on everything
except on the question of what type of surgical error error would
constitute negligence.
Negligence
[38]
In
Mitchell
v Dixon
[4]
the following was said with regard to medical negligence:
“
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….”
[39]
In
my view, Dr Pienaar’s approach leaves no room for human error,
which logically, not all surgeons may manage to escape.
It was
not in dispute that Dr Vogel had performed approximately 500
operations of the type under discussion, and that the injury
to the
plaintiff’s bile duct was his first error of this nature. In
the absence of any proof to the contrary, I am bound
to accept that
Dr Vogel’s observation (as noted down by him during the repair
procedure) that the injury comprised of two
small perforations.
[40]
Based
on all the evidence presented, the error in question seems to be one
that any reasonably competent practitioner in Dr Vogel’s
field
could also have made. Dr Pienaar’s reasoning is simply
put, that the injury to the bile duct would not have occurred
if Dr
Vogel was not negligent and since the injury did occur, Dr Vogel was
negligent. He therefore, in my view, set an unreasonably
high
standard for surgeons. Errors do occur. That is human nature, and to
hold that all such errors constitute negligence would
be dogmatic and
unrealistic. The following dictum by Brand JA from
Buthelezi
v Ndaba
[5]
is most apt in the present circumstances:
“
After
all, as Lord Denning MR observed in
Hucks
v Cole
[1968] 118 New LJ 469
([1993]
4 Med LR 393):
'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,
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 are 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; and where the views of
experts are all based on speculation — giving
rise to various
but equally feasible possibilities — as to what might have
occurred.”
[41]
Professor
Bornman also held the view that a surgeon having taken all steps to
avoid any injury to the bile duct, could inadvertently
cause a minor
hole or a minute hole in the bile duct. By labelling the aforesaid
error as “
negligent”
,
under
any
circumstances would be setting the bar too high, i.e. holding a
surgeon to unattainable or unrealistically high standard. Having
considered all the evidence I am unable to reject Professor Bornman’s
opinions. They appear to be more in keeping with
the test for
negligence in matters where medical negligence is considered.
Professor Bornman also appeared to be a very objective
expert. One
only has to compare the experts’ reports to reach this
conclusion As was pointed out in
Medi-Clinic
[6]
:
“
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.
”
[42]
Certainly
Professor Bornman embodies and represents a responsible body of
medical opinion as referred to in
Medi-Clinic
and I am satisfied that in forming his views, Professor Bornman
adopted a logical and balanced approach to the matter and had
directed his mind to the question of comparative “
risks
and benefits and reached a defensible conclusion”.
[7]
Informed
Consent
[43]
The
plaintiff signed various forms consenting to medical procedures,
wherein the nature, risks, and consequences of the procedures
were
referred to. Dr Vogel testified that he had no specific recall
of what he told the plaintiff, but he stated that it
is his practice
to always explain the risks to the plaintiff and therefore he must
have explained the risks to the plaintiff.
Other practitioners
at the hospital also noted that they had advised the plaintiff of the
risks of the procedure.
[44]
According
to the plaintiff, no risks were explained to her. The plaintiff did
not strike me as a very reliable witness, mostly because
she did not
give her evidence in a cogent manner. She was prone to
exaggeration and at times her evidence was plainly incomprehensible.
In
any event, the question of informed consent is attached to the
requirement of wrongfulness in the Aquilian action. Negligence
on the part of a surgeon will be wrongful if the patient did not give
informed consent. As negligence is still a requirement, where
no
negligence has been proved, as in the present case, the question of
wrongfulness does not arise.
[8]
[45]
Since
no negligence on the part of the defendant’s employees could be
established, the plaintiff’s claim cannot succeed.
Consequently, the following order is made:
The
plaintiff’s action against the defendant is dismissed with
costs.
____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the plaintiff:
Adv D Niekerk instructed by Swarts Attorneys, Port Elizabeth
For the
defendant: Adv B Pretorius
instructed by State Attorney, Port Elizabeth
Date delivered:
13 December 2016
[1]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
(SCA) paras 36 and 37.
Louwrens
v Oldwage
2006
(2) 161 (SCA) para 27.
[2]
2015
(1) SA 241
(SCA) at 243 para 5.
[3]
Brink
Diesel Cape v O J Fishing (Pty) Ltd
(unreported
WCD appeal decision, Case No. A584/08) at para 20.
[4]
1914
AD 519
at 525
[5]
2013
(5) SA 437
SCA at para 15 – 17.
[6]
At
243, para 5.
[7]
At
244, para 7.
[8]
Castell
v De Greef
1994
(4) SA 408
(C) at 426 D – H.