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[2022] ZAECBHC 6
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Member of the Executive Council for Health, Eastern Cape v M.M obo E.L.M (C.A.&R: 8/2021) [2022] ZAECBHC 6 (17 March 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE NO: C.A.&R:
8/2021
DATE
HEARD: 25 OCTOBER 2021
DATE
HANDED DOWN: 17 MARCH 2022
In the matter between:
THE MEMBER OF THE
EXECUTIVE COUNCIL
APPELLANT
FOR
HEALTH, EASTERN CAPE
and
M
M[...] on behalf of ELM
RESPONDENT
FULL
COURT APPEAL JUDGMENT
D
VAN ZYL DJP:
[1]
This is a medical negligence matter. Ms M[...] (the respondent) sued
the Member of
the Executive Council for Health of the Eastern Cape
Government (the appellant) in the Bhisho High Court for damages
arising from
a brain injury sustained by her child (referred to as
ELM to protect his identity) after his birth at the Frere Hospital in
East
London. The respondent’s case was that the injury
was caused by the negligence of the hospital staff. The trial
Court found for the respondent. It subsequently gave the
appellant leave to appeal on a limited issue. On petition
to
the Supreme Court of Appeal, the appellant was given leave to appeal
against the whole of the judgment. At the hearing
of the
appeal, the appellant gave notice of his/her intention not to appeal
the order made by trial court in respect of the costs
occasioned by a
postponement of the matter on 22 October 2018.
[2]
At the trial the parties agreed that the expert reports obtained by
either of them
be placed into evidence, as well as a joint minute
drawn up by the two paediatricians, Drs Lombard and Mzizana.
The respondent
called Lombard as a witness, while the appellant in
turn presented the oral evidence of Dr Harper, the paediatrician who
attended
to ELM at Frere Hospital. From this evidence the
salient facts in no particular order may be stated to be the
following:
The respondent was admitted to Frere Hospital on 18
October 2010 where she gave birth to ELM by way of an emergency
caesarean section
due to foetal distress, pelvic disproportion, and a
failed induction of labour. After his delivery, ELM was
transferred to
the nursery ward with mild respiratory distress.
The next day he was placed with his mother in the maternity ward.
A day later on the 20 October 2010, it was observed that ELM may have
jaundice. This diagnosis was confirmed by a laboratory
report
during the morning of the same day.
[3]
ELM was then transferred back to the nursery ward. Harper was
consulted and
treatment was commenced by giving intravenous
haemoglobin and intensive phototherapy. Several more tests were
performed on
the 20
th
,
and during the morning of the 21
st
.
The results indicated no significant drop in ELM’s total serum
bilirubin level (the TSB level). Blood was ordered
from the
National Blood Services (the blood bank) for a transfusion to be
performed. Before the arrival of the blood, and
approximately
at midday on the 21
st
,
the respondent requested that ELM be transferred from Frere Hospital
to Life Beacon Bay hospital, a private facility in East London.
The transfer was preceded by the drafting of a referral letter to the
attending paediatrician at the private hospital, Dr Paul.
ELM
was admitted to Life Beacon Bay hospital at 14h50. At 20h00 the
blood transfusion was commenced. Throughout the
time that ELM
was at Frere Hospital, until the blood transfusion, he did not show
any symptoms of neurological complications.
[4]
The undisputed evidence of the two paediatricians and the
radiologists with regard
to the nature and the cause of the brain
injury was in summary that ELM was diagnosed with dystonic cerebral
palsy and profound
developmental delay complicated by epilepsy,
intellectual disability and a hearing defect. The cause of the
cerebral palsy
was hyperbilirubinemia, which was the result of very
high levels of TSB in ELM’s blood during the neonatal period.
The hyperbilirubinemia occurred due to an incompatibility between the
respondent’s blood group (0+) and that of ELM (B+) which
caused
haemolysis, that is, the destruction of ELM’s red blood cells
resulting in an increase in his TSB levels. The
hyperbilirubinemia in turn caused bilirubin encephalopathy and
subsequent brain dysfunction known as kernicterus.
[5]
The published medical guidelines according to the two paediatricians
recommend that
an immediate exchange blood transfusion should be done
if an infant’s TSB is more than 85 micromol/L above the
threshold
level for an exchange transfusion. ELM had a TSB that
was 141 micromol/L above the recommended threshold at approximately
37 hours of life on 20 October. The guidelines further
recommend that infants who present with TSB above the threshold
should
have an immediate exchange transfusion done if the TSB is not
expected to be below the threshold after 6 hours of intensive
phototherapy.
In ELM’s case, his TSB was still above the
threshold after 11 hours of treatment.
[6]
The trial court was asked to decide the issues of negligence and
causation.
It found that the hospital staff at Frere hospital
were negligent in not having ordered blood immediately upon ELM being
diagnosed
with jaundice. The court found that they instead
decided to treat the jaundice by other means in the hope that his
bilirubin
levels would decrease, and that when it became clear the
next day that this did not happen, it was only then that a decision
was
taken to order blood for a transfusion. This failure to
immediately place an order for blood, the trial court found,
contributed
to and/or caused the harm suffered by the respondent.
[7]
There was some debate in the trial court and in this court with
regard to the manner
in which the appellant formulated his/her plea
to the individual grounds of negligence pleaded by the respondent in
her particulars
of claim. The contention was in essence that it
was not open to the appellant to have presented evidence with regard
to when
blood was ordered for a transfusion by reason of its plea of
“
no knowledge”
of the grounds of negligence detailed in the respondent’s
particulars of claim. On a reading thereof, the plea is clearly
not an example of good draftsmanship. The appellant’s
plea of “
no knowledge”
stands in contrast with his/her denial in the preceding paragraph of
the plea of the material allegation that the hospital staff
were
negligent. “
The allegations
made in this paragraph are denied and the plaintiff is put to proof.”
[8]
The respondent chose not to except to the manner in which the
appellant pleaded, or
to raise any objection to the introduction of
evidence relating to the ordering of blood from the blood bank.
In the circumstances,
an argument that the issues for decision were
to be determined by a strict adherence to the pleadings, is laboured
and no doubt
forced by the shortcomings in the respondent’s
evidence. The fact is that the issue(s) for determination were
defined
by the joint minute of the paediatricians, and ultimately
confined at the trial to firstly, whether there was an unacceptable
delay
in the ordering of blood for an exchange blood transfusion, and
secondly, whether the delay was the cause of ELM’s brain
injury. The respondent’s case, which was not pertinently
pleaded, but nonetheless advanced at the trial, was that the
hospital
staff were negligent in that they did not immediately order blood
when the laboratory test results on 20 October showed
that ELM’s
TSB level placed him at risk of hyperbilirubinemia, but instead
waited until the following day to order blood
for a transfusion.
That was consequently the focus of the evidence and the findings made
by the trial court in relation to
the issue of negligence.
[9]
As stated, the two paediatricians made a joint minute (the term
“
joint
statement”
is
preferred.) In summary, the content of their joint statement
was that bilirubin encephalopathy is a preventable condition
through
early detection and treatment, inclusive of phototherapy and an
exchange blood transfusion. The two paediatricians
also agreed
that the supportive treatment which ELM received at the hospital was
appropriate, but that the ordering of blood for
an exchange
transfusion was unduly delayed. This delay was premised on
their assumption that the blood was only ordered on
the 21
st
,
and that “
If the blood had been
ordered on the morning of 20-10-2010 the transfusion could have been
done that same evening. That was
the best opportunity to
prevent the development of bilirubin encephalopathy.”
The
paediatricians were also recorded to have been in agreement that “
the
exact duration of exposure to hyperbilirubinemia to cause bilirubin
encephalopathy is unknown as timing of when encephalopathy
will occur
cannot be predicted; and the parents request to transfer to a private
hospital caused further delay.”
The last aspect of importance in the joint minute was that ELM
remained neurologically sound.
[10]
On a reading of the joint statement, it in essence dealt with three
aspects, namely, (i) the
recommended treatment; (ii) the failure to
order blood on the 20
th
,
and (iii) the predicted outcome based on such failure. The
first aspect is without controversy. The second aspect
is a
factual issue, and the third is an opinion predicated on the assumed
fact that blood was not ordered on the 20
th
.
The issues raised at the trial and the focus of the evidence was on
the aforesaid factual issue; the treatment that ELM
received at Frere
Hospital; and what had ultimately transpired after ELM was
transferred to a private facility.
[11]
Before I proceed to deal with the evidence and the findings made by
the trial court, it may be
convenient to briefly deal with some
aspects relating to the assessment of the evidence of expert
witnesses in the context of the
evidence presented in this matter,
and the submissions made in argument.
[1]
The first aspect is that, as a general rule, it is the task of the
court to determine issues of fact and not that of an expert
witness.
The reason therefore lies in the purpose and nature of expert
evidence. The purpose of expert evidence
is to assist the
court in determining the issues in dispute where its determination
requires knowledge or expertise in some or
other subject or in a
field, usually of a technical or a scientific nature.
[2]
The function of the expert witness is therefore to form views and
draw inferences in circumstances where a court is unable
to do so
reliably, unless it receives assistance or guidance from someone with
the relevant expertise
[3]
The prime function of an expert witness has been said to “
guide
the court to a correct decision on questions falling within his
specialised field. His own decision should not, however,
displace that of the tribunal which has to determine the issue to be
tried …”
[4]
The
test for the admissibility of an expert’s opinion therefore
whether the court “…
can
receive “
appreciable
help”
from that witness on a particular issue; in other words, “the
test is a relative one, depending on the particular subject
and the
particular witness with reference to that subject.”
[5]
[12]
It is important to note the distinction between evidence of opinion
and the evidence of fact
on which the opinion is based. Expert
evidence is by its nature an opinion premised on the drawing of an
inference from established
facts
.
In
the present context it amounts in essence to a statement that
established medical opinion, as the expert witness interprets it,
dictates a particular result under an assumed set of facts.
Accordingly, by reason of its very nature, expert opinion
must have a
factual basis. The facts, which are usually found in the primary
evidence, provide the necessary link with the opinion,
which in turn
cannot be reached without the application of expertise.
If the expert witness is unable to
give direct evidence
with regard to the existence of a fact, the opinion is based on a
fact assumed to be true for the purpose
of giving the opinion, and it
must be proved at the trial to give the opinion any probative
value. “
In
the law of evidence “opinion” means any inference from
observed facts, and the law on the subject derives from a
general
rule that witnesses must speak only to that which was directly
observed by them.”
[6]
and
“
An
expert’s opinion represents his reasoned conclusion based on
certain facts or data, which are either common cause, or established
by his own evidence or that of some other competent witness.”
[7]
[13]
It follows that, unless the facts on which an expert witness
expresses an opinion on are not
in dispute, they are nothing more
than factual assumptions which is inadmissible hearsay unless proved
by admissible evidence.
[8]
Subject to the qualification that in any given matter, all or
some of the facts may be common cause, in that its existence
was
pertinently agreed upon by the litigants, or it was not placed in
issue on the pleadings, it is the duty of the court as the
final
arbiter of fact, to decide if the factual basis for an opinion had
been established. “
expert
assistance does not extend to supplanting the court as the
decision-maker. The fact finding judge cannot delegate the
decision-making role to the expert.”
[9]
[14]
The second aspect is that the nature of expert evidence dictates that
an evaluation of such evidence
focuses primarily on the process of
reasoning which led to the conclusion, including the premise from
which the reasoning proceeds
.
“The cogency of an expert opinion depends on its consistency
with proven facts and on the reasoning by which the conclusion
is
reached.”
[10]
What
carries weight is the reasoning, and not the conclusion. When
the expert evidence is, as in this matter, in the form
of an
evaluative opinion, an unsubstantiated conclusion will be of no or
very little value. Wessels JA explained it as follows
in
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung mbH (Coopers):
“
[A]n
expert’s opinion represents his reasoned conclusion based on
certain facts or data, which are either common cause, or
established
by his own evidence or that of some other competent witness.
Except possibly where it is not controverted, an
experts bold
statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken
if the process of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed
by the expert.”
[15]
The third aspect relates to the respondent’s submission that
the evidence of Harper with
regard to when blood was ordered, must be
disregarded, as it stood in contradiction to what the appellant’s
paediatrician,
Mzizana, agreed in the joint minute, namely the
existence of an unacceptable delay in the treatment of ELM.
This contention
was premised on the now often (mis) quoted statement
in BEE v Road Accident Fund (BEE)
[11]
that “
Where
the parties engage experts who investigate the facts, and where those
experts meet and agree upon those facts, a litigant
may not repudiate
the agreement.”
[12]
The
statement in BEE relied on is correct when read in the context of the
facts of that matter. The issue for determination
by the court
was the computation of the plaintiff’s loss of earnings in a
claim against the Road Accident Fund. The
parties engaged
forensic accountants who compiled reports on the financial affairs of
the plaintiff’s employer. The
reports were clearly
factual in nature. The parties further agreed in a pre-trial
minute that the forensic auditors would
meet “
with
a view of identifying areas of common ground and issues of difference
for resolution.”
The mandate of the two forensic accountants was accordingly to seek
common ground with regard to the very subject matter
of their
respective expert reports.
[16]
The purpose of the meeting of experts is to identify the matters in
their expressed opinions
on which they agree and disagree in relation
to the issues arising in the proceedings, thereby reducing the issues
for decision,
saving time and costs. What the matters are in
respect of which agreement may be reached will therefore in general
be circumscribed
by the field of expertise of the expert witnesses in
question; what those experts were requested to give an expert opinion
on in
the case in question; and more specifically, as in BEE, what
the litigants agreed the respective expert witness must address at
their meeting. It therefore follows that as a point of
departure, any aspect on which expert witnesses have reached
agreement
on in a joint statement must of necessity be limited to the
subject matter of their opinions and their field of expertise.
Their competence to reach agreement will therefore not extend to an
agreement with regard to any assumed facts unless, as in BEE,
they
were also engaged to investigate the facts.
[13]
An expert witness is not an agent of a litigant
[14]
and does not have implied authority to bind a litigant with regard to
any matter falling outside his or her field as an expert
witness,
unless it is agreed to by the litigant in question. The mandate
of the experts of a joint meeting is therefore,
unless otherwise
agreed to by the parties, limited to separate out the aspects on
which they agree from the contentious aspects
in their respective
opinions within their field of expertise.
[17]
Accordingly, unless the status of the facts which underlie an agreed
opinion in a joint statement
has been clearly stated, those facts
remain nothing more than facts, the existence of which is assumed for
purposes of the expert
witnesses expressing the agreed opinion. It
is evident from the issues raised in the present matter that the
opinion expressed
by the two paediatricians in their joint statement
that the ordering of blood was unduly delayed, was based on an
assumed fact
that blood was only ordered on the 21
st
,
and not on the 20
th
.
Neither of the two paediatricians dealt with this issue in the
summaries of their opinions. What they set out to address
in
those summaries was limited to what they were engaged for, namely an
opinion in their area of expertise with regard to the clinical
cause
of ELM’s neurodevelopmental delay. Also absent is any
mandate by the parties or a directive by the court that
the two
paediatricians were to consider and limit any issues of a factual
nature.
[18]
The second comment is that expert opinion can only be taken as having
been agreed upon, and to
have remained uncontroverted, if it is clear
from the joint statement itself that the conclusion postulated is
without controversy.
In the present matter the conclusion that a
blood transfusion on the evening of the 20
th
provided the best opportunity, was qualified by the further
conclusion which Lombard and Mzizana agreed on in their joint
statement,
namely that the exact duration of exposure to
bilirubinaemia to cause bilirubin encephalopathy is unknown.
These two conclusions
go towards the question of what was reasonably
foreseeable in the circumstances in deciding the issue of negligence,
and whether
the negligent conduct caused or contributed to the injury
suffered by ELM. This apparent qualification failed to place
the
conclusion of the existence of a “
best
opportunity”,
which
is unsupported by any chain of reasoning supporting that conclusion,
[15]
into a category of
evidence that was without controversy, and which may otherwise
constitute proof in relation to the aforementioned
issues.
[19]
Turning then to deal with the issues raised at the trial, the first
question is whether the hospital
staff were negligent in the manner
advanced by the respondent at the trial. Negligence is
established if a reasonable person
would foresee the reasonable
possibility of his or her conduct injuring another person and causing
that person patrimonial loss,
and would take reasonable steps to
guard against such occurrence.
[16]
The requirements for negligence are applied to a reasonable person in
the position of a defendant. This means that
the specific
qualities of a defendant, such as specialised skill and knowledge,
which he or she possessed at the time, must be
considered in
assessing his or her conduct against the requirements for negligence.
[17]
[20]
The relationship between a plaintiff and a defendant that possess
specialised skill and knowledge
may consequently require a standard
of care from the defendant that is different to what that standard
would otherwise be.
It is however not expected of such a
defendant to exercise the highest possible degree of professional
skill.
[18]
What is
expected is the general level of skill and diligence which is
possessed and would ordinarily be exercised by a reasonable
member of
the branch of the profession to which he or she belongs under similar
circumstances.
Applied
to the facts of the present matter, liability will only be imposed if
it is found that the injury sustained by ELM was reasonably
foreseeable, and that the hospital staff had failed to provide the
level of skill and competence that could otherwise expected
to be
provided by a reasonable health care worker in similar circumstances.
[21]
The evidence raised two issues in the context of deciding the element
of negligence. First
is the factual issue based on the evidence
of Lombard that the blood for an exchange transfusion was ordered on
21 October, and
that this, in his and Mzizana’s opinion,
created an inordinate delay in the treatment of ELM’s
condition. The
second issue is whether it was reasonably
foreseeable as a possibility that the failure to order blood on the
20
th
would result in ELM sustaining a brain injury.
[22]
Dealing firstly with the factual issue, it was common cause at the
trial that Harper, under whose
care ELM was in the nursery ward at
the hospital, attempted on the 20
th
to obtain fresh whole blood for an exchange transfusion from the
blood bank in East London, but that there was nothing available.
This compelled the hospital to order blood from the next nearest
blood bank that was situated in Gqeberha. Blood was ordered
and
it was scheduled to be received by the blood bank in East London at
17h00 on the 21
st
from
where it was later fetched after ELM was transferred to the private
facility. It was further not in dispute that the
hospital was
not required to maintain supplies of blood on hand, and that it had
no control over the availability of blood at any
particular point in
time. It was similarly common cause that the blood bank is an
independent entity which the appellant
and the hospital exercised no
control over.
[23]
The circumstances in which the conduct of Harper and the hospital
staff must accordingly be assessed
against the required legal
standard, were that there was no immediate fresh whole blood
available at the blood bank in East London
on the 20
th
to perform an exchange blood transfusion; that it had to be sourced
from Gqeberha; and that there would inevitably have been some
delay
before it would be received in East London. What was done in
the circumstances was testified to by Harper.
[24]
According to Harper he had a clear recollection of the matter despite
the lapse of time by reason
of the stressful situation created at the
time by the unavailability of blood at the blood bank in East London;
the considerable
efforts that were made to attempt other methods of
treatment; the fact that blood had to be obtained from the blood bank
in Gqeberha;
and the fact that after all the arrangements had been
made for the transfusion, the parents requested that ELM be
transferred to
another hospital. Harper’s testimony was
that after ELM was diagnosed with jaundice on 20 October, he was
moved to
the nursery where Harper was based. When the results
from the laboratory were received and ELM’s TSB levels were
found
to be very high, it was established, according to what Harper
referred to as the “charts” in the nursery, that the
recommended treatment for an infant matching the profile of ELM, was
an exchange blood transfusion. The blood bank was contacted
as
that was the first line of treatment according to the guidelines in
the circumstances. They were however informed that
there was
no, what is referred to as, “whole fresh” blood available
at the East London blood bank, and that blood had
to be ordered from
Gqeberha.
[25]
ELM was then treated with phototherapy. When it later became
clear during the course of
the day, that the cause of his high levels
of TSB was the fact that the respondent and ELM’s blood groups
were incompatible,
and there was no blood available, a decision was
made to commence treatment by way of intravenous haemoglobulin, also
referred
to as Polygam. This type of treatment which Harper
said is expensive, is used when one of the indicators is the presence
of incompatible blood groups. ELM was further kept hydrated,
and he was given medication known as Phenobarbitone, which assists
the liver in processing bilirubin, and consequently to reduce the
levels thereof.
[26]
According to Harper, during the course of the morning on 20 October,
he instructed a staff member
to ask the blood bank to order blood for
a transfusion. Treatment was in the interim continued and
further tests were performed
during the course of the treatment in
order to monitor the effectiveness thereof. There was no
significant reduction in the
bilirubin levels, and the treatment was
repeated at least twice. Phototherapy was continued throughout
the night while they
were awaiting the arrival of the blood from
Gqeberha the following day. The hope was that the treatment
would be effective
and that a blood transfusion would ultimately not
be required. ELM was fed during this time, kept hydrated and he
continued
to receive phototherapy. According to Harker, there
was no indication during this time that ELM’s condition was
deteriorating,
and there were no signs of acute bilirubin
encephalopathy present.
[27]
As stated, the blood was scheduled for arrival at 17h00 on 21
October. At approximately
midday on the 20
th
while waiting for the blood to arrive to commence the transfusion,
and after the necessary equipment had already been set up to
perform
the transfusion, ELM’s parents requested that he be transferred
to a private facility. Harper asked a junior
doctor in the
nursery, Dr Evans, to prepare a referral letter for the paediatrician
at Life beacon Bay hospital, and arrangements
were made for ELM to be
transferred as per his parent’s request. Harper testified
that he instructed Evans to ensure
that at the end of the referral
letter it is clearly recorded that blood had been ordered from
Gqeberha. The reason for this,
according to Harper, was that he
did not want the private hospital to initiate the same process to
obtain whole fresh blood.
This was obviously in an attempt to
prevent any delays in performing a transfusion on that day. ELM
was transferred to the
private hospital at 14h50.
[28]
What transpired after ELM’s transfer was not in contention.
At 19h00 it was recorded
that the hospital was still waiting for the
blood from “
Frere Blood bank.”
There was no record of any enquiries having been made before then
about the arrival of the blood, which was clearly stated
in the
referral letter to be at 17h00. The necessary volume of blood
required for an exchange transfusion was 576 millilitres.
However, only 390 millilitres were transfused. Up to the time
of the commencement of the transfusion, ELM had exhibited no
signs of
neurological compromise.
[29]
The evidence of the respondent’s paediatrician, Lombard, was
that the order for blood was
made on the 21
st
and not on the 20
th
.
It is on this assumed fact that he and Mzizana expressed the view
that there was an undue delay, and that if the blood was
ordered on
the morning of the 20
th
,
the transfusion could have been done that same evening. The
factual assumption that the blood was ordered on the 21
st
and not on the 20
th
,
was based on two written documents in what Lombard in his evidence
regarded as having been the clinical notes kept by the staff
in the
nursery. The first entry reads as follows:
“
21/10/10
No significant drop in total serum bilirubin overnight despite triple
phototherapy and polygon:
·
Blood for exchange transfusion ordered
from PE.
At
this stage neonate is neurologically sound with no signs of
kernicterus and no seizures. On all feeds.”
The
document in which the second entry was made also reflects the date of
21 October. It reads:
“
◦
Baby
requires exchange transfusion. Blood ordered from PE (560m/a whole
blood), as now available in E London. Estimated
time of
arrival at Blood Bank 17h00.”
[30]
Lombard did not have personal knowledge of when the blood was
ordered. His evidence on
this aspect was based solely on the
absence of a notation in the aforementioned documents that blood was
ordered on the 20
th
,
and on the recording of the fact that blood was ordered under the
date of 21 October. When the blood was ordered is a factual
issue, which had to decided by the court on all the evidence placed
before it. Any inference which Lombard, or for that matter
Mazizana, sought to draw from documentary evidence with regard to
what was a factual issue, was hearsay evidence and inadmissible.
Their evidence was confined to provide expert opinion with regard to,
amongst other things, the treatment that ELM required at
the time
based on his medical condition, the standard of the treatment on the
established facts, and the cause of the injury which
ELM sustained.
Any attempt at establishing facts from the documentation placed into
evidence by way of inferential reasoning,
was within the exclusive
domain of the trial court.
[19]
In the absence of any objection having been raised by the appellant
at the trial to the introduction of Lombard’s evidence
with
regard to the factual issue, the question was confined to a
determination of what its evidential value was, when measured
against
all the other evidence.
[31]
The trial court found, as a fact, that the blood was only ordered on
the 21
st
.
To this extent it found that an entry about the order of fresh whole
blood in the hospital records was only made on the
21
st
;
that no witnesses were called to corroborate Harper’s
instruction on the 20
th
that blood be ordered; that Harper was not the author of the
documents in question; and that while he may honestly have believed
that he gave the said instructions, his memory was fallible as the
human memory is known to fade with the passage of time.
[32]
These findings are not supported by the evidence and are clearly
wrong.
[20]
Other than
Lombard, who could go no further than to give, what was nothing more
than his interpretation of the contents of
the document, Harper was
the paediatrician in charge who managed the treatment of ELM.
His evidence with regard to what was
recorded in the documents must
be assessed in the context of that fact, and the fact that he
personally instructed Evans to compile
both documents and told him
what to write therein. The documents in question were not, what
Lombard considered to be the
day-to-day notes written by medical
personnel in a ward, but rather two pages of a referral note with a
summary of ELM’s
condition for the information of the receiving
paediatrician at the private hospital.
[33]
Harper’s evidence was that he informed Evans that it was
important to state at the end
of the summary that blood had been
ordered “
Because the private
facility use the same blood bank that we do and we did not want them
to go through the same process of trying
to order fresh whole blood
when we had ordered it.
Therefore, I instructed the junior
doctor to write very clearly at the bottom of the letter that blood
had been ordered from Port
Elizabeth. This letter is not a
day-to-day account of doctors writing notes on each day. It is
a summary of the care.
The fact that the note ‘
blood
for exchange transfusion’
is at the end is because I instructed them to make it very clear that
the blood had been ordered. This is a summary letter
to Dr Paul
and I think there is a misunderstanding that these are in fact
sequential notes written on different dates.”
[34]
Harper’s evidence of his instructions to Evans, and the purpose
of the documents in question
is direct evidence. The notion
that Harper’s evidence required corroboration was tantamount to
placing a burden of
proof on the appellant. The question of the
onus is of capital importance in the assessment of the evidence.
The
onus
is on a plaintiff to establish the elements for delictual
liability.
[21]
The blood
was ordered from an entity distinct from the appellant. The
respondent was equally placed to establish from
the blood bank when
the order for the blood was placed. She chose not to do so.
Further, the documents on which the
respondent relied on for proving
negligence, do not unambiguously support the allegation that blood
was ordered 21 hours late,
as contended by Lombard. On a
literal reading thereof, it goes no further than a statement of fact
that blood had been ordered.
Harper’s evidence of what
the purpose of the document was, and the reason for the notation that
blood was ordered at the
end of the two pages of what was a single
letter of referral to Paul, was not gainsaid. On the contrary,
his explanation
of the purpose of the documents is borne out by the
fact that it was written on printed forms with the headings “
Dietary
assessment and plan”
and “
Department
Dieetkunde Patient Referral”,
and not what one would expect to be the customary daily sequential
notes kept by the doctors and the nursing staff in a hospital
ward.
[35]
That the two documents were written on the instruction of Harper to
serve as a referral letter
to Paul, and to provide a summary of ELM’s
condition and his treatment, is evidenced by the heading of the
referral letter;
its date; the fact that it was recorded to be for
“
ATTENTION Dr Paul –
Paediatrician @ Beacon Bay”;
and
the acronym “
PTO”
that is found under the printed heading, “
The
patient has been put on the following treatment.”
The second document then, under the heading “
History”,
records the birth of ELM and his progression until 21 October.
It is fairly obvious from this that these were not two separate
documents, but rather part and parcel of one document, namely the
referral letter authored by Evans on the instructions of Harper.
That it was written on Harper’s instruction, is evidenced by
the fact that both pages were signed “
pp
Dr K Harper.”
[36]
There further exists no support for the suggestion that Harper’s
memory may have failed
him due to the lapse of time. He
explained why he had a clear recollection of the case, and there
exists no reason on the
evidence as a whole to doubt the truthfulness
of his evidence in that regard, and none has been suggested. On
the probabilities,
the fact that it was common cause that Harper
already sought to secure blood from the blood bank in East London on
the 20
th
,
makes it more probable than not that he would have taken steps on the
same day to get blood from an alternative source.
He was
clearly aware of the fact that a blood exchange transfusion was
required, and the supportive treatment he ordered, which
Lombard
conceded was appropriate and very “
aggressive”
in circumstances when blood was not immediately available for a
transfusion, was indicative of the seriousness and the care with
which ELM’s case was treated by him.
[37]
Harper’s actions do not speak of a medical practitioner who was
ignorant of what was expected
of him, or who was remiss in his care
and attention of the treatment of a patient who required emergency
treatment. On the
evidence as a whole, it was more probable
than not, that an order for blood was placed on the 20
th
as opposed to a “
wait and see”
approach having been adopted, as found by the trial court. More
so, in light of the fact that the cause of the high bilirubin
levels
was established to be the incompatibility of ELM’s blood group
with that of his mother, which clearly meant that ELM’s
condition was not likely to otherwise improve unless he received an
exchange transfusion.
[38]
A further assumption about the facts that was made by Lombard was
that if blood was ordered on
the morning of 20 October, the
transfusion could have been done that same evening. There is an
absence of any factual basis
to reach such a conclusion. There
was no evidence of the time it would have taken between placing an
order for blood in Gqeberha,
and its delivery at the blood bank in
East London. It is accordingly nothing more than speculation
that if it was ordered
on the 20
th
it would have arrived on the same day, or by implication, that the
fact that the blood was scheduled to arrive at 17h00 on the
21
st
,
was indicative of the order only having been placed on that day.
[39]
Similarly to it having been open to the respondent to establish when
an order for blood was placed
with the blood bank, this was not
information that fell exclusively within the knowledge of the
appellant. It was open to
the respondent to have obtained
evidence to that effect from the blood bank. There was
consequently no factual basis for
Lombard’s assumption that an
exchange blood transfusion could have been performed on the 20
th
.
In the absence of evidence to that effect, there was further nothing
to detract from the veracity of Harper’s evidence
that he gave
an instruction for the blood to be ordered on the 20
th
.
In the absence of anything to the contrary, there exists no reason to
conclude that that instruction was not carried out
in the ordinary
course of business.
[40]
The trial court accordingly erred in its rejection of the appellant’s
evidence that blood
was ordered on 20 October. If it is
accepted in favour of the respondent that the trial court’s
factual finding with
regard to the ordering of blood was correct, the
next question is whether it was reasonably foreseeable in the
circumstances of
this case that ELM would develop bilirubin
encephalopathy if blood was not ordered on the 20
th
,
and the hospital staff instead made a decision, as contended by the
respondent and found by the trial court, to first treat ELM’s
condition before a blood transfusion was undertaken.
[41]
Lombard proceeded from the premise that the medical guidelines
recommend an immediate exchange
blood transfusion. A departure
from the guidelines would not necessarily establish negligence.
The treatment is a recommended
one, and it “
would
still be necessary to establish that what actually occurred departed
from the standard of care that a reasonable and respected
body of
opinion would regard as acceptable treatment”
by a medical practitioner in the position of the hospital staff.
[22]
Lombard’s evidence was that bilirubin encephalopathy is a
reversible condition, and that it presents itself in three
stages.
In the first stage, the infant will be lethargic. If an
exchange transfusion is performed at that stage, the
condition is
reversible. In stages two and three the likelihood of lasting
damage being done was much higher. Lombard’s
evidence in
this regard must further be assessed against his acceptance in the
joint minute that the exact duration of exposure
to bilirubinaemia to
cause bilirubin encephalopathy cannot be determined. While it
may serve to emphasise the seriousness
of the condition and that it
should be treated with the necessary urgency, it acknowledges at the
same time that bilirubin encephalopathy
does not develop immediately,
but over a period of time.
[42]
This importantly raises the question of the timing of when ELM was at
an increased risk of developing
of bilirubin encephalopathy, and
flowing therefrom, the probability of it developing before the
arrival of the blood on the 21
st
regardless of the treatment which ELM received while in the care of
the hospital staff at Frere Hospital. Negligence, in
the
context of the case advanced by the respondent, is dependent on the
question of whether it can be found to have been reasonably
foreseeable that if blood was not ordered on the 20
th
,
and an exchange blood transfusion was not done on that same day, ELM
would have suffered bilirubin encephalopathy.
[43]
Lombard’s opinion with regard to this aspect, and the
probability of the consequences that
may result from a failure to
order blood and perform a transfusion on the 20
th
,
went no further than that a transfusion on the evening of that day
presented “
the best opportunity to
prevent the development of bilirubin encephalopathy.”
His oral testimony at the trial placed it no higher than a similarly
unreasoned statement that if the blood was ordered on
the 20
th
,
it would have meant that ELM was exposed to a high level of TSB for
twenty-four hours less.
[44]
There are several difficulties with Lombard’s evidence on this
aspect. It is fairly
obvious that the sooner a patient receives
the required treatment, the better his or her chances of making a
recovery are.
This statement however does not address the
question of whether, when blood was not immediately available in East
London, and Harper
decided on an aggressive regimen of treatment, the
harm that ultimately befell ELM was reasonably foreseeable, and that
the treatment
received by ELM at Frere Hospital was in the
circumstances below the required standard expected in those
circumstances. As
stated earlier, the cogency of an expert
opinion depends on its consistency with the proven facts and on the
process of reasoning
which led to the conclusion reached.
Lombard’s expressed opinion is unsupported by any reasoning
which could have placed
the trial court in a position to determine
its reliability. It was simply premised on the assumption that
if blood was ordered
on the 20
th
,
it would have been received that same day, and would in turn have
enabled a transfusion to be performed much earlier.
[45]
There was no evidence to support a conclusion that the blood would
have been received on the
same day. The opinion also failed to
account for the fact that Harper commenced alternative treatment,
which Lombard agreed
was appropriate in the circumstances. When asked
about similar treatment which ELM received later on that evening at
the private
facility, Lombard agreed that the type of treatment is
supportive in nature, and that it may adequately reduce the TSB
levels.
To this he added, “
And
I would think it could be reasonable to say let’s wait, repeat
the [test for TSB level] after another while and see what
happened.
Does it go down, does it go up?”
[46]
The evidence of the laboratory results of ELM’s TSB level,
raises the probability that
the treatment prevented the TSB level to
further increase, which in turn may account for the fact that on the
21
st
ELM’s condition, until the transfusion was commenced at the
private hospital at 20h00 that evening, was recorded as being
neurologically sound. This, according to Lombard in his
evidence, meant that ELM was “
not
even in stage 1 yet,”
and “
as
we have discussed even if a baby presents with stage 1, the condition
is still reversible.”
None
of these aspects were addressed by Lombard in his evidence. As
stated, the high-water mark of his oral testimony was
that on the
morning of the 21
st
,
ELM’s condition was still reversible, and if an exchange
transfusion had been done on the 20
th
“
While the baby was still
neurologically normal, on a balance of probabilities the chances are
that we could have had a normal child.”
[47]
This unreasoned conclusion and apparent failure to appreciate his
role as an expert witness,
and that of the court,
[23]
typified Lombard’s evidence. The fact is that ELM
remained neurologically normal until at least 20h00 on the 21
st
,
during which time he received treatment that was more likely that not
successful to the extent that it prevented his TSB level
from further
increasing. It in turn meant that the level at which it was
kept at did not cause any neurological damage to
his brain. His
condition was kept stable throughout the time that he was in the care
of hospital staff at Frere Hospital.
On the available evidence,
the respondent had accordingly failed to prove, on the required
standard of the burden of proof, that
the healthcare workers at Frere
Hospital were negligent.
[48]
I am of the view that even if it were to be found that negligence had
been proven, the evidence
does not establish that the negligence
caused or materially contributed to the injury suffered by ELM.
The plaintiff must
allege and prove the causal connection between the
negligent act or omission relied upon and the harm suffered.
[24]
Causation as an element of liability gives rise to two distinct
enquiries. The first, said the Constitutional Court
in Lee v
Minister of Correctional Services (Lee)
[25]
,
is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim. If it did, then
the
second enquiry, referred to as legal causation arises, namely whether
the negligent act is sufficiently closely or directly
linked to the
loss for liability to ensue, or whether the loss is too remote.
This is a legal problem in which considerations
of legal policy may
play a part.
[26]
[49]
Factual causation is determined by the “
but-for”
test. In terms of this test a plaintiff must prove on the
required legal standard of proof that, but for the negligent conduct
of the defendant, the injury or harm would not have occurred.
In the case of positive conduct on the part of a defendant,
the
negligent conduct is mentally removed to determine whether the
relevant consequence would still have occurred. However,
in the
case of an omission, such as in the present matter where the conduct
relied upon was the failure to timeously order blood,
the factual
enquiry is in the realm of hypothesis. The negligent omission
is eliminated and hypothetical reasonable conduct
is superimposed
into the facts of the case.
[27]
“
In
the case of an omission the but-for test requires that a hypothetical
positive act be inserted in the particular set of facts,
the
so-called mental removal of the defendant’s omission.”
[28]
Stated
differently, causation in the case of an omission entails “
a
retrospective analysis of what would probably have happened if the
alleged wrongdoer had acted positively in the light of the
available
evidence and the probabilities originating from human behaviour and
related circumstances.”
[29]
[50]
In Skosana
[30]
the court dealt
with the failure of members of the police to provide the plaintiff
with prompt medical assistance, and approached
it as follows:
“
The
negligent delay in furnishing the deceased with medical aid and
treatment, for which Davel and Mahela were responsible, can
only be
regarded as having caused or materially contributed to his death if
the deceased would have survived but for the delay.
This is the
crucial question and it necessarily involves a hypothetical inquiry
into what would have happened had the delay not
occurred.
Generally, the
onus
is on the respondent to establish this proposition on a balance of
probabilities.”
[31]
[51]
When the test for causation in the case of an omission is applied, a
chain of events may follow,
or must be postulated upon the injection
of positive conduct into the facts of the case which are necessary to
complete the link
between the negligent conduct and the alleged harm
suffered.
[32]
In the
context of the facts of this matter, if the failure relied on is
eliminated, and replaced with the hypothetical conduct
relied on,
namely the ordering of the blood on the 20
th
,
the consequential event postulated is that an exchange blood
transfusion was to be performed on the same day to prevent ELM from
developing bilirubin encephalopathy. This event is however
premised on the supposition that the blood would have arrived
on the
20
th
.
As stated, there was no evidence raising the probability of that
being the case. The blood had to be ordered and dispatched
from
another city, and there was no evidence that blood was immediately
available in Gqeberha, bearing in mind that what was required
was not
any blood, but what was referred to as whole fresh blood.
[52]
In the absence of evidence about the availability of such blood at
the blood bank and Gqeberha,
and the time it would have taken for it
to be dispatched and taken to East London, it is nothing more than
speculation that it
would have been received on the 20
th
,
and not only on the 21
st
if the order was made on the 20
th
.
The time that was set for the arrival of the blood in East London on
the 21
st
is not a fact that on its own justifies such an inference.
While inferential reasoning is an accepted technique that is utilised
in judicial fact finding, the inference sought to be drawn must be
capable of being drawn from the objective facts established
by
evidence.
[33]
If the
evidence is tenuous, it cannot form the foundation for the court to
make any finding of fact.
[34]
[53]
If it is accepted that the blood may only have arrived on the 21
st
if it was ordered on the 20
th
,
the difficulty facing the respondent is that the evidence raised the
probability that the factual cause of ELM’s injury
was not the
arrival of the blood in East London at the time which it did, but
rather the decision to transfer ELM to a private
hospital, and the
conduct of the hospital staff at that facility in performing the
exchange transfusion. The accepted evidence
was that ELM was
still neurologically normal when the transfusion was commenced at
20h00 at Beacon Bay Life Hospital. His
condition, therefore, on
the evidence of Lombard, was still reversible at that time.
However, despite the transfusion of
blood ELM’s condition did
not improve as it was expected to do. His neurological
condition started deteriorating during
the exchange blood transfusion
and his TSB level did not improve. On Lombard’s evidence,
a procedure of that nature
has a risk factor of 5 %. What those
risks are, Lombard did not say.
[54]
Further, Lombard acknowledged that the staff at the private facility
had failed to transfuse
sufficient blood and that it may have been
necessary to do a further transfusion. This, Lombard
acknowledged in cross- examination,
fell below the standard of
treatment expected, and could have had a detrimental effect on ELM’s
deteriorating condition.
Asked whether it may account for the
injury sustained by ELM, Lombard gave his characteristically
unreasoned response that “
I would
not say account per se, I would say contribute.”
[55]
In all the circumstances, the trial court erred in holding the
appellant liable in damages arising
from the injury suffered by ELM.
The appeal must therefore be upheld. There exists no reason to
depart from the usual
order relating to costs.
[56]
In the result, it is ordered:
(a)
The appeal is upheld with costs.
(b)
The order of the court
a quo
is set aside and replaced with
the following:
“
The
plaintiff’s claim is dismissed with costs.”
D VAN ZYL
DEPUTY JUDGE PRESIDENT
OF THE HIGH COURT
I agree:
I SCHOEMAN
JUDGE OF THE HIGH
COURT
I agree:
V NONCEMBU
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Appellant:
B
C DYKE SC
Instructed
by:
STATE ATTORNEY
17
FLEET STREET
OLD
SPOORNET BUILDING
EAST
LONDON
Counsel
for the First Respondent: MR AUSTIN
Instructed
by:
GORDON McCUNE ATTORNEYS
140
ALEXANDRA ROAD
KING
WILLIAM’S TOWN
[1]
With
regard to the assessment of expert opinion, generally, see
Afrikander v The Member of the Executive Council for Health, Eastern
Cape ((8) 2021) BHC delivered on 21 January 2022) and the
authorities referred to therein.
[2]
I
dealt with these conflicts in some detail in the judgment of VN on
behalf of PN v The Member of the Executive Council for Health
&
Social Development of the Eastern Cape (HCPE) (Case No: 132/2015,
delivered on 31 August 2021).
[3]
Coleman
Cross-examination: A Practical Handbook 1
st
ed at page 107.
[4]
Van
Wyk v Lewis
1924 AD 438
at 447 and
S
v Gouws
1967 (4) SA 527
(E) at 528 D – F.
[5]
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 616 H.
[6]
Cross
on Evidence 7
th
ed at page 489. See also Cross on Evidence 7
th
Ed
at page 489. See also Schmidt and Rademeyer Law of Evidence at
page 17 – 4 and McGregor and Another v MEC
for Health Western
Cape (1258/2018)
[2020]
ZASCA 89
(31
July 2020) (McGregor) at para [21].
[7]
Menday
v Protea Assurance Co Ltd
1976
(1) SA 565
(E)
at 569 and Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft
Für Schädlingsbekämpfung Mbh
1976
(3) SA 352
(A)
(Coopers) at 370 F – G.
[8]
Price
Waterhouse Coopers Inc v National Potato Co-op Ltd
[2015] 2 All SA
403
(SCA) at para [99].
[9]
Kennedy
v Cordia (Services) LLP
[2016] 1 WLR 597
(SC) at para 49.
[10]
MEC
for Health and Social Development, Gauteng v TM obo MM
(380/2019)
[2021]
ZASCA 110
(10
August 2021) at para [125]. Also Buthelezi v Ndaba
2013 (5) SA
437
(SCA) (Buthelezi) at para [14].
[11]
2018
(4) SA 366 (SCA).
[12]
At
para [64].
[13]
BEE
s
upra
at para [52].
[14]
BEE
supra at para [66].
[15]
In
Coopers supra Wessels JA raised it as a possibility that an
uncontroverted expert opinion may relieve the court from its duty
to
determine the cogency of the opinion. This aspect was dealt
with in Griffiths v TUI (UK) Limited 2020 [EWHC} 2268 (QB),
and the
preferred position, it is suggested, is that there exists no bright
line distinction between controverted and uncontroverted
expert
reports. As with the evidence of all witnesses, it is the
function of the court to assess whether the evidence in
an expert
report is sufficient to enable the party relying on it to meet the
required standard of proof. The approach to
an uncontroverted
opinion depends on the circumstances, and while it may be rare to
reject a coherent opinion, an unsubstantiated
opinion which is
nothing more than the say so of the expert witness may be found to
have no evidential value.
[16]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430 E.
[17]
Van
Wyk v Lewis supra at 444.
[18]
Mitchell
v Dixon
1914 AD 519
at 525.
[19]
MEC
Department of Health, Province of Kwa-Zulu Natal v Franks
[2011] JOL
27319
(SCA) at para [9].
[20]
R
v Dlumayo and Another
1948 (2) SA 677
(A) at 705 – 706 and
Roux v Hattingh
2012 (6) SA 428
(SCA) at para [12].
[21]
Minister
of Police v Skosana
1971 (1) SA 31
(A) (Skosana) and Blyth v Van Den
Heever
1980 (1) SA 191
(A) (Blyth).
[22]
AM
and Another v MEC for health, Western Cape
2021 (3) SA 337
(SCA) at
para [74].
[23]
“
Experts
have no place expressing views on what is or is not a conclusion on
a balance of probabilities. That is a legal
concept that is
used by court to determine a factual result where there are factual
conflicts. It is a function the remit
of which is that of the
court, not that of the witness.”
I
Khoza obo K khoza v The MEC for Health, Gauteng Province (28516/16)
[2018] ZAGPJHC 580 (8 October 2018).
[24]
See
Skosana and Blyth supra
.
[25]
2013
(2) SA 144
(CC).
[26]
Skosana
supra at 34 F – G. (Skosana).
[27]
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700 F-I.
Also Skosana supra at 35G.
[28]
Lee
supra at para [45].
[29]
Neethling,
Potgieter and Visser Law of Delict (2015) at page 191 – 192.
[30]
Supra
at fn 28.
[31]
At
35 E-F. See also Minister of Safety and Security v Geldenhuys
2004 (1) SA 515
(SCA) and Minister of Safety and Security v
Carmichele
2004 (3) SA 305
(SCA).
[32]
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at
para [25].
[33]
The
inference must be the readily apparent and acceptable inference from
a number of possible inferences. See
AA
Onderlinge Assuransie Bpk v De Beer
1982 (2) SA 603
(A) at 620 E –
G; Cooper and Another NNO v Merchant
Trade
Finance Ltd
2000 (3) SA 1009
(SCA) and Goliath v MEC for Health
2015
(2) SA 97
(SCA); and Ocean Accident & Guarantee Corporation Ltd
v Koch
1963 (4) SA 147
(A) at 159 B-D. “
Evidence
does not include contention, submission or conjecture.”
Great River Shipping Inc v Sunnyface Marine Limited
1994 (1) SA 65
(C) at 75 I – 76 C.
McGregor
and Another v MEC for Health, Western Cape (1258/2018) ZASCA 89 (31
July 2020) att para [21].
[34]
Imperial
Marine Co v Deiulemar Compagnia Di Navigazione Spa
2012 (1) SA 58
(SCA) at para [24] and Motor Vehicle Assuarance Fund v Dubuzane
1984
(1) SA 700
(A) at 706 B – D.