Evans v Darkling and Others (69864/2013) [2019] ZAGPPHC 279 (25 April 2019)

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[2019] ZAGPPHC 279
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Evans v Darkling and Others (69864/2013) [2019] ZAGPPHC 279 (25 April 2019)

IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO: 69864/2013
25/4/2019
LOUISE
CHARLOTIE EVANS

PLAINTIFF
And
DRS
S DARKLING, AS PARKING & M EYBERS t/a LIFE
WILGEHEUWEL
ACCIDENT UNIT & EMERGENCY UNIT

FIRST DEFENDANT
DR
CLAIRE ANN SIM

SECOND DEFENDANT
DR
NOKWAZI NOKWANDA
NDLELA

THIRD DEFENDANT
JUDGMENT
NV KHUMALO J
[1]
This is an act ion instituted by a 43 year old Ms Louise Charlotte
Evans (" Evans"
or 11 "the Plaintiff" ), against
Life Wilgeheuwel Hospital Accident and Emergency Unit ("the Unit
"), the 1
st
Defendant, and Drs C A Sim and N N
Ndlela, the 2
nd
and 3
rd
Defendant respectively,
claiming for damages she alleges to have suffered as a result of the
negligent conduct of Drs Sim and Ndlela
when they treated her at the
Unit after she suffered a stroke. (Drs Sim and Ndlela referred to as
"Sim" and "Ndlela"
and to Plaintiff as "Evans,"
for purpose of convenience) .
Background Facts
[2]
On5 October 2011, Evans experienced a sudden numbness of her left arm
and left leg.
She had apparently suffered a stroke/ cerebrovascular
accident. She was rushed to the Unit where she was admitted for
treatment
. Sim was immediately assigned to treat her and was later
relieved by Ndlela who soon afterwards discharged Evans without a
definite
diagnosis. Neither Sim or Ndlovu afforded her the treatment
or referred her to a specialist or to a specialised hospital for the

stroke. Both doctors are independently contracted to the Hospital.
[3]
Evans had presented herself following the sudden numbness on 5
October 2011 at the
Hospital at 11:03. The Defendants examined her,
thereafter ordered blood tests and a CT scan to be performed. The
scan was allegedly
done at 12:24 and reported as a normal, non­
contrast brain examination, recommending a MRI if the symptoms
persisted . A toxicology
screen was also per formed.
[4]
Evans was discharged with a final diagnosis of "numbness of left
side of the
body" and instructed to go home. She instead
obtained a second opinion from one Dr Naidoo ("Naidoo") ,
her family
physician. Naidoo recognized the stroke symptoms and
referred her to Dr Le Rou, x a specialist physician back at Life
Welgeheuwel
Hospital. Le Roux referred her to Dr Shamley, a
neurologist at Wits University, Donald Gordon Medical Centre
("DGMU").
[5]
At DMGU, Shamley performed MRI investigation which showed
a
dissection of the right vertebral artery with an infarct in the lower
part of the medulla and upper spinal cord.
On 17 October 2011 she
was transferred to Life Riverfield Rehabilitation Centre under the
care of Dr K Mon until her discharge on
the 1
st
December
2011 .
[6]
Evans is presently debilitated in various aspects as a result of the
stroke , hence
suing the Defendants for the said
sequelae .
The
Unit is sued on the basis that she orally contracted with it that
against remuneration she would be examined, diagnosed and
treated
with the degree of care, skill and diligence that may reasonably be
expected of a hospital and an emergency unit and its
employees,
specifically the emergency and nursing staff and would provide
professional hospital facilities and services .
[7]
Alternatively that, by examining her as a patient, the Unit assumed
the legal duty
of care towards her and other ancillary duties
associated with it. The action against the Unit was subsequently
withdrawn. Reference
to Defendants is only to Sim and Ndlovu.
[8]
Sim and Ndlela were sued on the basis that:
[8.1]     they
entered
into an oral agreement
with Evans that they would
examine, diagnose, advise, where applicable treat her in respect of a
sudden onset of numbness of her
left arm and left leg, for reward,
which treatment also included the performance of diagnostic tests and
or referral to a specialist
and generally perform their obligations
with such skill, care and diligence as could reasonably be expected
of a general practitioner
in similar circumstances , a doctor
/patient relationship having come into being.
Both Defendants had
also a legal duty to comply with these obligations.
[8.2]     They
negligently breached the mentioned agreement or the legal duty in
that they failed:
[8.2.1]    to
diagnose her with a stroke timeously, alternatively at all, despite
Plaintiff's stroke-like sensory
symptoms of the numbness and tingling
down on one side of her body;
[8.2.2]    to treat
her stroke timeously, alternatively at all, with thrombolytic agents;
[8.2.3]    to admit
her to hospital and or to refer her to a specialist for further
management;
[8.2.4]    to
evaluate her for thrombolytic therapy;
[8.2.5]    to
give her full and proper treatment, given her symptoms of numbness;
[8.2.6]    to
examine, advise, diagnose and treat her with the skill, care and
diligence reasonably required for
a general practitioner.
[9]
As
a result
of their breach of the mentioned agreements and of
the mentioned legal duties;
[9.1]
Evans suffered significant damages resultant from the
stroke/cerebrovascular accident that
could have been prevented or
alternatively limited; and
[10.2]  experienced and
will continue to experience pain and suffering, a loss of amenities,
loss of income and incurred medical
expenses and will in future incur
medical expenses.
[10]     Evans
therefore alleges to have suffered damages in the amount of R8 607,
069.99, inclusive of all
the aforementioned damages for which Sim and
Ndlovu are to be jointly and severally liable.
[11]     The
Unit had in its Plea admitted that on admission Evans entered into an
oral agreement with the Hospital's
authorized employee that whilst
she would pay the Unit's agreed, alternative usual charges for the
services rendered, the Unit
will ensure that she is attended to by a
casualty physician within a reasonable time, facilitate the
appointment of a clinical
physician to attend to her, perform certain
administrative functions in capturing Evans's details and ensure that
clinical physicians
were aware of the processes pursued for
continuing alternatively follow-up patients.
[12]
According to the Unit, the obligations were discharged. It provided
the Plaintiff with clinical physicians,
Sim and Ndlela, to perform
the relevant examinations, who at the time were acting independently
as duly appointed independent consultants
of the Hospital. The
Doctors directed that a CT scan be performed and Evans was released
from its care pursuant to receipt of the
CT scan report conducted by
an independent medical specialist that indicated a normal
non-contrast brain examination. The nursing
staff who provided
nursing services to Evans were not employed by the Unit.
[13]
Furthermore, the Unit alleged to have rendered care in accordance
with a reasonable standard expected
of a general practitioner and
discharged its onus in terms of the oral contract. Any further
liability was therefore denied or
that the failure to diagnose
exacerbated the alleged damages suffered by Evans.
Re: The 2
nd
and 3
rd
Defendant
[14]     In
their Plea, Sim and Ndlovu admit that they were contracted by the
Unit to render accident and emergency
services at the Hospital and
that they had a legal duty towards Evans to provide such medical care
and treatment as reasonably
expected of a casualty medical
practitioner and emergency unit.
[15]     Sim
further admits to have examined Evans and ordered the blood tests and
a CT scan to be performed.
The CT scan reported that there appeared
normal non-contrast brain
examination (there was
no
bleeding in the brain)
and recommended that if the symptoms
persisted or worsened, an MRI brain scan be done. Also that a
toxicology screen was performed.
[16]     She
however denies that she discharged Evans, or had a final diagnosis of
her ailment as "numbness
of the left side of the body" or
that she had instructed Evans to go home. Whilst Ndlela denies that
she examined Evans on
admission or that she had ordered blood tests
and a CT scan to be performed.
[17]     Both
Sim and Ndlela concede to not diagnosing Evans with a stroke or
treating or evaluating her for
treatment with thrombolytic agents,
admitting her to Hospital or referring her to a specialist for
further management. However
they deny being under any legal
obligation to pay the amount that is claimed by Evans.
[18]     At
the pretrial conference held before the commencement of the trial,
the parties agreed that:
[18.1]
Sim and
Ndlela will not be contesting Evans's allegations of negligent breach
of their legal duty towards her. However they persisted
in their
denial that a contractual relationship exist between them and Evans.
[18.2]  Evans was requested
to furnish the Defendants with full particulars or precise details or
detailed description of the
"significant damages" (with
reference also to the clinical or physical manifestation of such
damages- hereinafter
"sequelae")
which she allegedly
suffered as a result of the stroke/cardiovascular accident that are
alleged to have been caused by Sim and Ndlovu'
s breach ,
that
could have been prevented and or limited had it not been for the
breach on their part.
[19]
Evans subsequent withdrawal of the action against the Unit was noted.
[20]
At the commencement of the trial, the
parties confirmed that Sim and Ndlovu, had
conceded
the question of a wrongful and negligent breach of a legal duty they
owed
to Evans insofar as their
treatment of Evans is concerned as reflected in their plea.
On
the other hand Evans waived her
reliance on a contractual breach.
[21]
Sim and Ndlovu however persisted with
their denial that Evans'
sequelae
(the present debilitation that Evans
exhibit s) i s consequent to their admitted wrongful and negligence/
breach of their legal
duty.
[22]
As a result the issue that arises as far
as the question of liability is concerned, is that of
causality
(both factual and legal),
specifically
whether
a causal link (connection) as
required by law
exist s between Sim
and Ndlovu's admitted
breach of their
legal duty
and Evans'
pleaded
sequelae,
rendering
both liable for Evans' pleaded resultant damages. What is to be
established is if Evans suffered any of her pleaded
sequelae
and consequential damages as a
result of either of the doctors' negligence.
[23]
Contrary to the norm both parties
present ed a lengthy opening address, arguing on the divergent views
they held on how and what
Evans needed to establish to prove
causality and her alleged
sequelae.
Subsequent thereto they had reached
an agreement in respect of separation of the issue of liability from
that of damages (prove
thereof and quantification). They sought an
order accordingly and for a postponement of the latter for later
adjudication. The
agreement was presented to the court as a draft
order incorporating a clarification on the outstanding element of
liability after
Sim and Ndlovu' s admitted liability of wrongful and
negligent breach of their legal duty. It was stated to be whether or
not Sim
and Ndlovu's admitted negligent breach of their
legal
duty
was
both
factually and legally, causally connected to any of Evans'
sequelae,
that is, her apparent
debilitation
when Evans condition is
compared with her pre- stroke condition.
[24]
Being satisfied of the order as per
draft, I accordingly made the draft an order of court. The
debilitation referred to was still
not detailed in the particulars of
claim. The separation did not however exonerate the Plaintiff from
establishing and or indicating
clearly what constitutes the actual
harm or
sequelae
alleged
to have resulted from the Defendant's negligent conduct.
[25]
According to Mr Potgieter, Evans legal
representative, the case Evans was to present to court, was summarily
that it is more probable
than not that she would have had a m ore
favourable outcome of her stroke had the Doctors correctly diagnosed
her situation, and
accordingly applied the applicable treatment for
the stroke she suffered. It was submitted that Evans relies thereon
based on the
fact that according to the Constitutional Court case of
Lee v Minister of Correctional
Services
2013 (2) SA 144
(CC}, the
"but-for" test which is traditionally applied is no longer
applicable in the traditional manner in cases of
this nature.
[26]
The parties proceeded to argue raising a
concern about the outcomes that are referred to had there been
timeous treatment. Mr Le
Grange who appeared on behalf of Drs Sim and
Ndlovu queried that anybody can say with certainty, that she/he would
have been one
of those fortunate people who have no results if she
been treated timeously with the thrombolytic therapy, basin g their
case upon
a more favourable outcome.
It span the
whole
possibility of no negative results to improved outcome, but indicated
that according to the
experts still
some negative results in, even if one treated. He indicated that
reliance is going to be on the international research
literature
pertaining to the percentage of cases in which
one
obtains a more favourable outcome if a correct diagnosis is made
timeously an
appropriate treatment
applied timeously. The question that arises is whether the research
results revealed will suffice to hold
Sim and Ndlovu liable in law
for their admitted wrongful and negligent breach of their duty?
[27]
Mr Potgieter, instead projected that,
the Drs contention that Evans cannot prove, on a balance of
probabilities, that had she on
presentation at the hospital been
properly diagnosed and treated, her
sequelae
would have been improved was based
on a mathematical/arithmetical approach. Le Grange argued that even
if the diagnosis was performed
and the treatment given, international
research point to the fact that this did not always result in a
favourable outcome. Arguing
unfavourable odds.
[28]
It became clearer though that Evans is
pursuing a more favourable result, however still not abandoning the
possibility that she
would have had no
sequelae,
therefore would have been normal, as
one of the possibilities that research has indicated can occur, if
she has been treated timeously.
Whereupon
she was to show that the debilitation after the stroke could have
been arrested with total recovery but for the negligent
omission.
In
simple terms Evans' case would then be that if they had diagnosed and
had treated her or transferred her to a specialist with
whatever or
any of the treatment timeously, she would have ended up with no
debilitation or cabbed its extent.
Issues arising
[29]
The parties are agreed that there was no
proper diagnosis, that Sim and Ndlovu were negligent when they failed
to diagnose Evans's
stroke and also to refer Evans to a specialist
for the administration of the stroke treatment and or transfer her.
Causation however
will not always follow whenever a wrongful and
negligent omission is show n. Each Defendant's wrongful and negligent
omission should
be proven to be causally connected both factually and
legally to any of Evans' pleaded
sequelae/
damages. It has to be proven that
the
failure to diagnose and to refer
or treat the stroke was the cause of the extent of Evans debilitation
which she alleges could have
been totally avoided or limited.
[30]
The question therefore is if
on
presentation at the hospital she had been properly diagnosed and
referred to a Specialist,
would that
have resulted in the avoidance of the event that caused her
debilitation. This is where Evans' argument for a favorable
outcome
resides. Sim and Ndlovu
dispute the
assertion
relying on the
international research literature
pertaining to the percentage of cases in which one obtains a more
favourable outcome if a correct
diagnosis is made timeously and
appropriate treatment applied timeously.
[31]
The parties submitted that
there
was no real dispute as to what the international literature on
research reveals. What is in dispute is whether or not the
research
results suffice to hold the Drs liable in law {legally) to their
admitted breach of their legal duty.
[32]
Evidence is therefore to be established
that supports both the cause in fact and in law. (immediate cause).
Evans was therefore
required to establish facts of the causal
connection between the mal- or lack of treatment and her sequelae and
that on a balance
of probability the medical outcome she now
displays, would have been (better) improved or avoided had the Drs
not committed the
breach. The parties agreed that as Evans carried
the onus of proof, she had a duty to begin.
Factual Evidence (on behalf of
Plaintiff)
[33]
Evans testified on her behalf. She also
led the evidence of Mr Evans, her husband and Nadine Nunan, her
business/partner friend
who drove her to the Emergency Unit after she
experienced the symptomic discomfort, including that of two Experts,
Dr Kasler, a
neurologist, and Dr Van Niekerk, a statistician to supp
ort her case. On behalf of the Defendants evidence was led by Dr Ros
man,
a neurologist.
[34]
Evans was
37
years old on 5 October 2011
when she
suffered a stroke. According to her, at the time she did not suffer
from any ailment, nor did she have a history of trauma.
She was not
on a hormone replacement therapy and generally was of good health.
She on occasions over weekends consumed alcohol
and was a mild
smoker.
[35]
On the day of the incident she was at
work where she ran a
beauty therapist
business
she owned with her friend
Nadine Nunan ("Nadine"). She had a scheduled appointment
with a client at 10h30 and had arrived
at work at 9 o clock. Nearer
to the time of her appointment
she
suddenly sensed some numbness in her left arm. She thought she was
having pins and needles when the
same
numbness extended to her left leg. She tried to walk to go and lie
down in the beauty room, but fell over against the wall.
Her left leg
could not support her weight. She got up and climbed on the bed. She
was scar ed and phoned her friend Nadine, an
ex- nurse to tell her
how she was feeling. Whilst she was
talking
to Nadine she felt her face starting to feel numb as well and was
struggling to hold a sentence ,
stuttering.
Nadine immediately became aware that she was having a stroke and told
her that she was on her way to her. Nadine arrived
after the arrival
of her client. She with the help of the client put her on the beauty
salon chair and wheeled her to Nadine '
s car. Nadine drove her to
the Wilgeheuwel, Emergency Unit. They found Mr Evans, her husband
already there.
[36]
She said she remembered vaguely what
happened at the hospital. She remembered her husband telling her she
is in the best place.
The next thing she remembers is that she was
given a pill, she got sick and vomited. She afterwards was pushed
into a machine.
Her body could not lay still, her left arm and leg
were jumping. They put earphones on her and told her to keep still.
They also put something under her
tongue, later told her that there was nothing wrong with her, her
husband can take her home. The
next thing she also remembered was
being at Le Roux's surgery at Wilgeheuwel.
Le
Roux scraped something down her feet and that was the last thing she
said she remembered. She woke up at Donald Gordon on the
Friday since
Wednesday.
[37]
She confirmed being a
gymnast and a dancer
when she was
younger and prior the stroke to have been able to run and play with
her kids, which was now different. Presently, 6
years after the
stroke, her
left arm has no use at all, she cannot run, walk
without a brace. It goes under her shoe, up her leg and stops at her
ankle,
because her foot drops. She fell a couple of times, in the
shower and slipped a couple of times in a moon boot therefore uses a
crutch as she still struggles to balance.
[38]
Since the stroke she has not continued
her craft as a beautician as she needs both hands for that. She has
rather worked as a receptionist,
using headphones. She said her
speech is ok but gets a little bit blurry when she is tired. Also she
could not get her words out
properly when she wakes up in the morning
which
lasted until the third week of
November 2011.
She pointed out that
she is on chronic medication taking cholesterol pills and Baclofen
that stops her muscles from going into
spasm, blood thinners called
Ecotrin and anti­ depressants. She also takes something that
protects her stomach lining from
all the other pills and trepiline
that stops her from getting dizzy since they said the back of her
neck gets tight and makes her
dizzy. She used to drive and had
stopped since the stroke.
[39]
Under cross examination she admitted
having a headache that morning. She denied however that she was prone
to headaches and that
the headache was something extra ordinary,
saying it was not severe or something to worry about. She admitted
being told that her
stroke was caused by a posterior vertebral
arterial dissection which is a problem that started at the back of
her neck causing
a medulla oblongata stroke which start from the neck
leading to the brain. She then confirmed that she did suffer
headaches at
the time before the stroke set in. She denied taking any
chronic medication or any medication that morning before the incident
as far as she can remember. It was pointed out that on the patient
clinical record, the information completed was about the number
of
headaches she has suffered and the numbness on the left side of her
body,
feeling pins and needles and a
headache since two weeks prior the incident,
coughing
for 7 days and allergic to penicillin. She denied giving the
information to the nurses but confirmed that she is allergic
to
penicillin. She confirmed the information of being an asthma sufferer
but only as a child. Agreed that she took Panado, Compral
and Disprin
at 7h30 that morning 12 hours pre admission. She denied giving any
information to the nurses, alleging that at the
time she could not
speak. Although chronic medication Vertigo was noted she said it is
her husband who was on Vertigo. She confirmed
to having a left knee
operation when she was 16 years old. Her last meal the previous night
to have been at 18h30. She pointed
out that she probably would have
had breakfast that morning with a cup of coffee but could not
remember. She denied suffering from
headaches for the past 2 weeks.
She could not remember taking the headache tablets and she would not
have taken three kinds of
medicine at the same time that morning.
[40]
It was pointed to her that in Dr
Naidoo's notes whom she visited after being discharged at the
Emergency Unit it is recorded that
she suffered from headaches for 2
weeks out of 52 which indicate that she suffered headaches for the
past 2 weeks taking Comprals.
She said she would not have told Dr
Naidoo that she is taking Comprals as she could not speak when they
got there and what Naidoo
wrote on his note that "she was
experiencing diminishing power on the left hand side and twitching
might have been communicated
by her husband. She said she remembers
being there and not how she got there or left. Responding to a
question if she had told
her husband about the headache, she said she
did not know that her headaches were something to worry about. She
said she could
not remember if she took medication that morning and
if she had a headache at all she would have taken a Panado. They do
not buy
Compral for headache pills. She denied ever bumping her head
or falling awkwardly in any period prior to 5 October 2011.
[41]
She confirmed that she got to the hair
salon before 9h00, and it was whilst waiting for her appointment,
around
10h10 - 10h30
that
she started experiencing the numbness. She also
confirmed
that she might have said to Dr Roper that she started experiencing
the numbness around 10h00.
She
continued to say it was actually
around
10h00 and 10h15. Dr Corie van Zyl
had
also noted in his report that she told him that she had symptoms of
numbness at about 10h00, she however disagreed that she
would have
said that. She also said she would not have said what
Dr
Campbell a Neurologist
had noted
that at around
10h00
in
the morning she started experiencing numbness on her left hand side
and slurred speech. She said it was around 10h15 because
her client
had arrived at the time whose appointment was at 10h30. It was put to
her that Dr Botha is the only one who noted that
the symptoms onset
was at 10h15. Dr Kasler has reported that it was 10h25. She indicated
that she could not have said a specific
actual time because she did
not know exactly what time it was.
[42]
According to Evans it
was
within 5 minutes that the symptoms became a sign that she could not
walk.
There was nobody to assist
her, the hair saloon lady was busy in the hair salon and she was in
another room, the beauty room was
unoccupied. Nadine who does not
stay that far from the hair salon took just between
5
and 10 minutes
to be there. On
Nadine's arrival, the client was already there. The client helped
Nadine to put her on the chair and wheel her to
the car . The
Emergency Unit was 10 to 15 minutes away. When they arrived her
husband was t here. Nadine phoned him before she
got to her. Mr Evans
saw to the administrative side of
things as she was taken to the Emergency Unit.
She
confirmed the time on the file was 11;03 and then it had recorded her
arrival time as 11h10 on a wheelchair, she could not remember
who put
her on the wheel chair there but she was with Nadine and her husband.
It was noted that the triage took 2 minutes from
11h10 - 11h12, and
recorded as showing a heart rate and blood pressure and temperature.
The AVPU that indicates alertness
recorded that she was alert, with no trauma and with mobility.
But
she could not remember that. It was put to her on the medication she
was using that Venteze is for asthma and Vertise is for
vertigo and
she said she has never had vertigo but her husband had, but he was
not on chronic medication and does not recall the
name of the
medicine that he used to take.
[43]
The last meal she had was noted to have
been at 18h30 the previous day. She then had coffee that morning
talking to the person at
the hair salon. On Dr Sim's report it states
that she suffered the numbness 30 minutes ago when she was seen by
her at 11h15. She
denied having spoken to Dr Sim. It was put to her
that the doctor' s examination results were that she was stable,
vitals normal,
chest clear, there was nothing wrong with CVS Central
Vascular System and abdomen . The CNS Central Nervous System was
tested and
found to be "pearl" (pupils equal and reacting
normally to light). Face drop on one side "loss of power 3 to 5.
The reflexes were seen to be normal. She said she could not carry her
legs. Recorded that patient anxious and no recent travelling,
trauma
and no recent illnesses. Blood drawn, CT scan ordered and ECG done.
She confirmed that at about 11h45 Zofran was administered
and Ativan
as prescribed where after she vomited. According to the notes at
12h00 she went for the CT scan. She could not remember
if her husband
accompanied her. She came back at 12h20, awaiting the report.
[44]
At 12h55 it is noted that she still was
not twitching, was left sleeping and doctor awaiting blood report. At
13h05 noted that she
was awake, still awaiting blood results and
husband present. Now getting upset because she is twitching again."
She testified
that she was even twitching during the CT scan but she
could not remember anything. She said she does not remember seeing Dr
Ndlela.
She confirmed that she was discharged in a wheelchair and
could not recall if she signed yes to a statement "Patient
verbalized
that she feels better." She confirmed receiving the
x-rays. She confirmed that the person she was with in the morning in
the
hair saloon did accompany her to the Hospital. From Wednesday to
Friday she draws a blank does not remember.
[45]
It was put to her that a Physician, Dr
Le Roux admitted her at 4 o clock at Wilgeheuwel Hospital the same
place from which she was
discharged earlier that morning with the
same working diagnosis as at the time of her earlier admission his
noted in their records
that CVA (Cardio Vascular Accident") Left
hemiplegia? MS" (which is a Multiple Sclerosis). There being an
uncertainty
on the exact diagnosis. She said she was unaware of this
uncertainty and has never heard of the "MS." She was told
that
she was under Le Roux from 5
th
to 5
th
until 10h40 when she was transferred to another hospital under Dr
Shamley, the Neurologist. On 1 December 2011 she was discharged
from
with the diagnosis still unsure. She confirmed that after being
treated by Shamley at the Life Rehabilitation Centre she was
much
better than the time when she came in. and was able to perform
certain limited tasks, for example being a receptionist or
doing
administrative work. It was noted that the decrease of the upper limb
function was limiting to her as being a beautician
entailed, using
both hands to be able to perform any of the tasks. She confirmed that
even a little bit of negative impact on her
fine motor function would
have inhibited her from doing that type of work.
[46]
It was only during re-examination she
pointed out that she struggles to dress herself and to make food
especially the use of hot
water. She cannot chop or slice things
since she cannot hold anything on her left hand or to keep sturdy.
She therefore cannot
drive a vehicle. She can get in and out of bed.
The slurring of her speech has improved through rehab. For the muscle
spasm she
takes the Baclofen. She also takes the antidepressants. She
still has spasms at the back of her neck. The cause of t he stroke
where she had a dissection. She said she feels dizzy sometimes.
[47]
Nadine Nunan, whom Evans met in May 2010
was the second to testify. According to her the incident happened
almost a year after they
met. She has never seen any sign of trauma
on Evans side or heard that she suffered from any ailment whatsoever.
Evans called her
at about 10h15. She was a medical supply sales rep
at the time and was on her way to Wilgeheuwel Hospital, one of her
clients on
a special appointment. Evans told her about the pins and
needles she was feeling in her left arm and leg, also that she had a
headache
and when she tried to walk her left leg gave way. She told
Evans to go and lie down, she was on her way. Evans seemed to have
stroke
symptoms called in medical terms "the Cerebral Vascular
Accident" (CVA). She recognized that as a trained nurse that has

worked in medical wards as part of her training she learnt how to
recognize signs and symptoms of a stroke and to alert Doctors.
She
knew that it was a serious event. When Evans called she was near
Wilgeheuwel. She turned around and went straight to the hair
salon
which took about 10 to 15 minutes to get there. Evans was lying on
the treatment table and told her about the numbness and
headache. She
also noticed that there was a little bit of flaccidness on her left
cheek not as buoyant as the other check. She
told Evans that they
needed to get her to hospital.
[48]
Evans had a client with her and a
hairdresser that works next door. She. could not bear her weight on
her left leg. She together
with the client put Evans on the chair and
wheeled her to the car.
It took her a
while to get Evans in the car.
When
she arrived at Wilgeheuwel Evans' husband was waiting . She had
phoned Evans' husband on her way to the hair salon. They wheeled

Evans into the Hospital who was still answering them but becoming a
little bit vague and did not have direct answers. When she
asked
Evans how she was feeling she said she did not know but she was
feeling different from how she felt at the hair salon, not
giving
direct answers. She tried to explain to the hospital that Evans might
be having a stroke and they ignored her. They took
Evans and she
remained in the waiting area. Mr Evans went to sign her in with his
medical aid card, He came back after an hour
or two and said they
said she did not have a stroke. And that they were doing further
tests, like drug tests. She saw Evans again
after 16h00, she could
not walk at all and still in a wheel chair. She tried to speak to her
there was no reaction her whole body
was twitching and saliva
drooling out of her mouth. She kept on sliding down on her wheel
chair . Mr Evans told her that Evans
was discharged, and could go
home. She did not agree and told him that they have to find another
doctor, Evans was not looking
well.
[49]
They took Evans to Dr Naidoo, a general
practitioner, the Evans' family doctor. Evans was still twitching and
could not answer Naidoo's
questions. Naidoo confirmed that there was
definitely something wrong with Evans. He sent them straight to Dr Le
Roux's rooms,
a physician at Wilgeheuwel Hospital. At about 16h30
after they dropped Evans at Le Roux's rooms she went to fetch Evans'
son from
school and brought him to hospital. At that time Evans was
doing a scan. She was admitted at the same hospital after 18h00 that

day. The next time she saw Evans was at Donald Gordon Institute after
they have just diagnosed her to have had a stroke, her left
side was
paralyzed, confused and different from the Evans she picked up at the
salon. She naturally was vivacious full of life
but was now down and
depressed calling herself a cripple. She could not sustain the
business on her own as she had a full time
job so she had to close it
down. There was no one to do the beautician work. Evans never
returned to work.
[50]
Under cross examination she indicated
that Dr Naidoo's rooms were 5 minutes away from the Hospital and they
were there for 5 to
10 minutes before they were sent back to see Dr
Le Roux at Wilgeheuwel. Evans was not in a position to give
information to Naidoo
at all. Saliva was drooling out of her mouth.
She gave Naidoo the history of the patient and what had happened that
day. She and
the husband both spoke to Naidoo filling him in on the
day's events. The husband spoke about what happened at the casualty
where
she was not allowed to go. She did not speak about previous
things that happened to Evans. It was put to her that there is
information
about the headaches that Evans suffered for two weeks
prior the incident. She said she did not hear about that or know that
she
had headaches. The husband did not mention it in her presence as
well. It was put to her that the doctor has noted that Evans took

Compral, confirmed to be a headache tablet .
[51]
She confirmed that Evans was twitching
on the left side of her face that was also flaccid. Her left leg kept
on shooting out on
its own accord when they then took her to Le
Roux's rooms.
They were there at Le
Roux's rooms at about 16h30.
She
then eft tog? and fetch Evans' son, therefore was not there when
Evans was moved to the hospital section. It was put to her
that
according to the hospital records it is noted that Evans was already
discharged at the Emergency Unit at 14h15 and drip removed
after
reassessment by Ndlela at 14h10.
She
disagreed with the times recorded, adamant that it was at 16h00.
It
w s put to her that Evans was re-admitted at the Hospital at 16h00,
which coincides with her going to Naidoo and being readmitted
at the
hospital. She said she remembers that it was during peak hour
traffic. They had to travel from one side to the other. She
looked at
the time whilst she was talking to Evans. They took her to Naidoo at
16h00 and thereafter straight to Le Roux. She then
left.
She
said from 14h15 to 16h00 she sat at the hospital
waiting
for Evans and her husband to come out. They got into the car at about
16h00.
[52]
In re-examination she said it was busy
traffic-wise to get to Naidoo, as it was peak hour time. She could
say it was 16h00 when
she was discharged because she looked at the
time when they started talking and putting Evans into the car. She
turned around and
said she did not know or recall noting the exact
time but correlates with the traffic going there. During the courts'
questions
seeking clarity she confirmed that she looked at the time
when they were putting Evans in the car to take her to Naidoo. When
asked
if it actually said 16h00. She said she actually does not
recall noting the time, the exact time, but it correlates with her
with
the traffic going there.
[53]
According to Mr Evans he has been
married to Evans for 8 years and known each other for more than 10
years. Evans has never been
on chronic medication or suffered a
trauma recently. At around 10h15-10h17 that morning, he received a
quite an alarming call at
work in Midrand, from Nadine. She suspected
that Evans had just suffered a stroke from the symptoms that Evans
told her she was
experiencing and that she was taking her to the
nearest emergency Unit at Wilgeheuwel Hospital. He left work in his
boss' car and
arrived at the Hospital at 10h50 before Nadine. When
Nadine arrived he wheeled Evans into the Emergency part at
Wilgeheuwel Hospital.
At that time
Evans' eyes were rolling back, she could not walk and her speech was
incoherent.
The administrative part
of the hospital asked him for his medical aid card and to fill in
forms.
He told them that Nadene
suspected that Evans was suffering from a stroke.
A
person wearing a medical uniform did not pay attention and just
wheeled Evans through the doors. In the meanwhile Nadene had gone
to
remove the car from the emergency parking.
[54]
He spent about 10 to 15 minutes
attending to the administration part. Thereafter he went inside the
cubicle where Evans was. He
denied producing any of the personal
details on the computer generated hospital records. He agreed that a
copy of the front and
back of his Drivers' licence and top part of
discovery medical card formed part of the record. The time recorded
for arrival was
11:03 which he said he had no problem with it. The
record reflects Evans' date of birth and age and has his signature at
the bottom
of the page and a guarantee that he acknowledged to have
signed. The patient's complaint is stated as "Complains of
numbness
on the left side of the body started" half an hour ago
feeling pins and needles, headache 2/52, coughing and clear phlegm
for seven days". He denies that he provided that information .
He said he was never asked what is wrong with his wife.
[55]
In the cubicle he found Evans'
involuntarily jerking worse on her left side. The nurse or doctor
kept on coming and leaving the
cubicle. They gave her a tablet and
she vomited. The Doctor told him that they have taken blood tests to
see if she was on drugs.
They also asked if she was an attention
seeker. She was in the cubicle for nearly an hour, during t at time
nothing else was done
except for the blood tests. She was not removed
from the cubicle where he was with her. She went to inform Nadine
outside the emergency
room that Evans was now going for a scan. It
was another half an hour before they actually took Evans fora scan.
She came back
from the CT scan after 45 minutes in no different stat
e. She still had the spasms on the left side and not coherent. The
nurse
told him that the Doctor will come and speak to him. After
about 25 minutes the Doctor came and told him that there was nothing

wrong with Evans. He was asked again if Evans was an attention
seeker. He was told to take her home and phone for the blood results

the next day . Evans still could not walk and therefore he wheeled
her out of the emergency room exactly the same way she came
in.
[56]
Nadine was very cross and insisted that
Evans not be taken home. They took her to Dr Naidoo , their family GP
at Healthworx Rand
Ridge. Evans was sliding down on the wheel chair
and her eyes rolling back and spit coming out of her mouth.
Immediately, Naidoo
knew that something was wrong and referred her
back to Le Roux, the physician at Wilgeheuwel to be hospitalised.
They wheeled Evans
back to the car and to the Hospital. They did not
go through the administrative part again.
[57]
According to Mr Evans, Evans was out
going, very confident , very conscious of everything around her and
with a very sharp impeccable
memory. Post stroke she lost the use of
her left hand. She fell over a numerous time including in the shower.
At home he prepares
the meals because Evans cannot cook. Their helper
must be there to help her with the exercises. It is life changing.
From somebody
that was very independent to somebody that is now very
reliable on him, their son and good friends. She does not drive. She
has
been employed as a casual and as a receptionist answering phones
using headphones. She was a bowler and she had now not partake

anymore. Does not go to watch their son play rugby anymore which she
used to do. She has difficulty dressing, tying buttons or
shoelaces.
She has to be assisted. She cannot wear high heels anymore.
[58]
Under cross examination he testified
that Evans never complained of headaches preceding the day of the
incident. Never heard Nadine
speak about any headaches that Evans
complained about. It was put to him that Dr Naidoo has recorded in
his notes on 5 October
2011 that the complaint was suffering from
"headaches for 2/52. "taking Compral." He could
imagine that Evans must
have gone to see the doctor. He said he was
not sure how it came about that Dr Naidoo wrote the notes if he did
not tell him anything,
and the Plaintiff could not speak and they
were not there for long. It was put to him that the information ties
in with what the
nursing people noted at the Emergency Unit that:
"Complaint of numbness on the
left side of the body started half hour ago, feeling pins and
needles, headache two weeks, coughing
clear phlegm for seven days."
Also with the fact that the
Plaintiff was a heavy smoker although she said she was a mild smoker.
He denied that she had chest problems
and said his wife was as fit as
a fiddle. Also medicine that she took 12 hours ago pre admission was
written as Penicillin. Evans
however indicated that she is allergic
to Penicillin. It says medicine taken 12 hrs pre admission"
Dispirin, Compral, Panado
at 7h30 . He was at work. Reference is also
made to:
"
Chronic medication: Yes"
[59]
He denied that he took medication with the name Vertise or suffers
from any chronic condition
or from Vertigo. It was put to him that
Vertigo is one of the general indicators fora vertebral artery
stroke. He could not say
where the Doctor heard about Vertise. Since
Evans also denied telling Naidoo or Sim about this. It was indicated
to him that a
left knee operation and the last meal to have been had
at 18h30 the previous night was also noted. Which means Evans did not
have
breakfast. He said he could not identify the doctor he spoke to
whether it was Sim or not, or the person whom the nurses noted as

having consulted with Evans at 11h15. He recalled that there was an
IV put under Evans' arm and a tablet administered. Plaintiff
got sick
and the Doctor told him that they have also done blood tests. An
intravenous drip was then administered and an ECG done
. It was
reported to Sim that bloods taken and husband present.
[60]
Furthermore it was noted that at 11h45 that patient vomited. At 12h00
she went for a CT scan.
12h20 back from scan waiting for report,
patient not twitching anymore, husband present." Then at 12h35,
patient scan back
and patient reviewed by doctor, awaiting blood
results and then at 12h55 patient asleep, no twitching noticed, left
sleeping, no
complaint s." 13h05 patient awaiting blood results,
patient awake, husband present." Now getting upset because she
is
twitching again. Husband decided to wait outside for the blood
results. He admitted having spoken to a Doctor but does not know
if
it was Ndlela. At 13h50 it was noted that blood results back and
reported to Ndlela. The doctor discharged the Plaintiff at
14h15.
There is a signature for the Patient on discharge and he denies that
it is his wife's signature.
[61]
According to Mr Evans they went from the Unit straight to Naidoo's
rooms. He was not sure what
time they left the hospital premises as
he was very upset. Its noted patient at 14h10 reassessed by Ndlela
and discharged and IV
removed. At 14h15 patient left the Unit in a
wheelchair with husband. He is not sure if he was given the scan and
X-rays report
or they were put on the wheelchair. He did not know if
the lady who spoke to him was Ndlela, but when he asked for diagnosis
she
said that she was "attention seeking." She told him to
come back for the drug screening test results.
[62]
He admitted that when Plaintiff was admitted the second time at le
Roux's rooms at Wilgeheuwel
he signed the papers. He was there all
the time the Plaintiff was with Naidoo. It was put to him that Naidoo
noted the headaches
and pills taken including Compral. He denied that
his wife was taking Compral or that they have Compral in the house.
Naidoo was
called as soon as he has wheeled Evans. They were with
Naidoo for 10 minutes. He could not remember what time they left the
hospital
or arrived at Naidoo but they did not have a reason to hang
around the hospital after Plaintiff was discharged. He could not
remember
any of the times including when they came back. Plaintiff is
looked after by a domestic worker full time who used to work only
once a week. She was also studying whilst working. She had passed
some of the things only studying facials.
[63]
The next witness for the Plaintiff was
Dr Kasler SM ("Kasler"), a general Neurologist who has been
in practice since 1988.
He confirmed his referral to his field of
expertise in neurology, as the headache medicine and that they see a
lot of common neurology.
His particular interest is in migraine and
headaches in which he has been involved for a period of more than 20
years. He went
through his joint minutes as set out at the beginning
of the Plaintiffs evidence.
[64]
His medico-legal report on Evans was
placed before court based on the bundle of information/documents
received from attorneys, written
2 years after the incident, which
means 5 years before the trial. It is noted that the following
information was made available:
[64.1] A description of the event
from Mr Jason Evans;
[64.2] Clinical notes from
Wilgeheuwel Accident and Emergency Department.
[64.3] A CT scan of the brain
reported on by Dr D Goodman of Dr van Rensburg and Partners .
[64.4] Notes from a second
admission to Wilgeheuwel Hospital"
[64.5] MRI scan of the spinal cord
reported on by Dr J Perra of Dr van Rensburg and Partners
[64.6] Clinical notes from Donald
Gordon Medical Centre.
[64.7] Referral letter from Dr
Desmond Shamley, a Neurologist;
[64.8] Notes from Life Riverfield
Rehabilitation Centre.
[65]
Kesler said he understands that at the
time of Evans illness she had no significant past medical history
other than asthma. She
smoked 10 cigarettes a day. There was no
history of substance abuse. "He wrote this relying on the notes
as listed and he
was not certain if some of that was also from the
description by Mr Evans. He cannot remember in what format it was.
[66]
His brief outline approximating Evans'
stroke, delineating what would have been a proper diagnosis and
treatment in order of importance
and the alleged breach of legal duty
by the Doctors is set out in the medico legal report he submitted
after his examination of
Evans in 2013, 2 years after the stroke. Dr
Kesler's reference documents were the hospital and clinical reports
as mentioned in
par [66.1 -66.8] furnished to him by the attorneys .
According to Dr Kesler:
[66.1] Evans suffered neurological
symptoms of stroke being sensory disturbance which can mean numbness,
tingling, pins and needles,
burning or some sensory experience
sensation on the left side and mild weakness, that being onset at
10h25 on 5 October 2011. If
presented with stroke like sensory
"symptoms of numbness and tingling down one side, this
considered to be acute symptoms
that indicate acute stroke, which is
a medical emergency. The treatment for the acute management of stroke
is time dependant. It
is therefore vitally important that patients
who may be having stroke are taken to an emergency unit as soon as
possible. As Mrs
Evans presented herself to the casualty within half
an hour of the onset, the doctor who examined her may well have
suspected stroke,
being the most likely diagnosis in spite of Evans
relative young age for these acute symptoms. The purpose of a CT scan
of the
brain in the acute stroke situation, is to exclude hemorrhage
which will immediately be seen on an uncontrasted CT scan. This
well-known
phenomenon should be within the scope of knowledge of a
Casualty Officer.
[66.2] Casualty Officers ought to
be well aware of the option of thrombolytic agent administration in
the acute management of stroke.
The appropriate specialist should be
called to assess the patient and make this decision. At Wilgeheuwel
he· was not aware
of a resident Neurologist, but a specialist
physician like Dr Le Roux would have been eminently suitable to
administer the medication
appropriately. The thrombolytic agents have
been used therapeutically for well over a decade. The South African
Guideline for the
management of ischaemic stroke and transient
ischaemic attack 2010: A guideline from the South African Stroke
Society (SASS) and
the SASS Writing Committee published in November
2010 whose committee consists of independent academics and private
stroke neurologists
and physicians, stipulates that
treatment must
commence within 4 and a half hours of the onset of symptoms and that
the cerebral hemorrhage be excluded on a CT
or MRI scan of the brain
. In general the CT scan of the brain of patients who present
with a cerebral infarct, will often appear normal in the first 12 to

24 hours after the stroke. It is therefore obvious that a normal CT
of the brain does not exclude a stroke. Evans was discharged
without
a working diagnosis or a plan of action or a referral, taken to a GP
who in turn referred her to Dr Le Roux and was readmitted
at
Wilgeheuwel Hospital.
[66.3] Evans was not given an
opportunity of proper assessment for treatment with this medication.
At her second visit and re-admission
Evans was out of time for
treatment by the time lapse. She was no longer a candidate for the
thrombolytic therapy. It is not clear
why an MRI scan of the spine
was performed. On the findings of the MRI scan at the Gordon
Institute it did not contra-indicate.
The cause of Evans stroke was
detected to be a blockage in the right vertebral artery. The brain
receives blood through two large
arteries, arterially in the front
and posteriorly at the back, the two in the front are the carotid and
the two at the back are
the vertebras. In Evans' case it is said it
was obvious that the right vertebral artery was blocked and this was
thought to be
due to a condition called dissection of the blood
vessel. In the middle there is a dedicated area which it is said is
not receiving
any decent supply of blood and oxygen and then there is
an area around it they refer to it as the penumbra, like in an
eclipse
which penumbra will be getting inadequate supplies of blood
and oxygen, so that is the threatened brain. On the possible
treatment
and benefits of thrombolytic therapy, the aim of such
therapy is to reperfuse the ischemic brain and salvage the threatened
brain.
It is said to be imminently salvageable with reperfusion. The
reperfuse therapy assist in getting blood and oxygen into the area

that has been deprived, where it is in adequate or actually have
stopped , it is never an absolute area.
[67]
Having considered all the documentation,
Kasler in his 2013 medical report came to a conclusion that "Being
19 months since
the stroke, there was no likelihood of further
improvement." In general, most strokes will have their maximum
improvement
within three months. A further chance of some functional
improvement may take as long as a year, but after a year there is no
likelihood
of further neurological recovery. He regarded the
treatment offered at Donald Gordon and Riverfield to be a standard
correct therapy
with physic and occupational therapy as apparently
excellent therapy.
[68]
Kesler concluded a joint minute with the
Defendant's expert, Dr Rosman in which they agreed that:
"The Plaintiff was at the
Emergency Unit within 30 minutes of having started to experience the
neurological symptoms. Kesler
indicated not to have consulted with
either the Plaintiff or her witnesses to verify that. Reference was
made to the note in the
report that "Plaintiff complained of
sensory disturbance on the left side and was suspected to show mild
weakness on examination."
Sensory disturbance can mean numbness,
tingling, pins and needles, burning or some sensory experience
sensation.
He noted that:
"Her CT brain scan was
reported by the radiologist as normal. She was taken over by the new
doctor in the afternoon and the
details of handover are unknown. She
was discharged by the new doctor and no specialist opinion sought.
She was referred back to
the hospital by Dr Naidoo, her GP, after the
stroke was recognized. The early presentation at the Emergency Unit
after the onset
of symptoms would have made her a candidate for
treatment with tPA, a medicine which if given within 3 hours of the
onset of symptoms
has overall better long term outcome .
'They consider that with
appropriate treatment the chance of her being significantly improved
would have been about 33% percent
. Acute stroke is a medical
emergency and she should have been admitted to hospital. She was not
afforded that opportunity. It
appears that stroke was not considered
by her treating doctors in Casualty. The diagnosis and initial
management of stroke should
be within the knowledge and capability of
all doctors who work in an Emergency Unit/Casualty. They consider her
management at her
initial visit to be below accepted reasonable
practise."
[69]
He explained that Clinical notes will
include anything written by a nurse or a doctor. The time of 16h00
was noted from the clinical
notes and Kesler agreed that it was the
time that Evans was readmitted at Wilgeheuwel after she has been to
Naidoo. He also considered
the CT scan report especially where its
stated that: "If symptoms persist or worsen an MRI brain is
recommended ." According
to him symptoms referred relate to the
fact that a normal scan of the brain done in the early hours after a
stroke does not exclude
the stroke, it may take some time for the
dying tissue to mature radiologically to show up on a CT scan. Not
only that, but certain
areas of the brain are not that well shown up
on an ordinary CT scan of the brain , because they are hidden by
bone. He said in
fact the area where the Plaintiff had her stroke may
not have shown up even some days after the stroke on an ordinary
uncontrasted
CT scan of the brain." The reason that a CT scan of
the brain is indeed done as soon as possible, in the early hours, if
someone
is suspected of having a stroke, is primarily to exclude
hemorrhage, that is bleeding or perhaps some other possible cause for
their symptoms. The reason for the MRI scan not done instead
immediately is that the CT scans are generally more abundant. So, not

every hospital has an MRI scanner , secondly they take a very short
time to do, so as opposed to an MRI which might take 45 minutes,
even
an hour. A CT scan can be done literally in a matter of two to three
minutes and also cheaper. Although an MRI is often a
lot more
sensitive, but it takes longer and patients in their throes of stroke
may be restless. He, in fact, he thought Evans was
quite restless and
understood that they had to give her a mild tranquiliser to calm her
down when she was having the scan. He confirmed
that in summary he is
saying this is a fast efficient way of determining whether or not
there is hemorrhaging and to exclude other
potential causes of the
symptoms. He said sometime brain tumors may present in a rather
stroke like fashion and that might be picked
up on a CT scan.
[70]
On various trials/studies done looking
at time onset of stroke symptoms to time for commencing thrombolytic
therapy that is IV (intravenous
treatment) to dissolve the clot and
restore blood flow have shown that the longer it takes to start
administering the drug the
less likely the results are going to be
favourable, so the best results are obtained when the treatment is
given early and that
is generally held to be within 3 hours. Although
there is still some benefit to be derived
after
three hours and under four and a half hours
,
but it is the law
of diminishing
return s.
Not only are the benefits
less good, but also the risks become greater. In explaining the
recording by the radiologist that if "symptoms
persists" he
stated that it is not clear if radiologist was informed cause his
report will always include a short clinical
note by the Doctor to say
this patient' s symptoms and signs are the following and indicate if
patient's symptoms continuing .
In this matter the Doctor and
radiologist just say it is a normal scan and if patient symptoms
continue or worrisome then MRI scan
should be ordered. He confirmed
that from the evidence of the three witnesses that the Plaintiff's
condition did persist such that
she left in the same or worse
condition. The
MRI scan was still
done the same day on 5 October 2011at Sh23pm. This did not detect the
stroke still.
[71]
The Plaintiff was out of time with treatment on the findings of the
MRI scan by the time lapse
of her re-admission . It did not
contra-indicate. He had also recorded that "Plaintiff presented
with the onset of numbness
of the left arm and leg on the morning of
5 October 2011 at 10h25." He said he is not sure where he got
the time, if he did
not extrapolate from the history that was
received by the admitting Dr Sim or the nurse who noted that the said
her symptoms began
half an hour before, so he worked backwards. If
Evans arrived at the Hospital at 11h03, well registered and was seen
by the Dr
at 11h10. She would have been well within the window of 90
minutes or even three hours. So according to him there is strong
evidence
that the closer the onset of the symptoms to her
presentation at the hospital or the clinic is brought, the better the
chances
of doing something if one acts correctly within 3 hours. He
confirmed that fighting about whether it was 10h15 or 10h25 is
neither
here nor there, it is within all these parameter.
[72]
He referred to the Emergency Unit triage
nurse's notes that read " complained of numbness on the left
side of body started
about half an hour ago, feeling pins and
needles, headache x 2/52, coughing-two weeks coughing, clear phlegm
for seven days"
. He had then written that "she complained
of numbness on the left side, it started half an hour previously. "
Her past
medical history of asthma, smoking and a previous knee
operation was also not ed" . The Casualty Officer' s notes by Dr
Ndlela
record that she "complains of numbness on the left side
of her body since 30 minutes ago. The Dr when she saw the patient
recorded that the numbness had started to be felt 30 minutes ago. The
notes than says that the Plan was to perform blood tests and
order CT
scan. The CT scan was performed at 12h24 .It was put to him that it
is 2 hrs after the onset that the CT scan was only
done. If one looks
at the admission, the label that says 11h03 they were at the
administration, 12h24 is not indicative of expedient
attending to a
possible stroke.
[73]
It appears the stroke was not actually
considered by Dr Sim in her note for if it was considered then there
would have been some
urgency in getting the scan so it would be
incumbent on the Casualty Officer under those circumstances to
expedite the scan by
talking to the radiologist explaining that she
had a patient who probably had a stroke within the time window and
request the expedition
of the results to be given as soon as
possible. In this case the scan was simply ordered and was put in
line when time was available.
In fact it was not indicated why the
patient was sent for a scan. "The doctor who took her history
and examined Evans may
well have suspected a stroke as she presented
with stroke like sensory " symptoms of numbness and tingling
down one side."
The scan could then have been done in 15 minutes
if the diagnosis was there being a potential or looks like a stroke.
They would
have known that there is no contra indication for using
the only therapy. He agreed that for the thrombolytic therapy, if one
refers
to the widest possible period 10h00, the onset of the symptoms
meant the 90 minute period had been achieved/passed. With regard
to
reporting that a toxicology screening was done and a full blood count
. He confirmed that full blood count is done to search
for possible
infection and the tests requested indicative that the person who
ordered them was not looking for a possibility of
a stroke.
Accordingly time is brain, the more time goes by the more it is lost,
the more brain cells you use, there being a limit
in terms of the
window. He said most of them look at 3 hours, those who are more
generous will go as far as four and a half hours.
The most important
thing being time. Patients are encouraged to go straight to hospitals
where there is an Emergency Unit instead
of seeing a GP.
[74]
The symptoms to him was so obviously
stroke like, that one would wonder why a medical person would not
suspect that. He not having
spoken to the Doctors would not really
know. He further notes that "In spite of her relatively young
age stroke would still
be the most likely diagnosis in a patient who
presents with these acute symptoms." He was not aware of
Wilgeheuwel Hospital
having a resident neurologist, however, Dr D Le
Roux a specialist physician would have been eminently suitable to
administer the
necessary medication. He indicated that not every
facility will have a resident neurologist so physicians are now
generally expected
to administer the medication as well. Sometimes if
they are confident to do this on their own, other times in
consultation with
their favourite neurologist.
[75]
In respect of the guidelines and the use
of "Thrombolytic agents he said "they have been used
therapeutically for well
over a decade." He referred to the
South African Guidelines
supra
whose
Committee was chaired by Prof Briar from UCT where it was reported
that 'there is ample evidence that protocol driven multidisciplinary/

unit care within a hospital improves recovery from stroke." He
further quotes from the guidelines that "Treatment in
a stroke
unit has been shown to reduce mortality as well as to reduce the
likelihood of dependency after stroke. Avoiding delay
should be the
major aim of pre hospital phase of the acute stroke care. An acute
stroke or transit ischemic attack TIA should be
treated as a medical
emergency and evaluated with minimum of delay." The guideline
further states that: "General supportive
treatment is emphasized
and is directed at maintaining homeostasis and the 'treatment of
complications. Intravenous thrombolytic
therapy with recombinant
tissue plasminogen activated t-PA is an accepted therapy for acute
ischemic stroke within 4,5 hours of
onset symptoms, but can only be
administered at centers with specific resources. He agrees with this
idea adding that the idea
being that if you are not confident in
doing it yourself or do not have the facilities then you should
transport your patient to
the nearest facility that can do that
urgently. In casu they knew that Le Roux was in the vicinity.
[76]
According to Kesler the guidelines also stipulate that treatment
commences within four and a
half hours of the onset of the symptoms
and the cerebral hemorrhage be excluded on a CT or an MRI scan of the
brain." He said
"Evans was discharged without a working
diagnosis or a plan of action or a referral." Whereas in general
someone who
attends a doctor, whether in the emergency situation or a
routine visit wants to come out of the consultation with some kind of

diagnosis even if it is not accurate, and should be the highest level
of one's understanding at that time. It is true that in some
medical
conditions it is well impossible after a consultation of an hour to
come to the correct or accurate diagnosis, but should
still at that
stage have a working diagnosis, something that will be figured out
with time. Obviously in urgent situations there
is much less time and
one should come to a much quicker conclusion. However discharging
somebody saying they experience numbness
is not a diagnosis but a
symptom. Admitting that sometimes that can be their highest level of
understanding, he said they rather
should then go somewhat further,
even if it means admitting somebody for further observation/
investigations or for specialist
care or referral. The Doctors who
attended to Evans were Casualty Officers, not specialist. But no plan
was out as to what was
going to happen in the future, especially
since the patient was not better. A patient would be referred just to
the Specialist
to find out what more is going on if there is no
diagnosis. He was not sure if the Emergency Unit had a Neurologist.
He thought
Shamley did sessions there .
[77]
He had also noted that Evans was "a 37 years old woman" who
presented within half an
hour after the onset of her symptoms or
stroke. Her stroke was neither recognized nor adequately managed. She
was inappropriately
discharged from hospital instead of being
admitted or referred to a specialist for further management. She was
denied an opportunity
to be evaluated for thrombolytic therapy which
may have resulted in a much more favourable outcome. He said there is
no certainty
that if it is administered a more favourable outcome
will result (be achieved) but only probabilities. He said there are
many procedures
and treatments which are controversial where one
cannot absolutely predict the outcome. Thrombolytic therapy is
different from
many other forms of treatment where you cannot be sure
of an outcome in that where there are only, one of the differences is
obviously
that you've got no time, you don't have the leisure time to
decide whether are you going to do surgery or not, very rapid action

required. In relation to proper tests to determine if there is no
contra indication, with nothing to indicate that you do not apply
the
thrombolytic therapy, he said one is guided by literature which is
considerable about the outcomes of the thrombolytic therapy
and to a
much lesser extent on one' s own experience.
[78]
According to him literature is
unequivocal in stating that patients who receive timeous thrombolytic
therapy are more likely to
have a better outcome than those who do
not. It is also true that some patients who do not receive
thrombolytic therapy they also
do well
.
However the patient's chances are better if they receive therapy and
they remain greater the earlier the therapy is received,
this has
been stratified into time period so to know that a patient does
better if therapy is received within 90 minute than if
it is received
within 180 minute, et cetera and the fall off then becomes quite
rapid after that, the falloff in possible improvement
although
improvement been described up to four and a half hours, certainly one
would be cavalier if one gave t-PA after that period
of time. So in
the 90 minute period the chances of doing better are about 2.8 times
better. A patient is likely to do better by
a factor of 280 per cent
than if it did not receive it . Those are called odd ratios. So the
likelihood to do better by a factor
of 2.8 percent that if one did
not receive the therapy and, and they also look at how accurate those
odds ratios are and that is
called confidence interval and the
confidence has to be greater than 65 % for it to be statistically
significant. So in 90 minute
one has a 2.8 times better chance if you
receive the therapy. The reasonable accepted practice in South Africa
is one has to obtain
some form of consent from the patient or their
family. In some cases the patient is unable to give consent because
of their condition
or inability to talk and understand, but it needs
to be rapidly explained to the family what are the possible benefits
and possible
risks.
There is a risk
of bleeding, both cerebral and systemic hemorrhage. In other words
hemorrhage in other parts of the body, so there are risks involved
and some patients will do worse on receiving t-PA thrombolytic

therapy than they would have done with Placebo .
[79]
Overall there is no doubt that there is
benefit in the case of Mrs Evans, especially being youthful. She was
not 40 yet, one would
be, therefore in general more aggressive under
those circumstances in pushing for thrombolytic therapy urgently. A
reasonable specialist
would have gone for this therapy given now what
we know about how Mrs Evans presented and the results of the scan.
The best case
scenario is that the patient miraculously has a
complete resolution of their symptoms so how this works is that the
t-PA dissolves
the clot and the blood flow is resumed to the area
which is not yet severely damaged. So the patient, having personally
experienced
being unable to talk and severely profoundly weakness
down one side of the body and who within an hour becomes apparently
much
better and, have no residual symptoms and then the spectrum will
go all the way across the patients who have no benefits at all
and
those who might die as a result of complications, the main
complication would be cerebral hemorrhage. Not all cerebral
hemorrhage
are fatal and many of them will also in their own right
recover a great deal so just the mere happening of a cerebral
hemorrhage
is not a death sentence in itself, but it is certainly an
adverse event. So there is a spectrum that one can see from complete
recovery to no recovery and even worsening . He said it was difficult
for him to say what would have been the outcome had the Plaintiff

been treated timeously within the window period of 90 minutes cause
he can only base that on literature and one's sense of optimism.
So
he would have expected the Plaintiff to do better than she did
without treatment, hopefully considerably better.
[80]
He noted that the Plaintiff has
considerably improved which is what one would expect from patients
who survive the stroke, some
will improve very slightly some a great
deal. In many of the trials the outcome was to look at their level of
functionality three
months after the stroke whether they received
therapy or not and there are various scales that are used in judging
patient s' progress
at the three month period. One that is commonly
used (although there are many others) that he uses is called the
Rankin Scale where
6 would be a patient who did not survive three
months and O would be a patient who has no symptoms after having a
stroke and then
graded in bet ween. He said although he has not
examined Evans, it appears that she falls somewhere at the level of
Rankin 4, because
she requires aids in walking, she requires a
walking stick and a splint. He had hoped that with treatment they
could have got her
down to a 0-1 or 2. The Warfrin she is taking is
only administered as a preventative for a secondary stroke, it would
not have
helped her current situation . He did not think they would
have started her with Warfarin immediately after the stroke, they
probably
waited a couple of weeks, which would have been the correct
thing to do. The therapy is aimed at dissolving the clot and
certainly
promote hemorrhage. It is therefore important to check that
there is no hemorrhage already by doing the scan to exclude blood .

That would be an absolutely contra-indication if there is, if the
stroke is due to hemorrhage, So it is important.
[81]
From a clinical point of view assuming
that Evans did not have a complete 100 % recovery, then he would have
expected her hand and
arm to be more functional probably still a bit
weak and a bit clumsy and would have expected her to walk without
aids, a brace
or a stick which would be a more favourable outcome,
what they are aiming for after all. Otherwise why would they
administer the
medicine. He has also stated in his report that "The
American Stroke Association provides the following guideline for the
Administration of t-PA" 'The diagnosis of ischemic stroke
causing measurable neurological deficit" he meant that one must

have something one can actually measure. They can measure weakness,
it is pretty crude (basic). One does not have to get a special

machinery that an occupational therapist have to test how hard you
can pump a muscle. It can be done at the bedside and it is
nevertheless reasonably sensitive so one has got to be able to
measure something whether a weakness, or numbness or tingling. When

they test for sensory symptoms they use pins and cold objects and
tuning forks and they can in a sense get some objectivity out
of
that, since one wants to have something that one can show. A patient
may happen to have a scan that shows a stroke, but with
nothing to
show for it, one should be aware that it sometimes does occur because
they do sometimes see patients retrospectively,
who have scans who
are shown to have had strokes in the past, but have never presented
themselves to anyone. They clearly at the
time did not have anything
measurable. They might have been out of some sorts for a day or t wo,
but, so you want to be able to
show that a patient has a deficit, a
neurological deficit 3/5 weakness on Evans was recorded at
Wilgeheuwel.
[82]
On neurological signs not clearing
spontaneously;
he said it is
important as one would like to exclude patients who having transient
ischemic attacks TIA and by definition they
are transient episodes of
neurological deficit which get better on their own. It is like a mini
stroke that improves spontaneously
. The majority of those will
improve within an hour. Although by definition a TIA is regarded as a
temporary neurological deficit
on a vascular basis lasting less than
24 hours, but in actual fact most TIA' s last for less than half an
hour. So one would want
to exclude those patients who are improving
because they have had a TIA. In t his case there is no question of
that since they
know Evans had a stroke not a TIA. Evans neurological
signs were not minor and isolated. There is a scale for measuring the
deficit,
an America scale, namely the National Institute of Health
Stroke Scale (NIHSS) which ranges from 0 to 42. One does not want to
treat someone who has minor symptoms, in other words four or less
than on that scale, because the outcome is likely to be pretty
much
the same if you do not treat them. One wants someone who has
recognizable hard and not isolated signs, in other words not
just a
weak finger and also
don't want
somebody who has very serious signs. Again if it is over or about 25
then the outcome is likely also not to be so good,
but want somebody with a middle ranging stroke which the majority of
patients will fit into. He believed Evans did fit in.
[83]
On the question of symptoms having to be
less than 3 hours before commencing treatment, he said although the
South African Guideline
pushes that limit a bit further as he has
already testified that is what was applying at the time so evidence
that was discovered
last week cannot be brought in. But must work
with what was available at the time as we are judging the conduct of
the Doctors
at that time. He explained his reference in his report
that: "Benefits of thrombolytic therapy: the aim of such therapy
is
to reperfuse ischemic brain and salvage threatened brain." It
means getting blood and oxygen into the area where it is inadequate

or actually have stopped. The therapy assist in achieving that. He
also wrote "For every 100 patients treated with thrombolytic

therapy 32 will have a better outcome and 3 will have a worse
outcome" which refers to the 90 minute interval. It is indicated

that the joint minute between him and Dr Rosman also confirms the
statistic referred to.
[84]
Under cross examination Kosier testified
that thrombolytic therapy has been used in acute cardiac events for
more than 25 years,
but because of an unacceptable high rate of
cerebral hemorrhage , the medication that was initially used in
coronary attacks, heart
attacks were found to be unhelpful in brain
attacks, in stroke. Various other drugs have been tried today in
South Africa. Activase
is the only thrombolytic agent they apply
registered however, there are also newer ones available overseas. In
the USA there has
been one called Euro =Carnaise, others tried but
also abandoned it because of the unacceptability high rate of
cerebral hemorrhage
in those cases. It was probably slow to come to
South Africa. Prior to the guidelines that were published in 2010
there was another
guideline written by the Department of Health, that
was 5 or 6 years before that which according to him not a good
document as
it suggested the use of a drug up to six (6) hours after
onset of the stroke.
[85]
So more recently over the last 10 years
or so protocols have been set up, initially people were a bit weary
to use it if they were
not neurologists, but thinks it is now
commonly used if patient arrive early. The initial thinking was 6
hours which was out of
kilter with the whole international scene at
that stage. He confirmed that his own protocol is 3 hours and can be
persuaded if
it is 3 hours 10 minutes. His policy in general is that
risks are too great after 3 hours. Because not only is there a
reperfuse
factor but also an efficacy factor that the drug is not
going to work as well. He would therefore not be critical of a doctor
who
does not administer t-PA or Alteplase after 3 hours of onset of
stroke. Even if there was a chance from one of the later doctors
to
fall within three to four and a half hours they will not label that
as negligence on the part of the doctor for not referring
the patient
to thrombolytic therapy. 3 hour window opportunity applicable. Kesler
also confirmed that the producers of Alteplase
prescribed it to be
used within the 3 hour window.
[86]
Explaining how to pinpoint the onset, he
said it should be when the patient was last seen to be normal, which
can be a witness'
event (how the patient was observed) or the patient
himself may be able to express their problem. If one wakes up with a
stroke
symptoms then they are deemed to have started (onset) when
they went to sleep. In general a patient has got to know roughly and

hopefully accurately if possible, the time of onset of symptoms as it
is a subjective experience on the part of the patient herself,
to
start feeling that there is something wrong as it was in Evans' case
a subjective feeling. The sign on the other hand is what
is
demonstrated physically when examining the patient, so that is what
the doctor could see physically, because sometimes there
are symptoms
that cannot be seen. When somebody feels fuzzy or feels lame but
functional, the sign is no impairment since that
is what the doctor
can see physically when he examines. He agreed that in Evans' case it
would have been the inability to hold
herself or to bear weight. The
first sign being the sensory symptoms in the region of the upper arm
initially and it crept down
a bit. He
conceded
that the time of the onset is different and need to be pinpointed or
established by evidence.
He agreed
that he reviewed the documents and concluded and according to him it
was 10h28 or 10h25. It however seems not to have
been correct another
indication being that it might have been 10h15 or earlier or half an
hour. Minutes now becoming more important
at the close with a
question on where does the 90 minute window start s, since it was
said to be different times by the witnesses.
[87]
He indicated that he usually goes to
some of this hospitals where they have an Emergency Unit and was
aware of how they operate
having worked at the Hospital with an
Emergency Unit as well. He confirmed that the hospital documents has
a sticker that indicate
that 11h03 is
the time that Plaintiff's husband registered her as a patient.
It was not the time that the doctor had her in her hands but with the
administrative staff. The triage nurse have indicated that
the
Plaintiff arrived at 11h10, blood pressure checked by 11h10, taken 2
minutes to do so. He said the nurses to some extent must
alert the
doctor of a serious situation . Dr Sim was consulted at 11h15 which
he saw as a good thing and agreed that he was therefore
not on Evans
bedside 11h03 like he might have present ed.
[88]
It was put to him that Ndlela only
became involved after 13h00 more than three hours after 10h00 at
least, she will have to be treated
on a separate basis from Sim, the
first reference to her was at "13h05", awaiting blood
results. Ndlela saw the patient
and reassessed her at 14h10. He
agreed that it was getting into dangerous grounds to criticize
Ndlela, stretching the hours to
the limit to criticize her for her
not to have given the t-PA. It was also put to him that five minutes
after it has been reported
there is evidence that she saw the
patient. Therefore she could not have administered the Alteplase. She
would have heard to refer
the patient to a physician if she was alive
to the fact and heading her duty of care, as there is no Neurologist
at that hospital
on full time. Kersler pointed out that the ideal
place to administer the t-PA would have been at the ICU, but they
have known to
have started t-PA in the radiology Department in order
to save time instead of waiting for the patient to come all the way
back,
the Doctor goes to the Radiology Department waits for the scan
to come out, checks, discusses with the radiologist and begins there

or then can be given at Casualty. But the patient must be admitted in
the ICU. The medicine is given over the period of an hour.
10 % of is
given as a bonus dose, so about 10% is given as an immediate
injection intravenously and the rest the 90% is then infused
over a
period of an hour and sometimes the logistics of taking the patient
over the porter to the ICU there may be some delays,
so he would
quite happy to begin treatment even in the Emergency Unit. He said he
accepts that the Casualty Officer at the time
might not have wanted
to take the responsibility of giving medication or even starting the
medication without specialist input.
But it can be administered by a
nurse under the care of a Doctor. He said he thinks those days in the
Casualty were conservative.
Whereas at the moment the Casualty
Officers will initiate therapy but after talking to the Specialist as
it is preferable to have
an input of a Specialist.
[89]
He disagreed that the thrombolytic agent
is something that is not kept as a routine but will have to be
ordered, saying it is also
used in situations of acute cardiac
medicine. So the Emergency Unit will have access to it in an
emergency cupboard or in the unit
or if it is after hours in the
Pharmacy.
It would have been
available in 2011 in the hospital
but he was not able to say whether factually they had it on sit e. He
also had some sympathy for Ndlela who took over that the
handover was
difficult (as they will always be), if from Sim, her colleague has
told her there was nothing wrong with the patient
and just waiting
for her blood result s. He could understand that perhaps Ndlela was
not as thorough as she was supposed to be
at that stage because she
knew that Evans had already been evaluated by the doctor, and maybe
she has been busy with other patients
who have been waiting.
He
accepted that Ndlela was out of the 3 hour window period. Also that
it would have been outside the period had Dr Le Roux been
obtained,
made sure there is a bed at ICU to transfer the patient once the
infusion has been started which might take time. He
accepted that the
time accuracy is very difficult and accepts that his time of 10h25 it
might have been later 10 or 15 minutes
earlier
.
[90]
On there being a query about the 3/5
loss, Kasler disagreed that there can be a query on 3/5 and said it
cannot be queried as it
was a significant weakness. It would have
been an indication of acute situation of a clearly affected patient .
He says it is however
not absolutely clear why she was twitching. He
said it might have been the myoclonus maybe on the basis of some
irritation of the
tissues in the medulla oblongata and the top of her
spine. On scoring her on the NIHSS Scoring system he indicated that
he has
not gone through the exercise however he said she might have
been more than 4 and less than 22, which is moderate. He does not
understand why her level of consciousness was not always perfect . He
would, however say that this was a moderate severe stroke
which
required urgent therapy. The severe stroke is over 24 in terms of the
administration of t-PA. He was referred to the South
African
Guidelines for Management of lschemic Stroke and Transient lschemis
Attacks where it is stated that they were dealing with
the "exclusion
criteria" that says "caution should be exercised in
treating patients with major deficit of a NIHSS
score of more than
20." Kasler's response was that scoring can be out by a couple
of points but he always use 24 as his upper
limit but accept that was
a local guideline. Rosman had put her on 23 at the time of her
presentation. He said he could not argue
with Rosman's finding as he
did not consult with Evans at the time. He said his limit in giving
thrombolysis treatment is 24 whereas
in the document they speak about
20. He could put Evans between 4 and 24.
[91]
With reference to the modified Rankin
Scale (" D2" ) of which there are six scales of
classification of patient s. It
was put to him that where the
scale/score indicates a perfect result meaning there are no symptoms.
1 means no disability despite
symptoms. 2 slight disability, unable
to carry out all previous activities but able to look after own
affairs without assistance.
3 is a moderate disability requiring some
help but able to walk without assistance (walking aids). 4 is a
moderately severe disability,
unable to walk without assistance and
unable to attend to own bodily needs without assistance. Kesler
agreed to have put Evans
on 4 and said unfortunately each scale
contains not just one criteria. He refused to concede to 3 insisting
on 4 saying because
Evans walks with assistance and 3 is able to walk
without assistance. He pointed out that a person can be affected to a
lesser
or greater degree. It is not absolute as to whether she will
be able to do her job as previously he said that would require a
Therapist
' s input. He said Evans had an absolutely useless left
hand that has got no function at all. The likelihood however was that
she
could have been better off than she is now.
Then
for the Doctors to win this case they will have to say no doctor has
to ever fear giving thrombolysis therapy to somebody because
it does
not matter. Although they know that patients get better on this
sometimes a whole lot better. The likelihood being 50%
plus 1. He
said he understands that this case hinges on that a doctor can be
negligent and step away but it is known that the drug
works better
than not giving it in the majority of patients.
On the odds ratio he has indicated chances of improvement to be 2.8
times what they would have been had they not received treatment
as
indicated in the statistician' s paper. He confirmed his observation
that to a 100 given the treatment 32 will have a better
outcome
whilst 3 would have the worst than what they would be without the
treatment, having complications in the medication.
[92]
On the Target Stroke extract Lansberg
Etal/2003 where it says "N umber of patients who benefit and are
harmed per 100 patients
t-PA treated in each time window" 0 -
90, that is 27 patients benefit which is 1.3. In 91 to 180 minutes
22.2 will benefit
and 2.4 will be harmed. The figures from different
metro analysis trials can differ from as much as 27 to 35, 36, the
general standard
is 32 and graph says 27. He confirmed that he agreed
in a joint minute with Rosman that 33% chance of improvement. He then
was
saying the odds are 280% against 1. He said what it meant is that
if one has odds ratio of 1 it means there are no benefits from
the
treatment . Odds benefit of 2 means twice the number of people are
going to benefit which is a 100 %.The odds of 2.8 it 280%.
[93]
On being referred to Dr Werner Hacke
table (" D3" ) from Heidelberg, that refers to 3 months
favourable outcome, defining
the three neurological function scores
of modified Rankin scoring 101. On a 100 people given Altepase,
Rankin 1 is a good outcome
and Rankin 2 to death being a bad outcome.
It had bad outcome of 59 out of a 100. Keiser did not accept the
results on the trials
made on the Altepase arguing that the standard
correct results is that roughly 33 % of patients will do better than
they would
have. He said it is easy to take one trial here and one
trial there and manipulate statistics in an awful way, which is what
was
being done in this matter. He therefore does not accept the
results. He pointed out that the flaws in the test is that it does
not tell you who has improved. It might tell you in absolute terms
who had done worse or well at the time of the results and no

recording is made of who has improved after the last results of the
trials. Kasier said he does not agree with the premise. He
wanted to
know why does he denounces the odd ratios as an important static
criteria. He was advised that the odds ratio is the
one that is
tested and to see if they are medically sound . He said he accepts
the figures but not the premise that the improvement
is so very
slight. He agreed that he will have to accept the figures as correct
as the statistician will also be depending on those
figures. He
accepted that they are dealing with a difficult modest imperfect
agent that shows statistical significance. He accepted
that the
Rankin 2 was discussed and that it would be a very acceptable outcome
to many patients if they started off as a Rankin
4. He could not
answer what Rankin score he would give Evans at presentation at
hospital. With reference to the National Institute
of Health Strokes
scale. He confirmed having done the exercise with the NIHSS at the
time of her presentation. And had narrowed
it down to 22. He thinks
it is 12 plus or minus 1 which is moderate. It was put to him that on
the calculations done by Rosman
her rankin scale is put too much
higher on 23 which would have agreed with what he said the previous
day. He said 22 is the limit
where they stop treatment. He said it
hinges completely by saying anywhere between 4 and 22. And if that is
converted into a Rankin
scale he had not done the exercise. He said
at the moment she was on Rankin scale 4 because of her walking
problem. She seemed
to have been incapacitated at the time. So it
might have been 4 or 5 at the time of presentation.
[94]
Reference was made to D3, the Hacke
table where the heading is 90 - 180 minutes with the Placebo there
were 15 Rankin O' s, 14 Rankin
l 's, 10 Ranking 2's 17 Rankin 3' s, 9
Ranking S' s, and 18 deaths. It was put to him that there were 43
Rankin 1. In the instance
of one with treatment there was 18 Rankin
O's, 25 Rankin l's and 7 Rankin 2's, 14 Rankin 3's, 11 Rankin 4's, 8
Rankin S's and 12
or 17 deaths. The spreadsheet that is Dl and the
added Rankin scale 1 scored there were 43 Rankin l ' s in instance
where there
was treatment. But 57 of those patients who were treated
fell outside of the Rankin 1 score. But that cannot be looked at in
isolation
because with the placebos 30 of the non-treated patients
also had a good outcome of Rankin 1 and lower. The articles are set
to
move down getting into 181 to 270 minutes the outcomes becoming
much better. The outcome that is indicated is that on 37 treated

patients will have an outcome of Rankin 1 and better. Whereas 63 will
have an outcome of worse and treated patients who will do
well
without any treatment as supposed to 69 the gap between treatment and
versus non treated patients that gap becomes narrow
Kesler said that
is why he does not feel that treating over 3 hours is indicated. He
confirmed that it is an overall modest result.
He agreed that the
gains were fairly modest. He confirmed that it is not everybody who
received treatment that will do well and
return to normal function.
[95]
He was referred to an article from the
Cochrane Library published in 2016 on "Thrombolysis for Acute
lschaemic Stroke (Review)
noted as 04. He said he does not know
anything about the article. It reads on p20 under Discussion:
"There is a strong evidence
from 27 trials of 10 187 participants on the immediate hazards and
the apparent net benefit of
thrombolytic therapy given up to within 3
hours of acute ischemic stroke, with overall benefits suggested up to
6 hours, for people
aged over or under 80 years and with different
stroke severities. Overall, thrombolytic therapy was associated with
the significant
excess of deaths within the first 7 to 10 days,
symptomatic and fatal intracranial hemorrhages and (for all drugs)
deaths by the
end of follow-up. Most of the excess of death with
thrombolysis occurred early was explained by a fatal intracranial
hemorrhage"
He confirmed that hemorrhaging was
the usual form of death, but overall there was a significant benefit.
The article also reads
that:
"For every 1000 people
treated with thromboysis 41 avoided death or dependency. Treatment
within 3 hours resulted in 95 out
of 1000 fewer dead or dependent
people. Trials using intravenous recombitant tissue plasminogen
activator (rt-PA), contributed
the most date to this review.
Nevertheless it was associated with an excess of early deaths,
virtually all attributable to fatal
intracranial hemorrhage (ICH) and
a significant excess of symptomatic intracranial hermorrhage, but a
neutral effect on deaths
by the end of follow up,
He said other drugs have been used
experimentally." He agreed that this was not a magical drug but
a modest one. He said he
would like to imagine that for the actual
drug that they use the figures would somewhat be better." He
cannot say how much
better but somehow better than the 95, it might
have gone up to somewhat over 100, that he cannot say but it is still
considered
the most efficacious of the thrombolytic . It was put to
him that the rt-PA which is the drug Kesler used was actually
involved
and contributed the most to the Data. He agreed that it was
included and added that probably the numbers that they gave 10 000
included some trial but were not included in the paper. He thinks
they were somewhat less, maybe 3 000 roughly less. So he is not
sure
if those 3 000 were a combination of Alteplase and other drugs.
[96]
He was referred to Lancet Publication marked D5 on the same kind of
literature to an article
on "Risk of intracerebrale hemorrhage
with alteplase after acute ischemic stroke: a secondary analysis of
an individual patient
data meta- analysis." He referred to a
part were it reads:
" Among patients given
alteplase,
the net outcome is predicted both by time to treatment
(with faster time increasing the proportion achieving an
excellent outcome)
and stroke severity
(with a more severe
stroke increasing the absolute risk of intracerebral hemorrhage).
Although, within 4.5 hour stroke, the probability
of achieving an
excellent outcome with Altepalse treatment exceeds the risk of death,
early treatment is especially important for
patients with severe
stroke."
[97]
According to Lancet Publication about
6756 patients pulled the Data in the nine trials of intravenous
Alteplase versus control.
It was put to Kesler that the significance
and helpful control is because here one can actually see and take
into account what
the state of the patient was on presentation. And
not everything lumped together but broken down into 3 components.
There one can
at a glance see the outcomes, the three components as
to looking at this schedule from the left. The expected outcome if
not given
Alteplase, is the control. Keiser agreed . The expected
outcome given Alteplase within 3 hours in the middle, and the last
one
given in 3 to 4 and a half hours. The three components are then
(1) the mild or a very mild stroke which is the NIHSS 0-4, And the

middle lot NIHSS 5 -15 and then serious stroke NIHSS more than 16. In
response he said in general, he usually does not treat patients
who
are 4 or under. He agreed that a lot of people were treated and
commented that he thinks in the beginning, the trial did not
look at
severity and those guidelines were only added somewhat later after
analysis of the various trials, where
it
is now recommended that patients with very mild strokes signs those
under 4 and symptoms should probably not be treated
.
He confirmed that the 1,2,3,in that page which represent the outcomes
in Rankin Scales 1, 2, 3, 4, 5, 6. Along the side he had
the NIHSS
score scoring 0-4 on the left hand block and 5-15 on the middle left
hand block and greater than 16 on the lower block.
He counted the
little numbers and transposed it into one document which is workable,
which is the Whiteley Lancet. It forms part
of the synopsis which
says, "Patients with mild signs of stroke per 100 patient s."
[98]
He was referred to Lancelot Publication
pages 10, 11,12. 11 is the one that deals with the middle range and
moderate signs of stroke
in the scale 5 to 15. He agreed that that is
where he has placed Evans. It was put to him that if he adds those it
shows no tPA
at all. The Placebo 35 out of 100 patients would have
recovered to that level according to this study. The same within 3 to
4 and
a half hours 40. Then of the patients that would have been left
with a slight disability 16 without any treatment at all. 15 within

the 3 hour period. If this type of thing comes up there is actually
more patients who will not be treated who would be 16 that
would end
up with a Rankin scale of 2 whereas if they are treated only 15 ended
up in that range. Kesler agreed that it is what
he has picked up from
the literature. He said they are not actual figures but taken from
the raw data and in a sense manipulated
through statistics to give an
indication of outcome . He said he does not know how they put it
there, but they are models. He says
he is not surprised that there is
another formula. And That 16 and 15 are pretty similar. He noticed in
one case it was also reversed
with deaths. He said there were more
deaths in the group in one of those things in the group that was
placebo as supposed to those
that got the drug. That did not make any
intuitive sense and was just part of the problem of the modelling
that is that. He said
in general he accepts that. It was put to him
that he has got to accept that there are numerous patients doing well
or even recovering
and this is what it is all about, without any
treatment whatsoever. He agreed that it is what they experience
clinically after
all not long ago they did not use tPA and many of
their patients recovered exceptionally well, mildly well, somewhat
well. He said
that it is not surprising at all. It was put to him
that there is a marginal increase of benefits to some patients but it
is not
a miracle cure but modest compared to the controls . And he
accepted that.
[99]
He was referred to figures of 32, 33 and
he responded that he was not so cognizant of that when he was
reminded that the previous
day he looked at those figures of 32, 33
and it occurred to him that they look at different things. In the one
they say a third
of the patients have improved and the third of
patients do better than they would have, had they not received the
drug. Which is
very different to this because in that group all they
are looking at is an increase in one or more in the Rankin scale. So
what
they are doing in that paper they are stratifying it into
different Rankin scale, whereas in the statistics that he quoted
before
they just said well if you have gone from a Rankin 4 to a
Rankin 3 you have improved, slightly looking at things in a different

way. It was put to him that the agreement that was reached ties with
the little graph in his report annexing a scale at the back
which
says he has to treat 27 patients of 100, 27 will look better without
giving an outcome only stating slightly. He said that
was the first
meta- analysis that actually looked at stratifying Rankin scales as
an outcome and in a sense confused him he did
not quite see that as
well the previous day. So he agreed that it was a more refined
version but mod est. He argued that it was
stratified and that if he
improved from a 5 to 4 in the paper that they were looking at it
would not count. She will still be in
the bad group. Whereas if he
happens to be a 2 and he stayed at 2 or he happens to be 1 and he
stayed at 1 he is then included
in the group in this paper that
Counsel was referring to. So if a 1 and he got treatment and he
stayed a 1, then he was included
in the good group. Whereas in the
previous papers that they looked at it was simply looking at anyone
jump to 2 or 3 as better
. He said one can still be a lousy outcome.
[100]
It was put to him that its worrying
where he got his figures in his report where he states "of every
100 patients treated with
thrombolytic therapy 32 will have a better
outcome and 33 will have the worse outcome." He replied t hat,
that was just a
quote from some paper which he obviously did not
remember or refer to. He was informed that it was a Medscape article.
His response
was "Oh thanks for saving me at least I did not
suck it out of my thumb" it comes from somewhere . It was put to
him
that him and Rosman were in agreement as well , about the 32 and
33 which is about a third. And that it is therefore very refined
and
the rule of thumb.
He was asked as to
why would he place Evans as one of the 33 not the 66. He agreed to a
suggestion of it in a way being a game of
lotto or in a sense
horseracing where the odds are you know the favourite coming in, but
the plunker at the back can actually win
the race. He apologized for
the outburst he had the previous day
.
It was put to him that he did not want to say or accept that the
probabilities dictate what the causation is. If it is more probable

than not that she would have been cured if it would have been
eventuated. That is the test. He responded that it was not more
probable that she would be cured. It was pointed to him that he has
withdrawn the statement. He said he is so sorry that Counsel
is
talking about more probable than not . They indeed knew what the
figures state and at its most generous would be a third of
patients
will show some form of improvement . Counsel put to him that that is
the case they have come to court to meet. (The odds
high) which is
still is the case in his mind as well. Kesler accepted.
[101]
On the Rankin scale he said he can put
Evans anywhere between 4 and 22, as he has not canvassed the figures
and thereafter apologized
that he was referring to the NIHSS mixing
them up. On the Rankin Scale score he said he will place Evans at 4
which might be a
little bit harsh , because she does not fulfill all
the criteria of 4 but if she was put down to 3 he could accept that
but personally
because of that caveat "but able to walk without
assistance" he chose to put her to 4. He was referred to an
article
by Rosman explaining the workings of a Rankin scale D8. It is
in an open Rankin guidance document, publication by Pofessor Kennedy

Lee, a Professor of cardiovascular medicine, Institute of
cardiovascular medical sciences, University of Glasglow. Kesler
confirmed
that he knew the author, a known expert. Lee's article says
acute stroke trials require a robust measure of function of outcome.

The present modified Rankin scale MRS is the most popular outcome
measure. There is a score of 0-6 which he sets in a tabular form
and
that correspondence with D2. Some of the concerns under that insert
some interrupt or variation of observers often disagree
even when
assessing the same patient. His explanation of how to go about
scaling a patient according to Rankin scale is that; The
score of 0
is awarded to patients having no residual systems after their stroke,
not even minor symptoms. Which is a complete cure.
A transient
ischemic attack is something which would be a typical 0 score after
the event, then there would be no symptoms, no
signs left within 24
hours of the onset clearing off spontaneously. He also agreed that
then Lee spoke of a score of 1"
"If patients have any
symptoms resulting, whether physical or mental they should be scored
at least at
1. So 1
is good but there is some residual... for example
if they have any new difficulty in speech, reading or writing, in
physical movement,
sensation, vision or swallowing or any changes in
their mood that does not limit the activities, they still should
score 1. So
in other words it is actually a bit of an over statement
to say that Rankin 1 is a perfect outcome. But is does not inhibit
that
their activities are limited." The patient in this category
can continue to take part in all their previous work, social and

leisure activities. For this purpose usual is regarded as any
activity that they use to undertake for on a monthly basis or more

frequently.
[102]
Regarding the Rankin 2
"If there is any activity
they used to undertake now they can no longer do since the stroke,
whether because of physical limitation
because they have chosen to
give up activity as a result of the stroke they should be scored 2 on
the Rankin. In this category.
The patient here has a slight
disability and is unable to look after all its own affairs without
external assistance. For example
a patient has slight disability and
is unable to carry out all its previous activities, but still able to
look after all its own
affairs without any external assistance. If
can no longer do sport or work or do the same job. The Patient will
still be able to
look after himself without daily help. He will be
able to dress, move around, eat, go to the toilet, prepare simple
meals, undertake
shopping, makes short journeys by himself. And not
require any supervision from other people, he should be left at home
for a job
of a week or more without any concern. Inability to drive
only become a problem because of a legal impediment where the
participant
is otherwise physically able to do so would not warrant a
score of 2."
[103]
He confirmed that this is in general
agreement and of his understanding as well. In Ranking 3 category is
of patients with a moderate
disability: "Patients require some
external help for daily activities but are unable to walk without
assistance and they use
a stick or frame for walking, but the
assistance of another person is not required for this". Kesler
agreed that that is where
they parted ways in his testimony the
previous day. He says he was not aware that is what it meant and has
always thought the patient
who were unable to walk independently are
those who required assistance not in terms of human assistance. He
said well it must
be that Evans is Rankin 3 which is where Rasman
said he would have put her as well after listening to the evidence.
"The patients will be able to
manage daily activities such a dressing, toil ting, feeding etcetera
but will need help for more
complex tasks such as shopping, cooking
and cleaning will need to be visited more often then weekly for some
other purpose. Simply
the advisor y for example supervision for their
financial affairs. Patients then..."'
Regarding Rankin 4 Patients with
moderate, severe disability, they were unable to walk without
assistance and are unable to attend
to their own body needs by
themselves, meaning without assistance. They are not independently
mobile and will need help for their
daily tasks such as dressing ,
toileting and eating. They will need to be visited at least daily.
Need to live in close proximity
of a helper . They differentiate
patients in category 4 from those in the most severe category one has
to consider whether the
patient can regularly be left alone. For
moderate periods of a few hours during the day. Kesler confirmed
that.it is not Evans
they are talking about.
[104]
Going to the time scale and having dealt
with onset . Kesler confirmed that they can work on the assumption
that onset was at 10h00
although difficult to pinpoint it to the
minute. It was put to him that the first intervention by a Doctor was
at 11h15. The note
says Sim saw the patient which was an hour and 15
minutes into the window period. Which leaves 15 minutes before the 90
minutes
window of opportunity expires, which is cutting it very short
for Sim to be able to first examine the patient. If he did the job

properly he would decide that what he must treat was a stroke,
arrange for a CT scan. It must be done and reported on. Get the

results of the CT scan which is peremptory and should come out
immediately with the radiologist there. Then contact with a physician

arranged. As is a position of practices, it was confirmed that there
was a physician in the premises especially Wilgeheuwel. The
agent
will have to have been obtained either from the pharmacy or locker
and then infusion start ed. It was put to him that Rosman
said if he
was called for a patient in that condition he would rush to the
bedside of the patient himself . He would advise over
the phone. He
was asked for comment and if that is the common sense that Le Roux
might probably also had followed the same if he
had been contact ed.
Kesler confirmed that preferably he had to be there to assess the
patient rapidly himself and first of all
make sure about the
diagnosis. Since this is a special field of Neurologist even though
Physicians do treat to a certain limit.
Evans was eventually send to
Shamey who is a neurologist. Bed space would then be needed in the
ICU that need to be arranged.
[105]
Guidelines say that it must be
administered in the ICU. It was put to him that Rosman also agreed
that you can start the infusion
in giving the bolus injection as he
has stated in the emergency ward or cubicle. And as you do that the
patient will then have
to be wheeled to the ICU. He agreed that is t
rue. The availability of a bed being a factual issue depending on the
circumstances.
The question was on the whereabouts of Le Roux. Was he
going to be able to immediately attend to Evans at that time or was
he busy
with another patient at that moment. He agreed that that was
speculating . It was put to him that there was no chance that Sim
would have beaten the 90 minute. He agreed that time was certainly
very tight for Sim, assuming they were talking about the 90 minute

window period and the 10h00 onset and not 10h10 or 10h15 which would
have given them another 10 to 15 minutes but would be too
tight in
the scenario of 10h00 to expect any reasonable response. He responded
that if he went through the emotions of expediting
the scan which
takes 2-3 minutes to get the written results and from the radiologist
a verbal response would suffice. He admits
that time was tight but if
treatment could be started if things were right within 15, 20
minutes.
[106]
Time was tight and there are things that
they did not know. The availability of le Roux was uncertain and he
was not fused about
the availability of a bed in the ICU. If the
patient was under the supervision of a Physician and casualty officer
then he would
give treatment. It was put to him that he was
speculating in favour of Evans. If it was speculated that le Roux was
possibly not
around, he must be given a reasonable time to respond.
It was put to him that on all the evidence the probabilities dictate
that
she would have fallen into the after 90 minute in the second
category before 3 hours. He said whether it is 15 or 20 minutes or
25
minutes that is left , one should not throw arms and say they have
missed the boat because they are not going to catch it in
time for
the 3 hours. It was put to him that he could not go that far the best
he could do is to say within 3 hours as Rosman did.
And not try and
break into the 90 minute. He said even so that would not necessarily
stop the clock. It was put to Kesler that
his own document says that
there is a difference with outcome in the timeframe scale but he
chose the best one for his case. They
told him he should not do so he
should actually take into account the probabilities submitted that
chances that she would have
had a needle in her within 90 minutes are
non-existent. It would more probably been in the second half of the
180 minute window.
Kesler agreed that it would have been in the early
part of the second half. He said again that is stratification into
sort of 5
minutes intervals has not been carefully looked at. So in a
sense arbitrary, not whether it is 90 or 95 minutes. They are just
how many times the numbers go around on a clock 90 minutes being an
hour and a half. He indicated that the type of stroke suffered
by
Evans was found out in retrospect that it is called Vertebral
Arterial Dissection and would have caused the ischemic occlusion

somewhere in the brain. He said Evans stroke has got no similarities
to other cases that seem like stroke but were not, Evans was
a very
typical onset of an ordinary ischemic stroke. That suffered from an
acute stroke. The unusual part about it was that it
was a brainstem,
a little bit more that it was a dissection would also be a more
unusual, pathophysiology of a stroke and suffered
only one stroke. It
evolved over a matter of minutes or at most probably an hour but it
is not A typical. He confirmed that by
the time she was seen by the
Doctors the stroke has occurred and the fluctuating position
thereafter was an effect of the stroke.
Getting worse overtime.
[107]
Responding to a question as to when it
would have completed he said there is a pathological happenings
within the brain . So the
blockage of the artery presumably happened
very rapidly to stop blood flow in that area giving rise to lack of
blood and then that
sets off a cascade of events of ischemia which is
lack of blood and oxygen to a dedicated area. There will be an area
of total
ischemia where there is virtually no blood and oxygen
getting into the area and then surrounding area which is relatively
not absolutely
ischemic. It is that area that under non-tPA
circumstances is often salvageable and will heal on its own. There
being progression
in time and difficult to say in a common or garden
stroke exactly when it is complete. But would think it would be in a
matter
of hours but not days. He was asked about the literature by
Botha that talks about progression instead of stroke to a completed

stroke therefore dealing with a stroke in progression or evolution
which is completely different. He responded that he does not
think
that is what Botha meant. But means that in the normal course of
stroke there is some evolution, but which is not the same
thing as a
stroke in evolution which in the case of the previous case was
stuttering and starting and improving and in fact in
her,
deterioration took place over days, certainly not in minutes or
hours. It was put to him that Rosman said by looking at the
outcome
of the MRI on the 10 the one actually pick up that this was not a
stroke in evolution or an evolving stroke because of
the area that
was affected was contained and very small. He agreed with that. It
was put to him that stroke doctors would speak
of a posterior
circulation stroke, that is the affected arrears at the back of the
neck and the medulla oblongata and the serebellum
and the anterior
stroke would the carotid arteries in the front of the neck area that
would be the origin of the occlusion which
would be a much more
common stroke and the ones that are excluded or blocking the
carotids. Kesler said he is aware of the literature
that refers to
carotids or the circulation strokes which are the Vertebrals. It was
put to him that they are less likely to be
treated successfully with
Alteplase. In other words it is not looking that the outcome will be
less favourable than the other,
in another situation.
[108]   He was referred
to literature with heading "The thrombolytic treatment of
patients with acute ischemic stroke
related to underlying arterial
dissection ." It is the underlying arterial dissection so it
does not seem to make a difference
to arterial or posterior
concluding that "the adjusted rate of favourable outcomes is
lower" and deals with thrombolytic
treatment "is lower
amongst patients with ischemic stroke with underlying arterial
dissection following the thrombolytic treatment
compared with those
without underlying dissections." He said he was aware of that
literature and what he did was to see whether
the dissection was a
contra indication. He found artives that said it was not a contra
indication. It was put to him that Rosman
said the way of thinking
changed over time changing the state of medical knowledge on that
very issue. It was put to him that initially,
in the early years of
thrombolytic treatment after it came out, practitioners did not
administer thrombolytic treatment to a dissection,
arterial
dissection stroke. He said presumably if they knew that, because that
is not always obvious as it is a rare condition.
There might well be
dissections included in some of those figures, in some of those
sample sizes, which were known about until
later. Kesler agreed that
they were concerned and so they did not administer the thrombolytic
treatment and apparently it took
some years before the state of
knowledge was such that they accepted that there is not
contra-indication. He agreed that because
that would have entailed if
he wanted to exclude a posterior stroke, doing the MRI most probably
right at the beginning and not
a scan. It is only in later years that
it has changed, but it is difficult to say whether by 2011 there was
already acceptance.
It was indicated to him that the article says the
outcome is less favourable, they do not quantify it. He accepts the
validity
of the argument that a finding will have to be made at what
the probable outcome would have been had Evans been treated. There
being two choices that obviously must be taken into account but
because of the origin of her stroke she should rather be put into
the
less favourable category except it is not really quantified nor do
they differentiate between anterior and posterior circulation
. And
the numbers , if the numbers are reasonably small then the validity
becomes less valid. Only 1% out of 488 patients would
have this type
of stroke.
[109]   The CC decided
in a Rugby matter (this is in reference to
Oppelt v Head: Health,
Department of Health Provincial Administration: Western Cape
[2015]
ZACC 33)
that the validity of the study was too small as only 39
patients were involved which they agreed can be argued. It was a
retrospective
analysis as well not by the doctors who treated the
patients at the time when they gave the patients Alteplase, which
Kesler said
it makes sense and cannot think of a patient that he has
treated who have been found to have a dissection he said he does not
have
the experience
. He confirmed that in the incidence of the
administration of thrombolytic treatment in stroke there is not a
very huge figures
involved in South Africa even in his own practice
it is pretty low 4,5 per year. He said there is more confidence now
and obviously
and that does not apply to the situation so many years
ago in 2011(8 years ago)
but it is done most frequently and much
more confidently now than it was before and he is not involved in
every single case any
longer. Whereas in the beginning he was
involved in every single case. Therefore it is picking up but over
South Africa the figures
are small which is also due to logistics of
getting the patients to hospital, patients kind of not taking any
notice of the onset
of their symptoms, thinking it is going to go
away or going, wasting time by going to their GP first. Ambulance
services taking
people to a centre which does not offer it. So there
are lot of logistical problems one would intuitively understand, it
is the
time limit. Patients often come out of time.
[110]
Reference was made to D9 an article
called "thrombolytic treatment of patients with acute ischemic
stroke related to underlying
arterial dissection in the United
States." And published in December 2011 in Arch Neurology. He
was asked about the first
manifestation of the onset of this type of
stroke, in this that starts in the posterior vertebral artery. It can
be variable so
it can be anything within the posterior circulation
which could involve for instance cerebral tissue and that would
almost invariably
affect vision, because the visual cortex at the
back of the brain is supplied by the posterior circulation . It could
affect the
cerebellum, which is that organ at the back of the brain
which is concerned primarily with co-ordination and balance. And then
it could affect any part of the brainstem. The upper brainstem which
is called the midbrain. The middle part of the brain stem which
is
called the pons. And the lower part which seem to have been affected
in Evans' case which is the medulla just under the part
that affects
balance. Vertigo can be a sign of brainstem involvement. On p107
Bundle C there was Vertease Medication that Evans
told the Doctor she
was on. He confirmed that Library Vertease is an agent given in
Vertigo it is called Betahistine and it is
a drug that is used
usually in peripheral vertigo. That arises in the middlefront from
the inner ear rather than the brain. It
is a schedule 3 drug which
means it can only be obtained by script from a doctor. The presence
of Vertigo is an indication of a
posterior dissection of the artery
being involved but not on its own. But certainly can be part of a
stroke syndrome in the posterior
calculation. He said the headache is
not as common as one would imagine in ischemic stroke. It is very
common and often severe
in hemorrhagic stroke but they often see
patients with quite severe strokes who have a headache which is an
invariable symptom
and often not prominent or severe. But in the case
of dissection it may be that the dissection began some time before
the stroke.
In most cases of dissection they do find some sort of
history indicating what set if off. And that is fairly a minor trauma
like
a whiplash or a fall. He has seen in patients who have
manipulation by chiropractors, patients elderly patients who have
back wash
hair dos. Dating back when it was roughly a week, two
weeks, three weeks before the event. So headache under those
circumstances,
especially posterior headache, neck pain which does
not have to be particularly severe, it can be mild and nonspecific.
But it
is not uncommon in dissection to have neck pain and headache.
It may well be the first sign then that the patient is no longer well

but not the first sign of stroke . So although the bisection has
begun the stroke has not . He was aware that there is a note that
she
took Dispirin, Comporal and Panado at 7h30. He said Compral just a
combination drug of a little bit of parasetamol, which is
Panado and
a little bit of aspirin. He is not surprised that there was some
headache as the history had suggested that for some
two weeks there
was some headaches, He is not sure if Evans remembers the details of
that, but that would not surprise him given
that we now know there
was dissection that suffered from neck and posterior headaches. That
being the meganism of the eventual
stroke. In the same way that
somebody who got a big plaak in the carotid waving in the breeze. The
mechanism of a stroke is that
it breaks off and flows and blocks a
vessel. And maybe without knowledge the dye is set, but that is not
the start of the stroke.
[111]
In re- examination he said he is aware
of a product known as Ventease it is usually in an aerosol pump and
its used for bronco spasm
and asthma. There is a note that Evans
suffered from asthma in the past. On the difference between signs and
symptoms Keiser said
what the patient tells you are the symptoms,
that is extracting that from a patient having asked them, the
headache, toe is painful.
So they do not usually come out initially
in the history. What you can perceive from looking at the patient
formally and informally
by watching the patient walk in, watching the
demeanour while they are giving you their history and formally
examining them on
the examination table, those things are called
signs . He said you get symptoms and signs. The one is subjective and
the other
objective. He was asked that when Evans presented where
would he put her on the Rankin scale. He said the Rankin scale is not
used
when someone presents but is an outcome . It would be used
depending on one' s trial after six, three or one month or one week
but it is not a baseline scale that you use for when a patient comes
in.
[112]
Keiser said if Evans remained as she was
when she presented she was a lot worse off . She was unable to get up
and walk. She appeared
to be a bit confused, mildly confused had a
flaccid arm or very weak left arm . She could not bear any weight.
Her leg was significantly
weak and it is not clear that the doctor
actually examined the sensory system absolutely, but can assume that
the symptoms were
the sensory signs of numbness and altered sensation
on the left side. And if she remained in that condition for three
months she
would be a 4 or a 5. He explained that a gross sign is the
severity of a sign. It would be a gross sign if their arm was
paralysed
and they could not lift it that would be a gross sign. But
there are subtle signs as well. So if the arm was just very slightly

weak and almost no weakness in their hand, but had very impaired fine
movements. So when you test their strength grossly it may
be normal,
but when you ask them to do something very fine or rapidly they
cannot do it. That would be a more subtle sign as supposed
to a gross
sign. It is just a matter of degree. He was asked that based on what
he heard from the three witnesses about Evans if
those were all gross
signs or were her weaknesses. He indicated that the doctor who wrote
3 out of 5 was referring to a substantial
weakness and not a sign.
The doctor would test the strength and that would be a sign. A
clinical test is needed to test a gross
sign. It is part of an
examination it cannot be perceived. So if one had a patient lying in
bed who has had a stroke and you do
not lay a hand on them or patella
hammer they may appear to be absolutely normal. So the patient has to
be examined, testing the
power, tone, strength and sensation . These
are all to elicit the signs. Gross signs include what a lay man can
see that a person
cannot walk and collapses that the eyes roll back
and talks with a slur. For many gross signs would be spotted perhaps
not
interpreted but spotted by a lay
person. But it is not limited to that it must include examination.
[113]
Asked about the person being on 91 or
181 minutes on presentation. Keiser testified that they put into
categories because they are
trying to show what the trend is and
clearly the trend is the longer you wait the worse the outcome is,
and so they do that in
arbitrary groups of 90 minute intervals. They
could well be easily be 48 minutes and 48 and half minute intervals.
If one is in
the wrong zone by one minute or two minutes it cannot
make a huge material difference. He said if you are 91 you in the
same category
but with a different outcome. A ballpark figure. He was
asked if Dr Sim was left with 2 to 3 minutes to have done something
within
the 90 minutes if up to 5 or 10 minutes he would still apply
this treatment if it not contradicted. He said up to 3 hours he
would.
He said it was out to him that because of delay and time
sequence Evans would then have fallen into the 90 minutes to 180
minutes.
He said he would not be fussed by
a 5 or 10 minutes delay having started the process of going to the
trouble of getting an urgent
scan, calling the doctor. If there is
going to be a short delay that would not deter him. Indeed even after
3 hours if he was he
would have tried to get the whole thing done.
If
it was 3 hours and 5 minutes or 3 hours and 10 minutes he was not
going to exclude the patient. He said he certainly would not
include
the patient at 4 hours and half hours.
He however supposed that
ballpark figure is a reasonable t erm. He was not sure as to when the
Doctor Ndlela was involved however
knew that she came on duty
somewhat later and obviously took over and does not know when that
time actually occurred. He said when
a doctor takes over there would
be a hand over a typical thing would be in an emergency unit, you
presumably been on for quite
a long time. But would hand over cases
that have not been discharged who are still lying in casualty,
waiting for somebody or entails
walking from bed to bed. Most
casualties do not have a huge number of beds so they may be six or
eight cubicles or what ever. And
the doctor could go from one cubicle
to another with the doctor who is going off duty who will hand over
saying this is Ms Evans
who came in with this and we are waiting for
result s, and then take over, depending on the nature of the problem.
[114]
In respect of a patient who comes in
because he has got a boil and the handing over doctor was waiting for
a surgeon from the Lancet,
a full complete examination of that
patient would probably not be indicated. But if the doctor had a
patient who is kind of half
paralysed lying on the bed, with a
reduced level of consciousness when taking over the doctor would want
to kind of go over that
and check things out for him or herself as
well. He indicated however that it is the duty of the doctor handing
over to prioritize
which requires the most attention which will
perhaps not be when the note is made. He said Ndlela was almost given
incorrect information
as well and the papers that was generated by
the previous doctor will form part of handover. The record stays and
would be part
of the current notes. So Ndlela should be as informed
as Sim was on the paperwork. With a good handover he should be able
to give
her most of the salient details of what is going on. He said
in this case the first doctor Sim was clearly at sea.
[115]
On Exhibit D3 Hacker 4 referring to the
bold print of 0-90 minutes and the total Rankin 0 -1 as a good
outcome and get total Rankin
scale of O death a bad outcome. Also a
heading with or without treatment. There is an Alteplase which is
with treatment and below
a Placebo which is without treatment. In the
next column there is Rankin Scale 0, Kesler agreed that if one treats
somebody one
gets 22 best outcome result s. And if one goes down
without a treatment one gets 10. That is more than 50 % better. It
was put
to him that if one acts expeditiously on these statistics
that Counsel relied upon, there is more than SO % chance of a better
outcome. If it was 20 to 10 it would be SO % but 22 to 10 is more
than SO%. He was then referred to the Cochran Library document
04
under Discussion on the Summary of result where it is stated that
"There is a neutral effect on the deaths by the end of
the
follow up and significantly more people avoiding dependant survival."
Counsel said he assumes the word significantly is
used statistically.
Statistically significant. Keiser was also referred to a sentence
that reads: " However dependency was
reduced in survivors. So
overall there was a significant nett benefit. "
[116]
Then he was referred to 08 the document
titled "How to perform Modified Rankin Scale Assessments"
by Sits Open Rankin
Guidance Document (2014): where it defines Rankin
scale 3 as that of patients who have moderate disability. It says
these patients
will manage daily activities such as dressing but are
able to walk without assistance. They may use a stick or a frame for
walking
but the assistance of another person is not required for
this. They will be able to manage daily activities such as dressing,
toileting,
feeding etc. But will need assistance with shopping,
cooking or cleaning and will need to be visited more often than
weekly for
some other purpose. Keiser was asked that since they have
kicked out the question of walking with assistance to say it must be
human assistance, whether Evans will not be a Rankin3 even though she
cannot manage daily activities such as dressing. His response
was
that If a patient can do less than all of it who can neither do 50,
60 or 70 % self- dressing, less than all you go to the
highest or
worst category. He said Evans was totally dependent with regard to
dressing and probably feeding she would not be able
to cut up her
food. "To be category 3 one must be able to feed oneself".
He said Evans could not cut food in the conventional
way of putting a
knife and fork therefore another reason she should not be a Rankin 3
category. It was put to him that the article
says that to distinguish
between patients in category 3 and 4 the crucial question is whether
the Patient can walk without the
assistance of other people. If he is
dependent on others in activities of daily living he must score a
3.:.
Finally if there is still some
doubt between two adjacent alternatives on the scale, and both
options appear equally valid, then
the worse option should be chosen.
[117]
Now dealing with arterial dissection.
Keiser said he could not understand what was the concern, but they
have arterial dissection
and there is a difference between the front
and the back. The concern about that was the hemorrhage within the
blood vessel it
self. He explained that what happens in dissection is
that the wall of the blood vessel which is in layers dissects off. So
part
of the layers of the wall, some are longitudinal, up and down,
some are radial, round and round. Along the tube there is a slight

break in the wall and blood tracks into the canal, it dissects off
the wall. The blood will then push the lumen of the wall closed
over
time and when that reaches a critical point, like a complete blockage
one gets the stroke. And that process can take days
or weeks to
happen. But he said he would imagine that the concern was that the
blood that has tracked into the wall of the artery
would create more
bloody mess in that artery. But that was not found to be the case.
There was fear that there would be hemorrhaging
indicative of the
weakness in the artery. There was concession made that that was quite
vague and it did not stipulate exactly
how much nor did it look at
the comparison between anterior and posterior circulation and nor
where the number very significant,
the less the smaller the sample is
scientifically the less valid. So not having studied that paper
Keiser said he will agree with
what is said in the paper . But the
way it was put to him was a bit vague as to how much deficit or how
much worse those patients'
outcomes were but accepting it .
[118]
He testified on his personal experience,
that he used to be involved in each and every case because there was
some fear in using
thrombolytic therapy, so a neurologist was called
for all possible strokes that came in on time at his facility but not
any more.
His rooms were in the precincts of the Hospital in
Kingsbury and his home 5 minutes away. He would go down as rapidly as
he can.
Sometimes when called he would go down and examine, make a
decision, talk to the family and decide on what further to be done.
But now some of the younger newer physicians who have come on board
are happy to use the treatment. They were confident and had
some
experience and in that particular case he was happy with that.
However he would not encourage it. The 4 to 5 he was talking
about
they become his patients, often the first time he meets them is in
the casualty.
[119]
The court questioned the Doctor about
the Rankin scale on Evans that he initially said it was 5 and then
seemed to agree that it
was 4 as to what exactly is his opinion. He
said the Rankin scale is not actually used in the acute situation. It
is an outcome
score in the trials and in clinics because it is quite
an easy scale to use. It is used to see the result of the stroke, not
necessarily
treated particularly. As she is now it is as he
understood some debate as to whether Evans is 3 or 4. He said he was
persuaded
that it was a 3. But his counsel has pointed out that her
difficulties with dressing and feeding would actually slip her back
into
the higher category. And the rule as the counsel understood it
is if there is some controversy, because there are quite a few
factors
the one goes for the higher group. In other words one would
put her into a worse group, if she fulfills some of those criteria
but not all . He said his final Rankin scale would be a 4, which is
where he started.
[120]
He was referred to the document that was
referred to by his Counsel 08 where 'in the context of that whole
group of people Counsel
states that it refers to people that cannot
look after themselves if you read it carefully, it states that:
"patients with moderately
severe disability who are unable to walk without assistance. Unable
to attend their own bodily need
by themselves were given a score of
4. These patients are not independently mobile and need help with
daily tasks such as dressing,
toileting and eating."
And therefore need constant
attention. He responded that there must be a range because there are
quite a few different factors,
some of which the patient may be able
to do perfectly well and others not. At the bottom of the page 9 on
D8 its stated that:
"if there is still some doubt
between two adjacent alternatives on the scale and both options
appear equally valid then the
worst option should be chosen"
Counsel referred to the fact that
the Rankin 3 uses a stick or a frame for walking, but the assistance
of another person is not
required for this. They will be able to
manage their daily activities such as dressing, toileting, feeding,
et cetera, but need
help for more complex tasks like shopping cooking
and cleaning. He argued that helping somebody with a shoelace or a
button once
off is not constant caring for him and not the context
within which it is stated under 3 as supposed to 4 where constant
assistance
is required. He responded that there is a controversy. If
there was a group in between then he would probably put her at 3.5
but
he is prepared to leave her at 4 being the worst group of her
difficulties with those particular tasks. He indicated that Evans
has
got a helper who doubles up as a domestic help but requires her·
carer for helping with buttons and dressing and perhaps
putting on
her bra or jewelry doing up little things, laces and requires
assistance to cut food, clean, help you shop which is
not totally
independent. He even when we look at 3 at someone that needs someone
to cook, clean and shop Evans cannot do those
things and its a 3 but
it will also be a 4 as people in 4 would also not be able to do that.
M J Van Nikerk
[121]
The next witness to lead evidence on
behalf of Evans was Dr Jeanette Van Niekerk ("Van Niekerk"),
a statistician who has
complied a stastistical report identified as
Bundle B page 1470. Her attention was drawn to page 1468 of the
report that states
that:
"which is timeously given
thrombolytic treatment such as that forming the subject matter of the
dispute between the Plaintiff
and the Defendants in this case, having
an improved outcome after suffering a stroke such as that forming the
subject matter of
the present litigation are the following:
1.
A 280 % higher probability of an
improved outcome compared to no such treatment if the thrombolytic
treatment is administered within
the first 90 minutes of the onset of
the aforementioned stroke.
2.
A 160 % higher probability of an
improved outcome after suffering a stroke aforementioned if treated
with thrombolytic treatment
within the period 90 to 180 minutes after
the onset of the stroke.
She indicated that the conclusions
were made from that reasoning. She confirmed that she is not
qualified in the field of medical
research and did not conduct the
research which is referred to as Annexure B but looked at the
annexure from a statistician point
of view. Annexure B is the
publication in the Lancet which is one of the top journals
internationally where medical results are
published underpinned by
very involved and proper statistical theory. She explained that she
used the word Meta- analysis which
means an analysis conducted on
various different independent studies that is usually done in medical
trials so that there can be
a concise conclusion, by taking the
research work that has been done and try and resolve at a result of
what the overall picture
of that research is.
[122]
She was referred to paragraph 1 where
she deals with the question of 2.80 times more likely if thrombolytic
treatment is given within
90 minutes of the onset of the stroke and
1.6 more favourable if treatment is given within 91 to 180 minutes.
Giving methods and
findings and she said both figures are mentioned
in the paragraph. And also states that "for example the odds
ratio of a favourable
outcome for patients treated with rt-PA,
compared with controls was 2.81for those treated within 90 minutes
and 1.55 for those
treated within 91to 181minutes." Kesler had
criticized that approach saying it is incorrect to say that there is
280 % increased
chance. She explained that the odds ratio is used to
compare two outcomes and is basically the ratio of the odds. It is an
indication
how much more likely a certain outcome is, under a certain
treatment plan, than with another treatment plan, which is often the

control. If one group has a 1 out of 10 chance of having this certain
outcome and the other group has a 3 out of 10 chance then
the odds
will be 3. The odds ratio is not calculated using percentages it is
based on frequencies. So the explanation that the
aforesaid 2.81 and
1.6 times equate to respectively 280% and 160% higher probability of
an improved outcome with thrombolytic treatment."
She explained
the percentage that there is 280% higher probability of an improved
outcome it simply means that there is 2.8 times
a better chance of an
improved outcome with the treatment than without the treatment. She
also stated in the report that: "it
is common in statistics to
do a meta-analysis since it culminates in a number of studies into
one concise conclusion" and
you say also "the Literature
pertaining to thrombolytic therapy is fast and in such cases a meta
analysis is needed in order
to achieve a culminated and concise
global conclusion and that this is what was done in Annexure B
hereto." She confirmed
that she deals with statistical analysis
principals applied in Annexure Band do not find any fault in which
they have been applied.
They accord with internationally accepted
practices. Therefore had concluded that "the conclusions reached
are statistically
reliable"
[123]
The DS on the risk of intracerebral
haemorrhage with alteplase was mentioned to her. She confirmed to
have seen the document and
read it for further comment, and that it
consists of information transposed by Mr Le Grange from other
documents and a table that
is D3 saying Hacker figure 4 based on the
2004 article.
[124]   Under cross
examination by Le Grange it was put to her that in her summary she
does not explain the Odds Ratio
but instead it talks about
probability of an improved outcome rather than an odds ratio. Her
response was that , that is what the
interpretation indicates. The
odds ratio is used as a measure of association between certain
treatment protocol and a certain outcome.
She was asked in real
patient terms what she meant if she says there is odds ratio of 280%
having 100 patients who are treated
and 100 that are untreated. Her
answer was that the 2.8 odds ratio would indicate that for instance
in this context what it is
being dealt wit h. If in the placebo group
or in the control group they were 10 patients with a better outcome
of the 100, then
this odds ratio translates to a 1. There is an odd
ratio of 2.8 that then translates to 28 patients out of the 100 in
the treatment
group with a better outcome, meaning 28 out of the 100
patients will be better as supposed to 10. So the odds ratio
definition
was not the correct definition because there the relative
frequencies used. Whereas the rule frequency should be used, because
if there is a different sample sizes for your treatment group and for
your control group that you have to take that different sample
sizes
into account . And if you work with your relative frequencies then
that is not taken into account . It was put to her that
in Annexure B
they have adjusted odds ratio and the argument used in the document
is whether one should use the one or the other.
She said she is not
equipped to make an opinion as to the correctness of the adjustment.
She was asked for the reason why the unadjusted
odds ratio was 1.96
and now it is stated to be 2.81. She said she read it in the article
but cannot conclude if it is necessary
or not.
[125]   She confirmed
that 161 patients were treated as opposed to 150 non-treated placebo
control patients. And the unadjusted
figures for the next group which
is the 91 to 180 minutes group was 1.65 and adjusted downwards seem
to be 1.55. They were dealing
with the comments on the foot of the
page that deals with the treatment odds ratio and with the next
heading of adjusted and unadjusted
and then a reference to intervals.
The minutes of treatment and then it is rtPA. Counsel indicated that
from what she has testified
so far she has referred to where the
patient was treated with the thrombolytic treatment. With 161
patients involved and an adjusted
figure of 2.81that she uses and
1.96 which is the adjusted figure, odds ratio . In the article
somebody has argued that it should
be adjusted to 1.96. Also under
the next heading of 91 to 180 minutes and again treatment there with
302 patients, the adjusted
figure was 1.55 and the unadjusted figure
was higher, so it was adjusted downward s. If they go down to 180 to
270 there again
is an adjusted figure 390 patients treated and 411
not treated or control patient s. The unadjusted figure was lower
than the adjusted
figure and upwards and the last one also upwards.
She said it is the statistical exercise that was done.
[126]   She was asked
about the Rankin scale that says 0-90 . The patients that were not
treated but given the placebo.
Dr Kesler had alleged that they were
given the medicine, albeit blindly, and do not know that they do not
get the right medicine.
Of those 10 of the 100 who took that Placebo
10 recovered fully . 19 received to the extent that they were in a
good condition,
otherwise it is a 1. Then the scale goes to the other
side towards death, getting worse and worse. Then with treatment
there were
22 who ended up in the O as supposed to 10 that being a
difference of 12. She said to get 2.8 they have multiplied 2.8 with
12
and the total is 33 which is about a third improvement, which
means only a third improvement because there are 10 that were already

there and doing well. If one compares the 10 and the 22 alone it is
like a ratio of 2.2, because there are 2.2 more. She was reminded

that the test is about the probabilities. She was asked whether there
are probabilities that a patient would have a better outcome
after
receiving the thrombolytic treatment, and not look at the odds ratio
which is something different. She confirmed. He argued
that one
cannot look at the 280% better off because there is still 10 patients
who did well without treatment and 22 who did well
after treatment,
so there is a 12 real increase of patients doing better.
[127]
She was asked to look at Haacker figure
3 that indicates that there are 41 patients from which there are 22
Rankin 0 and 19 Rankin
1 patients after treatment. He said it means
that out of the 100 patients there are 59 who did not do well better
than 1. The non
treated patients would all have died of something
else. But if one looks at the non- treated patients at the placebo
there are
10 and there are 19 that equals 29. He said there would
have been 72 non treated patients who would have done worse. The next
result
line says from 100 treated patients 59 had a bad outcome on
the results. This should have subtracted the 59 from 72 and that
equals
13. So 13
of the bad outcome patients could have been better
of had they been treated. There are 72 untreated patients who had a
bad outcome
and 59 treated patients with a bad outcome. He argued
that we must accept that if those treated patients would have had a
bad outcome
in any event, so 59 of the 72 would have had a bad
outcome in any event then 13 of the 72 would have had a better
outcome had they
been treated which is the percentage they were
looking at . She did not agree with what was put to her that the
Defendant's actuaries
say that the probability of treatment would
result in good outcome and must be calculated in that way than which
gives one the
18 % probability. She said if one wants to get a
probability that a treatment works, one will need to work out the
relative risk
and that is calculated slightly different. In the
percentage of people who in absolute terms, there were 18 % more
people worse
of. That is what the 18 % says. The 18 % would be better
off had they been treated, unless one goes into the file of each
patient
and do it with 6 000 patients and come up with a different
number, because this is what they do, they work with. They reduce to

a 100 patients which is the relative frequency of the whole study.
She said in her opinion it was wrong that the probability that

treatment would have resulted in a good outcome on this 0-90 minutes
based on the article she used was 18 %. She explained that
13 out of
the 72 is just an indication of the absolute increase in worst
outcomes under the placebo. She agreed that the 13 is
the percentage
of the 72 not of the 22. She said what they need there is a relative
risk to give a probability that it would result
in a good outcome.
The relative risk compares the out come, the good outcome under the
treatment and under the placebo and sort
as a ratio towards the whole
sample. So when this is done it's a comparison between the placebo
and the treatment but not taking
into account the full spread of the
sample. She said she still does not agree with the 18 %. But what
needs to be said is that
the 41 % of good outcomes in the treatment
group divided by the 29 % of the good outcomes in the placebo group,
will give an indication
of probability that this treatment is more
successful than the placebo effect. It will be 1.4 or 1.3 something,
which she said
can be interpreted as a 30 % chance or a 40% chance
that will work. She said she does not know what the exact number is.
[128]
She was informed that the doctors before
her testimony have agreed that 33 % of patients treated are better
off but not to what
extent better off in their consensus report
whilst she came with 280%. She was asked as to how does she fit in
280% in the scheme
of things. She said her interpretation is
completely different, as
it
cannot
be spoken of 280% of patients being better off, as there is nothing
like 280% patients . What the 280% and 33 % is used for
is completely
different. The 2.8 or the 280% is a measure association of a good
outcome between the two groups. Whereas the 33
% is for the whole
sample and it means if a patient gets this treatment they have a 33%
chance. The 2.8 says the patient has a
2.8 % higher chance. She
agreed that it will not elevate the 33% of patients which the doctors
have agreed upon to more than 33%.
It will stay 33% and in that case
they can work out the placebo percentage and that will be much less
than 33%, and then compare
the two and that is the real difference
between the treatment and not treatment and the real terms is not
much in absolute terms.
In this case in absolute terms if it is 13
out of 100 patients can be better off. 13% in absolute terms. She was
informed that
the court will have to make a decision that if a 100
patients walked in, how many patients would have benefited from the
treatment.
Put to her that they got 13 who would be better off
because 33 is the ultimate. But with her example if there is 100
patients and
they were administered therapy according to this, 41
will be better off, and without therapy 29 so the absolute difference
is 13
more. And asked to convert. It was agreed actually the
difference between 41 and 29 is
12. So 12
is the absolute difference.
She was asked if she can convert the number of patients needed to be
treated for one to be better off
on the table she was seeing. Which
on that was 8 patients needed to be treated and 1 will be better off
and this is on this 0-90
minutes. She was asked if 8,9 patients walk
in or and you treat 8 of them then there will be one more better off.
Her reply was
that according to these figures if you have 8 patients
walk in 3 of them will be better of because 40 % or 41 % are better
off
if they get treatment. Compared to not being treated is 29 % if
you are not treated that will be better off. The numbers to treat
has
a slightly different interpretation . On the numbers to treat she
said she is not a medical doctor expert and the numbers to
treat is
not a statistical concept. It is a medical concept and according to
that it will be 8 and if 8 patients are treated, it
should be
interpreted as an extra amount of patients needed to treat. It is not
that if someone walks in they form part of that.
This is an extra
amount you add to get one better.
[129]
Asked on the numbers required to treat
on the second scale 91 to 180 which can be seen on page 1485 of
figure 4, where the absolute
difference there is 13%. She said the
numbers to treat there will be 1 over 13% so that will be between 7
and 8. And the other
one is between 8 and 9. She was asked if it can
be written that the numbers needed to treat on the ist line on the
placebo of 150
and treated 161 patients which they can write there
numbers needed to treat between 8 and 9. The one below that were the
315 placebo
treatments and 302 treatments with thrombolytic treatment
in the 91 to 180 minute timeframe there the numbers needed to treat
is
between 7 and 8. She said she was happy with that based on that
table. She confirmed or agreed that when Drs Rosman and Kesler
testify that the ballpark figure in their experience is 32 % of the
patients are better off, her statistical interference does not
change
that or the fact that, that is what is reported as the relative risk
in many of the lit erature . It was put to her that
Dr Kesler has
referred to it as "Overall for every 100 patients treated within
the first 3 hours 32 had a better outcome as
a result, and 3 had the
worst outcome" . She said that is not the same as the 33%
calculation but the calculation is exactly
the same as the 41 in
Counsel's table. Saying that if a 100 get treated 32 were better off
and your table 41 was better off of
100. The 32 that were better off
of 100 treated does not say compared to what.
[130]
She said she does not agree with
Counsel's figures on the list . Going on D3 she was asked how does
she work out on those figures
the percentage and what does it mean.
It was put to her that there are 41 patients with Alterplase
treatment in this O - 90 minutes
who are better off or made good
recovery. There were 59 who did not had a bad recovery. Without
treatment there were 29 as supposed
to 72. She was asked what was
wrong in saying that 13 ofthe72 there would have been better off with
treatment as supposed to the
72 there would now be 72 minus 13. She
responded that it would not be wrong to say that 13 of those would
have had a bad outcome,
it is because they did not have treatment. It
is correct, But if he says that the probability of the treatment
working is then
based on that figure that is incorrect. When asked
what is the better name to give to that percentage of 13 over 72. She
said so
that 18 % they could word it, as the percentage of patients
who had in absolute terms a worse outcome because they did not have

treatment . She said in her opinion the 18 % is the percentage of
patients in the placebo group who had a worse or a bad recovery

rather. In absolute terms then higher than those in the treatment
group. 18% of those in the placebo group would have been better
off
have they been treated.
[131]
On the odds ratio she was asked by what
does she has to take the 41 which is the good outcome figure, is it
to multiply it with
72 which is the high bad outcome figure of
non-treated patients and divide that by 29 which is the lower figure
of the good outcome
placebo. And multiply that with the 59. And then
you get the two and it give you an odds ratio of 1 over 73.
1.73.
She said that method using the relative frequencies is only correct
or accurate if the sample sizes of the treatment group
and the
placebo are equal. She said they are not in actual fact equal and the
fact that they both count of a 100 is just a way
to summarise the
data. And this is not the raw data and therefore not the raw odds
ratio. She said this is a way to summarise the
information but in the
calculation of the odds ratio is never used. To calculate the odds
ratio she said you take the raw frequency.
So the 41% out of the
whole sample of the treatment group, which was in this case 150
patients and then times that with the 71%
times the 161 of the
placebo patients. She said they should get close to the 1.96 in table
1 on page 1483 and 1.73 in table 1 the
unadjusted odds ratio that is
what it should get. The adjusted odd5s ratio that is what it should
get. That is how it is calculated
using the rue frequencies. And 1.96
she was asked how did it get to the 281.She said she was not involved
in that article. The
adjusting is for baseline factors.
Dr Rosman
[132]
Dr Rosman, a neurologist in private
practice since 1987, who testified on behalf of the Defendants
confirmed that he has been closely
involved in Neurology for the
whole of his professional career some time and on stroke treatment
over the years, presently practising
from Morningside and often
called for the management post emergencies. He indicated in his
testimony that the times of Evans' admission
on his report where
taken from the medical records and as to the time of onset of the
symptoms stated as 10h25 to have used the
same information as Dr
Kesler, also working backwards from the time of admission as a rough
estimate, not a medical fact. He says
it however seems to have been a
little earlier than the time mentioned. According to him the scan
that was called for, the CT scan,
needed to be done under the
circumstances. The blood tests are taken usually as a matter of
routine which becomes useful if a patient
has very thick blood which
cautions against the possibility of a condition called sickle cell
aenemia, common in West Africa. It
could cause an increase in blood
clotting and potentially give useful information . Or this might be
from the abuse of recreational
drugs. It does make sense for the Dr
to call for it. Looking at haematology if it is normal. Outcome of
pathology report. It was
collected on 5 August 2016 at an unknown
time.
[133]
The blood samples were received by
12h23. The blood thickening could be ascertained only then. He
confirmed that he has stated in
his report that "The results of
the CT scan were the tissue it becomes swollen. Which is where
infarct will be. So there would
be an area of damaged tissue that has
higher amount of fluid in it and the MRI scan will show rather easy.
In the CT scan it might
not show at all. Evans' stroke shows evidence
of a small area which looks like a non-hemorrhage stroke in the
medulla oblongata
which is the lower part of the brain and together
with this the right vertebral artery cannot be seen and implies that
the artery
has closed off and that happens to be the same side as the
demonstrated stroke. So putting the two together it seems clear that

the artery closed off for whatever reason and this caused the damage
in that part of the brain. Closing off can also be due to
a
dissection of the artery which it probably was and he agrees with
Kesler's explanation of a dissection being the layers of artery

itself dissecting and blood entering into between the layers pushing
occluding the artery it self. He explained that before there
was tPA
which is clot busting. As opposed to clot prevention, they only had
blood thinning agents so they could prevent stroke.
The idea being
that if she starts forming a clot in an artery somewhere, this artery
has various branches, that clot will then
cause blood in those
branches to continue clotting. They felt that if they can prevent
that blood clotting they can limit the size
of the stroke.
[136]
The difficulty they had was to work out clinically how do they know
this was happening and that is where the concept
of stroke in
evolution came from . So what they look at is if the particular
artery that they are concerned about is not completely
blocked up
that they will know from the clinical examination, because they know
what bits of the brain the artery goes to, so if
any of those bits
are not yet involved in the stroke we can assume that there is
something to save and the idea being that they
could then introduce
clot preventing agent s. In this particular case they could see from
the scan that the area of involvement
is the full area of the
involved blood vessels, so there was no potential for worsening, in
other words this would be called a
completed stroke rather than a
stroke in evolution. He confirmed that the fact that the symptoms or
signs would worsen after the
stroke is normal progression of the same
stroke that has already been suffered and the results of the same
stroke being seen in
the patient. Same stroke or some swelling around
the stroke, but probably not the progression of the doting. That
would be what
is called not evolution (not in evolution). In
evolution would be in the middle of the process of the stroke. The
onset of the
stroke would be the time of the stroke. That is when she
experienced the first symptoms.
[137]   Sim saw the
patient at 11h15 she would have examined her and imperative that CT
scan done. The evidence is that
there is no Neurologist at the
hospital and Le Roux practices from there. If they had diagnosed a
stroke and they might still be
in the window of opportunity taking
into consideration that they don' t have a Neurologist or Physician
at the bedside of the patient
. Whoever is the Specialist would have
to be called in. He thinks through hard experience and this case
proves the point , he does
not trust the examination of Casualty
Officers and thinks it is essential that before one embarks on
potentially harmful treatment
to confirm the diagnosis for oneself.
If he was in the hospital at the time and called, he would have
dropped everything and ran
to the Casualty Department. But not
dropped another patient. On the patient's bedside he would then
examine the patient to confirm
in his own mind that this is indeed
what he is dealing with, that the patient is suitable for
thrombolysis. He would explain to
the patient as much as he or she is
able to understand or to relatives what the risks and the benefits
could be and once consent
is given he would need to find an intensive
care unit or some where where a bed was available. He would then
immediately start
with a 10 % of the dosage. Whilst that was running
in, he would push the patient to the Intensive Care. Through a lot of
experience,
he could probably do a neurological examination in 10
minutes. He would expect a non-neurological person to take up to half
an
hour to safeguard the decision to ensure that the patient is
eligible for the thrombolytic treatment there being 2 or 3 % risk of

causing a brain hemorrhage. Many of these may clear uneventfully but
many of these he said can cause the death of a Patient. A
third of
the patient will show some benefit from having had the thrombolytic
treatment. They agree on that with Kasler. There are
experimental
reasons why the various studies will differ. He says there is no such
thing as a perfect clinical study. He says from
his experience and
from literature and from speaking to world experts at conferences
this was pretty much the accepted area of
benefit.
[138]
Ms Evans suffered a posterior stroke,
looking at the issue of a treatment of thrombolytic treatment vis a
vis her stroke or with
Alteplase he explained that posterior strokes
are relatively uncommon which means that studying them requires a
much larger number
of strokes to be seen in the first place. He says
there is a difficulty in getting enough to make reliable statistics,
largely
because the initial research was limited to the carotid
arteries, which is the front two arteries. They were reasonable happy
that
in that situation within certain boundaries they could give
treatment. They did not have evidence for the posterior strokes and

the anatomy of that area is very different to the carotid. There is
very limited space in that part, the lower part of the skull
so any
swelling there could kill the patient, any hemorrhage clearly could
also kill the patient. The blood vessels have got different
pathways.
So there was a concern from the beginning. Many people still tried it
and found that they had a reasonable success rate.
This was
ultimately better researched in much bigger studies from stroke units
where they were training a very large population.
He referred to Prof
Hacke whose work has been revered to stating that Hacke will tend to
drain a wide region of a population who
can get to him quickly so the
ideal situation to do that sort of research and eventually the first
studies started appearing in
2008. Then various studies followed.
There was refinement and they ended up where they are now with that
being an acceptable area
of treatment.
[139]
Which would have been the situation in
2011when Evans suffered a stroke. She would not necessarily been
disqualified but having
regard to the outcome and general results
which the literature shows the treatment would have, it is
speculative to a very large
extent that about a third of patients
would have a chance of a better outcome. How better the outcome is,
would be speculative
to a large extent. There are very few articles
on the subject. Hoping is the best that one can do in the
circumstances as per evidence
of Kesler. He confirmed that there is
one in three possibilities that it would not have deteriorated to the
extent that she did
if she had received thrombolytic treatment but
that extent is non-proven. They do not know how much if she improved
what the degree
of improvement would have been, that also would
depend on what the first measurement was (the status in which she was
when she
presented) and what your last measurement was. He confirmed
that scoring under these circumstances would be difficult, having to

go through a list of questions in one's mind to score a patient.
Considering that Kesler initially scored her a between 4 and 24
and
had a rethink the second day and scored her a 3 and 16. He tried to
do that based on the description he had in court. A long
list that he
ticked up and added up and the highest he got up to is 24 but it
could have been a bit lower. He thought maybe to
be fair to everybody
an 18.
[140]
He referred to extracts from the
Guidelines for the Management of Adults with lschemic Stroke
published by the American Heart Association.
Where the scoring system
of the NIHSS stroke scale is set out. He explained that this is
looking back without a detailed examination
at that time therefore
there is a lot of perhaps presumptions into what is to be looked at.
lA is level of consciousness as known
she was not alert . She was not
in a coma but was drowsy or octandid . He gave her a 2 for that
octandid for that. Octandid means
not drowsy but not very responsive,
hard to get through. However there were certain responses recorded.
It is difficult to score
her where there were certain responses
recorded that she is denying now. One of them said her face was
flaccid. So he gave her
a 3. She only said she could not speak
properly. So difficult to score on that evidence. There was nothing
recorded anywhere. Not
looking for eyes that were rolling but an
inability to look in a certain way. Then there is visual fields. He
found a report of
an ophthalmologist who mentioned a small degree of
visual field loss when he does a formal measurement . He says there
must have
been some degree at that stage. Visual affection of the
trauma in the brain was possible but not common . For facial
movements
he heard one of the witnesses saying one side of her face
was hanging so he gave her a 3. Then there is a motor function in the

arm. If it tends to drift downwards with gravity, that is when the
muscles are able to maintain a particular position. He said
he was
not completely sure, but looking at her now he would imagine that
there was no movement so he score her a 4. The same thing
with her
leg function so he scored her another 4. It is a limb ataxia which is
in co-ordination. It would both have been possible
to measure that in
the affected arm, because it is weak. So he left that out and gave it
a 0. He awarded a 2 for sensory loss (numbness
or impairment) . On
language has to do aphasia that is controlled in the left upper part
of the brain. That is a long way away
from where the stroke was so he
said he would not have thought there would have been an aphasia.
Articulation she had some difficulty
speaking, it was slurred , it
was indistinct at some times so he scored that severe. Extinction or
inattention he scored her a
O because she did not complain of a
weakness which to him meant inattention and had not scored her
although he thought reasonably
he could have scored her a 1 or a 2.He
agreed it adds up to 18 and confirmed that it is not a material
difference from Kesler's
score. No longer a 23 as initially put, to
be his evidence, to Keiser.
[141]
On the Ran kin Scale he explained that
it was designed for research purposes. So they give umbers so that
they can run statistics
by definition cause categories. He indicated
that there is going to be some uncertainties at the edges, there is
going to be some
patients where there is some doubt about where they
should fit in. In the clinical (scientifically/ setting it probably
would not
matter. if someone could not walk before and now they can
they are better, better than they were. It does not assist much from
the statistical point of view. You have to give a number so that they
can apply the statistics which the real function of the Rankin
scale.
It is useful up to a point . There are built in limitations of the
scale. In relation to the interpretation of literature
meaningfully
one has to know what it is. Kesler' s opinion was that had Evans been
treated she could have been a Rankin 1. The
worst case scenario at 2,
however if not a complete recovery but an affected recovery it is
called a Rankin 2 and can be established
clinically. On the question
of establishing where she could have been had she been treated, his
response was that that is speculative
and not predictable. Kesler
placed her at a 3 or 4 and he responded that he puts her at a 3
completely agreeing with Kesler that
it is a grey area. Since there
has been a mention of Evans being unable to dress herself because she
cant do buttons, tie her shoelaces
and that would push the scale into
a higher group. He said the difficulty he has about that is that a
lot of people cannot put
on cufflinks without help, many women need
help to pull up a zip at the back. Some hate buttons and it is
difficult to apply this
to such a person . So he sees this as a
difficult area as unless the researcher who is applying this to that
particular bit of
research tells us very precisely where it is going
to be and how it is going to be, they will be a problem with
interpreting this.
So if there was a middle or halfway he would have
put it there. He says there has always been variable outcomes that is
why the
statistics are important. On the chance of patients
undergoing the thrombolytic treatment getting a better benefit which
comes
to very close to round about 30 % which is the baseline
improved rate multiply by 2.8 then you get to the benefit which come
to
very close to round about 30 %, 33 % somewhere there. The one that
would have been better without treatment will have to be subtracted.
[142]   Under cross
examination he confirmed that him and Kesler are very close in their
opinions. Revisiting page 1481
("B5") or ("D5" )
Given that they accept the reliability of the study. It was put to
him that the document's
first paragraph says "The aim of this
was to confirm the importance of rapid treatment"" and "We
aimed to analyse
combined data of individual patients to confirm the
importance of rapid treatment." He confirmed that was the
intention but
also said so does many others. Then Counsel read "Onset
to start Treatment ("On") and pointed out that it is said

on research that the average age of the patients involved was 68
years old and the median on was 243 minutes, four hours. The aim
is
to show the detrimental effect if a shorter period of time is used
and refer to patients of a different age group not an average
of 68.
What has been taken into consideration is treatment in a time period
of up to five to six hours after Onset. He and Kesler
had put the
time period to between O and 3 hours. He pointed out that time period
is divided up into time ranges and what they
are talking about is
shorter time ranges and excluded those groups in their analysis. He
said as far as age is concerned if he
had let them say a whole lot of
SO year olds he would expect that the percentage of improvement would
probably be very similar
although the numbers will be different. So
if ones looks at 30 year olds or 60 year olds. He would expect that
the percentage would
be very similar if one takes age group by age
group. It was put to him that as a layperson one would expect that a
younger person
is more resilient and his body can take more than an
old person of 68 years and it would play a factor in what happens if
all other
factors are equivalent. They both presented the same signs
but the one is 68 years old and the other one is 37. No study
attempts
to draw the age distinction but has got around it by doing
it in a random way so that one hopes that the treatment group and the

placebo group are made up of similar ways. Where they describe the
methodology they would actually give those figures of so many
males
and females of this age whatever but in a matter analysis which that
is they do not give that type of detail. He confirms
that because
this is a summary of a summary.
[143]   On the article
"Association of outcomes with early stroke treatment "it
was pointed to him that the
interpretation in bold reiterate that
they say the sooner that rtPA is given to stroke patients the greater
the benefit and the
statistical analysis says "Of particular
interest was whether the odds (Probabilities ) of a favourable
outcome increased
as Onset To start Treatment decreased i.e. whether
there is an on by treatment interaction". On 1484 on results
they reiterate
that the median age was 68 years old. Further they are
broken down to race classification. Thereafter it says the median
baselines
NIHSS score was 11 and Median on 243 minutes reconfirming
the four hours. From the onset and then 1847 patients 67% were
treated
for longer than three hours after the symptom onset which he
and Kesler says they would not do in their practice but only in
exceptional
circumstances. He referred to where the study reads
"Previously the NINOS Stroke Study Investigators reported that
the probability
of the benefit from intravenous rtPA in the combined
data from the "two NINOS trials diminishes as time elapses
during the
first three hours after onset of the stroke." It was
put to him that Evans' results confirm and expand on this finding.
The
article refer to the 90 to180 minute of the three hour window and
there is no clear line drawn and said to fall within that outcome
if
you are 91 minutes you fall within the other outcome which is
drastically less. The principle being that the longer the time
the
worse the outcome.
[144]
He confirmed that it seems the approach
there as well is that in those three hours the longer one takes the
worse the probable outcome
is going to be. On the statement that,
"based on the results of the NINDS trials, approval for use of
the drug has been restricted
to within a three hour of stroke onset."
Rosman agreed that it is the popular view and that is why that NINDS
trial limited
itself to 3 hrs. ft is also stated that "Our
results suggest a potential benefit of rtPA could extend beyond 3
hrs, but the
potential might come with some risks." A finding
that is compatible with results secondary analysis from the other
rtPA investigations"
. It was put to him that this places some
doubt on whether outside the 3 hours one can still get beneficial
results. Rosman said
one can as seen that they show a few per cent
improvement, but the improvement possibly goes down, dramatically. He
was also referred
to the reading. "These data are also
consistent with the therapeutic window from stroke symptom onset to
start of intravenous
RTPA treatment of 240 to 270 minutes." It
was put to him that there is data indicating that even 240 to 270
minutes that there
is benefit and that has never been in dispute
between him and Kesler. He indicated that Kesler was adamant that he
will play a
couple of minutes past 3 hrs up to 5 - 10 minutes and
regard after that to be a waste of time and maybe to can be more
detrimental
than beneficial. Rosman said he holds a more aggressive
view than Kesler, which is more than 3 hrs in very particular
circumstances
because the older picture suggest that four and a half.
it has now been brought down, because of what appears to be a very
small
percentage benefit. The feeling being that the risk and the
benefit are then much the same. On that basis he thinks unless one is

experienced then one can stretch the rules in invented commas .
According to him it is not a 100 % drawn in conclusion.
[145]
He was then referred to still p 1486 to
the fourth sentence that says:
" This finding has
implications for the timing of thrombolytic therapy, because these
patients represent those with the most
to gain from treatment since
earlier treatment significantly enhances the likelihood of keeping
long term disability to a minimum."
The effect of the rtPA is
greatest in those treated early despite greater stroke severity."
He agreed that the point being
made is that the people who present timeously are those with the
worst strokes because they realize
that, that is something that needs
the emergency attention of a doctor. But if the stroke is mild they
usually come in the window
or outside the window period because they
did not think its urgent. The reference is also made to the
following:
"Another important finding in
this study is the relation between stroke severity and time to
presentation . Patient with mere
severe stroke arrived earlier in
Emergency Unit than those whose conditions was less
severe."
It was put to him that a person
with a mild symptom because they did not think it was serious they
get there after the window period
or just shortly before and you get
the one with a serious symptoms who is there earlier because
everybody is aware that it is serious
and what they are dealing with,
treated quicker. Rosman responded that because the risk of causing
hemorrhage or damage then outweighs
the severity of the stroke, up to
a point , the more severe the more they are going to want to treat as
there is more to save.
He said it also depends and the scales do not
tell us that, because if we did the exercise, if he has a patient who
has lost his
speech and he has got to get informed consent and he
says to him well look if they do not do anything then the chances are
that
they are going to end up with a language problem. If they do
something he has got a chance to save it. But also with a 3 % chance

of dying. And very often not so much of the older patients but very
often they will say well "I do not want to live like this",

give it to me. He was of the view that, that is the correct approach
and that is in another way of what he was seeing there. He
pointed
out that however sometimes it is important to treat immediately
without consent of the patient or relatives because of
the situation,
that being emergency treatment. He discussed the possibility of the
window of 90 minutes not being met if after
diagnosis, time can be
consumed by also seeking consent from the relatives of the patient.
[146]
Reference was made to a second paragraph
of 1486 that "Our study is limited by differences in trial
methodologies such as dose
of the rt-PA. The total study population
was 2775, smaller than that in many acute myocardinal infarction
trials. However, the
magnitude of the differences in outcome is large
compared with such trials, especially at early times. Since quicker
treatment
with rtPA greatly improves the odds of a favourable
outcome, particularly within 90 minutes, treatment without delay is
paramount
." Rosman said the 90 minutes is an artificial cut
off. He said if one is 85 or 95 minutes he does not think one
suddenly
drops his statistics just because one is gone a few minutes
away. He nevertheless confirmed that the odds are much worse after 90

minutes. "It was put to him that doctors and other health
professionals might take more time to begin treatment when the time

limits are longer.' Even when people are taught or they believe they
have got six hours they will take their time. Reference is
made a
statement in the article that "An acute stroke inter vent ion
team can increase the speed and quality of assessment
given to a
stroke patient before treatment and after arrival in an Emergency
Department." We urge setting a target of one
hour from time of
presentation to intravenous treatment for patients with acute
ischemic stroke"
[147]
It was put to him that on the hour that
Evans had when she presented herself at 11h03 if wheeled away within
an hour of presentation,
she would have had the result indicating to
him that the use of thrombolytic therapy is not contra-indicated and
within an hour
he would have applied that, booster, clock buster) the
Bolus. Reference is made to "Our results confirm the strong
association
between the rapid treatment and favourable outcome."
The study reveals what the median age was and the time of treatment
was
up to 4 hrs and still get results of 2.81 within 90 minutes. He
agreed that if one refines what one is working with to lower age,
et
cetera, one would get a different result which would be more
favourable result in the treatment. He confirmed that he arrived
at
10h25 as onset by reconstruction counting backwards, just like
Kesler.
[148]
On B 5 he was referred to 1217 par 3. It
was put to him that Kesler confirmed to have looked at the medical
records and said he
could not criticize the treatment, and it was
actually excellent as far as he was concerned. He agreed with the
sentiments of Kesler
that it was good. It was put to him that if
therefore the possibility that because of something that was done
later in her rehabilitation
she is worse off than she would have been
can be excluded , and assume that her rehabilitation was proper and
Rosman confirmed.
Looking at 3.2 where the onset is recorded as
10h25. He said they both looked at the same medical records and
adamant that it was
noted somewhere and worked backwards from a
certain time. He confirmed that Evans arrived with pins and needles
tingling, at that
point she should have been referred for a
specialist treatment. He regarded the time when Evans presented
herself at the Casualty
Department as the "initial admission."
On when one involves a specialist he confirmed that he said he does
not trust
the diagnosis
of
the Casualty Officers rather a specialist . He said he would wait for
a scan even if what he sees is reconcilable with a stroke.
The
Specialist must then be brought in. The patient is sent for a scan as
the expert is going to need that to treat the ailment.
When being
referred to his opinion that 'Had the Plaintiff been referred to a
Specialist treatment, such treatment would most likely
have been
thrombolysis,' he confirmed that it is the only treatment available.
He said whatever the Doctor does is treatment. The
administering of a
drip, giving an Aspirin to reduce complications (alleviating the
sequelae
of
a blockage). This is done over and above Thrombolysis.
[149]
On re-examination he confirmed that it
is common cause that Evans did not have the thrombolytic treatment,
however her condition
more favourable then she was because at the
time she could not walk at all then, she was confused, had no memory.
Whatever statistics
might be looked at she still has to be looked at
her improvement in her condition without treatment, she would be
comparable to
the Placebo group and there was certainly an
improvement. The problem being on what the difference could have been
to which she
has not testified or been cross examined about. On p1486
reference to the time frame within what is the target the patient is
supposed
to be treated. Referring to the Hacke Article BS that:
"The Doctors and other health
care personnel may take more time to treatment if the limits are
longer. An acute stroke intervention
team can increase the speed
quality of assessment given to a stroke patient before treatment and
after arrival. We urge setting
the target of one hour from time of
presentation to intravenous treatment with acute ischemic stroke."
[150]
He confirmed that to be the target that
was set to aim for, within reason, however other health care
personnel besides Doctors were
involved in this matter. He was of the
opinion that it would make a difference if the Doctor stands at the
door receiving patients
as they come through the door. However he
agreed that in this scenario there is a sifting process at Emergency
where the nursing
personnel is involved , that would be the triage
nurses and the medical staff of the hospital as opposed to the two
Doctors and
that If there is a delay on their part it cannot be put
on the account of the Doctors and that is why they talk about the
team.
LEGAL FRAMEWORK
[151]
Only causal negligence can give rise to
legal responsibility; see
Skosana v
Minister of Police
1977 (1) SA 31
(A) at 35C-D. Causation however will not always follow whenever a
wrongful and negligent omission is shown. The Plaintiff has therefore

to establish that the Drs' admitted wrongful and negligent breach is
causally connected factually to any of Evans' pleaded
sequelae/damages
to
give rise to any legal liability. To prove a causal connection
between the act of negligence and the harm/sequelae, Evans must

establish that on a balance of probabilities the negligent
conduct/omission caused the event that gave rise to the harm. The
test
in that regard is as stated in
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 35C-D that "but for the negligent act or omission of the
Defendant, the event giving rise to the
harm/sequelae
in question would not have occurred.
According to Brand JA in
ZA v Smith
2015(4) SA 574 (SCA) para 30): 'The
application of the "but-for test" is not based on
mathematics, pure science or philosophy.
It is a matter of common
sense, based on the practical way in which the minds of ordinary
people work, against the background of
every­ day experiences.
[152]
The manner of determining factual
liability in medical negligence situations (the applicable tests) has
developed into a very controversial
and complex subject, with some
authorities jettisoning the traditional application of the but-for
test (applicable test) and advocating
for what they allege to be the
Lee approach
or
test in cases where the Plaintiff finds it difficult to surmount the
but for test, whilst others still argue that no changes
were brought
by the Lee judgment but the test remains, bar the rigidity that its
traditionalism connotes; see
Mashongwa
v Passenger Rail Agency of South Africa:
2015]
ZACC 36
;
2016 (3) SA 5
2
8
(CC) para 65
'Lee
never
sought to replace the pre-existing approach to factual causation. It
adopted an approach to causation premised on the flexibility
that has
always been recognised in the traditional approach. It is
particularly apt
where
the harm ensued is closely connected to an omission of a defendant
that carries the duty to prevent the harm.
Regard
being had to all the facts,
the
question is whether the harm would nevertheless have ensued, even if
the omission had not occurred.
However,
where the traditional but-for test is adequate to establish a causal
link it may not be necessary, as in the present, to
resort to the
Lee
test.'
[153]
It was also acknowledged in
Lee
v Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 144
(CC) para 39 that establishing the element
of factual causal liability is complex and can be challenging. What
is required is demonstration
that 'but for' the doctors' act of
negligence, harm would not have occurred (in this instance, a better
outcome); see also
Mashongwa v
Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 65 as authority). Its acknowledged
that where the act of negligence is a positive conduct, the
application of the "but
for test is relatively straight forward
and could be applied with complete logic as generally it entails
mental elimination of
the negligent act and seeing whether the harm
would then have occurred; see
Siman
&
Co (Pty) Ltd v Barclays National Bank
Ltd
1984 (2) SA 888
(A)
[154]
However, where the conduct takes the
form of an omission, application of the test is more challenging. In
that case the Defendant
is obliged to initiate reasonable action, and
the question then is "What would have happened if reasonable
action has been
taken? It was argued that this involves or requires
the substitution of a hypothetical course of lawful conduct for the
Defendant
' s unlawful omission and the posing of the question as to
whether in such a case the event causing harm to the Plaintiff would

have occurred? A positive answer to that question establishes that
the unlawful conduct of the Defendant was not the factual cause,

which would then be the end of the enquiry, and a negative one
establishes that it was a factual cause; See
Siman
at 9158-H.
[155]
This is what is also recommended in The
Law of South Africa [ibid par 48)
that
the elimination process must be applied in the case of a positive act
and the substitution process in the case of omission.
It
is however not to be regarded as an inflexible rule as confirmed in
Mashongwa . This flexibility is said to have a long history
and never
to have been discarded. As it is not always easy to draw the line
between a positive act and an omission, but in any
event there are
cases involving a positive act where the application of the "but
for rule" also requires the hypothetical
substitution of a
lawful course of conduct. In other words in order to apply the "but
for test" one would have to substitute
a hypothetical positive
course of conduct for the actual positive course of conduct. This was
said to be the logical application
of the law and not the expression
of a new rule or principle; see
Lee
2012 (1) SACR there being no general
formula and the hypothetical scenario need not be proven, but
postulated .
[156]
However whether an act or omission can
be identified as a cause depends on a conclusion drawn from the
available facts or evidence
and relevant probabilities . Factual
causation being simply, a question of fact; see
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
2005 (2) SA 359
(CC)
(2005)
(4) BCLR 301
;
[2004] ZACC 20).
Therefore the existence of a
connection is dependent on the facts of a particular case. The court
must make a finding whether causation
has been established on a
balance of probabilities on the facts of the case; see Minister of
Correctional Services v Lee where
the test was said to consist of a
two stage enquiry (1) What would a reasonable person in the position
of the Defendant have done
to avoid the occurrence of the harm? That
being substituted (2) Whether had that been done, (a proper
diagnosis, a postulated cause)
would the event that has led to Evans
medical outcome been avoided? In converse, if the reasonable conduct
is substituted would
that have still resulted in the event that has
caused Evans harm/ sequelae . That being determined in context. Evans
biggest gripe
is that she was denied an opportunity to be evaluated
for thrombolytic therapy which may have resulted in a much more
favourable
outcome. Had she been properly diagnosed and given an
opportunity to be evaluated will that have resulted in a much more
favourable
outcome
[157]
Evans has sought to establish that as in
the second enquiry that given her factual circumstances it is more
probable than not that
she would have had a more favourable outcome
of her stroke had Sim and Ndlovu acted timeously and correctly
diagnosed her, referred
her to a specialist and or applying the
applicable treatment for the stroke she suffered, which is what a
reasonable man should
have done: see
Life
Healthcare Group (Pty) Ltd v Dr Suliman
(529/17)
[2018] ZASCA 118
(20 September 2018). This is where Evans' argument
resides for a favorable outcome. That she was denied an opportunity
to be evaluated
for thrombolytic therapy which may have resulted in a
much more favourable outcome. Sim and Ndlovu disputes the allegation
reliant
on the international research literature pertaining to the
percentage of cases in which one obtains a more favourable outcome if

a correct diagnosis is made timeously and appropriate treatment
applied timeously.
[158]
Evans has only during her testimony
postulated to have, as a result of being misdiagnosed and therefore
denied treatment for the
stroke, lost the ordinary function of her
left upper limb and full use of her lower left limb, cannot run and
use a brace to elevate
the lower limb and the assistance of a crutch
to walk, which she says she could have totally recovered from or had
a much more
favourable outcome . The said sequelae could have been
prevented or minimized by the treatment .
[159]
It is common cause and both parties's
expert opinion that a reasonable conduct for Sim and Ndlovu, the
Doctors at the Unit, when
Evans presented at the Unit with the acute
symptoms at the time, to avoid the alleged
sequelae,
was to timeously and correctly
diagnose (examine and advise) her ailment to be a stroke, which would
have whereafter entailed a
finding if she was a candidate for the
stroke treatment (which is determined by the time of onset at
presentation and the severity
of her stroke), and immediately
timeously admit her to hospital and give her the treatment or refer
her to a specialist for further
management and evaluation for
thrombolytic therapy or alternatively transfer her to a facility
where she can be treated with thrombolytic
agent s.
[160]
The Experts and the literature they have
referred to indicates that the presentation with stroke like sensory
"symptoms of
numbness and tingling down one side is considered
to be acute symptoms that indicate acute stroke, which is a medical
emergency,
the treatment of which is time dependent therefore vitally
important that patients who may be having a stroke are admitted to
hospital
and taken to an emergency unit as soon as possible. Early
presentation at the Emergency Unit after the onset of symptoms has
been
found by the experts to make a patient a candidate for
thrombolytic therapy. According to the Expert s Evans had presented
herself
to the casualty within half an hour of the onset, that is
within 30 minutes of having started to experience the neurological
symptoms
therefore they considered Evans a candidate for treatment
with tPA. It is a medicine which they have agreed from research if
given
within 3 hours of the onset of symptoms has overall, better
long term outcome. They had recorded that "Plaintiff presented

with the onset of numbness of the left arm and leg on the morning of
5 October 2011 at 10h25." He was seen by Dr Sim after
that who
noted to have consulted with her a half an hour after onset. They
reported that with the appropriate treatment the chance
of her being
significantly improved would have been about 33% percent .
[161]
On various trials/ studies done looking
at the onset time of stroke symptoms to time for commencing
thrombolytic therapy that is
IV (intravenous treatment) to dissolve
the clot and restore blood flow have shown that the longer it takes
to start administering
the drug the less likely the results are going
to be favourable. It was so projected that the best results are
obtained when the
treatment is given early and that is generally held
to be within 3 hours. Although both had indicated some
acknowledgement that
there is still some benefit to be derived
after
three hours and under four and a half hours, however pointed out that
it would be as the law of diminishing returns
,
not only are the benefits less good, but also the risks become
greater.
[162]
In his 2013 medico legal report, Keiser
had indicated that The South African Guidelines for the use of tPA
published in the SAMU
in November 2010 stipulate stipulate that
treatment commence within 4 and a half hours of the onset of symptoms
and that the cerebral
hemorrhage be excluded on a CT or MRI scan of
the brain, which deal with severity. It has since been recognized by
both experts
that the accepted protocol is 3 hours as a medicine
which if given within 3 hours of the onset of symptoms has overall
better long
term outcome.
[163]
Both experts submit that the doctor who
examined her (Sim) may well have suspected a stroke, being the most
likely diagnosis in
spit e of Evan s relative young age for these
acute symptoms. Also that if Evans arrived at the Hospital at three
minutes past
eleven, registered and was seen by Sim at 11h10. She
would have been well within the window of first 90 minutes or even
the 3 hours.
According to Kesler there is strong evidence that the
closer the onset of the symptoms to her presentation at the hospital
or the
clinic is brought, the better the chances of doing something
if one acts correctly timeously within three hours.
[164]
Keiser had agreed that in respect of
Evans, the symptoms on onset would have been the inability to hold
herself or to bear weight.
The first sign being the sensory symptoms
in the region of the upper arm which Evans said it further crept down
a bit to her lower
limb. Keiser and Rosman had stated the time of the
onset in their joint minute and their separate medico-legal reports
to be 10h25.
Keiser confirmed not to
have consulted with either Evans or her witnesses on the time of
onset, however dismissed any suggestion
of a discrepancy by stating
that fighting about whether it was 10h15 or
10h25
is neither here nor there, arguing that it is still within the
parameter of the 3 hours window period.
[165]
The time of onset is crucial in
determining what could have been probable and or reasonable conduct
and a factual issue which can
only be determined from the proven
facts or factual evidence presented to court. Keiser
conceded
that the time of the onset is different and need to be pinpointed or
established by evidence.
As a
factual issue it could not be left to the opinion of the Experts as
elucidated in
Michael
&
another v Linksfield Park Clinic
(Pty) Ltd
&
another
[2002] 1 All SA 384
(A);
2001 (3) SA
1188
(SCA) paras 36-37, when the court said:
"Judges must be careful not
to accept too readily isolated statements by experts, especially when
dealing with a field where
medical certainty is virtually impossible.
Their evidence must be weighed as a whole and it is the exclusive
duty of the court
to make the final decision on the evaluation of
expert opinion."
[166]
in determining onset, the court had to
take into account the factual evidence that was led, specifically by
Evans, Nadine and Mr
Evans, since onset is said to be subjective .
Evans' testimony was the only direct evidence available from which it
would have
been possible to pinpoint the exact time of onset and the
severity of the stroke at that time. It was but very difficult to
follow
as it was inconsistent. Her response to interrogation of her
evidence was not very clear and a bit vague. As a result attempting

to understand her responses was an exasperating exercise.
[167]
According to Evans it was before her
10h30 appointment was about to start, when she suddenly felt some
numbness in her left arm,
thinking she was having pins and needles.
The same numbness was subsequently felt on her left leg. She tried to
walk but fell over
against the wall. Her left leg could not support
her weight (This was indicated by Keiser to be the manifestation of
her symptoms).
She got up and climbed on the bed. After that she
phoned her friend Nadine and told her about the numbness, pins and
needles and
her legs' failure to support her weight. Whilst she was
talking to Nadine she felt her face starting to feel numb as well and
she
started stuttering, struggling to hold a sentence. It can be
safely said that, the symptoms of stroke set in before she phoned
Nadine, taking into consideration the explanation by Kesler of the
meaning of onset.
[168]
Nadine indicated that when she was
talking to Evans after she received her call, she had looked at the
time and she realized that
it was 10h15. According to that version
actual onset was as a result earlier than 10h15. Mr Evans also
indicated onset to have
ben earlier by testifying to have received
Nadine' s call informing him of the incident at 10h15 -1017.
According to Evans she
called Nadine after the sensory feeling of
numbness, which is after onset. Nadine then made a call to Mr Evans
after her conversation
with Evans. Nadine's conversation with Evans
must therefore have taken place before 10h15. If the conversation
between Evans and
Nadine was definitely before 10h15, then the time
of onset must have been a couple of minutes way earlier than the time
of their
conversation.
[169]
Evans has under cross examination gave
different answers to the questions that sought to address the exact
time of onset and considered
even the possibility that onset was
indeed way earlier than 10h15. Initially Evans replied that it was
within 5 minutes that the
symptoms became a sign that she could not
walk. There was nobody to assist her, the hair saloon lady was busy
in the hair salon
and she was in another room, the beauty room was
unoccupied . She then had testified that it was around about 10h10 -
10h30 whilst
waiting for the scheduled appointment when she started
experiencing the numbness of her limbs. She then confirmed that she
might
have said to Dr Roper that it was around 10h00, but indicated
that it was around 10h00 and 10h15. She denied that she would have

also mentioned to Dr' s Corie van Zyl or Campbell the Neurologist who
consulted with her and noted in their individual reports
that she
said around 10h00 that morning she started experiencing numbness on
her left hand side and slurred speech. Evans then
again alleged that
at that time her client whose appointment was at 10h30 had arrived at
around 10h15. It was put to her that in
her evidence in chief she
said her client had not arrived yet when she experienced the weakness
and numbness of her left arm and
leg, climbed on the bed and phoned
Nadine. When it was also indicated that Dr Botha had rather noted
onset at 10h15, she claimed
that she could not have mentioned a
specific time because she did not know exactly what time it was. That
is how bewildering was
Evans' version.
[170]
However, on a balance of probabilities
looking at the evidence of all the three witnesses, sequentially,
complete onset must have
been at 10h00, which is way earlier than
10h15 when Mr Evans got the call or the time before then when Evans
phoned Nadine.
[171]
The opinion of Keiser and Rosman that
onset was 10h25 and that of the other experts ' s was reliant on
hearsay evidence anyway and
therefore not of probative value. I do
consider what the Experts have said that the difference of a few
minutes between onset is
insignificant. However it is crucial that it
should be as near accurate as it possibly can be, as so much emphasis
has been put
on the importance of the urgency of the patient ' s
presentation at hospital following onset for the acute management of
stroke
and a better outcome more possible in the first 90 minutes of
the 3 hour window. The time of onset and the nature and/or severity

of the stroke being determinative if treatment would be appropriate
in terms of benefit or risk.
[172]
It is therefore apparent that the
estimation of the Experts that Evans indeed presented herself to the
casualty for examination
by Sim within half an hour of the onset and
calculation on that basis was inopportunely incorrect. Sim and the
triage nurses had
noted that Evans suffered the numbness 30 minutes
prior to her presentation at the Unit whereupon Kesler and Rosman had
by calculating
backwards concluded that onset was at 10h28 . It was
confirmed that the time of
11h03
indicated on a sticker on the hospital
documents
is the time that Plaintiffs husband registered her as a patient
.
It was not the time that the doctor had her in her hands but when the
administrative staff was processing her admission. The triage
nurse
had indicated that Evans arrived at 11h10, to be attended by her. Her
blood pressure was checked which took only 2 minutes.
Keiser said the
nurses to some extent must alert the doctor of a serious situation.
He agreed that Sim was not at the bedside of
the Plaintiff at 11h03
like he might have presented. Sim was rather consulted at 11h15 which
he saw as a good thing.
[173]
Kesler had subsequently after
considering the time scale and having dealt with onset confirmed that
they can work on the assumption
that onset was at 10h00, although he
said for him it was difficult to pinpoint it to the minute. Rosman
has also agreed that even
though he had followed Keiser in his
conclusion about onset, it seems however to have been a little
earlier than the 10h25 time
mentioned. He agreed that on reviewing
the documents he had concluded that it was 10h28 or 10h25 and it
seems however not to have
been correct, there being an indication
that it might have been 10h15 or earlier. He indicated that minutes
become more important
at the close of onset in order to determine
when the 90 minute window actually starts to determine the potential
risk or benefit.
[174]
At the time of Evans consultation with
Sim, only 5 minutes was left before the expiry of the first 90
minutes window of opportunity,
which cut it very short for Dr Sim to
be able to consult, examine and advise the patient on a possible
diagnosis whereupon he would
decide on the course of treatment.
[175]
Seeing that it was Evans' first
involvement with Dr Sim, whom they have agreed she saw at 11h15, it
was therefore accurate that
Dr Sim saw the patient an hour and 15
minutes into the window period, apparently therefore that it was an
hour and 15 minutes after
onset. Any or proper diagnosis would have
hypothetically occurred only after the first 90 minutes post onset
after Sim had examined
Evans.
[176]
Reasonable conduct also required further
verification and understanding of the prior medical history of the
patient to determine
nature and extent of the severity of her
symptoms at presentation as reported and or ascertained from an
examination . It was important
for the purpose of a proper diagnose.
However it proved to be a tiresome experience trying to establish
that from the evidence
present ed. According to Evans she could not
speak when they arrived at the Emergency Unit. Mr Evans attended to
the administrative
stuff whilst she was wheeled off to Emergency.
Nadine 's testimony was that she left Mr Evans to do the
administrative work and
to present his medical aid card. Mr Evans on
the other hand denied giving the information noted by the hospital
administration
staff when the hospital file was opened on admission .
None of the Plaintiff's witnesses wanted to take ownership of the
information
given to the staff.
[177]
During Evans' cross examination about
that information she admitted that she had a headache that morning
before the stroke set in
but denied that it was severe or that she
was prone to headaches. She denied taking any medication that morning
before the incident.
It was pointed out that on the patient clinical
record, the information completed was about the numbness on the left
side of her
body
, feeling of pins and
needles and having a headache two weeks prior the incident,
coughing for 7 days and also being allergic to penicillin and an
asthma sufferer. Evans confirmed that she is allergic to penicillin

and an asthma sufferer. She agreed that she took a Panado, Compral
and Disprin at 7h30 that morning 12 hours prior admission .
She said
the Vertigo medication was that of Mr Evans. She confirmed to having
a left knee operation when she was 16 years old as
noted and to have
had the last meal the previous night at 18h30. She also pointed out
that
she probably would have had
breakfast that morning with a cup of coffee but could not remember
.
She then turned around and denied suffering from headaches for the
past 2 weeks and said she
could not
remember taking any headache tablets
.
She maintained that she would not have taken three kinds of tablets
at the same time that morning.
[178]
It is as a result difficult to conclude
from her testimony what was her exact health/medical history prior
the stroke and the severity
of the stroke when she presented herself
at the Unit. Whether or not she had a headache that morning and or
any persistent headaches
for the past two weeks. However according to
Nadine, when she was called by Evans to tell her about her symptoms
on the morning
of the onset, Evans told her that she was feeling pins
and needles in her left arm and leg and also had a headache. It was
therefore
unclear if she indeed had a headache that morning and took
headache tablets or had breakfast. The one person that is likely to
have had such personal family information was Mr Evans but he also
denied that she supplied the information to the Unit. If incidentally

Evans did not give this information to the hospital why would her
other witnesses deny doing so, if they did. Nadine said Mr Evans
went
to sign Evans in with his medical aid card. It is also Mr Evans's
testimony that he attended to the pre- admission requirements.
He was
asked for his medical aid card and to fill in forms and spent about
10 to 15 minutes doing that. Mr Evans however still
denied giving any
of the personal information in the computer generated or hand written
hospital records. He agreed that a copy
of his front and back of his
Drivers' licence, Discovery medical card and ID document, were part
of the documents forming the hospital
record, confirmed Evans' date
of birth and age that was therein recorded and accepted that the 2
signatures of the guarantor on
the document are his. He however
denied being the one who provided the information about Evans' acute
symptoms that she complains
of numbness on the left side of the body
that started half an hour ago feeling pins and needles, headache
2/52, coughing and clear
phlegm for seven days." He said he was
never asked what was wrong with his wife.
[179]
Mr Evans' denial persisted even though
the same kind of information is in the particulars of claim and was
provided to Naidoo, their
family doctor being the one who also
completed the forms. He could not explain how he could not have been
the person who provided
the information if it was obviously not
Nadene. Such a turn of events was shockingly surprising as it was
unnecessary, Sim and
Ndlovu had already admitted negligence. Due to
the proximity of Mr and Mrs Evans' relationship as husband and wife,
Mr Evans could
not be sincere. His evidence also could then not be
relied upon.
[180]
As far as Nadine is concerned, she seems
to have been genuine except when she had to deal with the information
relating to the time
when they had taken Evans to Dr Naidoo. She had
testified that it is 5 minutes away from Wilgeheuwel, they left and
they were back
as quick as they can. When she was asked to explain
the time of the second admission which she alleged to have been at
18h00 in
the evening which was contrary to the hospital record, she
now referred to pick hour traffic forgetting that she said it took
them
just 5 to 10 minutes to get there.
[181]
What however was pointed out during the
evidence of Evans' expert Keiser is that the hospital records noted
that Evans had told
the Doctor that the Medication she was on was
Vertease, or was on a Vertigo, which Keiser said can be a sign of
brainstem involvement.
He confirmed that Library Vertease is an agent
given in Vertigo and a drug that is used usually in peripheral
Vertigo, which arises
in the middlefront from the inner ear rather
than the brain. It is a schedule 3 drug which means it can only be
obtained by script
from a doctor. The presence of Vertigo is an
indication of a posterior dissection of the artery being involved but
not on its own.
It but certainly can be part of a stroke syndrome in
the posterior calculation. He said the headache is not as common as
one would
imagine in ischemic stroke. This was said to be underlying
symptoms of things not being well. As in the case of dissection it
may
be that the dissection began some time before the stroke. In most
cases of dissection they do find some sort of history indicating
what
set it off which might be from a fairly a minor trauma dating back
when it was roughly a week, two weeks, three weeks before
the event.
So a headache under those circumstances, especially posterior
headache, neck pain which does not have to be particularly
severe,
can be mild and nonspecific. But it is not uncommon in dissection to
have neck pain and headache. It may well be the first
sign then that
the patient is no longer well but not the first sign of stroke. So
although the dissection has begun the stroke
has not. He said he was
aware that there is a note that Evans took Dispirin, Comporal and
Panado at 7h30 and was not surprised
that there was some headache as
the history had suggested that for some two weeks there was some
headaches which Evans seems not
to remember the details of, but that
would not surprise him given that it is now known that there was
dissection that suffered
from neck and posterior headaches. That
being the meganism of the eventual stroke. Venteze is for asthma and
Vertise is for vertigo
and she said she has never had vertigo but her
husband had whilst her husband denied being on it.
[182]
All the same the indication is that
things were not well long before the stroke symptoms set in. There
were prior exhibitions of
a stroke syndrome and the dissection having
begun some time ago. A history the hospital would have benefited from
had any treatment
been considered. The thrombolytic treatment of
patients with acute ischemic stroke related to underlying arterial
dissection seem
to be also a very rare condition.
Nature of the symptoms / stroke
[183]
Both Kesler and Rosman confirmed that
the neurological sensory symptoms of numbness and tingling down on
one side, that was presented
by Evans at admission would have to an
examining Doctor with experience made him or her suspect a stroke as
these were stroke like
sensory. Kesler has further testified that "in
spite of Evans' relatively young age, stroke would still be the most
likely
diagnosis in a patient who presents with these acute symptoms.
They
have jointly agreed that Evans'
early presentation at the Emergency Unit after the onset of symptoms
would have made her a candidate for treatment with tPA, a
medicine
which if given within 3 hours of the onset of symptoms has overall
better long term outcome. The diagnosis and initial
management of
stroke as said by them should be within the knowledge and capability
of all doctors who work in an Emergency Unit/Casualty.
It is however
contrary to the assertion that suspicion of a stroke would have come
to an experienced examining Doctor, which would
then depend on the
level of knowledge. They were of the opinion that stroke, it appears,
was not considered by her treating doctors
in Casualty. They further
point out that an acute stroke being a medical emergency, Evans
should have been admitted and afforded
that opportunity of being
assessed for treatment. They thus both considered Evans' management
at her initial visit to have been
below accepted reasonable practice.
They consider that with appropriate treatment the chance of her being
significantly improved
would have been about 33% percent. They submit
that Casualty Officers ought to be well aware of the option of
thrombolytic agent
administration in the acute management of stroke.
[184]   They on the
other hand agreed that Evans' stroke was a very typical onset of an
ordinary ischemic stroke that
suffered from an acute stroke. Also
that it was not a common stroke. The unusual part about it was that
it was a brainstem, a little
bit more unusual as it was a dissection,
a more unusual pathophysiology of a stroke but only one stroke. It
evolved over a matter
of minutes or at most probably an hour but it
is not A typical. Keiser confirmed that by the time she was seen by
the Doctors the
stroke has occurred and the fluctuating position
thereafter was an effect of the stroke. Getting worse overtime. That
is what was
supposed to be contained by the treatment. This must also
be borne in mind when the Doctors are criticized for their negligence

in failing to diagnose Evans' ailment.
[185]   Keiser had
opined that in general, someone who attends a doctor, whether in the
emergency situation or a routine
visit wants to come out of the
consultation with some kind of diagnosis. He acknowledged that in
some medical conditions it is
well impossible after a consultation of
an hour to come to the correct or accurate diagnosis, but should
still at that stage have
a working diagnosis, something that will be
figured out with time. Admitting that sometimes that can be their
highest level of
understanding, he said they rather should then go
somewhat further, even if it means admitting somebody for further
observation/
investigations or for specialist care or referral.
Obviously in urgent situations there is much less time and one should
come to
a much quicker conclusion. However discharging somebody
saying they experience numbness is not a diagnosis but a symptom. He
also
admitted that the Doctors who attended to Evans were Casualty
Officers, not specialist and that he would have doubted their
diagnosis
anyway even if it was there. I therefore doubt that the
contention that they should have administered the treatment
themselves
is realistic. I think too much was expected from them.
[186] The South African Guidelines
of S A which they all consulted recommended that cerebral hemorrhage
be first excluded on a CT
or an MRI scan of the brain. The CT scan
preferable as it is fast and readily available at most hospitals or
clinics. The CT scan
of the brain is done in the early hours, or as
soon as possible if someone is suspected of having a stroke primarily
to exclude
hemorrhage or perhaps some other possible cause for their
symptoms. The reason being that if a patient is given Alteplase in
the
face of brain hemorrhage the condition could become worse,
increasing the hemorrhage and a good chance of killing the patient.
Justifiably a suspicion (working diagnosis) of a stroke might be
there before the scan results are available but authentication
of
such a diagnosis whereupon a decision would be made on the course of
treatment or plan of action to be taken would logically
only be
possible on receipt of the CT scan results. Therefore the final
diagnosis which the examining Doctor or Casualty Officer
as Dr Sim
was expected to make, was to await receipt of results of the CT scan,
which was received only at 12h34.
[187]   It is
significant that the CT scan result showed no contra-indications.
Keiser had argued that still the possibility
of a stroke should not
have been ruled out. Not even Evans' age should have constricted the
possibility of a stroke. According
to Keiser the appropriate
specialist whom he reckoned will have the expertise in the diagnosis
of stroke and be aware of the risks
was to be called to assess the
patient and make the decision on the treatment. More so in such
indeterminate circumstances, it
would be logical to involve
reasonable expertise. It appears there was no resident Neurologist at
Wilgeheuwel, since she was referred
to a specialist physician, Dr Le
Roux whom Keiser considers would have been eminently suitable to
administer the medication. On
the involvement of a specialist, Rosman
confirmed that he too does not trust the diagnosis of the Casualty
Officers rather that
of a specialist. He said he would therefore have
waited for a scan even if the signs and information supplied might
suggest or
be reconcilable with a stroke. It is therefore logical
that Sim would have awaited the CT scan results prior to finalizing
an opinion
on a likely diagnosis and deciding on a plan whether to
call the specialist who would as indicated have insisted on seeing
the
scan results any way, prior to deciding on the treatment or
referring the patient to a neurology specialist hospital.
[188]
If practicality is considered , time
wise, Sim had commenced the examination of Evans only after the
administrative process has
taken place. The triage nurse have
indicated that the Plaintiff arrived at 11h10, her blood pressure
checked in 2 minutes. According
to Keiser the nurses to some extent
have to alert the doctor of a serious situation. He agreed that Sim
was not on the bedside
of Evans at 11h03 like he might have presented
and that she was actually consulted at 11h15 which Keiser saw as a
good thing. Sim's
responsibility started from then. There is evidence
that Evans had at 11h45, between the time of her examination by Dr
Sim and
going for the scan vomited, which explanation accounts for
the time lapse before the scan was actually done at 12h00. For that
reason Kelser's criticism that doing the scan at 12h24 is not
indicative of expedient attendance to a possible stroke is not fair.

Firstly, the actual time the scan was done was not 12h24 but 12h00
and there were other intercepting complications, that of Evans'

twitching and vomiting, that caused some time lapse that had to be
accommodated in the window period. Evans came back from the
scan at
12h20. Keiser was amenable to reconsidering his stand after being
implored to actually take into account the probabilities
submitted
that chances that Evans would have had a needle in her within the
first 90 minutes are non-existent but if possible it
could have more
probably been at the end of the second half of the 180 minute or
beyond the window period. He admitted, though
he was of the opinion
that it would probably have been in the early part of the second
half. On consideration of all the evidence
it is obvious that, since
the scan results were to be expected after 12h20 or 12hh24, there
being no resident Neurologist at the
Wilgeheuwel Hospital and the
availability of Le Rou x uncertain, the treatment could only have
been considered in the latter part
of the second half of the 3 hours
or beyond the 3 hour window period.
[189]
The time that was left for Dr Sim to
obtain results, decide on a plan of action or treatment, that is,
check and arrange for the
availability of Le Roux, a bed at ICU, or
for the transfer to another hospital was after the scan results was
26 minutes before
the expiry of the window period. Kesler had
indicated that it appears the stroke was not actually considered by
Dr Sim, for if
it was considered then there would have been some
urgency in getting the scan as it would be incumbent on her as the
Casualty Officer
to, under those circumstances, expedite the scan and
for the results to be given as soon as possible . He said the scan
could have
been done in 15 minutes if the working diagnosis was
there, being a potential or that it looks like a stroke. He did not
amplify
as to why the scan would have taken 15 instead of 20 minutes.
He pointed out that it would then have been known that there is no

contra indication for using the only Altepose.
[190]   However, the
evidence led contradicts that view as it was noted that on examining
Evans, Dr Sim ordered blood
tests (which has been indicated to be
important as well) after the scan has been done, blood was taken at
12h23. Evans had confirmed
a note recordal of her consultation with
Dr Sim that during that time blood was drawn , reflexes checked, an
intravenous drip was
administered, toxicology screening and an ECG
done. Scan ordered and thereafter bloods taken; reported to Dr Sim.
Evans confirmed
that after all that has been done, she got sick and
vomited at about 11h45, that is when Zofran and Ativan as prescribed
was administered.
It is not recorded when she stopped but according
to the notes she confirmed that at 12h00 not at 12h24 as suggested ,
she went
for the CT scan. Keiser ' s criticism of the time the scan
was don e was evidently misinformed, since it was soon enough. During

the scan, her body could not lay still, her left arm and leg was said
to have been twitching or jumping. Kesler had also alluded
to Evans
being quite restless and understood that they had to give her a mild
tranquiliser to calm her down to be able to do the
scan. That
explains the extra 5 minutes. According to Kesler had the scan been
expedited it would have taken 15. Evans confirmed
that she came back
from the scan at 12h20 , 20 minutes later. Up to that point all that
has taken place was necessary and I cannot
find that there was an
unexplainable or unnecessary delay, at least caused by the Drs.
Nevertheless the difference of what Keiser
regards as expeditious is
negligible and therefore insignificant. They thereafter waited for
the result s. At 12h23 blood tests
were taken.
[191]   No treatment
could be considered prior to the Ct scan results. Keiser reported
that the results could have been
obtained in 2 to 3 minutes
thereafter. They, as noted, were available at 12h35 in 15 minutes and
Evans ' status reviewed by Sim
whilst blood results still awaited.
Pending the blood results only 25 minutes seems to have been the
available time within which
Sim could have sought a specialist succor
who would have made a call, first on the diagnosis and then decide on
whether or not
to administer the treatment, especially as the CT scan
was accordingly inconclusive, not ruling out the acute stroke. Sim
seems
to have instead awaited the blood tests result s which in
Kelser' s view, was conduct indicative that Sim was not looking for a

possibility of a stroke as blood tests were done to search for
possible infect ion, so whatever was Sim' s suspected diagnose if
any
was wide of the mark. Nevertheless the application of the treatment
would then have depended on how soon le Roux and a bed
at the ICU
could be available and the transfer could be arranged, which evidence
was not before the court. Keiser acknowledged
that time was tight,
certainly very tight for Sim and that there were indeed other
dynamics to be considered which could have impeded
a timeous
implementation of the treatment, like, as indicated the availability
of a bed and of le Roux, whose whereabouts at the
time was unknown,
that being a factual issue dependent on the circumstances. Kesler
admitted that what could have happened actually
boiled down to
speculation. He had also agreed that time was tight even if he went
through the emotions of expediting the written
results or a verbal
response from the radiologist to only take 2-3 minutes, treatment
would still have been started if things were
perfect, outside the
window period, within 15 or 20 minutes, assuming on the 10h00 onset.
[192]   Having conceded
that time was tight and that certain outcomes were indeterminable
therefore he had to speculate,
Keiser alluded to a suggestion that
Casualty Officers should be capable of doing the treatment. He said
if a Casualty Officer was
under the supervision of a Specialist
Physician , he should have given treatment . Notwithstanding that he
was speculating in favour
of Eva ns, as it was put to him, the fact
is that Sim was not under the supervision of a Specialist Physician.
Keiser also had
affirmed that preferably a Neurologist had to be
there to assess the patient's rapid condition himself and first of
all make sure
about the diagnosis, since this is a special field of
Neurologist even though Physicians do treat to a certain limit. For
that
reason a Casualty Officer would not be adequately
knowledgeable/equipped to deal with the situation. Le Roux, the
Specialist Physician
that was available who admitted Evans for a day
had later also failed to recognize the Evans' stroke. He was not
definitive with
his diagnosis, allegedly because of Evans' age which
is regarded as unusual for a stroke. I would not trust that a
Casualty Officer
would be comfortable to give treatment guided by
someone who would have been unsure of Evans ailment as well. unless
if he works
t o. The reasonable conduct would have been to send Evans
to a hospital specialized in the stroke field where he would be
treated
to a large extent by expert Neurologists. She would have but
arrived already outside the 3 hour window period. Therefore any
assessment
that was hoped for could have only taken place probably
within the 4,5 hours window period.
[193]
Rosman indicated that the blood tests
whose results was still not available when Sims went off duty were
usually taken as a matter
of routine and useful to check the
thickness of the blood and type which is ascertained from a full
blood count. The outcome of
pathology report becomes useful if a
patient has very thick blood which cautions against the possibility
of a condition called
sickle cell aenemia that is common in West
Africa. It could cause an increase in blood clotting and potentially
give useful information.
He said it made sense for Sim to call for it
and to look at haematology if it is normal. The blood samples were
taken only by 12h23
when Evans came back from the scan. Blood here
being the problem whether or not it clots or thins or could cause any
hemorrhaging
.
[194]
A further challenge according to Rosman
was that whoever is the Specialist that was to be called in, thinking
through his hard experience
which is validated by this case, would
not have trusted the examination of the Casualty Officers and thought
it would have been
essential that before embarking on a potentially
harmful treatment examine the patient to confirm the diagnosis for
him self that
indeed the patient is suitable for thrombolysis. He
would after that explain to the patient or her relatives as much as
she or
they are able to understand what the risks and the benefits of
treatment could be. Once consent is given he would need to find an

intensive care unit or somewhere where a bed was available . He would
only then immediately start with a 10 % of the dosage. Whilst
that
was running in, he would push the patient to the Intensive Care.
Through his vast experience, he said he could probably do
a
neurological examination in 10 minutes and would expect a non-
neurological person to take up to half an hour to safeguard the

decision to ensure that the patient is eligible for the thrombolytic
treatment there being 2 or 3 % risk of causing a brain hemorrhage.

Many of these may clear uneventfully but many of them might cause the
death of a Patient, thus he emphasized the exercise of caution
. If
Le Roux was immediately available when Sim got the results, h e would
have required more than the 26 minutes that was left
of the 3 hours
to com e through to the Unit, confer with the Casualty Officer, do
the 30 minutes neurological examination required
to safeguard the
diagnosis and decision to treat, consult with patient or relatives
for the consent before giving Evans the treatment.
The treatment
would have fallen outside the 3 hour window period. This confirms the
argument on behalf of the Doctors that Keiser
should have actually
taken into account the probabilities sub mitt ed that chances of
Evans having a needle in her within 90 minutes
were non-existent.
Actually in all probability she would have missed the boat.
[195]   The question
that still arises is as was indicated by both experts that if Sim had
on suspicion that Evans had
suffered a stroke despite the
uncertainty, expedited the results of the CT scan (which also
unfortunately came back without definite
assurance of whether or not
Evans has suffered a stroke), would Evans have bit the 3 hour window.
Apparently there would have been
another 10 to 12 minutes gained to
add to the 25 minutes which Keiser maintained should not have made
them throw arms and be despondent
that they missed the boat thinking
they are not going to catch it in time for the 3 hours. He said
whether it is 15 or 20 minutes
that is left, one should still treat.
That is as far as Sim's reasonable conduct could have possibly
achieved, at the very best,
a treatment at the last 10 or 5 minutes
of the 3 hour window or 15 minutes post the window period. However
looking at the half
an hour that Le Roux would have required as a non
- neurologist to do the examination to assure himself of the
diagnosis and of
Evans eligibility for the treatment, all that time
that might have been gained from expediting the scan results would
have been
usurped by Le Roux' s prepping process. Therefore there was
no chance that Sim would have beaten the window period. As indicated

that time is brain, the more time goes by, the more brain is lost.
[196]   Kesler flipped
and confirmed that this is a special field of Neurologist even though
Physicians do treat to a
certain limit, preferably he as a
Neurologist had to be there to assess the patient's condition. Since
Le Roux was just a physician
and Ms Evans is said to have suffered
a posterior stroke, which is relatively uncommon, he
undoubtedly
would have taken longer to assess if Evans' condition was conducive
for the envisaged treatment Evans' stroke was said
to have shown
evidence of a small area which looks like a non-hemorrhage stroke in
the medulla oblongata which is the lower part
of the brain and
together with this the right vertebral artery cannot be seen and
implies that the artery has closed off which
seems clear to Rosman
that the artery closed off for whatever reason and caused the damage
to that part of the brain. Closing off
can also be due to a
dissection of the artery. Kesler' s explanation of a dissection is
layers of the artery itself dissecting
and blood entering into
between the layers pushing and blocking the artery itself. Evans
referral at that time to a hospital with
the relevant specialist
treatment would not have improved her condition to be better than the
outcome of the treatment at the Gordon
Institute as it would have
been made post the window period.
[197]   Time was indeed
tight for Sim. The availability of Le Roux was uncertain, he was not
fused about the availability
of a bed in the ICU. If it was
speculated that Le Roux was possibly not around he must be given a
reasonable time to respond. On
all the evidence before me, the
probabilities dictate that Evans would have fallen way outside the 3
hours window period. Keiser
indicated that the type of stroke
suffered by Evans was found out in retrospect that it is called
Vertebral Arterial Dissection
and would have caused the ischemic
occlusion somewhere in the brain and reasonably happy that in that
situation within certain
boundaries they could give treatment. He
said Evans stroke has got no similarities to other cases that seem
like stroke but were
not.
At the same time confirmed that in the
incidence of the administrati on of thrombolytic treatment in stroke
there is not very huge
figures involved in South Africa even in his
own practice it is pretty low 4,5 per year. He said there is more
confidence now and
done most frequently and much more confidently
then it was before,
which did not apply to the situation so many
years ago in 2011. Also
that then he was involved in every single
case as a Neurologist, which has now changed, no longer that
involved. Therefore it cannot
be concluded that Le Roux would have
been comfortable applying the treatment not being a Neurologist in a
not so clear situation.
[198]   The
classification of Evans’ stroke was also a problem, with Keiser
raising the fact that he would, however
say that this was
a
moderate severe stroke
which required urgent therapy. On scoring
her on the NHSSI Scoring System scale of 2-40 he said he would regard
her stroke to have
been more than 4 and less than 22 which is
moderate. He indicated that he has though not gone through the
exercise and does not
understand why her level of consciousness was
not always perfect and she was twitching. He would, however say that
this was
a moderate severe
stroke which required urgent
therapy. He regarded the severe stroke to be over 24 in terms of the
administration oft-PA.
[199]   The treating of
patients with major deficit of a NIHSS score of more than 20 on
presentation by administering
the thrombolytic therapy is cautioned
by the South African Guidelines for Management of lschemic Stroke and
Transient lschemis
Attacks that deals with the exclusion criteria.
Kesler was nevertheless dismissive of the caution saying scoring can
be out by
a couple of points but he would insist as he always uses 24
as his upper limit but accept that 20 is the threshold of the local

guideline. Rosman had put Evans on 23 at the time of her
presentation. Kesler reckoned he could not argue with Rosman’s
finding as he did not consult with Evans at the time. He said his
limit in giving thrombolysis treatment still is 24 whereas in
the
document they speak about 20. He could put Evans between 4 and 24.
This is another grey area where advise is against treatment
because
probabilities of an improved outcome are very doubtful and a better
outcome not guaranteed. Whilst Kesler on the other
hand is insisting
that even under those circumstances treatment should have been given.
[194]   Ndlela took over
Evans’ treatment after having started her shift when Sim went
off duty. Since there is
no evidence of the handover it is speculated
whether or not it was done and if so nobody knows how. At the time
blood results were
still pending. It would be a fair assumption that
Ndlela started her shift at 13h00 as according to the nurses report
it was noted
that "the availability of the blood tests results
was reported to Ndlela at 13h05," after the 3 hour window
period. Ndlela
proceeded to discharge Evans without proper diagnosis
and/ or a referral to a hospital with the required neurological
expertise.
With a discharge note there was a diagnosis that: numbness
of the left side of the body. Assuming that Ndlela was told about the

twitching and Sim had also indicated that there was a weakness,
specifically a power loss of 3/5 although Slim seemed to have doubted

her own finding by putting question marks next to it. Her discharge
of Evans notwithstanding the twitching and clearly in total
disregard
of the noted weakness indeed clearly impacts on negligence as was
observed by both experts. Even though Rosman is of
the opinion that
Evans also showed a misappreciation of her own condition as at no
stage was it said that Evans complained of a
weakness on that left
side.
[195]
Ndlela took over from Sim and seemingly was not adequately briefed of
Evans condition s by Sim. Keiser therefore
had some sympathy for her
since he reckoned it is the duty of the doctor handing over to
prioritise and mention what requires the
most attention. He regarded
the handover to have seemingly been difficult (as they will always
be) for Ndlela, if she has only
been told that there was nothing
wrong with the patient and just waiting for blood results. He said
Ndlela was almost given incorrect
information as well as the papers
that was generated by Sim which remain and form part of handover and
of the current notes. So
Ndlela was supposed to be as informed as Sim
was on the paperwork. She however seems to have missed the weakness
even though Sim
did note that there was a weakness of 3/5 however
seemed to have doubted her own finding by putting question marks next
to it.
With a good handover Sim should have been able to give Ndlela
most of the salient details of what was going on. Sim was on the
contrary clearly at sea as observed by Rosman. On the other hand
Ndlela discharged Evans with no proper diagnose when she clearly
had
a weakness, which conduct impacts on negligence.
[196]
However
Ndlela came on duty at the expiration of the 3 hour window period,
which both expert s accepted
. It coincided with the blood test
results noted as outstanding which that became available 5 minutes
thereafter and were clear.
One can therefore understand if perhaps
Ndlela was not as thorough as she was supposed to be at that stage
because she knew that
Evans had already been evaluated by a doctor,
and nothing wrong found with her unless the blood results indicate
otherwise. It
was nonetheless late for her to admit Evans and call
for Le Roux to ascertain the diagnosis and consider the thrombolytic
treatment,
make sure there is a bed at ICU to transfer the patient
once the infusion has been started. On the onset of 10h00, the
application
of the treatment could have only been possible at the end
of the 4,sth hour. Both Neurologist have agreed that they would not
consider
treatment due to the increased risk.
[197]   Ndlela might
have been negligent in discharging Evans without a proper diagnosis
but did not have any influence
in Evans' loss of an opportunity of
the thrombolytic therapy treatment as at the time it was already
outside the 3 hours window
period. Keiser had confirmed 3 hours as
his own protocol hours and that he could be persuaded to accept 3hrs
10 minutes. However
he indicate his policy in general to be that
risks are too great after 3 hours, because not only is there a
reperfuse factor but
also an effectiveness factor that the drug is
not going to work as well. He conceded that it would have been
outside the window
opportunity had Le Roux been obtained. He
therefore was not going to be critical of a doctor who does not
administer t-PA or Alt
eplase after 3 hours of onset of stroke. Even
if there was a chance from one of the later doctors to fall within
three to four
and a half hours they both Rosman and Keiser agreed
that they would not label that as negligence on the part of the
doctor for
not referring the patient to thrombolytic therapy.
Understandably so, taking into account the extent of the possible
risk involved
in its application after the 3 hours window of
opportunity. That outlook exonerates Ndlela.
[198]   Consequently
even though it was agreed that the patient's chances are better if
they receive therapy and remain
greater, the earlier the therapy is
received, far greater are the chances of recovery. The research has
been stratified into time
period so to know that a patient does
better if therapy is received within 90 minute than if it is received
within 180 minute,
et cetera and the fall off then becomes quite
rapid after that . The falloff and possible improvement although
improvement been
described up to four and a half hours, it has been
indicated to be considered careless to administer t-PA after that
period of
time, research having indicated that in the 90 minute
period the chances of doing better are about 2.8 times better. M ore
has
been said on the research which the experts have also considered
on the 4,5 hours protocol which I do not find necessary to
interrogate
since they have come to a logical conclusion on the limit
or protocol of 3 hours.
[199]   The necessary
process that Evans was supposed to go through before a decision is
made whether or not to administer
the treatment or to transfer her to
a specialist hospital would have usurped the time frame for
administering Altepalse, the only
known agent used in an attempt to
cure or to, combat the effect of stroke. Even if Sim and Ndlela had
acted reasonably, properly
diagnosing Evans she would have lost on
the chance of the thrombolytic therapy treatment. Therefore I cannot
find that there was
prove of a causal connection between the
negligence omissions of Sim and Ndlela's and the failure of Evans'
debilitation to abate
or recede after the onset of the stroke.
[200]   Evans has failed
to establish on a balance of probabilities that had Sim correctly
diagnosed her stroke, she would
have had an opportunity of being
assessed for and being treated with the thrombolytic agent and as a
result her alleged
sequelae
prevented. Alternatively that but
for either of the Doctors' failure to correctly diagnose her
timeously and treat her, she would
not have suffered that extent of
debilitation resultant from the stroke, there being no evidential
basis to hold the Sim and Ndlela
liable for her
sequelae.
[201]
Under the circumstances, as I could not
find that the wrongful and negligent omission by the Defendants is
causally connected to
the Plaintiff's
sequelae
I make the following order:
1.
The Plaintiff's claim is dismissed with
costs, inclusive of the costs of senior counsel.
N V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of Plaintiff:
AD TA LL POTGIETER SC
Instructed
by:

Werner Boshoff INC Attorneys
Tel: 012 432 6000
Ref: W Boshoff/LO/E225
On
behalf of 2
ND
&
3
RD
Defendant :

A DEV LA GRANGE SC
Instructed
by:

Webber Wentzel INC
Ref: Ric Martin/CVM/000116