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[2018] ZAGPPHC 612
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W.A.P.M and Another v Minister of Defence (44009/2015) [2018] ZAGPPHC 612 (9 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE N0:44009/2015
9/2/2018
In
the matter between:
W
A P
M
FIRST PLAINTIFF
M
M
SECOND PLAINTIFF
and
THE
MINISTER OF
DEFENCE
DEFENDANT
JUDGMENT
THOBANE AJ,
[1]
In late January 2014 the 20 years old
second plaintiff was at University where she was a student helping
out first year students
when she felt pain and started throwing up.
Concerned at what was happening to her she went to her family doctor,
a Dr. Du Plessis
who advised that she should go for a sonar or an
ultrasound. On 04 February 2014 she underwent an ultrasound
evaluation/assessment
at Dr. De Beers, De Jager.
[2]
The findings of the ultrasound were to
the effect that a gallstone was present in the gallbladder of the
second defendant and further
that there was no sign of acute chronic
cholecystitis.
[3]
On 05 February 2014 she presented
herself at 1 Military Hospital and was seen by a Dr. Maree who
advised that she had a gallstone
and that there was no other way of
removing it other than surgery. The medical personnel arranged that
she come for an operation
to remove the gallstone on 27 March 2014.
[4]
On 26 March 2014 she checked into 1
Military Hospital. She was admitted and taken to a ward. She was then
informed that she needed
to go for an X-Ray and an ECG. She went for
such tests and was brought back to the ward.
[5]
It was further explained to her that she
was about to undergo an operation in terms of which three incisions
would be made to her
abdomen. In the event all failed, so it was
explained, they might need to make a large cut on her abdomen. The
Doctor that explained
all this was a Dr. N.P. Skosana whom she did
not know. The doctor did not explain any risks or consequences
related to the operation.
She further did not explain that there
could be possible bleeding. Nothing was said to her about a possible
infection.
[6]
On 27 March 2014 she went for the procedure. Her gallbladder was
removed. After the
operation she woke up in the ward in pain on the
right to the middle of her abdomen. She tried to summon nurses using
the bed button
but it was not functional. She threw up a few times
and cleaned up herself. A nursing sister came and told her she needed
to go
to the bathroom to take a shower. She walked to the bathroom
but was in too much pain to shower.
[7]
On 28 March 2014 a young man whom she
could not tell whether or not was a doctor as he wore neither a white
coat nor did he have
a name tag, came to ask her how she was doing.
He did not examine her but asked if she wanted to go home. She was
thereafter discharged
and given prescription for pain and anti-vomit
meds. Her mother fetched her from the hospital and took her home. On
arrival she
went to her bedroom to sleep. Her condition did not
improve. She was continuously nauseous and in pain. She returned to
the hospital
on 29 March 2014. She felt very tired, in pain and with
yellowish eyes. She had been throwing up and her waste matter changed
color.
[8]
On 1 April 2014 she went back to the
hospital and was admitted. Blood samples were taken and it was said
she needed to go for an
ERCP. An appointment set for 14 April 2014
was arranged for her. She was allowed to go home and was collected
from the hospital
by her mother. She got weaker, threw up a lot,
could hardly eat and could not walk or talk. Her father phoned around
to arrange
an ERCP.
[9]
On 7 April 2014 she was taken to UNITAS
Clinic where Dr. Bond performed the ERCP. He found that there are
clips inside her and that
she needed to have emergency reconstructive
surgery. She was referred to Dr Van Niekerk for such surgery.
[10]
On 8 April 2014 she was examined by Dr. Van Niekerk. He told her that
he needed to make a large
incision and take a piece of her intestine
to make a "pipe" as her "pipe" was cut during the
operation. This
happened and she was thereafter in high care for
about three days with a urine pipe, a tube in her stomach and one in
her nose.
She was uncomfortable and in pain and recuperated only
after 10 days.
[11]
During cross examination she stated that
when she initially went to 1 Military Hospital on 5 February 2014 it
was not an emergency.
She went there because of her symptoms. When
she was given a date for the operation she asked if there was any
other earlier date
but was told that there was none. On 26 March 2014
when she was admitted and was being prepared for the operation, she
was only
told that they were going to perform a gallbladder
laparoscopy. The consequences of the operation were not explained to
her and
she also did not ask about them. She disputed that on 27
March 2014 before the operation, a doctor explained consequences of
the
operation to her. It was put to her that a nurse on duty Ms.
Ramokoka was present when Dr. Skosana explained the consequences of
the operation to her also that Dr. Mathobeng confirmed that
consequences were explained on 27 March 2014. When she was admitted
on 1 April 2014 and given the date of 14 April 2014 she did ask about
an earlier date but was told that her condition was not serious.
She
then requested a home pass while she awaited the date. She
appreciated that removal of the gallstone relieved her of her pain
and accepted that 1 Military Hospital may have paid for her
reconstructive surgery.
[12]
Dr. Bastion Hendrik Pienaar was called
to testify as an expert. His qualifications and expertise were placed
on record. He started
off by explaining a few things to lay the
foundation for his testimony. He explained that a gallbladder was a
sac like organ underneath
the liver. He explained its significance in
the human body and how it functions. He tendered his evidence with
the use of diagrams
prepared before hand. He also made reference to
his report. He stated that there were areas in the anatomy where the
surgeon, in
respect of gallbladder removal should not have gone. He
stated that the area where the hepatic artery as well as the hilar
plate
was situated was a no go area. He stated that a vessel sealing
device ought not to have been used. The second plaintiff suffered
a
severe injury in that her entire bile duct system was removed and her
arterial system injured severely. He stated that the anatomy
ought to
be properly identified however if there are difficulties, opening up
the patient might be the only option.
[13]
He stated further that he had a
discussion with a Dr. Limbos who was initially contracted by the
defendant to prepare a medico-legal
report for them. He was advised
by him that he had arrived at the same conclusion as him on
negligence. He did not see his report
but stated that he was informed
by Dr. Limbos that he was prepared to come and testify if called. He
stated that according to the
surgical report there were three doctors
involved in the surgery. This was not unusual. The report shows the
names of Dr. Cassim,
Dr. T. Mathobeng and Dr. N.P. Skosana. He took
the liberty of contacting the HPCSA and came to learn that Dr. Cassim
was just a
medical practitionerand not a registrar.
[14]
The bleeding that appears to have taken
place seems to have been severe. This is in line with the severity of
the injury caused
to the second plaintiff. He stated that he had
performed over 10 000 operations to remove the gallbladder as a
surgeon. In his
experience the length of the procedure is
approximately 15 minutes. At most it could be 30 minutes. In the case
of the second plaintiff
the procedure took 2 hours and 25 minutes.
This time line in his opinion is "unacceptable". He
believes that when there
was bleeding, the surgeons tried to stop it
with clips. The use of clips was not in keeping with what a
reasonable surgeon would
do, namely, open the patient up to stop the
bleeding. He stated further that from a reading of the medical
records, there was acute
cholecystitis.
[15]
Concerning informed consent he stated
that the surgeon who was scheduled to operate should deal with
informed consent so as to be
able deal with the risk associated with
the procedure as well as the concerns of the patient, if any.
Informed consent should not
be handled by a nurse. On perusing the
records nowhere does it appear that Dr. Mathobeng obtained informed
consent. If it was obtained
it would have been recored in writing by
either him personally or a junior doctor. In his opinion there was
negligence because
the patient's bile duct system was removed. Even
if she had consented, she could not have possibly consented to
removal of her
bile duct system. The duty of a medical practitioner
is to avoid causing injury or damage to the patient. It is totally
unacceptable,
so he testified, to obtain verbal consent in these
circumstances.
[16]
During cross examination he stated that
the usage of a seal was unacceptable. If a doctor uses his discretion
to choose a device
over another then should things go wrong he must
take responsibility. He stated that a tissue sealing device costs
about R5000-00
whereas the correct instrument which is unipolar and
reusable costs about R300-00, to use the former would be more wrong
even if
costing was to be factored. It was put to him that the
defendant's expert was of the view that the injury did not emanate
from
negligence but that there could have been inflammation that
obliterated the area where the injury took place. It was further put
to him that the surgeon in charge of the operation was Dr. Mathobeng
even though records reflect Dr. Cassim. It was further put
to him
that Dr. Mathobeng obtained "informed verbal consent" from
the second defendant. That Dr. Mathobeng was teaching
other junior
doctors who were assisting him. It was further put that Dr. Mathobeng
will testify that when the second defendant
was admitted on 1 April
2014 she had "jaundice illness", and that he gave the
second plaintiff reasonable treatment.
Further, that during the
operation there was bleeding which he clogged to stop. Importantly it
was put to him that after the operation
Dr. Mathobeng was unaware
that there was an injury until the reports of Ors. Van Niekerk and
Bond showed that there was an injury.
He disputed that the operation
was a complex operation, that being the version of Dr Mathebeng. He
reiterated that Dr. Mathebeng
had no business allowing an untrained
person to do the operation. He further stated that the incidence of
4% of operations that
go wrong do not absolve negligence. Lastly he
stated that there were two major problems from the operation.
Firstly, that the operation
was conducted at the incorrect region and
secondly an incorrect instrument was used, this of course quite apart
from his view that
a trainee had no business performing the
operation.
[17]
Dr. Thabo Jeffrey Mathobeng testified
that he is the head of surgery at 1 Military Hospital. He has been
based at 1 Military Hospital
since 1 July 2010. On average he
performs 120 to 130 surgical procedures per annum. He remembers that
he was consulted by a junior
doctor who wanted guidance about how to
proceed with a patient. He then became interested in getting
involved. The practice is
that a day before surgery a patient is seen
with the view to preparing for surgery. The patient is also made to
meet the anesthesiologist.
He remembers that on 26 March 2014 he met
the patient who was in the company of her mother. He took particular
interest in her
as she was their youngest patient with gallstones. On
27 March 2014 although he does not remember details, but as a matter
of practice
with all patients that are wheeled into theatre, he
interacts with them to allay their anxieties and also confirms the
procedure
with them. On 27 March 2014, although he does not remember
specifically, it would not have been different.
[18]
With specific reference to this patient
he could not recall specifically if the consent was signed however at
the door of the theatre
there is an nurse and a doctor, so he stated,
who confirm the details of the patient as well as the procedure to be
performed.
Concerning the risks of the operation, the patient is
informed about those the day before. Regarding the informed consent
any of
the three doctors on duty signs it. In this instance it
appears to have been Dr. N.P. Skosana. He explained that the consent
was
in the form of a booklet. They sometimes make copies thereo.f In
response to a question as to who obtained informed consent in respect
of the second plaintiff, he stated that he can answer with reference
to what is common practice. In general he does it himself.
During the
operation he remained responsible although the practitioner that
performed the procedure was Dr. Cassim. According to
him the
operation went well. The adhesions were easy to deal with and the
bleeding after the artery was cut was also dealt with.
He stated that
he could not remember who cut the cystic duct but he accepts that as
the most senior he would have done so. He does
not remember
specifically who did the cutting however he would have identified it
and informed Dr. Cassim where to cut.
[19]
When bleeding was encountered, the
options available were either to apply a clip or to coagulate. The
discretionis affected by what
is easy to do in order to stop the
bleeding. In this instance bleeding was stopped. After the procedure
bleeding or leaking was
not identified , suspected or noted. It was
only a few days after the operation that the patient came back with
obstructive jaundice.
They then proceeded to arrange for further
intervention and treatment. Because they use outside service
providers they have no
control over the allocation of dates. In this
instance the patient was given the date of 14 April 2014. Since some
time had lapsed
since her discharge from hospital they thought it
better to admit her so they could observe her to avoid liver damage.
On the operation
itself, it would be speculation on his part if he
were to venture an opinion as to what went wrong which resulted in
the wrong
area to be severed. With the benefit of hindsight however
it is clear that given that Dr. Bond found a clip on the bile duct,
what
they thought was a cystic duct was clearly not.
[20]
He stated during cross examination that
Dr. Cassim was a Chief Medical Officer in the employ of the defendant
and that he was neither
a surgeon nor a specialist. However she was
able to exercise care and to perform her duties with the requisite
skill. During the
procedure, she was being told where to cut by him.
This is how training takes place. It was unfortunate that it all
resulted in
the operation taking place in the wrong area and a wrong
instrument being used. As a surgeon that trains juniors you give
instructions
and take charge. Dr. Skosana was responsible for the
camera that was inserted in the belly button. He, together with Dr.
Cassim
were in possession of two instruments each, interchangeably.
He accepts that the injury that the second plaintiff sustained,
gleaned
from the report of Dr. Van Niekerk, which resulted in an
injury to the right hapatic duct, clot and common duct injury, took
place
in the no go area.
[21]
With regard to what caused the bleeding
he stated that all that one could do was to speculate and ameliorate.
He is sure that he
identified the anatomy correctly despite the fact
that the hepatic artery was severed causing vascular compromise to
the liver.
He nevertheless believes that the operation was carried
out with a high degree of care. He accepts however that something
went
wrong during the operation, but was not prepared to accept that
it amounted to negligence to allow a junior doctor such as Dr. Cassim
to perform the procedure. When it was put to him that in his evidence
in chief he did not state that he explained the risks of
the
procedure to the second plaintiff, he stated. that usually he
prepares a sketch on a piece of paper. He could not recall if
in
casu
he did the same thing, however
it is something that he does as a matter of practice. It is
irregular, so he testified, for a nurse
to obtain a consent. It has
to be done by a doctor.
[22]
He stated that clrnical records showed
that the anatomy was normal. Nothing called for the·administering
of antibiotics.
There was also nothing that militated for open
surgery. He disagreed with Dr. Scharf's observation, (Dr. Scharf
being the defendant's
own expert witness), that the anatomy was
abnormal. There was also no sign that the second plaintiff was
suffering from Merizzi's
syndrome. He stated that it was unusual to
disclose to a patient that the surgeon who was going to perform the
surgery was a trainee.
The senior surgeon remains responsible. Dr.
Cassim was part of a team of three, therefore she should not be
singled out for criticism,
but was a critical part of the team. There
was no duty to explain to the patient that the surgeon was not a
specialist. What unfolded
and the complications that arose was not
anticipated, in his view.
[23]
Dr. Georg Scharf is an expert witness
called by the defendant. He is a specialist surgeon who is well
travelled. His qualifications
and experience were placed on record.
He stated that two weeks before the trial he was contacted by the
defence team who indicated
that they had no expert readily available
to give evidence. He agreed to be of assistance and was provided with
various reports
including the report of Dr. Pienaar. He is of the
opinion that the injury to the second plaintiff was unavoidable due
to a change
in anatomy as well as Merizzi's syndrome. He stated that
1-4% of these operations result in bile duct injury and that modern
technology
was to blame. In his view the injury was as a result of
distorted, abnormal or a variation in anatomy. The injury was
therefore
unforeseeable, unpreventable and unexpected. He readily and
viciously attacked the use of strong language in the report of Dr.
Pienaar.He disputed that there was negligence on the part of the
doctors that performed the operation. Despite holding the view
that
there was no negligence, as a doctor, father and grand father, he was
of the view that the second plaintiff should be compensated.
[24]
With reference to the sketch he prepared
for the court he indicated that he was of the view, and this was
noted on the sketch, that
there was a variant of Merizzi's syndrome
present. Having gone through all the records, he was of the view that
there was no negligence
on the part of the defendant.
[25]
In cross examination he was referred to the fact that Dr. Mathobeng
disputed that the anatomy
was abnormal as well as the fact that there
was Merizz'is syndrome. He insisted that Dr. Mathobeng was wrong and
that his belief
that the anatomy was normal was equally erroneous,
that he did not in good faith see it. He conceded that he had
expressed his
opinion without regard to the summons. It was put to
him that the following had been conceded and therefore that the
premise of
his report was wrong;
locus standi,
legal duty,
vicarious liability, nature of the injury, casual connection between
the injury and operation, the sequelae, that the
no go zone was
operated on, that not only the bile duct but also the hepatic duct
was severed. In spite of all the above being
brought to his
attention, he remained adamant that abnormal anatomy was encountered.
[26]
He was taken to task about bias. It was suggested to him that he was
biased and that he was doing
a defence report as opposed to an expert
report. He stated that he agreed to be retained when he was informed
that the defendant
could not secure an expert to testify on its
behalf. He then realised that the defence was embarrassed and he then
agreed to be
roped in after reading the plaintiff's expert report. In
fact after reading the report he was upset. He was taken through the
joint
minute and some of the issues with which he initially did not
agree were raised with him. He deviated from his initial posture on
various issues when referred to objective facts and evidence
presented.
[27]
Dr. Nazira Cassim, testified that she
obtained her medical qualification in 1997 and started working for 1
Military Hospital in
2012. She confirmed that she was involved in the
operation of the second plaintiff together with Dr. Mathobeng and Dr.
Skosana.
Preoperatively she never interacted with the patient. She
believes that Dr. Skosana is the one that interacted with the patient
and obtained her consent. She was however part of the medical team.
She could not recall specifics preoperatively but was prepared
to
accept what was contained in the documents in terms of which Dr.
Skosana and some nurses obtained the informed consent. With
regards
to the operation, the senior doctor identifies the anatomy. Because
she was not a surgeon she was assisting in terms of
grasping, moving
the camera and using the forceps. Her role was not that of operating,
she was simply following instructions. The
operation went well and
she vaguely remembers bleeding from the artery. She could not comment
about the duration of the procedure.
After the patient had been
discharged she remembers that she came back again and presented with
jaundice.
[28]
During cross examination she stated that
she had read the clinical notes in preparation of her testimony. She
stated further that
she is not a specialist but was only a medical
officer and a general practitioner. She was referred to the testimony
of Dr. Mathobeng
in terms of which she was the one doing the cutting.
She could not remember specifically if she did the cutting however if
she
did on the day, it was on instruction of Dr. Mathobeng with whom
the anatomy was first identified and confirmed prior to any cutting.
She would have deferred to Dr. Mathobeng as he was the senior doctor.
In this instance she is not aware if the risks of the operation
were
explained. She did not observe any abnormal anatomy which explained
why it was absent from the surgical notes. There was also
no sign of
Mirizzi's syndrome. When told that as part of the medical team they
were negligent, she indicated that the anatomy was
clearly defined
and that she simply followed instructions from Dr. Mathobeng.
[29]
Mpho Obakeng Ramokoka testified that she
is a registered nurse at 1 Military Hospital. She is currently
working at midwifery but
enrolled for nursing in May 2010. In May
2014 she got registered as a nurse. She explained in general terms
the procedure before
an operation is undertaken, specifically how the
patient's consent is obtained. On 27 March 2014 she was in the
company of another
registered nurse, Ms. Jele, when Dr. Skosana
explained the procedure and the risks thereof, they thereafter signed
the document
in each other's presence. The consent is in the form of
a booklet and of late they sign a portion thereof and leave out other
portions.
[30]
Dr. Aliyah Marais testified that she is
a medical officer in the Surgical Department of 1 Military Hospital.
On 5 February 2014
she saw the second plaintiff as an outpatient. She
came in with a referral letter. She took her history according to
which the
patient had abdominal pain since December 2013. The patient
went for ultrasound which showed presence of a gall stone. She
considered
protocols and consulted Dr. Mathobeng. After analyzing her
condition which was not acute, they decided to book her for selective
procedure on 27 March 2014. Generally she explains the procedure to
the patient. She explained both laparoscopic as well as open
surgery.
She explains about bile duct injury and bleeding. Also that the
anatomy might be abnormal or there might be adhesions
in which event
they may need to resort to open surgery. As far as she knows an
operation can not be done without
signed
consent, which is usually done during preoperative visits. It is done
by a doctor in the company of two nurses.
The
law and evaluation
Informed
consent
[31]
It is trite that for a patient to voluntarily assume risk, in the
context of a medical procedure,
informed consent ought to be given.
The informed consent is as explained in
Castell v De Greef
1994
(4) SA 408
(C)
at 426F- H. If a medical practitioner's
treatment is wrongful because there is no informed consent, he will
be liable to the patient
in delict if his wrongful conduct was
perpetrated with fault
(do/us or culpa)
and caused the harm of
which the patient complains. It is common cause that the second
plaintiff did not sign all the consent forms.
She contends that there
was no information provided to her explaining the procedure as well
as the risks involved. If the risks
were explained she would have
chosen nevertheless less to proceed with the procedure comfortable in
the knowledge that all will
be done to ameliorate the injury, if any.
She was however adamant that
in casu
the risks of the
procedure were not explained.
[32]
On its part, the defendant agrees that
not all the consent forms were signed by the second plaintiff.
Various reasons are advanced
by various witnesses called by the
defendant for the anomaly. The reasons range from sheer omission to a
change in informed consent
obtaining procedures. The defence
witnesses were all in agreement that the risks of the procedure were
explained to the second
plaintiff. It did not matter to them the
exact date of such explanation. Even those witnesses who did not
interact directly with
the patient prior to the procedure were
adamant that the risks were explained. For example Dr. Cassim relied
on the fact that in
general terms details of an operation which
includes the risks are explained preoperatively. She could not
provide specifics in
relation to this matter. A similar approach was
adopted by Dr. Mathobeng. He stated that he usually takes the patient
through the
procedure and in certain instances he prepares a sketch
of what he was about to do. Ms. Ramokoka testified that in fact the
informed
consent portion of the form is no longer used as it ought to
be. She stated that it was constructed in the form of a booklet and
that they no longer complete the entire "booklet". They
complete one portion and staple the portions together. This,
she
argued, explained why the second plaintiff did not sign the consent
to operate part. The doctor that completed the consent
form and who,
on the defendant's version, explained the risks to the second
plaintiff is Dr. Skosana. She was not called to testify.
With the
exception of Ms. Ramokoka no explanation was proffered why the
consent to operate was not completed and signed even if
the informed
consent is obtained verbally.
[33]
In
Castell
v De Greet
1994 (4) SA 408
(C) at 425H-I
Ackermann
J said:
“
For
consent to operate as
a
defence
the following requirements must, inter alia, be satisfied:
(a)
the consenting party "must
have had knowledge and been aware of the nature and extent of the
harm or risk";
(b)
the consenting party "must
have appreciated
and understood the nature and
extent of the harm or risk";
(c)
the consenting party "must
have consented to the harm or assumed the risk";
(d)
the consent "must be
comprehensive, that is extend to the entire transaction, inclusive of
all its consequences".'
[34]
Written consent, signed by all the
parties concerned and of course witnessed by a nurse, is a safety net
for the defendant. It assists
both parties in the event of a dispute.
In the context of this case, and in light of the requirements stated
above, I can not conceive
of a situation where a medical practitioner
would explain the risk that the anatomy might not be identified
properly thus resulting
in an operation taking place in the wrong
area. Even less, that there was a risk that the so called "no go
area" would
be operated. Even if such an explanation were to be
given it would have to be accompanied by further elucidation why the
surgeon
would end up in the "no go" zone. In light of the
above and in the absence of the evidence of Dr. Skosana, particularly
because according to the defendant's amended plea the consent was
given verbally, I can arrive at no other conclusion than that
there
was no informed consent.
The defendant's pleaded case
[35]
In answer to the contention that the
defendant undertook responsibility on examination and treatment of
removal of the gallbladder
of the second plaintiff, the defendant
initially pleaded as follows;
"The defendant denies the
plaintiffs' a/legation that the defendants' employees undertook and
accepted responsibility on examination
and treatment of removal of
gall bladder on the second plaintiff'',
As it later became clear:, the
defendants abandoned this line of defence. The duty of care was no
longer in contention at the trial
of this matter. However there
appeared to be a conflation between the duty of care as well as the
legal duty. The manner in which
the defendant pleaded and therefore
pitched its case, gives the impression that consent extinguishes the
duty of care. The same
submission was made during argument. Having
regard to the defendant having belatedly admitted that a particular
duty of care was
owed by the doctors and nurses to second plaintiff,
and as that duty is certainly recognized in law, it follows that a
breach of
that duty (since it is no longer disputed) for the purposes
of liability is wrongful. See:
Minister of Law
&
Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A)
at
317.
[36]
The conflation of the duty of care as
well as the legal duty, made its way into the address to court, by
the defendant's counsel.
On the one hand there seemed to have been an
acknowledgment that the defendant was under obligation to provide the
second plaintiff
with the best care at its disposal and within its
resources. Further that this obligation extended beyond the
facilities of the
defendant. This observation is made in the context
of the defendant having pleaded as follows;
"the
defendant exercised continued skill, care, diligence to the second
plaintiff by even funding treatment at a hospital of
her choice"
[1]
.
The defendant further pleaded as
follows;
"A high degree of care
and skill was applied on the second plaintiff's treatment, but the
risk manifested themselves."
The
defendant on the mere reading of the pleadings accepts that a certain
level or degree of care, skill and diligence was required
in the
surgery, and on its version the obligation was met in that such
skill, care and diligence was exercised. It can be taken
as proven,
in light of the defendant's plea, that it was expected of the
defendant to exercise reasonable care, skill and diligence
in the
performance of the procedure.
[37]
In
Trustees
for the Time Being of Two Oceans Aquarium Trust v Kantey
&
Templer (Pty) Ltd (545/2004)
[2005] ZASCA 109
;
[2007] 1 All SA 240
(SCA),
the
following was said by Brand JA;
"[11] It is sometimes said
that the criterion for the determination of wrongfulness is
'a
general criterion
of reasonableness', i
e
whether it would
be reasonable to impose
a
legal duty on the
defendant (see eg
Government
of the Republic of South Africa v Basdeo and another
1996 (1) SA 355
(A) 367E-G; Gouda Boerdery BK
supra
para 12). Where that terminology is employed, however, it is to be
borne in mind that what is meant by reasonableness in the
context of
wrongfulness is something different from the reasonableness of the
conduct itself which is an element of negligence.
It concerns the
reasonableness of imposing liability on the defendant (see eg
Anton
Fagan 'Rethinking wrongfulness in the law of delict' 2005 SALJ
90
at 109).
Likewise, the 'legal duty' referred to in this context must not be
confused with the 'duty of care' in English Law which
straddles both
elements of wrongfulness and negligence (see eg
Knop
v Johannesburg City Council
[1994] ZASCA
159
;
1995
(2)
SA 1
(A) 27B-G; Local Transitional Council of Delmas v Boshoff
2005
(5) SA 514
(SCA)
para
20). In fact, with hindsight, even the reference to
'a
legal duty' in
the context of wrongfulness
was
somewhat
unfortunate.
As
was
pointed out
by Harms JA in
Telematrix
(Pty) Ltd tla Matrix Vehicle Tracking v Advertising Standards
Authority SA (SCA
case
459/04
9
September
2005, para 14),
reference
to a 'legal duty'
as
a
criterion for
wrongfulness can lead the unwary astray. To illustrate, he gives the
following example:
'[T]here
is
obviously a duty
-
even
a legal duty
-
on a judicial
officer to adjudicate
cases
correctly and not
negligently. That does not mean that the judicial officer who fails
in the duty because of negligence, acted wrongfully.'
(See also
Knop
v Johannesburg City Council
supra
330-E.)
[38]
The court continues;
[12]
When we say that
a
particular
omission or conduct causing pure economic loss is 'wrongful' we mean
that public or legal policy considerations require
that such conduct,
if negligent, is actionable; that legal liability for the resulting
damages should follow. Conversely, when
we say that negligent conduct
causing pure economic loss or consisting of an omission is not
wrongful, we intend to convey that
public or legal policy
considerations determine that there should be no liability; that the
potential defendant should not be subjected
to
a
claim for
damages, his or her negligence notwithstanding. In such event, the
question of fault does not even arise. The defendant
enjoys immunity
against liability for such conduct, whether negligent or not (see eg
Telematrix
(Pty) Ltd
supra
para 14;
Local
Transitional Council of Delmas
supra
para 19;
Anton
Fagan
op
cit 107-109). Perhaps it would have been better in the context of
wrongfulness to have referred to
a
'legal duty not
to be negligent,' thereby clarifying that the question being asked is
whether in the particular circumstances negligent
conduct is
actionable, instead of just to
a
'legal duty'. I
say this in passing and without any intention to change settled
terminology. As long as we know what we are talking
about. When a
court is requested, in the present context, to accept the existence
of a 'legal duty', in the absence of any precedent,
it is in reality
asked to extend delictual liability to a situation where none existed
before. The crucial question in that event
is whether there are any
considerations of public or legal policy which require that
extension. And as pointed out in
Van
Duivenboden
(para
21) and endorsed in
Telematrix
(para 6)
in answering that question
'...
what is called for is not
an intuitive reaction to
a
collection of arbitrary factors but
rather
a
balancing against one another of identifiable norms.
"'
[39]
The question that inadvertently arises
is whether such reasonable care, skill and diligence was exercised.
Dr. Cassim who was a
surgeon in training, is the one that, on the
defendant's version, performed the operation under supervision of Dr
Mathobeng. Dr
Mathobeng confirmed that he was in charge and would all
the time, during the surgery, confirm the anatomy with Dr Cassim. If
that
were the case, one must infer that Dr Mathobeng identified the
anatomy, confirmed it with Dr Cassim who in turn proceeded to effect
the necessary cut or incision. It is hard to apply a test about what
a reasonable trainee surgeon would have done in these circumstances
as no evidence was led by any of the parties as to the standard of a
reasonable trainee surgeon. The posture adopted by Dr. Pienaar
is
that a trainee surgeon had no business performing a surgery of this
nature. In addition, he is of the view that the duration
of the
procedure, which was approximately two hours, was inordinately long.
[40]
Dr Mathobeng stated that he was in
charge of the surgery and that Dr Cassim was under his direct
supervision. The procedure of which
Dr Mathobeng was in control
requires skill. Skill which Dr Mathobeng appears to have had at the
time but which Dr Cassim had not
acquired owing to her being a
trainee. The level of skill whether residing with Dr Cassim or Dr
Mathobeng, ought not to have resulted
in the transection of the
biliary tree. This applies whether one goes with the level of skill
of a trainee (Dr Cassim) who is under
specialist supervision or the
skill of the specialist himself (Dr Mathobeng). It was common cause
during the trial that the operation
or in particular the transection
took place at the "no go area". There ought to be an
explanation, in my view, from the
defendants, why the "no go
area" was operated on, in light of the common cause fact that
the operation took place at
a place where it ought not to have. It is
accepted that Dr Cassim was not a qualified surgeon. Nevertheless,
some skill was expected
from her. Dr Mathobeng testified that there
is a need to train doctors and that the case of the second plaintiff
presented such
an opportunity. It is my view that the level of skill
required of any specialist, even in training, is high. It would be
wrong
to lower the level of skill expected of a trainee, to a level
where it must be accepted that there was a higher risk of injury or
of the procedure going wrong. The only reasonable conclusion the
court can arrive at, given that the defendant's witnesses have
proffered no explanation why the wrong area of the anatomy was
operated, is that the doctors who performed the procedure were
negligent. If the anatomy was correctly identified, as contended by
Dr Mathobeng, and if Dr Mathobeng, an experienced surgeon, was
in
charge and gave instructions to Dr Cassim, who was a trainee lacking
in experience, to "cut" where directed, then
why was the
wrong area of the anatomy "cut"? Dr Cassim stated that she
"cut" where directed by Dr Mathobeng.
There has not been an
explanation forthcoming, still why the anatomy seemed to have not
been properly identified. It is insufficient
to state, as Dr
Mathobeng did, that it is unfortunate that the surgery took place in
the no go area.
[41]
I would be remiss if I do not make reference to the expert testimony
tendered by both parties.
The plaintiff's case was that they have
been made aware that the defendant procured a report from their
initial expert and that
in terms of this report, there was an
unfavorable comment about the conduct of the doctors that performed
the surgery. Simply put,
the plaintiff procured services of an
expert, was supplied with an unfavorable report, ditched the expert
and procured another
expert but importantly did not disclose the
first report to the plaintiff. The plaintiff's expert only became
aware when he made
contact with the defendant's expert. It is well
known that experts are there to assist the court. I found myself
troubled by the
fact that the defendant was dismissive of the fact
that the plaintiffs were aware that there was a report procured which
seemed
to have been suppressed by the defendant, which report was
supportive of their claim.
[42]
The duty of an expert witness is well
settled in our law. In
Schneider
NO and Others v AA Another
2010 (5) SA 203
(WCC)
Davis
J quoting: Zeffertt, Paizes & Skeen The South African Law of
Evidence at 330, citing the English judgment of
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
'lkarian Reefer? [1993] 2 Lloyd's Rep
68
at 81, set out duties of an expert witness thus:
"(1)
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert, uninfluenced
as to form
or content by the exigencies of litigation.
(2)
An expert witness should provide
independent assistance to the court by way of objective, unbiased
opinion in relation to matters
within his expertise...An expert
witness should never assume the role of an advocate.
(3)
An expert witness should state
the facts or assumptions upon which his opinion is based. He should
not omit to consider material
facts which could detract from his
concluded opinions.
(4)
An expert witness should make it
clear when
a
particular
question or issue falls outside his expertise.
(5)
If an expert opinion is not
properly researched because he considers that insufficient data is
available, then this must be stated
with an indication that the
opinion is no more than
a
provisional ones.,,
Davis
J foreshadowed the duties of an expert witness and stated the
following;
"In short, an expert comes
to court to give the court the benefit of his or her expertise.
Agreed, an expert is called by
a
particular party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument
of the particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased opinion,
based on his or her
expertise, as possible or
a
particular case.
An expert is not a hired gun who dispenses his or her expertise for
the purposes of
a
particular case.
An e pert does not assume the role of the advocate, nor gives
evidence which goes beyond the logic which is dictated
by the
scientific knowledge which that expert claims to possess."
[43]
On Dr Scharf's own testimony, he got
involved in the matter at the very last hour, because he thought the
defendants were embarrassed
to find themselves at a trial at which
they did not have an expert witness. For a start therefore, the
premise from which Dr Scharf
moved and ended up being involved in
this case was the incorrect one. An expert would want to get involved
so as to be of assistance
to the court on an issue which required
his/ her expert knowledge.
[44]
On numerous occasions during cross
examination, Dr Scharf was alerted to the fact that it was expected
of him to tender unbiased
evidence. Counsel for the plaintiff
repeatedly told him when posing questions, that the question was
meant to show that he was
biased in his testimony. For example he
stated that he was opposing a particular proposition or opinion
simply because it emanated
from Dr Pienaar, whom he readily and
openly stated that he was not in good terms with. In this regard,
when pointed at numerous
proposition he stated that he opposed them
on the basis that they originated from Dr Pienaar. However once it
was shown that the
propositions were extracted from objective facts,
he immediately aligned himself therewith and stated " I thought
it was Dr
Pienaar who said that".
[45]
The nature of Dr Scharf's belated
involvement further impacted on the conduct of the trial in some
other respects. The case commenced
without the requisite joint
pre-trial minute, explanation in respect of its absence, on the part
of the defendants, was inadequate.
Eventually when the joint minute
was presented it still had areas of disagreement which clearly should
have not been classified
as such. This became apparent when Dr Scharf
conceded, in contrast to what was in the joint minute, to numerous
questions or issues
he disagreed with in the joint minute. This I
find unacceptable.
[46]
The testimony of Dr Scharf has offered
no assistance whatsoever to this court. On the one hand he contends
that there was no wrong
done by the defendants and on the same breath
submits that he was of the view that the second plaintiff should be
compensated for
what happened to her. He also insisted that the
anatomy was not properly identified and was adamant that there was
Merizzi Syndrome
symptoms despite the testimony of not only Ors
Cassim and Mathobeng but also Dr Pienaar.
[47]
An expert that does not concede to even
the most basic of propositions renders himself less reliable as an
expert and fails in his/her
duties as an expert. Dr Scharf was one
such witness.
[48]
In relation to Dr Cassim, A medical
practitioner is expected to exercise the degree of skill and care of
a reasonably skilled practitioner
in his or her field. See
Mitchell
v Dixon 1914 AD
at 525. In
deciding reasonableness the court will have regard to the general
level of skill and diligence possessed and exercised
by members of
the branch of the profession to which the practitioner belongs. A
greater degree of skill is expected of a specialist
than a general
practitioner and if a general practitioner undertakes work that
requires specialist skill, which the practitioner
concerned does not
have, he or she would be negligent. See
LAWSA
Vol 17(2)
at para 44. Failure to
operate at the correct location of the anatomy is potentially
injurious and even fatal This is not in dispute.
The injury suffered
by the second plaintiff was therefore foreseeable. There has been no
explanation forthcoming why, if the anatomy
was correctly identified,
the biliary tree was obliterated. When all the evidence is considered
the conclusion of negligence is
irresistible.
[49]
I am satisfied that the second plaintiff
has discharged the onus resting on her.
[50]
I therefore make the following order;
1.
The
defendant is liable for all the second plaintiff's proven damages;
2.
The
defendant is ordered to pay the second plaintiff's costs together
with the qualifying costs of Dr Pienaar.
SA
THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
[1]
Amended plea para 8 line 9-11.