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[2018] ZAGPJHC 582
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W v Deist (2013/15818) [2018] ZAGPJHC 582 (11 October 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
CASE NO: 2013/15818
In the matter
between:
A
W
Plaintiff
and
MARK
BRENDAN
DEIST
Defendant
J U D G M E N T
MAKUME,
J
:
[1] The Plaintiff A (W) an adult male
businessman born on the […] 1959 is suing the Defendant Dr
Mark Brendan Deist (Dr Deist)
a specialist ophthalmic surgeon for
damages pursuant to the corrective laser eye surgery performed on him
by the Defendant on the
25
th
May 2010 in Johannesburg.
[2] At the commencement of the trial
an order was made by consent in terms of the provisions of Rule 33(4)
of the Uniform Rules.
The order is that issues of liability and
causation pleaded in paragraphs 1 up to 8 of the Plaintiff’s
particulars of claim
as well as issues of causation as pleaded in
paragraphs 9, 9.1 and 9.2 are separated from the issues of causation
pleaded in paragraphs
9.3, 9.4 and 9.5 of the Plaintiff’s
particulars of claim as well as the quantification of damages which
are to stand over
for later determination.
[3] In this judgment I am accordingly
only required to determine whether the Defendant is liable to
compensate the Plaintiff based
on the evidence placed before me
including whether it is as a result of the Defendant’s
negligence that the Plaintiff now
suffers poor and compromised vision
including hyperopia, presbyopia, asthenopia as well as severe
vitreous floats.
[4] It is common cause that the
Defendant performed an iLasik surgery on the Plaintiff in his
consulting rooms in Johannesburg on
the 25
th
May 2010.
In his particulars of claim Mr W alleges that the Defendant Dr Deist
acted negligently and/or breached his duty
of care which has resulted
in the Plaintiff suffering the following permanent conditions:
(a)
Poor and compromised
vision including hyperopia, presbyopia and asthenopia.
(b)
Severe vitreous floats.
[5] Lasik surgery consists of the
creation of a corneal flap with femtosecond laser which is hinged
aside to enable wave front guided
correction whereupon the corneal
flap is returned to its position and then healing commences.
[6] Prior to the procedure it is
common cause that the Plaintiff was myopic that is near-sighted.
Without glasses the Plaintiff
could only see closely, his distance
vision was blurred. According to him he at that time wore
spectacles for distance vision
permanently for which he experienced
excellent vision for his intermediate and near vision. He
consulted with the Defendant
because he desired that the procedure
should enable him to dispose of distance spectacles and still be able
to retain the need
for readers and near vision.
[7] On the other hand the Defendant
contends that it was agreed that the required iLasik procedure would
result in full emmetropia
that is full distance correction and that
he would thereafter rely on multifocal readers for near and
intermediate tasks.
[8] It is clear that there is a
dispute as to what exactly the terms of the agreement were. It is
therefore necessary to deal with
the oral evidence as well as the
notes made by the Defendant during the times that he consulted with
the Plaintiff prior to the
procedure including documents signed by
the Plaintiff in order to arrive at an answer as to what exactly was
agreed upon.
[9] In his plea the Defendant besides
denying having been negligent or failing to exercise due care in the
performance of the operation
he attached a document titled “
Informed
Consent for Laser in situ Keratomi lenses (Lasik)
” which he
says the Plaintiff signed. The patient consent form is very
elaborate. In the opening line the patient says
the following:
“
In giving my permission for
Lasik I understand the following: I have received no guarantee
as to the success of my particular
case. I understand that the
following risks are associated with the procedure.
”
The risks are enumerated as being the
following:
(a)
Vision threatening
complications.
(b)
Non-vision threatening
side effects.
(c)
Infection.
(d)
Severe inflammations.
(e)
Delayed clouding of the
cornea.
(f)
Corneal scarring.
(g)
Internal bleeding.
(h)
Retinal bleeding.
(i)
Floaters.
[10] In his replication the Plaintiff
dealt specifically with the patient consent form and pleaded that:
(a)
The document was never
handed to him on the 9
th
April 2010 but on the 24
th
May 2010.
(b)
He signed that document on
the morning of the 25
th
May 2010 shortly prior to the procedure being performed on him.
(c)
When he signed the consent
form there was no discussion nor explanation to him concerning the
contents of that document. He
signed without reading it.
(d)
The consent form relates
to Lasik procedure not intralase Lasik procedure.
(e)
The difference between
Lasik and iLasik is that the Lasik procedure uses microkeratome
mechanical device with a steel blade.
The iLasik which the
defendant performed does not utilise a microkeratome.
(f)
In the final result he
pleaded that the patient consent form was invalid and unenforceable
against him as it did not relate to the
procedure performed on him.
[11] In his plea the defendant
admitted that he owed a legal duty to the Plaintiff to perform the
procedure according to the standard
of a reasonable ophthalmic
surgeon and denied that the legal duty he owed the Plaintiff was any
more extensive than the contractual
obligations assumed by him and in
particular that the legal duty owed by him was qualified by the
patient consent form signed by
the Plaintiff.
[12] The issues in dispute in this
matter are the following:
(a)
Whether the Defendant was
negligent or not in performing the refractory laser surgery on the
Plaintiff on the 25
th
May 2010.
(b)
Whether the Defendant in
performing the procedure failed to exercise a duty of care.
(c)
Whether the Plaintiff was
informed and thus consented to the procedure in view of the signed
patient consent form.
[13] The Plaintiff testified and also
called two expert witnesses namely Dr Donzis and a Dr Lefkowitz both
specialists practising
out of the United States of America. The
Defendant testified and called the following witnesses in support of
his version
namely:
(a)
Professor Meyer.
(b)
Ms Myasur.
[14] In as far as the type of surgery
performed by the Defendant is concerned the Defendant in response to
the Plaintiff’s
list or request in terms of Rule 37(4)
responded as follows:
-
The procedure was
performed with customised wave front guided laser (Laser Assisted
Intrastromal Keratomilensis – Lasik) and
a femtosecond laser
for flop creation.
-
That the Defendant
discussed the proposed procedure with the Plaintiff and that the
Plaintiff was informed, had knowledge of and
consented to the
aforesaid procedure being performed to improve his distance vision.
-
That the Plaintiff was
informed verbally and with written information material during April
and May 2010 and verbally consented
to the Defendant utilising
femtosecond laser and not a microkeratome blade described in the
written consent form to create the
flap during Lasik procedure.
[15] Post the surgery the Plaintiff
admits that he declined an enhancement procedure offered by the
Defendant.
[16] In the pre-trial conference it
was put to the Plaintiff whether he will admit that he had started
complaining of floaters and
occasional flash in the left eye which
symptoms had developed four days prior to the procedure. The
Plaintiff chose not to respond
to that question. I find that
non-response on a crucial aspect of the Plaintiff’s case
surprising if not amazing.
The Plaintiff further admitted
during pre-trial questioning that during or about August 2010 and
October 2010 he consulted with
Dr Kruger an ophthalmologist and at
that time his uncorrected vision was 20/20 for both eyes.
[17] There is documentary evidence
that during or about 14 February 2011 the Plaintiff consulted Dr
Kruger and that at that time
it was documented that he could read
20/20 with each eye unaided. He declined to comment whether it
was true or not. The
same attitude persisted when he was referred to
the consultation that he had with Dr Daniel during July 2012. What is
amazing is
that it was put to him in a pre-trial question that Dr
Daniel had recorded that he Dr Daniel told him that his visual acuity
of
20/20 in either eye would qualify him to get a medical certificate
for a pilot’s licence, further that his visual capabilities
were normal for a 53 year old who had been born emmetropic.
[18] It is not surprising that when
the Plaintiff approached Dr Kruger with a request that he alters his
medical notes Dr Kruger
refused and this resulted in his medical bill
not being paid.
[19] Dr Robert Daniel a specialist
ophthalmic surgeon consulted with the Plaintiff on the 25
th
July 2012 and reported as follows:
-
That his vitreous floaters
were as a result of a process called Syneresis which is an
age-related degeneration of the vitreous jelly
allowing the clamping
of the pre-existing collagen in the vitreous jelly to cast shadows on
the retina, thereby producing the perception
of floaters.
-
He further explained to
him that Presbyopia is an age-related loss of ability to focus on
nearby objects as a result of the crystalline
lens in the eyes
becoming too large and too stiff for the cilliary muscles to change
its shape.
-
He recorded further that
Plaintiff accepted this as an explanation to the need for his reading
glasses.
-
He was advised to submit
to enhancement in order to address the problem.
[20] It is against this background
that I now deal with the Plaintiff’s evidence. It must be
kept in mind that the Plaintiff’s
evidence would be evaluated
against the background of the experts’ joint minutes wherein
the experts agreed on the following:
20.1 That the effect of achieving full
distance vision (emmetropia) in a presbyopia patient would destroy
the Plaintiff’s
intermediate vision and would necessitate the
Plaintiff requiring multifocal spectacles on a permanent basis.
20.2 Drs Donzis and Lefkowitz on
behalf of the Plaintiff and Professor Meyer on behalf of the
Defendant agreed that the Plaintiff
desired refractive surgery the
issue being the type and nature of the refractory surgery such as PRK
versus Lasik and full emmetropia
v monovision or slight under
correction.
20.3 The experts further agreed that
full emmetropia was acceptable if the patient’s needs and
desires were fully explored
and understood by both the patient and
the doctor and the patient with that knowledge chose full emmetropia.
20.4 That the presence of a signed
consent form does not in itself prove valid consent to the treatment,
the important factors being
the quality, extent and accuracy of the
information given beforehand.
20.5 It was further agreed that the
consent form is but one of the tools in reaching informed consent
which is achieved by a full
and comprehensive explanation of the
procedures and its outcome as well as a full understanding and
appreciation by the patient.
20.6 The experts further agreed that
Dr Deist’s performance of the iLasik surgery on Mr W was done
properly (see joint
minute stated the 23
rd
July
2017) and that there was no error with regards to the actual
performance of the Lasik surgery; that the Lasik flap was created
properly.
20.7 That the technical use of the
laser was not misapplied to the eye therefore they eliminate as an
issue the technical performance
of the Lasik.
20.8 That post-operative care was
appropriate.
20.9 The experts further agreed that
outcomes cannot be guaranteed. That overcorrections as well as
under-corrections can
and do happen as a normal result of laser
surgery.
20.10 On the 23
rd
July 2017
the experts met and agreed that the patient Mr W wanted full
emmetropia and that this procedure is not an exact science
both with
regards to the results and patient expectation.
20.11 All the experts agreed that
enhancement was discussed and offered to the patient which was
appropriate behaviour by Dr Deist.
20.12 The experts expressed their
views as follows regarding floaters:
“
That floaters are a
potential consequence of Lasik surgery that was noted in the
consent. It is something that just can happen
without any
negligence in the performance of the surgery. None of us
believe that floaters were caused by any improper surgical
technique
in the performance of the Lasik.
”
20.13 As regards informed consent the
experts all agreed that specific written materials like pamphlets and
forms given to the patient
complied with the standard of care.
20.14 Drs Donzis and Lefkowitz and
Professor Meyer agreed that what had been stated by Dr Deist to Mr W
would have constituted appropriate
informal consent.
THE
PLAINTIFF’S EVIDENCE
[21] Mr W testified that he was born
on the 9
th
July 1959 and that he was presently 58 years
old. He lives in Cape Town and is self-employed in the time
share industry.
[22] Growing up as a child he had
perfect vision, later at high school he required glasses for distance
to assist him to see what
was written on the black board in the
classroom, however, on the sports field he required no glasses.
When he turned 22 he
became myopic and required glasses more
frequently. He has since that age been wearing glasses
permanently. When he turned
age 46 or 47 he became presbyopic and
thus required glasses for reading. It was single lens glasses
for reading purposes.
He still kept glasses for distance, those
glasses covered a fair portion of his near, intermediate and distance
ranges.
[23] His eyesight with the use of near
and distant glasses was perfect. Sometime in the year 2006
after he had returned from
a family holiday in Mauritius he felt the
need to undergo laser surgery in order to dispose of his spectacles
and to enable him
to participate in activities which whilst wearing
spectacles would not permit such as water sports and taekwondo.
He said
the following:
“
I just felt at that stage of
my life that I wanted to start enjoying myself and water ski, jet ski
and do all those water sport
activities that I could not normally
do.
”
[24] The Plaintiff describes himself
as pedantic and as a perfectionist. His wife and his staff know
him to be like that,
for example the phones on their desks have to be
positioned in the same spot. Personal pictures hanging up on
the wall have
to have the same frames even his coat hangers all have
to be exactly the same. They all got to match.
[25] He further testified that he had
become unhappy with being a permanent spectacle wearer as it
presented him with limitations
hence he decided to venture into the
possibility of laser eye surgery. He was encouraged by his
sister-in-law who had already
undergone laser eye surgery who told
him that it was a fantastic and a great procedure and that it worked
out well. His brother-in-law
had also done the procedure and
endorsed it. One of his work colleagues told him that the
outcome was great.
[26] He saw Dr Willis and then a Dr
Van der Merwe and later Dr Ken Suttle all this during the year 2006.
Eventually Dr Carol
Lewis told him that he can go ahead and do the
laser eye surgery. In the same year his wife underwent laser
eye surgery performed
by Dr Carol Lewis and it went well.
[27] It was in the year 2006 that he
first went to consult with Dr Deist. The exact date is the 3
rd
May 2006. He was referred to Dr Deist by a good friend of his a
Dr Jeffrey Swartzberg who told him that his brother-in-law
recommends
Dr Deist as he himself had recently had such procedure done by Dr
Deist with excellent outcomes.
[28] Mr W could not recall all that he
discussed with Dr Deist save to say that Dr Deist told him that there
was new software in
the pipeline which would correct his near and
distance vision. He testified that, that appealed to him and he
decided to
rather wait for that new software. After the tests
were done he decided to undergo laser procedure at a later stage.
However,
his memory of the events of that day is uncertain.
[29] Later during the year to be
precise on the 14
th
August 2006 after his first meeting
with Dr Deist he consulted an optician one Zena Jacobson who
conducted tests, then prescribed
spectacles for him which gave him
perfect reading, vision, close immediate and distance. In the
year 2009 he had an infection
on his left eye and consulted Dr Anker
an ophthalmologist in Cape Town. Dr Anker reported that he saw
the Plaintiff on the
2
nd
November 2009 with a left eye
small conjunctival laceration and treated him with antibiotic laser
on the 29
th
March 2010. Plaintiff again consulted Dr
Anker who reported that Plaintiff had a tear in the same left eye, Dr
Anker had
to exercise the flap in the left eye.
[30] On the 26
th
February
2010 the Plaintiff acquired a script from Camps Bay Optometrist for
new glasses. The quote indicated single lens glasses
for both
intermediate and distance ranges including a portion of close view.
[31] After Dr Anker had exercised the
flap on his left eye he was given an opportunity to come back on the
27
th
April 2010 for a check-up. The Plaintiff did
not return to Dr Anker and when his counsel asked him why he did not
do so he
responded in the following words:
“
Ja I felt Dr Anker was
perhaps a little bit aggressive in terms of how she dealt with the
situation. She I am not an ophthalmologist
but she cut this
flap of my eye and I brought this incident to Mr Deist’s
attention when I saw him not too far from that
particular day.
”
[32] In answer to a question by the
court whether it is his evidence that Dr Anker should not have
removed the flap the Plaintiff
did not give a clear answer and ended
up saying that he believes that Dr Anker should have treated the
situation with care.
He did not explain why he said this. He
told Dr Anker that he was considering Lasik surgery whereupon Dr
Anker told him that he
can do it also. Dr Anker did not tell him that
Lasik surgery was not a good procedure. She recommended it.
[33] It was shortly after that meeting
with Dr Anker that he decided to book an appointment to see Dr
Deist. This happened
on the 9
th
April 2010.
According to him he and Dr Deist only had a discussion and planning
for Lasik surgery to take place later that
month. He does not recall
if any tests were conducted. He told the court that he did
mention to Dr Deist the incident he
had with Dr Anker.
[34] Later that month whilst he was in
Durban he contracted an infection in his left eye and consulted Dr
Pearce who reported as
follows:
“
Examination showed visual
acuities corrected to 6 bilaterally with a myopic spectacle
correction. He had a lateral left conjunctival
focal modular
epicentre causing the inflammation. There was no evidence of
corneal ulceration or unveitis and his slit lamp
occule examination
was otherwise normal. He continued with his topical antibiotic drops
which appeared to be setting the inflammation
condition and was due
to be followed up in Cape Town.
”
[35] The Plaintiff mentioned to Dr
Pearce that he is considering undergoing eye Lasik surgery soon and
that he wants to make sure
that his eyes are in a good condition for
that operation. He asked Dr Pearce if he can recommend someone
upon which Dr Pearce
recommended Dr Ivy to do a follow-up.
[36] On the 10
th
May 2010
the Plaintiff consulted Dr Ivy and mentioned the issue to him.
Dr Ivy had a look and said that it had resolved itself
and that he
could go ahead with the Lasik surgery he foresees no problems.
[37] Armed with all the assurances by
various doctors as well as other acquaintances about the success of
the Lasik surgery Mr W
then booked an appointment to consult Dr Deist
on the 24
th
May 2010. According to him the 24
th
May 2010 was for a pre-op assessment. The 25
th
May 2010
was for the actual surgery.
[38] The 24
th
and the 25
th
May 2010 are crucial dates in as far as the resolution of this matter
is concerned. The Plaintiff’s version is that the Defendant
did
not explain to him the procedure and that he signed the patient
consent form without having read it.
[39] He told the court that he only
read the patient consent document after the surgery but cannot recall
when save to say it was
when he started experiencing problems and
when he did read it, it was to him like a nightmare. He and his
son then started
doing research on the internet and picked up a lot
of sites on the international forum about the topic of informed
consent.
It was only then that he realised that before a person
undergoes iLasik surgery he or she has got to go through a lot of
hurdles.
[40] He confirmed that he did not read
the patient consent form. He gave that answer after it had been
repeated twice with a prefix
that, him being an astute and pedantic
businessman did not deem it appropriate to read the consent form. He
went further to say
that his ophthalmologist meaning the Defendant
did not tell him or advise him of warning bells and instead told him
that he will
have an amazing outcome and therefore, it was not
necessary for him to read the document.
[41] The answers given by the
Plaintiff around the whole issue of the patient consent form as to
why he did not read it is in my
view unsatisfactory. It was
asked of him if he in his business he hands over to his clients
documents that requires signature
and does not expect clients to have
read the document prior to reading it, his response was rather
amazing and borders on arrogance.
He responded that it was up to them
meaning his clients to decide whether they want to read the document
or not.
[42] The next question put to him in
this regard produced once more a rather weird response. He was
asked if someone signs
a contract will he be held to it his answer
was devious he said:
“
If someone signs a contract
and he is not happy with the contract I cancel the contract.
”
[43] He conceded that after consulting
Dr Deist on the 24
th
May 2010 Dr Deist said to him:
“
Here is the informed consent
if there is anything in that informed consent that you are not happy
with or would like to check or
you would like to query please check
out my website.
”
He continued to tell the court that Dr
Deist said to him come back tomorrow tell me what is it that you do
not understand or you
are unhappy with, with that document.
[44] I am satisfied that on the 24
th
may 2010 Dr Deist took all the trouble as he says he always does with
all his patients to discuss the risks involved in the surgery
and
armed with the patient consent form the Plaintiff had ample
opportunity to read, understand and if not he had time to not proceed
with the surgery until he was satisfied that there is nothing that he
does not understand.
[45] He was shown the patient consent
document which was attached to the quotation. In the quotation
document itself it is stressed
that the patient must ensure to
complete it fully and hand it in on the date of the surgery.
What I find strange is that
everything that appears on the quotation
he complied with except that portion about the completion of the
consent form for instance
he testified that when he arrived for
surgery he kept on asking the receptionist even Dr Deist about the
use of deodorants, perfumes
and aftershave all that appears as things
not to be done on the day of the surgery. This in my view
strengthens my resolve
that he read all the documents including the
patient consent form.
[46] When the Plaintiff was referred
to the documents he read them with ease in court on the 8
th
August 2017 without difficulty eight years since the operation.
[47] When the Plaintiff was referred
to that portion of the patient consent form dealing with alternative
to Lasik he responded
that he signed the wrong document because the
document that he signed is for Lasik and yet he wanted iLasik
surgery. He concluded
that when he signed the document in the
morning he was under pressure. He does not say what pressure was
placed on him when he
had the whole of the 24
th
to read
and sign the document. He eventually conceded that he chose not
to read the document and just signed it.
[48] Mr W was asked what prevented him
from reading the patient consent document from the time he received
it on the 24
th
May until the morning of the 25
th
before he handed it in signed, he dilly-dallied and told a long
convoluted story eventually he said he had a number of meetings
in
between. This answer that took him long to say is in my view
yet another attempt by Mr W to avoid crucial questions.
It
makes no sense to me that he should be attending meetings and not
concentrate on something that affects his own health.
He
concluded by saying that he did not read it based on what his doctor
told him. He kept on repeating that what he signed was
the wrong
consent form.
[49] It was put to him that by handing
in a signed patient consent form he represented to Dr Deist that he
had read and understood
the contents thereof. It is disingenuous for
Mr W to suddenly say that on the morning of the 25
th
Dr
Deist was not available to speak to him and to listen to issues that
he may have. He says Dr Deist did not invite him
to come talk
to him because it was automatically assumed that he had read and
understood the contents thereof.
[50] With due respect that explanation
does not assist him. He chose not to read the document and in the
process misled Dr Deist.
He was asked to confirm that the
quotation that he received refers to iLasik surgery and not Lasik he
responded that he was not
an ophthalmologist and could thus not say
what the difference was between Lasik and iLasik.
[51] Mr W conceded that Dr Deist did
tell him that in carrying out the procedure a flap would be created
of the cornea. Later he
changed his thoughts and said he was not sure
if the exact technicalities of the procedures were told to him.
[52] When Mr W was pressed further
that he cannot say if there was a difference between Lasik and iLasik
he said he does not know
even against his earlier response that he
was not sure of the exact technicalities of the procedure.
[53] It was put to him that iLasik is
a name given by the manufacturer thereof namely Abbot that there are
different manufacturers
of the Lasik laser. He said he cannot
dispute it.
[54] Mr W conceded that post the
surgery he told Dr Close that he only read the patient consent form
some two months after the surgery.
He also conceded that he had
a memory problem. He said there are certain things that are
very clear and yet others are very
sketchy. He later said he
cannot remember what he told Dr Close and later qualified his
response by saying that he refreshed
his memory earlier in the day of
the trial and noticed that the report reads that he told Dr Close
that he only read the consent
document two months after the surgery.
[55] It is clear in my view that Mr W
is very selective in remembering what he did and who he spoke to when
and at what stage. His
evidence as regards certain happenings is very
vague.
THE
FIRST VISIT BY PLAINTIFF TO DR DEIST ON THE 3
RD
MAY 2006
[56] It is common cause that the
Plaintiff first consulted with Dr Deist in the latter’s
consulting rooms on the 3
rd
May 2006. On a question
by his counsel what happened on that day the Plaintiff’s
recollection is hazy he says for instance
that he believes that tests
were done but he cannot recall what type of tests were done. All that
he remembers is that Dr Deist
told him that there is a new technology
coming which is to be used to do a reconstruction of his near and
distance vision.
[57] He was shown copies of his file
with Dr Deist from which it appeared that at the consultation not
only did Dr Deist discuss
the new technology with the Plaintiff with
him but also of tests were carried out being the Nidek and the ORBS
can tests.
His response was, “well if the document says
that then it must have happened”.
[58] On the other hand Dr Deist
testified about the consultation he had with the Plaintiff on the 3
rd
May 2006 after which consultation the Plaintiff told him that he will
wait for the new technology. Dr Deist’s contemporaneous
notes taken during consultation corroborate his version about the
tests and also that he addressed the Plaintiff about the PRK
procedure whereupon the Plaintiff indicated that he will wait for the
new procedure.
THE
SECOND CONSULTATION ON THE 9
TH
APRIL 2010
[59] What is significant about this
second consultation by the Plaintiff with the Defendant is that it
took place four years later.
Dr Deist made a note that
Presbyopia needs to be checked. The World Book Dictionary describes
Presbyopia as follows:
“
It is a condition of the eye
occurring in middle and old age in which only distant objects may be
seen distinctly unless glasses
with corrective lenses are worn,
normal loss of accommodation in the eyesight as the lens of the eye
becomes less elastic and loses
some of its ability to focus on
objects closer to the eyes.
”
[60] Mr W gave the impression that
when he consulted with Dr Deist on the 9
th
April he and Dr
Deist had a discussion only. When asked by his counsel if any tests
were done he replied that he does not believe
that any test was
done. When the consultation notes of Dr Deist were transcribed
it turns out that tests were done and that
in fact Mr W specifically
told Dr Deist that he wants laser. When he was asked by his
counsel if he wants to comment on the
notes he replied that he has no
comment.
[61] Mr W’ poor memory about
what transpired on the 9
th
April 2010 is exposed when one
has regard to the evidence by Dr Deist about the extensive
consultation he had with him. It is on
this day that Dr Deist
explained to Mr W what is involved in the Lasik procedure. This was
later corroborated in the note by Dr
Ivy who saw Mr W on the 10
th
May 2010.
[62] Mr W told Dr Deist that he was
now ready to have laser treatment because he wants to get rid of his
distance glasses.
He wanted to have normal distance vision and
knew that he would rely on multifocal readers.
[63] The tests that Dr Deist carried
out revealed that Mr W scored 6/6 vision whilst using his distance
glasses for both eyes. Then
there is proof that a slit lamp
examination was done which comprised a clinical examination of the
corneas and lenses of both eyes.
The findings as recorded on
Exhibit 17 of the trial bundle qualified Mr W for laser surgery.
[64] The consultation note on Exhibit
17 of the trial bundle indicates further that Dr Deist noted
“Presbyopia Check”.
This was as a result of the
discussion that Dr Deist had with Mr W. Mr W conceded that his
Presbyopia had gotten worse since
2006.
[65] Mr W struggled to answer a
question put to him whether it is correct that when he saw Dr Deist
on this day he had told him
that he had no previous trauma to his
eyes. He gave a non-committal answer and said the following:
“
If there was trauma to my
eyes I would have told the doctor.
”
Mr W testified further that Dr Deist
briefly discussed the PRK eye procedure with him and in doing so Dr
Deist downplayed the PRK
procedure by saying that it is very painful
and takes long to heal or rather that the recovery period was longer
than laser surgery.
[66] I find it difficult to accept
that Dr Deist would have taken the trouble to discuss the pros and
cons of the PRK procedure
and yet say little or nothing about the
Lasik procedure.
THE
24
TH
MAY 2010 CONSULTATION
[67] Prior to Mr W consulting with Dr
Deist on the 24
th
May 2010, he had earlier on seen Dr Ivy
on the 10
th
May 2010 who recorded that Mr W was myopic and
was due to undergo Lasik surgery with Dr Deist. Dr Ivy had
recorded that Dr
Anker had removed the conjunctival flap on Mr W.
[68] Dr Donzis one of the plaintiff’s
expert witnesses also had regard to Dr Ivy’s note and regarded
it as corroboration
that iLasik was discussed earlier on the 9
th
April 2010 with the Plaintiff. The consultation with the
Plaintiff on the 24
th
May 2010 must be seen against that
background.
[69] The evidence of Mr W relating to
what happened when he arrived at the consulting room of Dr Deist is
in my view clear that
once more a discussion ensued about the
procedure to be performed. In his own words Mr W tells the
court that Dr Deist said
to him:
“
Your consent forms are
attached to this quotation. Please ensure you complete them
fully and remember to bring them with you
on day of surgery.
”
[70] Earlier on before he consulted
with Dr Deist in the afternoon he had undergone a number of tests
amongst other the Custom Vue
Test and the Nidek OPD Scan. The
Nidek OPD Scan was identical to that used by the 2006 OPD Scan.
Dr Deist explained
that this was a safety check in which he used a
machine to reproduce Mr W distance reflection.
[71] The Custom Vue Scans provides not
only the refraction for both eyes but also the so-called higher order
aberrations which are
not detectable through normal optometrist
measurements.
[72] In his evidence-in-chief Mr W
testified that when he left Dr Deist’s room on the 24
th
May 2010 he was quite excited and looking forward to the procedure to
be performed the following day. In my view he could
only be
excited because he knew exactly what was involved after Dr Deist had
gone through the tests with him and informed him fully
about the
iLasik procedure. I see no reason why he should be excited
about something that he does not know or understand.
[73] Mr W remained non-committed in
answering some of the questions under cross-examination for instance
at some point it took counsel
for the Defendant several repeat
questions to get Mr W to admit that he did tell Dr Deist that he want
HD.
[74] In the afternoon of the 24
th
May 2010 when Dr Deist consulted with the Plaintiff in preparation
for the following day’s procedure he utilised the values
determined by the Custom Vue software which are then placed into a
physical frame. He then used the so-called duo chrome testing
equipment which is a screen divided vertically by a red and green
background. According to Dr Deist Mr W participated actively
in
deciding on the surgical parameters to have his distance vision
corrected. The use of the trial frame confirmed the agreement
reached between Dr Deist and Mr W in relation to his requirement to
have his distance vision corrected.
[75] The Plaintiff’s version of
events that took place on the 24
th
May 2010 at the
Defendant’s consulting room is in my view not true. I see
no reason why after a person had waited four
years for a particular
procedure and when he eventually is ready to do it, the Defendant
would not have explained to him all the
advantages and risks involved
in the procedure. It is in my view unthinkable that Dr Deist would
have omitted to do that.
He kept notes about the Plaintiff for
four years about the desired procedure. I am satisfied that
after Dr Deist had explained
fully the procedure he then handed over
the patient consent form to the Plaintiff on the 24
th
May
2010 with the instruction that please read it and if there is
something not clear speak to me before the surgery.
THE
25
TH
MAY 2010
[76] Mr W arrived at the surgery at
08h00 signed the patient consent form. His initials and full
signature appear nine times
on the six page document. It is
significant to note that his initials appear 6 times next to the
words: “
I have read and understood this page
.”
Mr W had no question to ask and handed in the consent documents and
proceeded to have the surgery.
[77] The Plaintiff’s version
about what happened on the morning of the 25
th
May 2010 is
in my view hard not to be believed. He wants the court to
believe that he was pressurised into signing the consent
form before
he had read it, is in my view disingenuous of him. Mr W
describes himself as a strict or pedantic businessman
I cannot accept
that he would have allowed himself to be bullied by a doctor’s
assistant to sign a document that he had not
read.
[78] There is evidence corroborated by
the experts in their joint minute that the procedure was carried out
correctly. Mr W himself
testified that when he left the operating
room to go join his wife who was waiting for him in the waiting room
he was able to see
not only her but also other anxious patients
waiting to go in for their procedure.
POST-SURGERY
VISITS THE 26
TH
AND 27
TH
MAY 2010
[79] Mr W says the same night of the
25
th
May when he arrived home he could not see his hands
or food and this caused him to go see Dr Deist again the following
day. The
doctor did further tests and advised him to use eye drops.
[80] It is clear that Mr W is an
impatient person he expected quick results and quick healing he
forgets that by the time he did
the procedure he was already advanced
in age and Presbyopia had set in. In any event the consent form
that he signed having
read it clearly indicates on paragraph 5 as
follows:
“
I understand that I may not
get full correction from my Lasik procedure and this may require
future enhancement procedures such
as more laser treatment or the use
of glasses or contact lenses.
”
[81] Sometime in July or August 2010
Dr Deist offered the Plaintiff enhancement procedure which he
declined for no reason. His own
expert
Witnesses Drs Donzis and
Lefkowitz do comment that enhancement was indeed offered. It is
also unthinkable that Dr Deist could
not have made Mr W aware about
the risks involved in the procedure. These are well described
and appear as follows in the
patient consent form:
-
“
Despite
the best of care, complications and side effects may occur, should
this happen in your case, the result might be affected
even to the
extent of making your vision worse.
”
-
“
In
giving my permission for Lasik I understand the following: I
have received no guarantee as to the success of my particular
case.
”
THE
PATIENT CONSENT FORM
[82] When Mr W testified in-chief and
when cross-examined he gave the impression that he was rushed up and
pressurised to sign and
had in the patient consent form before he
had, had an opportunity to read it. Not only was this never pleaded
when Ms Myasur the
receptionist testified it was never put to her
that she in fact pressurised Mr W to sign and hand it in without
reading.
[83] The evidence of Ms Myasur remains
unchallenged that she requested Mr W to hand the signed form to her
on the morning of the
surgery. The procedure of handing the
patient consent form to a client prior to surgery is understandable.
It is a long document
which requires time to read and understand
hence it was handed to Mr W on the 24
th
May 2010.
This was to afford him ample opportunity to read and understand and
where he does not he still had an opportunity
to ask.
[84] In
George v Fairmead (Pty) Ltd
1958 (2) SA 465
(A) Fagan CJ dealt with the instance of a party
seeking to renege on the consequence of having signed a document
which he maintains
he had not read. At page 472 G-H the learned
judge said the following:
“
So now he knew that he was
signing a document which contained terms of his contract. Just
below the items he had filled in,
but above the space for his
signature, he saw what he himself in his evidence described as “a
long passage the merest glance
at it would have shown him that it
commenced with the words ‘I hereby agree’. But he
“did not bother to
read it. Yet he signed putting his signature
below the English version, not the Afrikaans, this prima facie
indicating that it
was the English version by which he chose to be
bound.
”
“
But he knew that he was
assenting to something and indeed to something in addition to the
terms he had himself filled in.
If he chose not to read what
that additional something was, he was, with his open eyes, taking the
risk of being bound by it.
He cannot then be heard to say that
his ignorance of what was in it was a Justus error”.
[85] In
Afrox Healthcare (Pty) Ltd
v Strydom
2002 (6) SA 21
(SCA) Brand JA confirmed the legal
position that, the fact that a party signed a document without
reading it does not lead to the
position that such a party is not
bound by the contents thereof.
[86] Having regard to the unchallenged
evidence of Ms Myasur as opposed to the poor version by Mr W and
having regard to the legal
position set out in
George Fairmead
and
Afrox Healthcare v Strydom
I have come to the conclusion that
Mr W the Plaintiff is bound by the contents of the patient consent
form which he not only signed
but I have no doubt that he read it.
After all when he signed it, it was after Dr Deist had explained to
him the risks involved
in the procedure, this Dr Deist did on the 9
th
April 2010 and the 24
th
May 2010, besides that numerous
person that he spoke to had assured him of the success of the
procedure amongst them are ophthalmologists.
EXPERT
WITNESSES
[87] The Plaintiff’s expert
witnesses and that of the Defendant compiled joint minutes and agree
on crucial issues that put
paid to the Plaintiff’s case for
instance in a joint minute dated the 23
rd
July 2017 they
noted that Mr W wanted full emmetopia. This is in direct
contradiction to what the Plaintiff testified.
This therefore
means that his own witnesses corroborate the Defendant’s
version as to what was agreed upon.
[88] Further not only do the experts
all agree that the surgery was done correctly they also confirm that
in such procedures outcomes
cannot be guaranteed. This is exactly
what appears in the patient consent form. What is further
damaging of the Plaintiff’s
conduct is that he refused to
subject himself to enhancement post the operation. His own
experts confirm that enhancement
was discussed and offered to the
Plaintiff. Plaintiff declined it and could furnish no reason why he
declined the offer of enhancement.
IS
THERE EVIDENCE THAT DR DEIST ACTED NEGLIGENTLY AND NOT IN ACCORDANCE
WITH THE STANDARDS OF A SPECIALIST OPTHALMIC SURGEON
[89] It is common cause that Dr Deist
is a specialist ophthalmologist. He testified that his practice
is a low volume more
personalised patient experience laser vision
practice. He continues to say that in a week he chooses not to do
more than six patients
for this he says he finds it that he can
deliver his best with that volume. He clearly says that he is
uncomfortable to do more
than that even though the technology can
easily accommodate more.
[90] Both Dr Donzis and Lefkowitz who
examined the Plaintiff have found nothing wrong with the way the
procedure was conducted.
The Plaintiff has pleaded something
that he has been unable to prove. Professor Meyer who testified on
behalf of Dr Deist said
that a manifest refracture equals total
patient participation which means that there was no way that Dr Deist
could have proceeded
with the distance correction of Mr W vision if
he was not fully participating in the rows of numbers of which he can
see best.
Professor Meyer reiterated that he and Drs Donzis and
Lefkowitz reached a unanimous conclusion that the flap, the surgical
procedure
was performed in accordance with what one would expect and
that the flap was similarly created in accordance with good practice.
In my view that is the end of the Plaintiff’s case he has no
evidence to prove that Dr Deist performed the procedure negligently.
WHAT
CAUSED THE PLAINTIFF TO HAVE POOR COMPROMISED VISION INCLUDING
HYPEROPIA, PRESBYOPIA ASTENOPIA AND VITREOUS FLOATERS
[91] The Plaintiff Mr W attributes the
above condition to what he says was the negligent manner in which Dr
Deist conducted the
procedure on him. I have found that there is no
evidence to support any form of negligence.
[92] Similarly the conditions that he
is now complaining about have no relevance to the manner in which the
procedure was carried
out. Firstly Mr W when testifying in
court was being referred to various documents which he could read
with ease accordingly
his reason for poor vision is not supported by
evidence. It is possible that on the 26
th
and 27
th
May 2010 and some weeks thereafter he may have experienced poor or
compromised vision. This is normal he was still in the
healing
process. He was in too much a hurry and did not give the medical
process an opportunity to heal. He kept on seeing
a specialist
after specialist even long before the 3 months expired. If
anything he is to blame to having interfered with
the healing
process.
[93] Mr W was already Presbyopic when
he underwent the procedure so it cannot be linked to the procedure.
The experts all
agree that he was myopic and that condition naturally
leads to presbyopia it is an age related condition that sets in even
before
any medical procedure.
[94] On the question of vitreous
floaters Prof Meyer testified that all three experts that is
including himself agreed that the
floaters are a potential
consequence of Lasik surgery.
[95] In testifying about presbyopia
Prof Meyer said that multifocal glasses were designed and developed
purely for presbyopia.
Now we know that W was presbyopic long
before the procedure so he was bound to have to use multifocal
glasses in any case.
All three experts remark that Presbyopic
is ubiquitous which means that almost every single human being
develop presbyopia starting
from around about age 45 and that it
starts whether you are myopic, near-sighted or whether you are a
hyperope farsighted.
Or whether you are an emmetropic, normal
sight. As a human being you will develop presbyopia.
[96] In conclusion and as commented to
by Prof Meyer Mr W complained and alleged poor or compromised vision
does not accord with
the 20/20 vision. There is evidence that post
the surgery Mr W had 20/20 uncorrected vision. He definitely does not
have poor or
compromised vision.
[97] On allegation or complaint about
asthenopia Prof Meyer told the court that all presbyopic persons will
experience asthenopia.
Presbyopic patients will have eye strain
if they do not wear multifocals.
EVALUATION
OF EVIDENCE
[98] The evidence of Dr Deist and that
of his witnesses is more reliable and easily demonstrable than that
of Mr W. Mr W gave
conflicting versions as to what the
agreement was between him and Dr Deist. He was not a
satisfactory witness he avoided
answering crucial questions and does
not have a good memory.
[99] In the result on the separated
issues as pleaded in paragraphs 1 to 8, 9, 9.1 and 9.2 of the
Plaintiff’s particulars
of claim the Plaintiff’s claim
falls to be dismissed. I accordingly make the following order:
1.
The Plaintiff claim as
pleaded in paragraphs 1 to 8, 9, 9.1 and 9.2 of the Plaintiff’s
particulars of claim is dismissed.
2.
The Plaintiff is ordered
to pay the Defendant’s taxed costs on a party and party scale.
DATED at JOHANNESBURG on this the 11
th
day of OCTOBER 2018.
________________________________________
M
A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of Trial: 07 August 2017
Date of Judgment: 11 October 2018
For Plaintiff: Adv I Zidel
Instructed by: Ian Levitt Attorneys
Sandton
Tel: (011) 784-3310
Ref: S. Samrod/cb/J473
For Defendant: Adv Emiel van Vuuren
Instructed by: Messrs Clyde & Co
Inc
Sandton
Tel: 010 286-0350
Ref: 1009000S/RDavidow