AZ v Member of the Executive Council for Health, Eastern Cape (140/2016) [2018] ZAECBHC 8 (14 August 2018)

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[2018] ZAECBHC 8
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AZ v Member of the Executive Council for Health, Eastern Cape (140/2016) [2018] ZAECBHC 8 (14 August 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH ARICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO: 140/2016
In
the matter between:
A
Z
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH, EASTERN
CAPE
Defendant
JUDGMENT
STRETCH
J:
1.
The plaintiff, who is alleged to have been born on 1 November 1997,
has issued summons against the defendant for damages in the
sum of
R51 700 000,00 founded in contract, alternatively delict,
arising from her hospitalisation at Frere Hospital and
her treatment
by the staff of this hospital during the period 2011 to 2013.
2.
The trial proceeded on the issues of negligence and causation only.
3.
The claim
arises from a posterior fusion of the second to the seventh thoracic
vertebrae (T2 to T7) with a posterior onlay bone
graft performed on
the plaintiff by one Dr Kaschula
[1]
at Frere Hospital on 5 February 2011 (hereinafter referred to as the
first surgery or operation).  She was 13 years old at
the time.
4.
The plaintiff claims that Dr Kaschula  failed to obtain informed
consent from her guardian before he performed the surgery,
and that,
whereas she was able to walk before the surgery, she was rendered
paraplegic immediately thereafter.
5.
On 9
December 2011 Dr Kaschula performed corrective spinal surgery on her
by way of a posterior instrumented fusion of T3 to T8
(hereinafter
referred to as the second surgery or operation). She had just turned
14.  The plaintiff claims that she was paraplegic
before and
after the second surgery.  It is not in dispute that the
plaintiff was unable to walk immediately prior to the
second surgery
and that she presented with paraplegia after that surgery.
[2]
The plaintiff alleges that her paraplegia (and the sequelae
associated therewith), was caused by the defendant’s servants

at the hospital, who were negligent in their treatment of her.
6.
The
defendant pleads that the plaintiff’s disability was as a
result of having  contracted spinal tuberculosis (TB)  prior

to her admission to the hospital in January 2011.  This caused a
kyphosis
[3]
and permanent damage
to the vertebrae in her thoracic spine, with resultant atrophy of the
spinal cord and paraplegia.
[4]
7.
The defendant’s servants treated her for TB and performed the
two operations on 5 February and 5 December 2011, in an attempt
to
“stop the damage from getting worse.”  Differently
put, the purpose of the first surgery was to “fix”
the
spine, or in layman’s terms, to “make it solid”. In
the premises it is the defendant’s case that the
plaintiff’s
neurological fall-out is due to a progressive kyphotic deformity and
not as a consequence of surgery.
8.
The defendant denies that her servants were negligent, and contends
that the aforesaid medical treatment was reasonable and appropriate.

The defendant also disputes the allegation that informed
consent was not obtained.
The
plaintiff’s case
9.
As a child,
the plaintiff was cared for in Cofimvaba by one Mrs Z (a relative and
teacher).  Mrs Z told this court that at
some stage she noticed
the plaintiff limping with her right leg.  She asked the
plaintiff where she was experiencing pain.
The plaintiff was unable
to identify a particular spot. This caused Mrs Z to worry.  She
decided to seek medical attention.
During January 2011 she took
the plaintiff for medical attention and left her in the care of her
daughter, P (an estate agent
with a diploma in marketing) who was
living in East London at the time.
[5]
10.
The
plaintiff (who was 20 years old when she gave evidence) said that
this was her first visit ever to Frere Hospital.  This
was
confirmed by her relative P.  The plaintiff testified that when
she visited Frere Hospital on this first occasion (which
appears to
have been on 6 January 2011), she presented with a pain-free limp of
the right leg.  Dr Kaschula examined her and
opined that a bone
or bones in her back may have become loose or damaged as a result of
a fall.
[6]
He said that he
would perform surgery on her back to “bring back the bone that
might have become loose”.
11.
Subsequent to this, P phoned Mrs Z and told her that she needed to
sign a consent form, as the plaintiff was going to require
surgery.
12.
On 10
January 2011 Mrs Z, as the plaintiff’s guardian, signed a
consent to medical procedure form which was counter-signed
by one Dr
Daniel.  The form reflects the nature of the procedure as an
“instrumented posterior fusion of the spine with
bone graft.”
According to the form, an interpreter had been used to explain
the procedure.  The form also states
that the doctor explained
the nature, risks and possible consequences of the medical procedure
to the patient or to a person legally
competent to give consent. It
further states that the doctors who perform the medical procedure may
increase the reasonable scope
thereof or carry out additional or
alternative measures if considered necessary.
[7]
13.
The
plaintiff testified that she was unable to stand or walk after the
first surgery.  She could not feel when she was urinating.
She
had to borrow a wheelchair from the hospital when she was discharged
on 15 February 2011 to get from the hospital to
the vehicle which was
collecting her.
[8]
14.
She
returned to the hospital for check-ups but Dr Kaschula did not pay
attention to her.  He did however suggest a second operation
as
“there might have been a mistake during the first operation and
he wanted to rectify it”. P signed consent for the
second
surgery.
[9]
The plaintiff
testified that Dr Kaschula did not tell her what procedure he was
going to use but said that she would walk
after the second operation.
She did not. Indeed, according to the plaintiff, she was worse
off than before.  Her left
arm had become very weak and she also
relied on support in order to sit upright.
Medical
records
15.
A document dated 10 January 2011 and purporting to be part of the
plaintiff’s patient record, describes her medical diagnosis

upon admission as “painful both legs”.  The
plaintiff disputed that she was in any pain upon admission.  It

further appears from this document that the plaintiff was not weighed
upon admission, as she was “ambulant” but “unable

to stand”.  The plaintiff disputed that she was unable to
stand upon admission.  A document purporting to be the

plaintiff’s care plan, confirms that on 10 January 2011 the
plaintiff was suffering from pain in both her legs.  It
also
refers to weakness of the right leg.  By 4 February 2011 (the
eve of her first surgery), what purports to have been her
progress
note, refers to weakness of
both
legs.
16.
A document purporting to be her in-patient medication management
chart (which I am advised is a working document which would
have been
completed upon admission) states that she was diagnosed with a
collapse of T5 and T6.  She denied that this diagnosis
was made
upon her admission.
17.
According
to background history recorded in what purports to be her
inter-departmental referral form dated 6 January 2011, she was

previously treated at Frere Hospital during 2006 for a period of six
months for TB in her left leg. The plaintiff denied this.
[10]
18.
The same form reflects that on 9 October 2010 the plaintiff attended
Frere Hospital presenting with an abscess in her left knee,
which was
drained and treated with oral antibiotics.  This too, the
plaintiff denied.
19.
The form
describes the plaintiff’s present complaint (as at 6 January
2011) as that of pain in her right leg accompanied by
a pins and
needles sensation. The plaintiff denied that this was her complaint
when she first visited Frere Hospital.  She
maintained that it
was simply that of a pain-free limp.
[11]
20.
A document which purports to be an extension of her patient record,
and which is described as a “problem-orientated patient

progress record”, (which is also dated 10 January 2011),
confirms a medical diagnosis of pain in both legs. It also confirms
a
history of TB and reads as follows under the heading “progress
note”:
‘
D: Presenting with
painful legs. Had TB in 2006. Was treated for 6 months. Difficulty in
walking.
I: Painful knees.
A: Admit to ward for
further investigation and management.  For strict bedrest.’
When
this entry was put to the plaintiff her initial response was that
when she visited the hospital in January 2011 she only had
pain in
her right leg.  She then changed this answer and reverted to her
initial stance (that she was pain free).  She
denied that she
had any difficulty in walking.  She stated that whoever had
written this was lying.  She added that the
first time she heard
that she had TB was towards the end of 2011 when she asked Dr
Kaschula why she could not walk.
21.
Two
entries, purportedly made less than an hour later, repeat that the
patient presented with pain in both legs and that she was
complaining
of pins and needles in her right leg.  It appears from one of
these that the plaintiff could not be weighed because
she was unable
to stand, and that she was referred for a 3D scan.  The
plaintiff commented that whoever had stated that she
was unable to
stand was lying.  She said that she was only referred for a 3D
scan after the first surgery.
[12]
22.
A computer printout (described as the “patient information
form”), reflecting the plaintiff’s names, gender,

telephone number, address, folder number and the date of her
admission on 6 January 2011 as well as the name, surname and
telephone
number of her mother, confirms that the plaintiff had been
admitted to Frere Hospital for surgery on 9 November 2010.
23.
The form reflects that on 6 January 2011 the plaintiff was
complaining of pain and paraesthesia (pins and needles) in her right

leg.  The plaintiff disputed that she was suffering from this
condition or that she had verbalised such a complaint.
24.
According
to these records she was seen by Dr Kaschula and his “team”
at 09h00 on 11 January 2011.  The note states
that the plaintiff
was to be booked for a “3D CT scan”, that she had to be
kept on bed-rest and that her blood results
were to be “chased”.
[13]
In the interim she was to be managed conservatively and given TB
treatment. The records further state that the patient’s
limbs
had improved with bed rest and that both lower limbs were moving with
good sensation.
25.
When the plaintiff was questioned about the CT scan, she denied that
it was done before the first operation, despite a progress
note dated
28 January 2011 confirming that doctors had seen the CT scan results.
She said that the only thing that was done
before the first
operation was her blood tests.  When the plaintiff was asked
about these blood tests, she contradicted what
she had said before,
and stated that her blood was not taken before the first operation.
She added that whatever was reflected
in these hospital records was
“all lies”.
26.
According to the same progress note the plaintiff was assessed as
still presenting weakness of the lower limbs on 31 January
2011. On 4
February 2011 (the day prior to the first surgery) “weakness of
legs” is noted.  The plaintiff remained
adamant that only
her right leg was weak at that stage.
27.
During cross examination it was put to the plaintiff that a progress
note recorded by Sister Tshengu immediately after the first
surgery
reflects the following:
‘
All four limbs
warm, pink, moving with sensation present … Nurse flat in bed
and logroll as necessary.’
[14]
28.
The plaintiff insisted that she was unable to move her legs.  She
accused Tshengu of lying as well.  The upshot of
her evidence
(corroborated by P and Mrs Z) was that all hospital records
purporting to reflect that she was able to move her lower
limbs after
the first surgery, and any suggestions that she had verbalised the
ability to move her legs, were false.
29.
The
plaintiff was adamant that when she was wheeled from the theatre to
the ward after the first surgery, she could feel that she
had
urinated on the bed. When it was put to her however, that her
catheter was only removed on 10 February 2011, she contradicted

herself once more and agreed that a catheter had been inserted in the
theatre.  When I sought clarification from her, she
changed her
version once again.  She said that she did not have a catheter
in situ
during
the first surgery, or immediately after the first surgery, which was
why she had wet her bed.  She said that the hospital
staff only
inserted a catheter after she had reported to them that she could not
feel when she was urinating.  She denied
that her problem with
incontinent urinating only presented itself after the second
operation (in contrast with what P had said
to Dr Mpotoane).
[15]
30.
When P testified she was referred to a consent to medical procedure
form (for the second surgery).  It is dated 5 December
2011 and
is counter-signed by Dr Kaschula.  It reflects that the
procedure was explained to the consenting party personally
and
without the use of an interpreter.  The nature of the procedure
is described as a posterior instrumented fusion of T5
to T7 of the
thoracic spine.  It reflects the plaintiff’s name and her
folder number. P agreed that she had signed a
consent form but denied
that it was the one which had been shown to her.
31.
She
testified that one of the defendant’s servants working at Frere
Hospital at the time had given her the plaintiff’s
hospital
file to copy at home.
[16]
According to P, she proceeded to make copies of some of
the contents of the file, but then became “tired”
and did
not copy everything.  She claimed that she was unaware of signs
at the hospital stating that patients’ folders
remained
hospital property.  She said that she did not know that it was
wrong to remove hospital property because she did
not study health
care.
The
defendant’s case
32.
The
defendant’s case is based in the main on the evidence of Dr
Kaschula. Dr Kaschula commenced his evidence by saying that
he had
made extensive notes when he dealt with the plaintiff, but that these
had gone missing.
[17]
33.
He saw the plaintiff at paediatric outpatients when she visited Frere
Hospital on 6 January 2011.  Her central complaint
was of
paraparesis (difficulty walking).  He made a clinical assessment
and ordered X-rays.  She presented with a collapse
of the spine
at T5 and T6 caused by spinal TB which he had diagnosed on 10 January
2011 from what he could assess from the X-rays.
He said that he had
an independent recollection of what he had seen when he looked at the
X-ray imaging.  He observed paravertebral
abscess formation.
However, he could see that the abscess formation was not contributing
to the plaintiff’s condition and
her mechanical instability.
This he could see from both the X-ray images and the subsequent
CT scans.  His working diagnosis
was that of mechanical
instability of the spine.
34.
On that
same day Dr Kaschula decided to admit the plaintiff (whom he regarded
as an “emergency patient” requiring emergency

intervention)
[18]
and
commenced anti-TB medication as a precaution even though it appeared
to him that the spinal TB had healed.
[19]
He ordered a three dimensional computed axial tomography scan (a “3D
CT scan”) and blood tests including a sedimentary
erythrocyte
rate (ESR) test.
[20]
According to Kaschula he had already decided that the first
surgery was necessary when he called for the CT scan.
[21]
He would, in any event, only have obtained the results of the
CT scan some two weeks later.  He testified that he would
not
have operated without having seen the blood results as he abides by
the Hippocratic principle of “giving the biggest
benefit with
the least harm”.
35.
The scan (which was done on 20 January 2011) had no impact on this
decision.  He diagnosed the collapse of the spine and
made the
decision to perform the first surgery based on the X-ray imaging.  He
said that he was able to diagnose the collapse
from the X-rays alone.
However, at Frere Hospital it is mandatory for X-ray imaging to
be followed by a CT scan.  All
the CT scan really did was to
assist him in deciding how many levels of the spine would be involved
in the fusion. He added that
it was also evident from the CT scan
that there was no abscess or puss present in the area of the proposed
surgery.  This
served to fortify his view that the plaintiff was
presenting with a mechanical instability.
36.
He went on
to explain that the purpose of the blood tests was to show the
plaintiff’s haemoglobin level, and the ESR test
would confirm
whether the TB was active or quiescent.  During
cross-examination he stated that blood tests are the most conclusive

way of determining TB activity. In the plaintiff’s case the ESR
showed that the TB was dormant (and “subsidiary and
almost
irrelevant”) as he had suspected.  His primary diagnosis
was “mechanical instability of the thoracic spine
caused by TB
destruction of T5 and T6”.  He described this as a
“mechanical urgent problem”. He said that
a magnetic
resonance imaging (MRI) scan would not have provided him with any
useful information in this regard.
[22]
Nor would there have been any point in obtaining a histology
specimen. The TB had healed.  There was accordingly nothing
to
biopsy.  According to the doctor, the criterion at Frere
Hospital is, in any event, radiological.  Even patients with

active TB were not subjected to biopsies.
37.
He decided to perform an on-lay posterior fusion of the spine in the
area between T4 and T8 in order to provide the plaintiff
with a solid
continuum of bone block in order to arrest further collapse of the
spine. It entailed “minor” surgery.
38.
He discussed this with the plaintiff’s guardian.  He
advised her that the plaintiff had a serious problem with a
collapse
of the spinal cord.  He told her that the plaintiff had had
spinal TB.  In making this assessment he was guided
by the X-ray
and by the fact that she had a history of TB in her left knee. He
told her guardian that surgery may or may not help
because the
problem was very serious.  Dr Kaschula testified that he would
not have told anyone that the plaintiff may have
fallen. Nor would he
have said that she would walk again. He said that the plaintiff’s
version in this regard was “complete
nonsense”.  He
said that this was an exceptional case.  He devoted a tremendous
amount of time explaining things
to the plaintiff’s family.  He
said that he could not remember what he had said before the second
operation because
that consent was less controversial and more
standard.  However, the situation before the first surgery was
unique.  It
was important for him “not to promise too
much”. In the circumstances he informed the plaintiff’s
guardian that
surgery was not a cure but that it was “benefit
versus risk favourable”. Consent to perform this surgery was
accordingly
given.
39.
He performed the surgery on 5 February 2011. He confirmed that
longhand entries in the patient progress record which he was
referred
to for that period appeared to be an accurate contemporaneous
reflection of the plaintiff’s condition, symptoms
and conduct.
40.
The plaintiff was received back from theatre at 10.30am after a 40
minute operation.  At 7pm that same day the following
is
recorded:
‘
Patient crying,
screaming restless complaining of having pains like burning needles
start from the waist down to both legs.’
According
to Dr Kaschula this description was consistent with what he would
have expected on the same day as the surgery.
41.
On 11 February (six days post surgery) an entry is recorded stating
that the patient’s catheter had to be removed.  According

to Dr Kaschula, the catheter would not have been removed then, but
would have had to remain
in situ,
if the plaintiff was indeed
paraplegic immediately after the surgery, as suggested on the
plaintiff’s behalf.
42.
The
plaintiff was discharged on 15 February 2011.
[23]
43.
When it was suggested to him that the plaintiff was discharged ten
days post- operatively in a paraplegic state with no wheelchair,
he
disputed this.  He said that he and the hospital staff take
great pride in attending to patients post-operatively.  He
added
that a patient would sometimes occupy a hospital bed for up to six
weeks just waiting for a wheelchair. He mentioned that
he presently
had a Zimbabwean patient who had been occupying a bed for seven
months because he had no support structure on the
outside.  He
dismissed the suggestion with apparent indignation and with the
comment:
‘
I take offence to
that. It’s a disgraceful thing to say.’
44.
When the
plaintiff attended physiotherapy in March 2011, she was assessed and
found not to be ready for a wheelchair yet.
[24]
According to Dr Kaschula, the plaintiff’s neurological
functioning gradually deteriorated after the first operation.
She
could still walk with difficulty for about two weeks post-surgery,
but by September 2011 she was no longer ambulant and
required a
wheelchair, which was obtained for her that same month.  He
admitted her for five days while she was waiting for
the wheelchair
to be made available.
[25]
45.
On 17 October 2011, and because of the change in her neurological
functioning, he requested a MRI scan of her spine.  During
his
evidence, he was referred to this report.
46.
Dr Kaschula testified that this MRI report confirmed his suspicion
that the plaintiff’s spinal deformity (as a result
of an
inactive TB spine) was “too great to have held”.  Upon
assessment, his primary concern was that the severe
nature of her
thoracic deformity would compromise her breathing, which, in turn,
could lead to
cor pulmonale
(a form of heart failure) if the
spine collapsed resulting in compression which would compromise her
respiration.
47.
The status
quo accordingly necessitated a posterior fusion of the plaintiff’s
thoracic spine to prevent this from happening,
because the first
non-instrumented fusion did not achieve the anticipated results.
[26]
48.
Dr Kaschula testified that he proceeded with the second operation on
9 December 2011.  He described the outcome thereof
as “a
very good fix”.
49.
According to a patient information form the plaintiff was discharged
on 22 December 2011.
50.
I asked Dr Kaschula whether, with hindsight, he would have done
anything differently. This is what he said in response:
‘
Certainly not as
far as my clinical decision making was concerned. Looking back in
hindsight, I would be much more inclined to photostat
my clinical
notes – to have my own copies in all cases where there is
potential controversy, but it is very difficult to
work out which
cases are going to be controversial and which are not. I consider my
clinical decision making in this case to be
faultless …’
The
radiological evidence
51.
A number of radiological reports and scans were referred to in
evidence. For the sake of completeness, and because I refer to
them
from time to time, I list them chronologically in order of scanning
rather than reporting. They are:
a.
A CT scan
ordered by Dr Kaschula which was done on 20 January 2011 and reported
on by Dr Counihan on 24 August 2017.  The scan
itself was found
after this trial had already commenced.  The report could not be
traced. Radiologist Dr Counihan studied
the scan and prepared a
report for the purposes of this trial. It reads as follows:
[27]
‘
Radiology
Report: A Z / G / S
CT CHEST
Comparison is made with
the CT scan performed on 23
rd
May 2014.
The scan confirms a sharp
gibbus
[28]
at the T6 level
with destruction of T6 and partial destruction of the inferior
portion of the body of T5 and superior portion of
the body of T7.
The residual disc margins
are slightly immature when compared to the scan of 2014 as one would
expect.
The AP diameter of the
sac at the level of the gibbus is 3.8mm. There is no evidence of an
epidural soft tissue mass (collection
or cold abscess). This would
imply inactivity, however, the consolidation at various bony
components is not as mature as noted
in May 2014.
The associated calcified
hilar nodes and features typical of previous TB are present, as noted
in May 2014.
COMMENTS
In summary, the current
CT scan confirms post-tuberculous bone destruction with a gibbus in
the mid dorsal region in a slightly
less mature state than in May
2014 as one would expect. Although there is no evidence of associated
abscess or activity, this cannot
be totally excluded on a CT scan,
particularly when compared to an MRI.
There is marked narrowing
of the sac which is draped over the gibbus. It is not possible to
separate the sac from the cord, as can
be done on MRI. The narrowing
of the sac is consistent with extreme flattening and atrophy of the
cord observed in the MRI report
of 2011-11-23.
Scan done 20/01/11.
Reported on 24/08/17.
Dr T C COUNIHAN
MB ChB (UCT 1976) FF Rad
(D) (SA) 1990’
b. A MRI scan report of
the spine requested by Dr Kaschula on 17 October 2011 and reported on
by Dr Counihan on 23 November 2011.
The scan has never been
found. The report reads as follows:
‘
MRI OF THE
SPINE
CLINICAL PROBLEM: Mid
thoracic TB with kyphosis and complete paraplegia. Has had 10 months
TB treatment.  Stabilised with bone
graft in February 2011.
TECHNICAL FACTORS:
Sagittal T1, T2 and STIR. Focal sagittal STIR and T1 with Gadoliniom.
Axial T1 and T2.
FINDINGS: There is a
sharp gibbus centered on T6 which has disintegrated. The counting was
performed from the bottom up and the
top down. The patient is noted
on plain films to have 13 pairs of ribs which makes things
contentious.
At this point there is
pseudo-arthrosis between T5 and T7. This is hypointense with no STIR
hyperintensity or enhancement to suggest
active inflammation. No
epidural collection or abnormal enhancement in the epidural space. No
significant scoliosis is seen associated
with this sharp gibbus. At
this point the cord is extremely flattened and atrophic with some T2
hyperintensity extending a couple
of centimeters superiorly and
inferiorly.
The actual bony canal is
not stenotic at this point with copious posterior epidural fat noted.
The remainder of the end
plates and discs are intact.
More peripherally the
nerve roots exit normally. No incidental abnormality.
COMMENTS
No active disease seen at
the gibbus. This was presumably confirmed to be TB at surgery. There
are no features to suggest otherwise.
No other abnormal levels.’
c. A MRI scan requested
on 23 June 2017 and reported on by Dr Strydom on 27 June 2017.  The
report reads as follows:
‘
MRI DORSAL
SPINE
Comparison was made with
a previous MRI report of 2011.
CLINICAL HISTORY
Mid thoracic TB with
kyphosis and complete paraplegia. The patient received treatment for
the TB. There was stabilization with a
bone graft in February 2011.
FINDINGS
There is a slight
rotational scoliosis convex to the left in the mid dorsal region. The
alignment of the dorsal spine shows a sharp
kyphosis centred at the
level T6 which is shown to be completely disintegrated. There is
wedging with partial destruction of the
inferior endplate of T5.
There is bony union between the inferior endplate of T5 and the
superior endplate of T7.
Hardware is in place with
a fusion done from the level T3 to T8. No significant bony spinal
canal stenosis seen. There is no abnormal
signal on the STIR
sequences to indicate active inflammation.
The spinal cord is seen
to be atrophied with a raised T2 signal at the level T6 as its course
along the sharp kyphosis. All of these
changes were already reported
on the MRI done on 17.10.2011. There does not appear to be an
interval change.
No epi- or subdural fluid
collections noted.
The rest of the disc
spaces as well as the vertebral bodies are normal in appearance.
COMMENTS
There is a gibbus
formation at the level T6 with bony union of the T5 and T7 vertebra.
There is a sharp kyphosis due to the gibbus
formation without
evidence of a spinal stenosis. There is focal atrophy of the cord at
the level T6 with a raised T2 signal which
was already mentioned on a
previous MRI report.
DR WESSEL STRYDOM’
d. A supplementary
radiological report compiled by Dr Counihan on 26 July 2017 reads as
follows:
‘
Radiology
Report A Z / G / S
MRI 17/10/11 reported
by me
CT 23/5/14
MRI 23/6/17
26 July 2017
Reference in records to a
CT scan in January or early February 2011 noted. This scan has not
been seen.
All the scans demonstrate
typical healed mid-dorsal TB Spine. T6 is destroyed as is the
inferior half of the T5 body and the superior
portion of the body of
T7. Mature bony union between the remains of T5 and T7 was noted on
all scans, with a sharp gibbus / kyphosis.
CT does not visualize the
cord.
On both MRI studies
severe focal cord atrophy is present limited to the gibbus. The bony
canal is capacious. This would account
for her paraplegia with no
interval change noted between October 2011 and June 2017.
Instrumentation was present on the second
MRI and the CT. I concur
with Dr Strydom’s findings/report.
No cord pathology/damage
noted above or below the gibbus, a typical picture of TB damage.
My report of October 2011
refers to complete motor paraplegia in the history. This is
consistent with the radiology findings, although
some right leg
sensory sparing is noted clinically.
DR T C COUNIHAN
MB ChB (UCT 1976), FF Rad
(D) (SA) 1990.’
e. An amended
supplementary radiological report by Dr Counihan dated 8 August 2017
reads as follows:
‘
8 August 2017
Reference in records to a
CT scan in January or early February 2011 noted. This scan has not
been seen.
All the scans demonstrate
typical healed mid-dorsal TB Spine. T6 is destroyed as is the
inferior half of the T5 body and the superior
portion of the body of
T7. Mature bony union between the remains of T5 and T7 was noted on
all scans, with a sharp gibbus / kyphosis.
CT does not visualize the
cord. However on appropriate settings there is evidence of healed
pulmonary TB.
On both MRI studies
severe focal cord atrophy is present limited to the gibbus. The bony
canal is capacious. This would account
for her paraplegia with no
interval change noted between October 2011 and June 2017.
Instrumentation was present on the second
MRI and the CT. I concur
with Dr Strydom’s findings/report.
No cord pathology/damage
noted above or below the gibbus, a typical picture of TB damage.
My report of October 2011
refers to complete motor paraplegia in the history. This is
consistent with the radiology findings, although
some right leg
sensory sparing is noted clinically.’
The
experts
Radiologist
Dr Counihan
[29]
52.
The defendant called Dr Counihan as a witness. Counihan explained
that Frere Hospital had no MRI facilities or CT scan facilities
for
the best part of 2011.  MRI scans were outsourced to a private
practice in East London.  The hospital was supplied
with its
first CT scanner on 11 October 2011.  Before that CT scans were
outsourced to Cecilia Makiwane Hospital.
53.
He stated that he did not even think that it was necessary for Dr
Kaschula to treat the plaintiff for TB before the first operation,

because it had cleared after having been there in 2006.  He
referred to Dr Kaschula’s conservative treatment in this
regard
as a “belts and braces” approach.  In his view, if
the hospital had the facilities then to do a MRI scan,
the results
would have confirmed that TB treatment was not called for.  Dr
Counihan stated with confidence that if one were
to take an X-ray of
the plaintiff’s knee as it presented currently, there would be
a 98 per cent chance that it would confirm
that she had had TB of the
knee.
54.
Dr Counihan, in commenting on the recently discovered CT scan which
was performed pre-operatively at the request of Dr Kaschula,

confirmed that the state of the bone in the CT scan suggested healed
as opposed to active TB. In his oral evidence he confirmed
and
elaborated on his report on the 20 January 2011 CT scan.  In
this regard he confirmed that the scan showed the sac and
the cord
“coming around” and being pulled tightly over the apex of
the gibbus/kyphosis and narrowing markedly.  He
also  repeated
his view that there was no abscess visible, and explained this
conclusion in the following terms:
a. The sac is wrapped
anteriorly around the vertebrae at the gibbus.  If there was an
abscess (normally caused by infection
of the vertebrae or bone) it
would have pushed the sac further back and it would not have been
positioned in the front as was evident
from the scan.
b. An abscess would have
taken up space in the canal, displacing the fat.
c. Such displacement was
not evident from the scan.
d. If there was active TB
one would more than likely have seen “moth-eaten bone
destruction”.  However the bone
visible on the scan was
“already maturing, it is corticated, it is healing, it is
classic resolved TB”.
55.
When asked about his comment in the report to the effect that TB
cannot be totally excluded on a CT scan (as opposed to a MRI
scan) he
explained that what he meant was that one could not with 100 per cent
certainty exclude the presence of active TB
bacteria.
56.
In commenting on the MRI scan of 23 November 2011 he stated that at
the site of the gibbus, fat in the spinal cord had been
replaced.
The bony canal presented as wide.  The bone destruction
was very severe reflective of a classical case of
TB.  He said
that there was no active inflammation however. If there was, it would
“shine up” on the MRI scan.
57.
He was asked to comment on the MRI report completed by Dr Strydom on
26 June 2017 (forming part of the defendant’s expert
bundle)
with respect to a scan which had been done three days previously.  He
agreed with the facts, findings and opinions
reflected therein, with
the reservation that he would not have used the word “significant”
in the sentence which states
“no significant bony spinal canal
stenosis seen”.
58.
Dr Counihan said that atrophy as a result of the gibbus could have
been caused in one of two ways:
a. The vertebral bodies
collapsed and as the plaintiff grew the gibbus continued increasing
until the spinal cord could no longer
accommodate it.
b. The vertebrae simply
collapsed which is the tragedy of spinal TB in children.
59.
Finally, Dr
Counihan was asked to compare the CT scan of 20 January 2011 (pre
first surgery) with his report on the MRI scan of
23 November 2011
(pre second surgery), the CT scan of 23 May 2014 (post surgery), and
the more recent MRI performed on 23 June
2017 for trial purposes.  He
noted that there was extremely little “interval change”
between the various images.
[30]
The only slight change was that in 2014 the residual disc
margins were slightly more mature than in 2011, as one would expect.

He pointed out in particular that the narrowing of the sac
visible on the 20 January 2011 scan (pre first surgery) was
consistent
with the extreme flattening and atrophy of the cord which
was noted in the MRI report of 23 November 2011 (some ten months post

first surgery).
60.
In this regard he confirmed that the severe focal cord atrophy was
limited to the gibbus and would account for the plaintiff’s

paraplegia, as stated in his final comparative report dated 8 August
2017.  In this respect his interaction with the plaintiff’s

counsel reads as follows:
‘
What caused that,
could you identify that?
…
.
MR STRYDOM: Severe focal
cord atrophy is present limited to the gibbus. --- Do you want to
know what caused the atrophy or the gibbus?
No the atrophy. --- The
atrophy is caused by the gibbus.
And how did the gibbus
cause the atrophy? --- Two ways, the vertebral bodies in the front
collapsed, bending the spine forwards
and as she grew the posterior
elements got bigger, so it increases the gibbus until the cord could
not take it and then she went
to see the doctors.’
61.
The doctor confirmed that he had checked the entire spinal cord as
reflected in the MRI scan of 23 June 2017.  There was
no other
site apart from the one at the gibbus where there was wasting away or
damage to the spinal cord.
62.
Dr Counihan expressed no reservations regarding his determined view
that the plaintiff had suffered from active TB before the
first
surgery.  He could see this clearly from the various
radiological images and scans.  He could also see that the
TB
had been treated.  His final comments were:  “She
must have been helluva sick once upon a time”.
Neurosurgeon
Dr Mpotoane
63.
The
plaintiff called Dr Mpotoane as a witness.
[31]
He consulted with the plaintiff and with P on 3 November 2014
and prepared a medico-legal report which was handed in as an
exhibit
at this trial.  In a nutshell, the report states that it appears
that the plaintiff was walking prior to the first
surgery and that
she was rendered paraplegic thereafter.
[32]
The doctor’s comment on this is the following:
‘
One may only
assume that something negative happened during the procedure
resulting with spinal cord injury.’
The
doctor conceded however, that there was no evidence before him to
suggest that something untoward had happened during the operation.
64.
Below a heading referring to progress and ongoing problems however,
the following is recorded:
‘
Spasticity both
legs:
She
was well prior to the operation even though she had a problem with
the knee, following the operation she started developing
this
spasticity.’
[33]
65.
When it was pointed out to the doctor that there is a difference
between spasticity and paraplegia, he said (in commenting on
his note
regarding the development of spasticity after the first operation)
the following:
‘
Yes and the
patient was telling me and this is what I was recording from what the
patient was telling me.’
66.
At the commencement of his evidence, Dr Mpotoane was somewhat
critical of the fact that the issue of consent had not been revisited

by the defendant’s servants after the CT scan results had been
obtained.  He said that the plaintiff was entitled to
an
informed and comprehensive consent with proper clarification of the
fusion process.  He agreed however, that the defendant’s

pro forma used when consent was obtained for both surgeries was
adequate. He also, coincidentally, agreed that Dr Kaschula’s

post-operative follow up, insofar as it purports to have been
documented in her patient information form, was reasonable.
67.
He said that if instrumentation is used during surgery, there is no
need to log-roll a patient.  There is also no need
for a patient
to sit in a wheelchair.  That patient must “stand up and
walk and go”.
68.
Dr Mpotoane
was of the view that various other steps ought to have been taken
before a final decision was made whether to surgically
intervene or
not. According to the doctor one cannot, when a CT scan shows a
kyphotic deformity, conclusively decide on the cause
of thereof
[34]
.
A biopsy should be taken.  The surgeon should consider
whether the condition is life threatening or whether he can
buy time
by proceeding with conservative treatment such as lying the patient
down flat for observation.  Facilities allowing,
a MRI should be
considered.
[35]
So
should decompression in order to allow the spine to breathe before
removing what should not be there such as a TB abscess.
The
other option would be to leave the abscess and administer anti-TB
medication.
69.
In summary,
according to Dr Mpotoane, the proper way to deal with spinal kyphosis
is to obtain MRI, decompress, follow with anterial
debridement and
posterior column shortening, and then conclude with instrumentation.
The doctor conceded however, that there
was no guarantee that
any of this treatment would prevent paraplegia and even quadriplegia
(in the case of cervical spine TB).
He agreed that the spine is
the most common skeletal site affected by TB, followed by the hip and
the knee. He agreed that
within the spine the thoracic and lumber
spine are the most commonly affected.  He agreed that in
developing countries spinal
TB is more common in children and young
adults.  He agreed that TB is an insidious disease.
[36]
He conceded that the development of the condition is
progressive
[37]
, particularly
in children, who are more vulnerable because their spines are
growing.  He agreed that spinal deformity is a
hallmark feature
of spinal TB.
[38]
He
also agreed that TB in the leg could be accompanied by TB in other
parts of the body.  He conceded that a posterior
bone graft
procedure is more conservative than instrumention.  He testified
that hypothetically, surgery would be considered
appropriate where
there was a progressive neurological deficit including mechanical
failure of the spine caused by a significant
kyphosis, because
without surgical intervention, the kyphosis and the mechanical
failure would become more severe over time due
to an increased
stretching or flattening of the spinal cord.
70.
Dr Mpotoane
was referred to the CT scan which was done on 20 January 2011 and
reported on by Dr Counihan on 24 August 2017.
[39]
He agreed that the scan itself presented a clear picture of the
point of kyphosis and of disc collapse with destruction of
actual
vertebral body.
[40]
He
agreed that all the radiological reports (presented by both sides)
described a very severe kyphosis or a sharp gibbus
situated at an
acute angle.  He also agreed that on comparison of the scan done
before the first surgery with one which was
done on 24 May 2014
(after the second surgery), the structure of the vertebrae are
practically identical.
[41]
71.
Dr Mpotoane
agreed that spinal TB often leads to neurological deficit or
damage.
[42]
He further
agreed that spinal TB may develop into paraplegia and even
quadriplegia if it is present in the cervical spine.
Spinal TB
can either be in the form of early onset paraplegia (which develops
when the disease is still active) or late onset
paraplegia which
develops in a patient with healed TB and the resultant kyphotic
deformity.
[43]
72.
Dr Mpotoane
also agreed that the symptoms and conditions described in the
hospital records relating to the period between 6 January
2011 and 5
February 2011 (prior to the first surgery) point to significant
neurological problems.
[44]
73.
It was put to Dr Mpotoane during cross-examination, that prior to the
first operation, Dr Kaschula was faced with three conditions,
which
individually and particularly in co-existence, called for and
justified surgery:
a. a progressive
neurological deficit in a child characteristic of spinal TB;
b. mechanical failure of
the spine;
c. severe kyphosis.
74.
Dr
Mpotoane’s response was that he agreed that surgery was
justified in such circumstances.  What he did not agree with,

was that the neurology was caused by TB.  He said that “this
was basically an assumption, because we are not sure as
to exactly if
it was TB or not”.  Later on in his evidence, and during
questioning by the court, Dr Mpotoane stated
that the joint opinion
of Dr Schnaid and Prof. Vlok
[45]
(that the plaintiff was suffering from an incomplete paraplegia as a
result of spinal TB) was a reasonable one and added the following:
‘
What basically I
am saying is that I am not blaming the TB in its entirety as
responsible for her paralysis.’
75.
Dr Mpotoane was asked to comment on the fact that Dr Kaschula
initially performed the least invasive surgery in the form of
a
posterior bone graft, and that it was only when the bone graft failed
to arrest the neurological decline that the less conservative
fusion
was employed.  Dr Mpotoane agreed in principle that this
approach ought to have been followed. He also agreed that
the steps
which Kaschula took before the second surgery (to keep the plaintiff
on TB medication and to order a MRI scan) were reasonable
forms of
investigation before the second operation.  He agreed that,
given the fact that it was common cause that the plaintiff
was motor
paraplegic after the first operation and before the second one, that
the second surgery was not the cause of her paraplegia.
In perusing
the clinical notes, he said that a patient cannot be “ambulant”
when the spinal cord has been injured.
He added that, if the
plaintiff was walking after the first operation, and at a later stage
she progressively deteriorated
until she ended up in a wheelchair,
then he would not “blame” the first surgery for her
paraplegia. In this regard
he added the following comment:
‘
Everyone knows
that kyphosis is one of the causes.  Especially in children, is
that they will end up with paraplegia.  That
is a known fact.
No one can run away from that.’
76.
He also agreed that, on a balance of probabilities the kyphosis
(caused by spinal TB or a congenital defect for that matter)
in turn
caused the atrophy which was present on 20 January 2017, when the CT
scan was done.
77.
Dr Mpotoane’s point of departure from what was suggested to him
by the defendant’s counsel was on the point of whether
the
kyphosis was at that time,the cause of the plaintiff’s
paraplegia.  When asked to explain why he did not agree with

this proposition, he replied as follows:
‘
My reasons for not
agreeing is that especially I would refer in particular to this
patient and not to a hypothetical situation.
In the case of this
patient, she went into the hospital
okay
(emphasis added). She
gets operated. She develops paraplegia. We are not treating the
images. We are talking about human beings.
You may still get that
image like that, but then still find somebody else with that
kyphosis, but still find somebody else who
is still working with the
images having that kyphosis. So in reference to this particular
patient I do not agree … If there
is evidence beyond any
reasonable doubt that this patient was wheeled into the hospital and
got operated and wheeled out of the
hospital, then I would then say
yes, it isn’t anything that has to do with the hospital,
because the patient came in that
particular condition. However, a
patient who comes without, who comes into the hospital walking and
having those images, I will
not assume that because the patient is
having those images so it is automatic that it is the pathology that
has resulted in the
paraplegia. No, I would
examine what actually
happened
(my emphasis) also whilst the patient was in the
hospital and from that particular examination I would then be able to
draw a conclusion
… if you look at the clinical records, the
entries when the patient came into the hospital preoperatively, I
don’t
think that there is anywhere that we saw paraplegia.
There is no paraplegia pre-operatively. It is only post-operatively
that we
have a patient who is paraplegic. I would agree with you if
pre-operatively on the clinical records there is mention of
paraplegia,
however, there isn’t.’
78.
When the doctor was asked to comment directly on the proposition that
the plaintiff’s 3D CT scan (taken in Janaury 2011)
showed a
case of spinal TB which had probably healed, he said the following:
‘
I think every
doctor has a right to make his opinion when confronted by the images
of any situation in front of  him, and whichever
thinking at
that particular time that one may think or may take, that line might
be either correct or that line might be either
wrong, however one has
to make a decision if you have the X-rays and you have the scans and
when you look at them and you think
that it has healed that is your
opinion, but however it may not necessarily be the opinion of the
other person, because the other
person might say you know I need to
think a little bit further, let me probably pursue these and confirm
and make sure that everything
is healed and how would one then arrive
at that? One would then want to say, look, if it has healed, when was
it treated.’
79.
Hypothetically however, Dr Mpotoane was in agreement with the
following modus operandi when surgery is indicated in a growing

child:
a. Stabilisation of the
spine in order to arrest further collapse by arresting the kyphosis
posteriorly, so that the growth of the
child will result in an
anterior elongation resulting (long term) in a decompression of the
pressure on the spinal cord as the
spine straightens.
b. This can be done
conservatively with a posterior bone graft (packing bone onto the
spine to solidify and stabilise it), and it
can also be done by way
of instrumentation (inserting screws into the vertebrae to support
metal struts that fix the spine).
c. If done properly a
posterior bone graft would present no significant risk to the
patient, because it does not go near the spinal
canal, or the dural
sac or the spinal cord.  On the other hand, when inserting
screws, one has to be particularly cautious
not to enter the spinal
canal and risk damaging the spinal cord.
80.
He said that Prof. Vlok’s opinion on the following aspects was
reasonable and that he would not question it:
a. Whilst it would have
been of value to obtain a MRI scan before the first operation, one
may rely on a CT scan and X-rays to evaluate
the spinal column. The
status of the spinal cord is a clinical evaluation.
b. Spinal TB can be
confirmed by X-rays and serological examinations (such as the blood
tests done in the plaintiff’s case).
Specimen results
(such as a biopsy) will confirm TB histologically in the acute phase,
but not after it has healed.
c. It was reasonable for
Dr Kaschula to perform a posterior spinal fusion with on-lay bone
graft on the basis of X-rays and the
CT scan of 20 January 2011.
d. The CT scan of 20
January 2011, taken together with the earlier X-rays, provided a
sufficient basis to conclude that the plaintiff’s
neurological
complications were attributable to the compression of the spinal cord
that would necessarily have followed from the
kyphotic deformity at
T6 level.
e. A diagnosis of spinal
TB on the basis of an X-ray and a CT scan is permissible and
reasonable.
f. Spinal surgery was
indicated on account of the kyphotic deformity, even if the cause had
been something other than spinal TB.
81.
In short,
Dr Mpotoane testified that he was in agreement with Prof. Vlok’s
opinion as set forth in his two reports.
[46]
However, when it was put to him in re-examination that Dr
Schnaid (who was not called as a witness) had indicated in writing

that he was of the opinion that the paraplegia was related to the
surgery, he agreed with this “sentiment” as well.
He
also then found himself in agreement with a view ostensibly expressed
by Dr Schnaid that the indication for the first
surgery was
debatable.  Notwithstanding the concessions made previously, Dr
Mpotoane was also heard to agree with an unconfirmed
statement, that
surgical consent for the first operation was inadequate.  In
this regard he stated that if he had been presented
with the clinical
picture on which the defendant relies, he would prior to the first
surgery, have explained to the plaintiff and/or
her guardian that:
a. She has spinal TB.
b. The complications of
spinal TB in children.
c. Chances of
complications with the growing spine in growing children are high
with TB in progression.
d. Possible complications
with any intended procedure to try and arrest the progression of the
deformity that she was presenting
with, for example where there is a
chance that the bone graft may not hold and/or that infection may set
in which may necessitate
further surgery.  There are chances
that the cord may be damaged or that she may develop a blood clot
which could compress
the cord resulting in further neurology, or the
need for a blood transfusion.  Depending on what is found
intra-surgery, further
surgery may be indicated and performed.
e. That there was no
guarantee that the surgery would do away with the deformity or ensure
that she will be normal again like other
children.
f.
She had
options, for example to continue with chemotherapy instead of opting
for surgical intervention, and that she would then
be invited to
return after four to six weeks for the doctor to assess whether the
treatment was working.
[47]
g.
A decision
regarding surgery must be made with the aforesaid in mind. Should the
patient opt for surgery she must be informed regarding
the two
possible types of surgery and the pros and cons of each.
[48]
82.
During
re-examination Dr Mpotoane was permitted to traverse the surgical
steps he would have taken when addressing healed as opposed
to acute
TB. He said that if the TB was healed there would have been no need
to continue with anti-TB medication because the child
was already
presenting with a deformity.  Instead he would have discussed
with the guardian the risks of progression of the
deformity and the
neurological risk of the weakness getting worse resulting in
paraplegia as opposed to trying to correct the deformity
with no
guarantee that correction of the deformity would heal the weakness
resulting in a “normal” child.
[49]
83.
He said that urgent surgical intervention would normally be indicated
if the patient was presenting with a deformity accompanied
by
progressing weakness of the leg.  If the patient was already in
a wheelchair he would not intervene surgically or decompress
as the
damage would already have been done and surgery would not improve the
condition.  It would be of “cosmetic”
value only. He
would leave the patient and “see what will happen”.
84.
During questioning by the court he said that the “hump”
caused by the kyphosis would progress, making the chest
smaller,
which may result in breathing problems and people thinking that the
patient is asthmatic when she is not, because “the
lungs are
squashed in a small container”.  He said that without
surgery the hump would become more “concaved”
until the
back is bent forwards.  However, surgery could arrest the hump
and prevent it from getting worse.  He said
that the atrophy
visible on the MRI scan taken just before the second surgery is
indicative of a chronic, long standing problem.
He added that the
plaintiff’s description of starting to limp out of the blue was
consistent with spinal TB.
85.
In summary Dr Mpotoane stated that the chances were that neither
medical nor surgical intervention were likely to arrest the

deterioration of the plaintiff’s condition.
Orthopaedic
surgeon Professor Vlok
[50]
86.
Professor Vlok consulted with the plaintiff on 19 April 2017 in the
presence of her attorney (who also interpreted) and orthopaedic

surgeon Dr Schnaid.  He delivered his report on 5 May 2017.
87.
According to the report, the plaintiff told him that she presented
herself at Frere Hospital on 6 January 2011 with pain in
her right
knee and leg as well as weakness and paresthesia.  She was
limping.  Dr Kaschula evaluated her and said that
the weakness
in her right leg originated from her back.
88.
Dr Kaschula suggested a 3D CT scan which was done on 1 February 2011.
On 4 February it was noticed that she had weakness and
pain in both
legs. Dr Kaschula performed an on-lay posterior fusion at T4 to T8 on
5 February 2011.  Post-operatively it was
reflected in the
nursing notes that she had severe burning sensation in both legs.
The next day pain was also reported and
on 7 February, after
management, it was noted that the pain had subsided.  On 13
February 2011 the nursing notes stated that
she was “on the
go”. She was discharge on 15 February 2011.
89.
The plaintiff told Prof. Vlok that all she experienced after the
first surgery was a burning feeling.  She could not move
her
legs.  She said that she could not walk and had no control of
her bladder after she was discharged.  When she was
discharged
she was not given a wheelchair and had to be carried.  She
attended physiotherapy post discharge.
90.
Follow up
revealed that she had progressive weakness in her legs.  Dr
Kaschula requested a MRI study which was done on 17 October
2011.  It
indicated that the spinal cord was flattened and atrophic and that
the bony canal was not stenotic, but that there
was a gibbus
[51]
and a possible non-union.  Kaschula revised the posterior
surgery on 5 December 2011 with instrumentation from T4 to T8.
91.
According to the plaintiff she still could not move her legs after
the second surgery.  In 2015 she was issued with a wheelchair.

She told Prof. Vlok that the “hump” in her thoracic
area was slowly increasing.
92.
After a clinical evaluation, and having viewed the X-ray material
available, Prof. Vlok made the following diagnosis:
‘
1. Vertebral
collapse T6 with kyphotic deformity.
2. Progressive
neurological deficit; pre-operative date.
3. Probable previous
spinal TB
[52]
treated and
healed.
4. Incomplete neurology
with sensation sparing on the right leg.
5. Well rehabilitated in
a wheelchair.’
93.
Prof. Vlok
stated in his report that although the plaintiff was in denial
regarding any previous form of TB, the clinical notes
clearly
indicated that she had TB when she was nine years old.  Upon
examination he found that she was not completely paraplegic.
She
had sensory sparing in her right leg but was motor complete with
spasticity.  He expressed the view that the fact
that she was
incomplete indicated that there was some spinal cord activity and
that further anterior decompression could have been
of value to
prevent further deterioration and give her a chance for possible
improvement although very minute.
[53]
94.
Prof. Vlok stated that he could not fault the technique followed and
the result of the posterior on-lay fusion (the first operation)

performed by Dr Kaschula.
95.
For the sake of completeness and for the purposes of this judgment,
it is necessary to repeat Professor Vlok’s opinion
and his
summary as reflected in his report (and repeated in his evidence).
It reads as follows:
‘
MY OPINION
She was 9 years old when
she was treated for TB which cleared. We do not have the extent and
involvement of the TB at that time.
It was noted that in 2011 she
presented with weakness of her legs.  She was evaluated and
according to the notes she was still
mobile, but weaker in both legs
before the first operation. She then had an operation, according to
her she could not move her
legs, but according to the notes she was
up and about and mobile.
[54]
She progressively got weaker and the MRI indicated that there was
cord compression and non-union, resulting in another operation.

Currently she is not complete; she has sensory sparing on the right
hand side, some bowel control, but no urinary control. With
the
information available I am of the opinion that she had neurology
prior to the operations and progressively became worse due
to the
kyphosis. The current diagnosis is that of a kyphus, the precise
origin of that is not clear to me, but the most probable
is that it
was TB in origin. In a growing child a kyphus tends to be progressive
and with that in a critical thoracic area progressive
neurology as we
see here. I am therefor of the opinion that Dr Kaschula’s
operations did not cause her paraplegia and that
it was the natural
history of the kyphosis in a growing child. The upper extra-vertebral
screws are not the cause of the neurology,
because they are not in
the canal, but lateral in the bony structure.
SUMMARY
Dr Kaschula did
operations on the patient which was growing, had progressive
neurology from before the operations. Given the history
of TB the
diagnosis of a TB kyphosis is the most probable. Overall consensus is
that it is a progressive kyphotic deformity with
neurology and that
the operation did not contribute to the paraplegia which is
incomplete.’
96.
I have already referred to what Prof. Vlok stated in his addendum
report after he was given the benefit of viewing the CT scan
done on
20 January 2011. Briefly, the addendum fortifies his original opinion
and the reasons therefor.  In particular, Prof.
Vlok testified
that he could see from the CT scan that the TB was healed or in a
healing phase because the air in the lungs was
visible, there was no
soft tissue mass or swelling, and the bone was already consolidating
and the same colour as the rest of the
bone which was indicative of a
healing process.
97.
Professor Vlok testified that he requested the MRI dated 23 June 2017
in order to see what the cause of the paraplegia was.
The MRI
showed cord atrophy over the kyphosis with a spacious canal and no
cord trauma.  It was consistent with stretching
over the gibbus
and confirmed that there was no surgical damage.  He said that
an onlay posterior bone graft does not involve
spinal cord entry. It
does not interfere with the spinal cord dural sac.  It is a very
simple and quick procedure.  In
his words:
‘
Yes, it does not
involve any entry. It is a very simple and quick procedure especially
in children. You just roughen it, you pack
the bone on and you bail
out. And we can see in Dr Kaschula’s operation it only took him
40 minutes.’
98.
Professor Vlok referred to the assessment recorded by the nursing
staff immediately after the first surgery (that all four limbs
were
warm, pink and moving with sensation present) and said that if there
had been an accident intra-surgery the plaintiff’s
legs would
have been flaccid and she would not have been able to move them.  He
stated that all patients are logrolled every
day – not only
paraplegic ones.  He said that complaints of burning sensations
in the legs and feet were common post
surgery.  He added that a
posterior onlay fusion (as performed by Dr Kaschula) is the “way
to go” with a progressive
kyphosis. Medication cannot heal a
kyphotic deformity.  If the deformity is not attended to, it may
stabilise but if there
is a neurological deficit it has to be
attended to again.  In the plaintiff’s case the need for
surgery was indicated
because there had been a mechanical failure and
progressive neurology.  The fact that there was no abscess
evident from the
CT scan of 20 January 2011, was confirmation that
the TB had healed.  Acute TB would also have been evident from
the ESR results.
99.
Professor Vlok stood by the joint minutes of the meeting between
himself and the plaintiff’s orthopaedic expert, Dr Schnaid,
who
was not called as a witness.  The meeting was held on 8 November
2017 and a final draft of the minutes was recorded on
27 November
2017.  For purposes of this judgment, the upshot of these
minutes is that the orthopaedic experts (Dr Schnaid
and Prof. Vlok)
agreed on the following:
a. The plaintiff has
incomplete paraplegia as a result of spinal TB.
b. At Frere Hospital, her
family were told that she had a thoracic problem, and that a thoracic
surgical procedure needed to be
performed. Dr Kaschula was the
treating surgeon.
c. After a radiological
evaluation a posterior spinal procedure was performed by Dr Kaschula
on 5 February 2011.
d. Dr Schnaid was told by
the family that the plaintiff could not move her toes
post-operatively and had bladder and bowel incontinence.
They said
that this subsided and she was carried out of hospital.
e. A second surgical
procedure was performed by Dr Kaschula on 9 December 2011. At that
stage the plaintiff was partially paraplegic
with bladder
incontinence.
f. There is now permanent
incomplete paraplegia, with bladder dysfuction.
100.
The crisp issue between the orthopaedic experts (as is evident from
the minutes) is whether the neurological fallout was due
to a
progressive kyphotic deformity, or whether it was caused by the first
surgery.  For the reasons which I have already
mentioned,
Professor Vlok is of the opinion that there were neurological
complications before and after the first surgery, and
that this
neurological fallout progressed between the two surgeries.  The
professor expressed the view that the fallout had
nothing to do with
the surgery, but was due to a “progressive kyphotic deformity”
(which he believed to have been caused
by TB destroying the vertebrae
at that level).  Dr Schnaid on the other hand, is recorded in
the minutes to have been of the
opinion that the paraplegia was
related to the first surgery, for two reasons:
a. because dysfunction
was noted immediately after the first surgery;
b. because the
dysfunction was progressive.
101.
No reasons are given in the minutes or in the doctor’s
medico-legal report for such an opinion.  Nor was Dr Schnaid

called as a witness to amplify thereon. What is significant however,
is that this report (which purports to have been prepared
after Dr
Schnaid’s consultation with the plaintiff and P 17 months
before they testified), tells a story which is at odds
with the
plaintiff’s version at this trial on a number of significant
issues. I mention but a few:
a. The report states that
when the plaintiff was transferred from Gateway Clinic to Frere
Hospital on 6 January 2011, she was, and
had been experiencing
pain
in her right knee for a period of two weeks.  In the absence of
any medical records identifying the source and the duration
of this
pain, I accept that this is what the plaintiff and/or P told the
doctor.  The plaintiff and her witnesses however,
have been
persistent in their denial of the existence of any pain at this time.
b. The report states that
after X-rays were done, Dr Kaschula told the plaintiff and her family
that there was a “thoracic
spinal problem” and a
“thoracic” operation needed to be performed. This
information could also not have been
gleaned from the available
medical records (unless the plaintiff furnished Dr Schnaid with
hospital records which were not subsequently
discovered in terms of
the rules, which has been denied).  I accept that this
information also came from the plaintiff and/or
P. With specific
reference to the issue of informed consent, the plaintiff and her
witnesses would have this court believe that
Dr Kaschula only made
vague reference to a bone or bones which may have become loose in her
back as a result of a fall. No mention
was ever made in their
evidence that the doctor explained anything which involved the
thoracic
spine specifically.
c. The report states that
post-operatively, the plaintiff was unable to move her
toes
and had bladder and bowel problems, but that these appeared to
subside and that she was discharged without the assistance of
crutches.
The plaintiff and her witnesses however,
testified that she was unable to move her
legs
, and, having
been rendered paraplegic post-operatively, she had to borrow a
wheelchair
to get from the hospital to the car that was taking
her home.  Reference to crutches (in March 2016) which are
normally used
to assist an ambulant person, as opposed to a
wheelchair (in August 2017) which would be needed when the patient
cannot walk, to
my mind creates the impression that the plaintiff and
her witnesses have been particularly selective and significantly
inconsistent
in the presentation of their versions.
d. In his report Dr
Schnaid states that the plaintiff returned a month after she was
discharged and informed Dr Kaschula that she
had lost control of her
bladder and that she had lost
sensation
in her legs.
According to the plaintiff she was told by Dr Kaschula that
these symptoms and dysfunctions would subside. During
her evidence
the plaintiff and her witnesses conveyed the impression that she
suffered from complete paralysis and urinary incontinence
from the
time that she was wheeled out of the operating theatre, and that her
condition simply deteriorated from there on.  She
also made no
mention of bowel problems post-operatively.  She testified that
Dr Kaschula simply ignored her when she returned.
It is however
evident from the patient information record that the plaintiff
returned to Frere Hospital on at least two occasions
during the month
following upon her initial discharge on 15 February 2011.
102.
Prof. Vlok
testified that he does not know Dr Kaschula and that he did not
consult with him.  He arrived at the conclusions
which I have
mentioned based on the scans and the clinical records. He said that
whilst it would have been of value to have obtained
a MRI scan before
the first surgery it was permissible to rely on a CT scan and X-rays
to clinically
[55]
evaluate the
spinal column. During cross examination he consulted the
contemporaneous notes which he had taken when he consulted
with the
plaintiff, and confirmed that she had told him that when she first
visited Frere Hospital in January 2011, she had
pain
in her
right knee and her right leg.  She said that she had spent a
week in hospital suffering from paresthesia in her leg,
went home and
returned for the first surgery (which she did not consent to).  She
said that when she awoke from the first
operation she could not move
or feel her legs and experienced a burning sensation.
103.
Prof. Vlok
expressed the view that the issue of whether the TB was active or
healed, did not need to play a role in the surgeon’s
decision
to perform the first surgery.  The indication for surgery had
been to stabilise the spine with an onlay graft.  He
added that
if active TB was present he would have placed the plaintiff on
anti-TB treatment to kill the micro bacteria.
[56]
He would also have expected the surgeon to have discussed the
presence of active TB with the patient. He said that if there was
an
abscess it could have been addressed simultaneously with the onlay
fusion by entering the operation site from the side. He would
have
got rid of the puss from the abscess first because if one does not,
it takes a longer time for the patient to heal. Failure
to get rid of
puss from an abscess could result in paraplegia.
[57]
104.
When it was put to Prof. Vlok during cross-examination, that the only
way to have conclusively determined that the TB was active
would have
been through blood results, and that one cannot tell from the CT scan
alone whether there was TB, his response was the
following:
‘
I can tell yes. I
can tell you that it is most possibly tuberculosis, it is not a
congenital deformity, and I can tell you that
there is destruction
which is typical of tuberculosis.’
105.
During cross-examination the professor was asked how he was able to
conclude that the TB had healed when he deposed to his
report on 5
May 2017. His response was that he based his conclusion on the
clinical history from the plaintiff when he saw her
during April
2017, the CT scan of 23 May 2014 and the fact that she was in an
advanced healing phase.
106.
During re-examination Professor Vlok confirmed that he had inter alia
considered the following documents before he prepared
his report:
a. An in-patient
medication management chart reflecting that a female  patient by
the name of A S (folder no. 27413673) was
admitted to ward G5 on 10
January 2011 with a confirmed working diagnosis of a collapse of T5
and T6.
b. An in-patient
medication management chart reflecting that the same person (aged
13), having been admitted with the same working
diagnosis, had a
posterior fusion bonegraft of T2 to T7 on 5 February 2011 (the date
of the plaintiff’s first operation).
c. Dr Counihan’s
MRI report dated 23 November 2011 (before the second surgery).
d. The CT scan and report
of 23 May 2014.
e. The MRI report and
scan of 23 June 2017.
107.
He confirmed that the same images were reflected in the two MRI
scans.
Factual
and expert witnesses – discussion on the applicable law
108.
It is trite that in a claim founded on contract and/or delict, the
plaintiff must prove, on a balance of probabilities:
a. negligence on the part
of the defendant’s servants (in the form of an act or
omission);
b. that the negligent act
or omission caused the harm suffered by the plaintiff.
109.
Only causal
negligence can give rise to legal responsibility.
[58]
110.
The plaintiff has pleaded that the defendant’s servants (and in
particular Dr Kaschula) were negligent in one or more
of the
following respects:
a. They failed to examine
her properly and thoroughly.
b. They failed to
properly evaluate her complaints of “pain” in her lower
limbs and knees.
c. They failed to
prudently refer her for necessary and additional X-rays and MRI
scans.
d. They performed a
spinal fusion operation without giving care and consideration to the
“applicable standards”, thus
rendering her paraplegic.
e. They failed to ensure
that the fusion was done in a “current and proper” way.
f. They failed to take
“precautions” and they failed to exercise proper “skill,
diligence and care” in identifying,
diagnosing and treating her
so as to avoid rendering her paraplegic.
111.
In the alternative to these claims, the plaintiff pleads that the
defendant’s servants were negligent in that they failed
to
obtain informed consent for the two operations. In this regard it is
pleaded that they, and Dr Kaschula specifically, failed
to:
a. Disclose Dr Kaschula’s
diagnosis of spinal TB to her or to her relatives;
b. Comprehensively
discuss all the material advantages and the disadvantages of the
operations with her guardians.
c. Comprehensively
discuss the advantages and disadvantages of other forms of treatment
with her guardians.
112.
It is apparent from these pleadings that the only averments which
have been made with respect to causation (and I intend attaching
to
the pleadings a wide interpretation for the plaintiff’s
benefit) is that the defendant’s servants:
a. Failed to properly
“identify”, diagnose and treat the plaintiff.
b. Performed the first
operation carelessly, improperly and without giving thought to the
current “standards applicable”.
113.
At the conclusion of the trial, it was contended on the plaintiff’s
behalf that:
a. Dr Kaschula
negligently failed to obtain the plaintiff’s guardian’s
informed consent to perform the first surgery;
b. Dr Kaschula’s
negligence (as referred to in paragraph 110 above) “resulted in
the plaintiff’s paraplegia caused
by the first surgery”.
114.
The plaintiff’s heads of argument set forth the final issue for
determination as follows:
‘
The issue is
whether the defendant incurred liability for negligence as a result
of Dr Kaschula’s failure to warn the plaintiff
(P and/or Mrs Z)
of the material risks and complications which might flow –
· From a failure
to obtain an MRI and blood test results in respect of the plaintiff’s
suspected spinal TB;
· From a failure
to first implement conservative anti-TB treatment for a period of 6
to 9 months.’
115.
To my understanding, it is ultimately contended that Dr Kaschula’s
failure to obtain MRI scans and blood test results,
together with his
failure to first implement conservative anti-TB treatment, amounts to
negligence which caused the plaintiff to
be rendered paraplegic.
116.
Plaintiff’s counsel has prevailed upon me to arrive at this
conclusion by relying on the “factual version”
or the
“first-hand factual evidence” presented by the plaintiff,
P and Mrs Z as “coherent and reliable”.
In so doing, it
is contended that I ought to reject:
a. the evidence of Prof.
Vlok and Dr Counihan as subjective and unreliable;
b. Dr Kaschula’s
version of the events, particularly in respect of material issues, as
highly improbable;
c.
any
recordings in the medical and clinical records in respect of which
the authors were not called, as inadmissible hearsay in terms
of the
Law of Evidence Amendment Act (“the Evidence Act”).
[59]
117.
It is rare, in claims of this nature, that this court has the benefit
of listening to the testimony of the plaintiff and the
medical
practitioner who has been accused of negligent conduct. In my
experience, prosecution of medical negligence claims are
more often
than not, the subjects of inordinate delay. Factual witnesses and
records are no longer available. The parties rely
on expert witnesses
who sometimes have to base their opinions on the physical
presentation of the plaintiff alone, many years post
the alleged
morbid intervention, with very little else to go by.
118.
In the
matter before me, the plaintiff’s counsel has advocated
reliance on the factual witnesses only (and then only those
called by
the plaintiff), and the rejection of at least the evidence of Prof.
Vlok and Dr Counihan. These witnesses have been described
as
subjective and unreliable, and in the context of “hired guns”
for the defendant.
[60]
119.
With
respect to the value to be attached to the evidence of factual
witnesses, I cannot agree more. I have listened very carefully
to the
testimony of the factual witnesses for that very reason. I am not
inclined however, to simply ignore the evidence of the
experts,
particularly where they make common cause with the factual witnesses
or with each other for that matter.
[61]
In this regard, Dr Mpotoane agreed with the plaintiff’s
case with respect to, inter alia, the following:
a. TB could cause damage
to the spinal cord in various ways including TB that changes the
shape of the spine so that the misshapen
spine impacts on the cord.
b. For surgery to cause
paraplegia the surgeon must either cause trauma directly to the
spinal cord or the dural sac around the
cord or by severing a blood
vessel or vessels that supply the cord (it is not disputed that there
is no evidence that any of this
happened).
c. It is appropriate to
adopt a conservative approach to treatment of spinal TB in a child,
firstly in terms of deciding whether
surgery is indicated and
secondly, once indicated, to select that form of surgery which is
likely to impose the least threat to
the spinal cord.
d. Spinal TB is often
accompanied by or preceded by pulmonary TB.
e. More than one vertebra
will be affected by spinal TB because segmental arteries bifurcate to
supply two vertebrae (as found by
Dr Kaschula and Dr Counihan).
f. The spinal deformity
is a hallmark feature of spinal TB.
g. Spinal TB is
manifested by disc collapse, destruction of the disc space between
adjacent vertebrae, destruction of the vertebral
body where the
thoracic vertebrae are affected, and anterior wedging of adjacent
thoracic vertebrae. The result is a gibbus deformity
or kyphosis.
h. The reason why a
patient with spinal TB develops an unnatural sharp bend in the spine
in the form of a khyphosis is because of
the transmission of weight
anteriorly which compacts on the infected vertebra more anteriorly
than posteriorly and hence the collapse
and forward bend.
i. The vulnerability
within the vertebrae which gives rise to the anterior wedging and
deformity in the spine is created by the
presence of TB in the
vertebrae.
j. With respect to the CT
scan performed pre-operatively, he agreed that the point of
angulation of the spine in the scan was the
point of the kyphosis. He
also agreed that the scan showed a clear instance of disc collapse
with the discs having disappeared
and the vertebrae having been
fused, along with destruction of vertebral body.
k. He agreed with the
opinion of Dr Counihan that the T6 vertebra had in fact disintegrated
completely so that what one sees on
this CT scan is a union of T5 and
T7.
l. He agreed that this CT
scan manifested the phenomenon of anterior wedging caused by the
weight on the damaged bone tissue in
the vertebrae.
m. When it was put to him
that what was visible from the first CT scan were the typical
consequences of spinal TB, he said “that
will be number one on
my list”.
n. He agreed that damage
to the spinal cord can also cause spasticity (which was his
description of the plaintiff’s presentation
immediately after
the first surgery) and often the first sign of neurological deficit
and spasticity would be an abnormal gait
and weakness of the legs.
o. He agreed that it is
well established that in spinal TB cases the neurological deficit may
develop into paraplegia.
p. In particular, he
agreed that there are two types of paraplegia which can be caused by
spinal TB. The first is early onset paraplegia
which develops when
the disease is still active. The second is late onset paraplegia
which develops in a patient with healed TB
and kyphotic deformity (in
line with the defendant’s case).
q. There is no gauarantee
that treatment, whether chemotherapy or surgery, will prevent
paraplegia.
r. The development of
paraplegia in spinal TB cases is progressive, especially in children
(progressive meaning that the symptoms
become progressively worse
over time), and that children are much more vulnerable because their
spines are growing.
s. He agreed that the
symptoms described in the plaintiff’s medical records prior to
the first operation point to serious
neurological problems.
t. He ultimately conceded
that the khyphosis (whatever its cause) was the cause of the
corresponding atrophy in the spinal cord.
u. He significantly
agreed that in the CT scan of 20 January 2011, the area in the spinal
canal surrounding the dural sac is completely
black and that this
would exclude the presence of an abscess (in line with the evidence
of Dr Kaschula, Dr Counihan and Prof. Vlok).
v. He stated that
chemotherapy is the main form of TB treatment, but that in some cases
surgery (and not just chemotherapy on its
own) would be appropriate
particularly where there is a progressive neurological deficit and
where there is mechanical failure
of the spine and a significant
khyphosis because the khyphosis and the mechanical failure would
become more severe over time.
w. It was put to Dr
Mpotoane that the object of the surgery performed by Dr Kaschula was
firstly to stabilise the spine and stop
it from collapsing further
and (as in the case with the plaintiff who was a child), arresting
the khyphosis posteriorly which would
result in elongation of the
spine anteriorly, tending to result in a decompression of the
pressure on the spinal cord as the spine
straightens. Dr Mpotoane
accepted the correctness of these propositions although qualifying it
to the extent that decompression
would take place in the long term.
x. He agreed that a
posterior bone graft (as performed by Dr Kaschula) is a conservative
form of surgery which would not present
a significant risk to the
patient because it does not go near the spinal canal, the dural sac
or the spinal cord.
y. Finally, Dr Mpotoane
was asked to comment on the following extract from a letter addressed
by Dr Schnaid to Prof Vlok:
‘
The patient has an
incomplete paraplegia as a result of spinal tubercolosis’.
His
response was that this was Schnaid’s opinion. When I attempted
to clarify this response, he said that, due to the information
at his
disposal, he could not conclusively blame the TB entirely for the
paralysis, that he could not say whether the opinion was
wrong or
right, and that, at the end of the day, Dr Schnaid’s conclusion
was a reasonable one.
120.
The defendant has been criticised for not calling orthopaedic surgeon
Dr Mwangalawa, whose report forms part of the defendant’s

expert bundle. It appears that the plaintiff wishes to emphasise and
rely on the following statements made in the report:
a. That chemotherapy is
the gold standard of TB treatment;
b. That amongst others,
the principles of surgery for TB spine are a decompression of the
spinal cord and stabilising the spine
to prevent or correct the
deformity.
121.
The plaintiff’s contention appears to be that Dr Kaschula was
negligent because he did not follow these suggestions.
It is trite
however that this is not the test for negligence. The proper approach
is to consider each case upon its own facts,
and to be guided by the
principles set forth in matters such as
Van Wyk v Lewis
where
Wessels JA said the following:
‘
We cannot
determine in the abstract whether a surgeon has or has not exhibited
reasonable skill and care. We must place ourselves
as nearly as
possible in the exact position in which the surgeon found himself
when he conducted the particular operation and we
must then determine
from all the circumstances whether he acted with reasonable care or
negligently. Did he act as an average surgeon
placed in similar
circumstances would have acted, or did he manifestly fall short of
the skill, care and judgment of the average
surgeon in similar
circumstances? If he falls short he is negligent.’
[62]
122.
The plaintiff, having raised the discussion set forth in Dr
Mwangalawa’s report, is constrained to take the good with
the
bad. The bad part for the plaintiff is that Dr Mwangalawa, in his
conclusion, supports the course of conduct followed by Dr
Kaschula in
more fervent terms perhaps, than any of the other experts. His
conclusion (in the absence of the benefit of the first
CT scan) reads
thus:
‘
The diagnosis of
TB spine was correct and appropriate treatment was given to A G.
The pain in the legs and
the limping was due to pathology in the spine. Her spinal cord was
compromised by the disease process.
The
development of complete paraplegia of A G cannot be attributed to
negligence of the surgical team or nursing staff at Frere
Hospital
(emphasis added).’
123.
To my mind,
facts agreed by the experts enjoy the same status as facts which are
common cause on the pleadings or facts agreed in
a pre-trial
conference. Litigants are not at liberty, as a matter of principle,
to repudiate opinion agreements which have been
reached in the joint
minutes of experts. In my view then, concessions made by experts
called by one party in favour of the views
of the experts for the
opposing side, should enjoy the same status. Whilst it is always so
that the evidence of expert witnesses
cannot be allowed to usurp the
function of the trial court, the circumstances in which a trial court
will find itself bound to
reject agreements of experts from opposite
sides, are rare.
[63]
The
factual witnesses
124.
It is with this approach in mind that I turn to the contention that
(based on the evidence of the plaintiff and her two relatives),

negligence causing paraplegia has been proved on a balance of
probabilities.
125.
Dr Counihan concluded that his comparative study between the CT scan
before the first surgery and the MRI scan thereafter shows
that the
plaintiff did not present with active spinal TB before the first
operation. I have some difficulty in understanding the
contention on
the plaintiff’s behalf, that this conclusion is unconvincing
and militates against the “factual version”
presented by
the plaintiff, P and Mrs Z. I say so because none of the plaintiff’s
factual witnesses suggested that the plaintiff
presented with active
spinal TB before the first surgery. On the contrary, I gained the
distinct impression that these witnesses
were making their best
endeavours to distance themselves as far as possible from any
suggestions that the plaintiff suffered from
(or was treated for) any
form of TB both before and after the first operation, or at all for
that matter. I have been invited on
the plaintiff’s behalf to
disregard Dr Counihan’s evidence “in consequence of the
first-hand factual evidence”
presented by the plaintiff and her
relatives. The effect of this is that I must:
a. Accept the plaintiff’s
version that she did not suffer from and was not treated for TB
before the first surgery (because
this is what she says);
b. Alongside this
acceptance, find as a fact (without taking into account the expert
evidence or radiological evidence) that the
plaintiff was suffering
from active TB just before, and presumably during the first operation
(despite the fact that this was not
pleaded).
126.
In my view
this type of approbative and reprobative reasoning is void of any
logic and has no basis in law. Indeed, I prefer the
plaintiff’s
contention, that in medical actions, where the reasonableness of a
defendant’s conduct has to be decided
on the basis of expert
medical evidence, the court should attempt to determine whether the
opinions are founded on logical reasoning.
[64]
127.
The onus is on the plaintiff to prove her case on a preponderance of
probabilities. In her
pleadings
she avers that she:
a. Approached the
hospital with
painful knees
and a limp on 10 January 2011;
b. Was told that she
should undergo spinal surgery as the preferred treatment for her
condition;
c. On 5 February 2011 a
posterior fusion of T2 to T7 with onlay bone graft chromos and skin
clips for closure was performed on her
by Dr Kaschula.
d. This surgery was
negligent and rendered her paraplegic.
128.
The plaintiff and her two relatives (on whom it is contended I should
rely exclusively, reject the evidence of the medical
staff who dealt
with her at the time and any contemporaneous recordings, and ignore
any comments made on her condition by experts
who were granted the
opportunity to consider hospital records from before, during and
after the first operation), were not entirely
candid with this court.
I have already dealt with their evidence fully. I will highlight a
few instances of concern to me:
a.
The
plaintiff and her witnesses have denied in the strongest possible
terms that she suffered from any pain whatsoever when she
was
admitted. This denial is persisted with, notwithstanding that the
existence of pain is mentioned in her pleadings, is recorded
to have
been mentioned by her in her consultations with experts on both
sides
[65]
, and is recorded to
have been mentioned by her in copies of contemporaneous hospital
records (which I am invited to exclude as
inadmissible hearsay) which
the plaintiff has had at her disposal since the time she removed her
own folder from the hospital (at
the time of the surgery).
[66]
b.
The
plaintiff and her relatives disown any direct or indirect knowledge
of or treatment for TB either before, during or after the
surgery.
They also insist in their evidence that the plaintiff was wheeled
from the first surgery in a completely paraplegic state.
This,
despite the fact that the report of the plaintiff’s orthopaedic
surgeon (dated March 2016) states that (a) a surgical
procedure was
performed on her left leg in 2006 and a diagnosis of
TB
was made; (b) when she was transferred to Frere Hospital she had been
experiencing right knee
pain
which had been present for two weeks
;
(c) post operatively she could not move her toes and had bladder and
bowl problems which appeared to subside; (d) she was not
given
crutches and had to be carried to the car by her sister (this could
only have come from the plaintiff and her relatives but
is
contradicted by their oral evidence where they say that the plaintiff
had to be wheeled in a wheelchair to the car that was
taking her
home)
[67]
; (e) only a month
later she told Dr Kaschula that she had lost
sensation
in her
legs and was suffering from urinary incontinence (in her evidence the
plaintiff claimed urinary incontinence at the time
that she was
wheeled from the first surgery); (f) it was only after the
second
surgery on 9 December 2011, that she was rendered completely
incontinent and paraplegic.
[68]
Indeed the report of orthopaedic surgeon Dr Mwangalawa categorically
states the following:
‘
In her past
medical history, A was treated for tuberculosis of the left leg in
2006, and in November 2010 she had an abscess of
the left leg, which
was treated with debridement and antibiotics.’
c.
It is
significant that Dr Mpotoane (who was the only expert called by the
plaintiff), when he consulted with the plaintiff and her
family in
November 2014 and had the copies of the medical records which she
took from her file at his disposal, records that the
plaintiff and
her family told him that the plaintiff had no history of spinal
disease, meningitis, mental illness or epilepsy prior
to her
admission in 2011. His report is silent on what the plaintiff and her
relatives had to say about TB, which is something
which I would have
expected the good doctor to have canvassed with her,
particularly in the light of his disconcerting evidence
“
that
every black man in this country, at one stage or another, has had TB,
not knowing
”,
and more particularly in the light of the fact that the medical
records which the plaintiff gave him stated clearly that
she was seen
and admitted as “a follow up” who had previously been
seen with TB of the
left
leg in
2006 and was treated at Frere Hospital for six months.
[69]
The notes further state that she was also seen with a new abscess on
9 November 2010 which was drained and treated with oral antibiotics

and that when she visited the hospital in January 2011, she
complained of a
painful
right leg, pins and needles and a limping gait.
It
is furthermore significant that Dr Mpotoane’s report refers to
spasticity in both legs (as opposed to paraplegia) after
the first
surgery. It is with this information at his disposal that Dr Mpotoane
commented in his report that one
may
only assume
that
something negative happened during the procedure resulting in spinal
cord injury.
d. It is contended on the
defendant’s behalf that in truth, the testimony of Dr Mpotoane
served only to confirm the absence
of any prima facie case on the
part of the plaintiff, and to lend support to the defendant’s
defence that the plaintiff’s
paraplegia was caused by the acute
khyphotic deformity of her spine brought about by spinal TB. During
cross-examination Dr Mpotoane
was challenged about his assumption
that something had gone wrong during the surgery. In response, he was
constrained to concede
that there was no evidence to suggest that
something negative had transpired during the first procedure
resulting in spinal cord
injury.
129.
I am inclined to agree that having made that concession, there was
nothing left of the plaintiff’s case that the operation,
or
something which happened during the course thereof, caused the
paraplegia.
130.
As stated on the defendant’s behalf, the adoption of this
approach of making assumptions would at best for the plaintiff
mean
that she is attempting to apply the
res ipsa loquitur
(the
thing speaks for itself) maxim to the facts of her case. With respect
to the application of this maxim, Ponnan J said the following:
‘
Thus, in every
case, including one where the maxim
res ipsa loquitur
is
applicable, the enquiry at the end of the case is whether the
plaintiff has discharged the onus resting upon her in connection
with
the issue of negligence … That being so, and given what Holmes
JA described as the “evolved mystique of the maxim”,
the
time may well have come for us to heed the call of Lord Justice
Hobhouse to jettison it from our legal lexicon. In that regard
he
stated in
Ratcliffe v Plymouth and Torbay Health Authority
[1998] EWCA Civ 2000
(11 February 1998):
“
In my judgment the
leading cases already give sufficient guidance to litigators and
judges about the proper approach to the drawing
of inferences and if
I were to say anything further it would be confined to suggesting
that the expression
res
ipsa loquitur
should be dropped from the litigator’s vocabulary and replaced
by the phrase a
prima
facie
case.
Res ipsa
loquitur
is
not a principle in law: it does not relate to or raise any
presumption. It is merely a guide to help to identify when a prima

facie case is being made out. Where expert and factual evidence has
been called on both sides at a trial its usefulness will normally

have long since been exhausted.”’
[70]
131.
It is trite that to hold a surgeon negligent simply because something
had gone wrong during the course of surgery would be
to impermissibly
reason backwards from effect to cause. But in any event, this is not
the plaintiff’s case. The plaintiff
is seeking an order in her
favour because it is
assumed
(based on the aforesaid maxim)
that something
must have
gone wrong during the course of the
surgery.
132.
Broadly
stated, the maxim is nothing more than a convenient Latin phrase used
to describe the proof of facts which are sufficient
to support an
inference that a defendant was negligent and thereby to establish a
prima facie case against him. The maxim is no
magic formula. Nor is
it a presumption of law. It is merely a permissible inference which
the court may employ if upon all the
facts it appears to be
justified. The maxim alters neither the incidence of the onus, nor
the rules of pleading, it being trite
that the onus resting upon a
plaintiff does not shift.
[71]
133.
It is therefore necessary for the plaintiff, if she were to succeed,
to have produced positive prima facie evidence of both
causation and
negligent conduct, neither of which she has thus far been able to do.
134.
It is not in dispute that Dr Christoffels completed the plaintiff’s
inter departmental referral form on 6 January 2011
when she was
admitted. The point taken on the plaintiff’s behalf is rather
that Dr Christoffels, by his own admission, had
no independent
recollection of the plaintiff and could not remember where he had
obtained the information which he recorded. This
may well be so.
However, in the light of the fact that a copy of this document was
discovered by the plaintiff, and due regard
being had to the
contention that it was not returned to the defendant’s servants
post removal, the only possible inference
in the circumstances is
that the historical information which is recorded here either
emanated from the plaintiff and/or her relatives
and/or from
historical records kept by the hospital. A further compelling
inference is that the contemporaneous information (stating
that the
plaintiff is now complaining of right leg pain and paraesthesia)
could only have come from the plaintiff and/or her guardians.
135.
Sister Tshengu testified regarding her own progress notes made four
days after Dr Christoffels admitted the plaintiff. Once
again
reference is made to pins and needles of the right leg
(paraesthesia). This time the plaintiff is recorded to have been
complaining of pain to both her legs. Sr Tshengu confirmed (from her
contemporaneous notes) that by 28 January the CT scan results
had
been seen by the “doctors” and were tabled for discussion
with Dr Kaschula the following week. I have already discussed
what Sr
Tshengu meant when she recorded the words “warm, pink, moving
with sensation present”.
136.
As I have said, all this information was rejected outright by the
plaintiff and her witnesses as a pack of lies. It is perhaps

convenient at this juncture to traverse why I have already referred
to the clinical records which the plaintiff contends ought
to be
ruled inadmissible.
Hearsay
137.
The defendant has applied for those portions of the medical records
in connection with which the authors of the entries were
not called
to testify and which were not formally admitted as the truth, to be
received as admissible hearsay in terms of section
3(1)(c) of the
Evidence Act.
138.
The relevant section provides as follows:
‘
Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless –
…
.
(c) the court having
regard to -
(i) the nature of the
proceedings;
(ii) the nature of the
evidence;
(iii) the purpose for
which the evidence is tendered;
(iv) the probative value
of the evidence;
(v) the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a
party which the admission of such evidence might entail; and
(vii) any other factor
which should in the opinion of the court be taken into account,
is of the opinion that
such evidence should be admitted in the interests of justice.’
139.
These are civil proceedings. Apart from Dr Kaschula, none of the
factual witnesses which were called appeared to have an independent

recollection of the plaintiff.
Aide memoires
such as these can
turn out to be invaluable particularly when witnesses are expected to
cast their minds back to what may have transpired
in a very busy
hospital close on seven years previously, when litigation was not in
contemplation. As stated by the defendant’s
counsel, given the
contemporaneous nature of such notes and records, they are not
susceptible to the vagaries of the frailty of
human memory. It has
also been contended on the defendant’s behalf that
contemporaneous notes allow little room for
ex post facto
adjustment or tailoring of the evidence to suit the defendant’s
case. I agree. This is particularly so when copies of the notes
are
produced by the plaintiff and not the defendant. It has also,
importantly in my view, been contended that the notes are
predominantly
made by nurses in a claim where the accusation of
negligence is made against the operating surgeon rather than the
nurses involved.
It is in any event so that all the expert witnesses
have to a greater or lesser extent relied on these medical records
(or their
absence for that matter) in arriving at their conclusions,
including the three expert witnesses who prepared reports on the
plaintiff’s
behalf. Reference was made to these notes by both
counsel during the course of the trial before me. As I understand the
position
in any event, the main purpose of tendering this evidence is
to corroborate the cogent radiological evidence obtained at the time.
140.
As I have said, when Dr Christoffels and Sr Tshengu were called to
testify regarding some of their notes, they were challenged
in the
main regarding whether they were in a position to confirm that that
which is recorded in the folder pertains to the plaintiff
before me.
They were not seriously challenged with respect to issues such as
credibility and accuracy. In the premises I am inclined
to agree that
for the defendant to have called each and every person who made an
entry in the plaintiff’s folder, only for
those persons (in all
probability) to confirm their entries by rote, would amount to an
inordinate waste of time and resources.
141.
As I have
said before, the plaintiff has displayed a tendency to both approbate
and reprobate. Her resistance to the admission of
that which she
herself sourced from her own hospital file is an example of this. The
plaintiff cannot be seen to have her cake
and eat it. Whilst I am of
the view that the plaintiff already faces an insurmountable challenge
in proving her claim, admitting
this medical evidence would have the
effect of “completing the mosaic of the defendant’s
case”
[72]
. In my view
then, the interests of justice dictate the admission of the evidence
reflected in the medical records (referred to
at the beginning of
this judgment) where such evidence has not been orally confirmed by
the authors thereof, or where such evidence
has not been tendered by
consent, and the evidence is so admitted.
142.
Having said that, I am inclined to view the argument about the
admission of this evidence as a bit of a storm in a teacup.
The
records which have either been admitted or confirmed by
viva voce
evidence, have, in my view in any event sufficiently established
the “pattern of the mosaic”, which is simply this:
a. That the plaintiff had
visited Frere Hospital before and that she was treated for TB;
b. That the plaintiff was
in pain and suffering from paraesthesia when she was admitted;
c. That within four days
of her admission (and before the first surgery), the pain had
progressed from her right leg to her left
leg as well;
d. That some three weeks
post her admission, a CT scan had been done and had been studied by
doctors to be discussed the following
week with Dr Kaschula;
e. That immediately after
her surgery the plaintiff’s vitals were normal and she was able
to feel and move her limbs.
143.
The documents which have been ruled admissible simply corroborate
that which I have set forth above, and in particular Dr Kaschula’s

version that the plaintiff would only have degenerated into a
definitive state of paraplegia some time after she was discharged

from the first operation, and shortly before the second one.
144.
It has
further been contended on the defendant’s behalf that the
patient information computer printout from the hospital’s

computer system or database complies with the definition of a data
message as referred to in section 15 of the Electronic Communications

and Transactions Act 25 of 2002 (“ECTA”), and is
accordingly admissible in evidence and proof (albeit rebuttable) of

the facts contained in the record. Ms Nxelewa
[73]
spent some time in the witness box explaining the status of hospital
folders and how data is captured and stored. She described
the
patient information form as a computer printout which explains the
“in- and out-goings” of the patient. This evidence
was
not significantly challenged. As I have said before, it is in any
event abundantly clear from the printout that it relates
to the
plaintiff. It reflects the same folder number reflected in all the
hospital records and reports before this court. It correctly
reflects
her name, surname, gender, address, status, occupation and the
particulars of her mother. Significantly, it confirms the
clinical
records that the plaintiff was admitted to the casualty ward of Frere
Hospital during the previous year for surgical purposes.
It also
reflects that between the first and second surgery, the plaintiff
visited the hospital on no less than ten occasions.
145.
As I have
said, the plaintiff and her relatives did not impress me as
witnesses. On the other hand, Dr Kaschula made a favourable

impression on me as a factual witness who was required to recall what
happened almost seven years ago in a particularly busy public

hospital.
[74]
He struck me as
a conservative, dedicated and hard working medical practitioner,
who had been rendered both vulnerable and
devastated by claims
impacting on his work ethic and his conduct.  He was careful not
to blame the plaintiff for the disappearance
of the medical records
and his notes. When I asked him if he would, with hindsight, have
operated differently, his spontaneous
response was the following:
‘
Certainly not as
far as my clinical decision making was concerned. Looking back in
hindsight, I would be much more inclined to photostat
my clinical
notes - to have my own copies in all cases where there is a potential
controversy. But it is very difficult to work
out which cases are
going to be controversial and which are not … I consider my
clinical decision making in this case to
be faultless. It was - in
this context it was unfortunate that the patient disappeared for
follow up after the second operation,
because I would certainly have
considered sending her down to Cape Town for a second opinion, but
was unable to do so, because
she simply was not available to me. …
There are more extensive surgical procedures that can be done …
to certainly
correct the kyphotic deformity … So there is
certainly scope to consider a third procedure, but as I say this
would have
been a highly sophisticated spinal operation, which only
three or four surgeons in the country could have done.’
146.
Dr Kaschula
explained that the plaintiff was kept in hospital pre-operatively for
a long time because they were, amongst other reasons,
waiting for the
results of the CT scan. They did not want to send her home in the
interim because they were concerned about the
stability of her spine
and deemed it appropriate that she should be kept on strict bed rest,
which is very difficult at home, particularly
with a young child. Of
particular significance in my view, was Dr Kaschula’s concern
that if he did not perform the first
operation timeously, the
plaintiff would develope
cor
pulmonale.
He explained that the clinical problem of
cor
pulmonale
in the context of this case is that when the spine collapses further
and further it compresses the space available for the patient
to
breath. This can sometimes lead to heart failure.
[75]
147.
I have already dealt in detail with Dr Kaschula’s testimony. As
the doctor who performed the impugned surgery, his evidence
regarding
the issue of causation is important. To my mind he provided a far
more credible factual version of the events than that
provided by the
plaintiff and her guardians. Notwithstanding the absence of his
notes, it is significant that his evidence was
corroborated in every
material respect by that which is reflected in the nursing records
and the radiology reports and images.
By contrast, the evidence of
the plaintiff and her witnesses was contradicted in material respects
by the medical records and images.
148.
Mr Dodson
for the defendant has set forth a list of the features of Dr
Kaschula’s evidence which bear emphasis. I agree with
the list
and repeat it in shortened form with some additions:
[76]
a. His description of the
seriousness of the plaintiff’s condition upon admission is
supported by the medical records and
the images.
b. His diagnosis of
healed spinal TB (as opposed to a bone which had become loose in her
back as suggested by the plaintiff) is
supported by all the expert
evidence and the radiological images, particularly by the CT scan of
20 January 2011 (“the first
scan”).
c.
His
acknowledgment of TB is supported by his prescription of Rifafour
[77]
as reflected in the medical records.
d. His explanation for
doing this as a precautionary measure, despite his view that the TB
had healed, has not been criticised by
the experts.
e. His denial of having
promised the plaintiff that she would walk again, is borne out by the
very clear and compelling evidence
of the extent of the compromise of
her spine from before the first operation.
f. Dr Kaschula gave a
lucid account of the first surgery and confirmed that there were no
complications. He did not enter the spinal
canal, the dural sac or
the spinal cord. He did not interfere with the blood vessels
supplying the spinal cord. The post-operative
records reflect that
there were no complications and that all the plaintiff’s vital
signs were normal.
g. He confirmed that all
patients are catheterised prior to surgery. This is standard
practice. The plaintiff’s version that
she was not catheterised
(which version vascilated to some extent) is highly improbable and is
belied by the nurses’ notes.
His evidence, that if the
plaintiff was paraplegic her catheter would not have been removed (as
per the medical records) is logical
and sensible in the
circumstances.
h.
This
applies too, to his evidence that it is unlikely that the plaintiff
would have been able to master a wheelchair four to five
days after
having been rendered acutely paraplegic.
[78]
This process would have taken two to three weeks if she was
paraplegic, and would have been further delayed by interaction with

the family and lessons on how to master the wheelchair which would
have taken several weeks.
i. Kaschula explained
that the plaintiff’s discharge was delayed because she had a
massive spinal deformity before the surgery,
resulting in decreased
neurological function causing paraparesis. There is nothing
improbable, unreasonable or illogical about
this explanation.
j. Dr Kaschula explained
that he was responsible for the Monday clinics which the plaintiff
attended after the first operation (this
is confirmed by the medical
records and the computer printout). The records and his evidence
contradict the plaintiff’s version
that he simply ignored her
and that she was shoved from pillar to post.
k.
Dr Kaschula
himself testified to her gradual deterioration from having been able
to walk with difficulty initially to not being
able to walk by
September 2011 when she was provided with a wheelchair.
[79]
l. There is no criticism
of his evidence regarding the decision making process around and the
conduct of the second surgery.
m. He disputed having
told the plaintiff and her witnesses that there was a mistake in the
first operation which necessitated a
second operation which would
make her walk again.
n.
His
version, that there was no abscess in the spinal canal when he
operated (as suggested by the plaintiff’s counsel) is confirmed

by the medical records, the radiological records, and the expert
witnesses on both sides.
[80]
o. In the light of Prof.
Vlok’s evidence (that in the absence of an abscess the activity
or otherwise of TB plays no role
provided that TB medication had been
taken for 24 hours), the course of conduct followed by Dr Kaschula
cannot and did not attract
any criticism.
p. Much was made of Dr
Kaschula’s alleged failure to determine finally and
conclusively whether or not there was active TB
before he proceeded
with the surgery. I accept that the steps which he did take were
sufficient to reasonably exclude such a possibility.
But even
if I am not correct, in my view it made no difference to his surgical
decision making. I say so because it is clear
from his evidence (and
his reasoning is supported in this regard) that the main thrust of
the surgery was to address the abundantly
clear mechanical failure of
the spine, regardless of its cause. This was a manifestly reasonable
approach to adopt. Doctor Mpotoane
conceded that much.
149.
In view of what I have already said, I am inclined to prefer the
evidence of Dr Kaschula, and in particular where it conflicts
with
that of the plaintiff and her lay witnesses.
150.
In the premises I agree with the defendant’s counsel. Despite
the wealth of lay and expert evidence and the detailed
written
argument filed, the solution to this tragic case is largely revealed
by a single item of evidence. That is the CT scan
of the plaintiff’s
spine taken on 20 January 2011. It is not disputed that this CT scan
reveals, pre-operatively, the plaintiff’s
severely kyphotic
spine showing all the hallmarks of the catastrophic damage caused to
the vertebrae by extra-pulmonary or disseminated
spinal TB. It is not
in dispute that the disease it depicts the plaintiff to be suffering
from is one of the highest causes of
paraplegia in South Africa. It
has for centuries been recognised as the highest cause of paraplegia.
151.
This being the case, and in the light of my views on the evidence as
a whole, the plaintiff has failed to establish a prima
facie cases
against the defendant. Even if I am not correct in this regard, it is
abundantly clear that any testimony from the
plaintiff which may be
suggested to have established a prima facie case, has been
successfully rebutted by the clear, concise,
credible and persuasive
evidence of Dr Kaschula, materially corroborated by members of the
Frere Hospital staff, and their notes,
and most importantly
extensively corroborated by the independent radiological evidence of
Dr Counihan and the independent views
of Prof. Vlok. There is no
indication that these witnesses, with their wealth of experience and
expertise, were in any way biased
or that they unduly favoured the
defendant’s case.
Informed
consent
152.
The plaintiff amended her particulars of claim to introduce as an
“alternative” ground of negligence, an alleged
failure to
obtain the requisite informed consent for the surgery. Having found
that the operations did not cause the plaintiff’s
paraplegia,
the issue of informed consent becomes academic. Even if the evidence
were to show that the consent was somewhat wanting,
no damages flow
from the surgery.  The plaintiff must demonstrate that she was
not only inadequately or improperly informed
of all the possible
consequences, side effects, risks and sequelae of the surgery, but
also that one or more of the things that
could possibly have gone
wrong, did go wrong. This is not the case before me. Negligence in
the air is insufficient. Differently
stated, the defendant has placed
no reliance in her plea or in the evidence tendered on a notion that
the plaintiff consented to
a risky operation, which risk then
materialised. The defendant’s case, as pleaded and presented
throughout (which evidence
has been accepted by this court) is that
the plaintiff’s paraplegia was caused by her kyphotic spine
(which developed as
a consequence of her having contracted spinal
TB).
Conclusion
153.
The plaintiff’s story is a tragic one. The position she finds
herself in is most unfortunate. That goes without saying.
However, it
has not been shown that the defendant’s servants are
accountable. On the contrary, the probabilities are that
this tragedy
befell her when she contracted TB at a much earlier stage, and long
before she reported to Frere Hospital in January
2011.
154.
Counsel for the defendant has referred me to a portion of the
judgment of  Denning LJ in
Roe v Ministry of Health
,
which merits repetition:
‘
But we should be
doing a disservice to the community at large if we were to impose
liability on hospitals and doctors for everything
that happens to go
wrong. Doctors would be led to think more of their own safety than of
the good of their patients. Initiative
would be stifled and
confidence shaken. A proper sense of proportion requires us to have
regard to the conditions in which hospitals
and doctors have to work.
We must insist on due care for the patient at every point, but we
must not condemn as negligence that
which is only a misadventure.’
155.
I make the following order:
Order
1. The plaintiff’s
claim is dismissed with costs.
2. These costs include
the costs of:
(a) two counsel;
(b) the costs of the
expert witnesses Professor Vlok and Doctor Counihan, including their
reasonable qualifying, consultation, preparation
and appearance fees,
and their reasonable travelling and accommodation expenses.
______________________
I.T.
STRETCH

14 August 2018
Judge
of the High Court
Date
handed down:    14 August 2018
For
the plaintiff:
GJ
Strydom SC and N Zedwala
Instructed
by Dudula Attorneys
Care
of Mlonyeni & Lesele Inc.
King
Williams Town
For
the defendant:
AC
Dodson SC and N Nabela
Instructed
by The State Attorney
[1]
Dr Kaschula is a medically qualified specialist orthopaedic surgeon
who qualified as a doctor in 1988, commenced his career
in
orthopaedic surgery in 1994 and commenced specialising in this field
in 2009. Since then he has been the designated spinal
surgeon at
Frere Hospital.
[2]
According to Dr Kaschula the plaintiff probably became unable to
walk altogether around September/October 2011.
[3]
A forward rounding of the back commonly referred to as a hunchback.
[4]
A CT scan taken on 20 January 2011 depicts what is described in the
report thereon as a kyphotic spine.
[5]
According to the report of the plaintiff’s orthopaedic expert,
Dr Schnaid, the plaintiff was transferred from Gateway Clinic
to
Frere Hospital on 6 January 2011. As there are no medical records
which speak to this transfer, the probabilities are that
this
information came from the plaintiff and/or Phumza who accompanied
her when she consulted with Dr Schnaid on 24 March 2016.
[6]
Phumza confirmed the plaintiff’s evidence to the effect that
Dr Khashula had told them that he intended performing
back surgery
on the plaintiff because of a bone which may have moved. According
to Dr Kaschula he had described this surgery
to Phumza as a risk
free bone graft procedure which may have been of assistance to the
plaintiff, but probably would not be.
Phumza agreed that the doctor
had told her that the surgery would be risk free, but disputed that
he had said that it probably
would not assist the plaintiff. She
said he advised her that the surgery would be helpful. She denied
that Kaschula had explained
anything to them about spinal TB.
[7]
Mrs Z explained that she signed the consent form because Dr Kaschula
had told her that if the plaintiff’s problem was not
attended
to, her condition would deteriorate. She said that according to Dr
Kaschula, there was something causing the limping
(a bone which
seemed to have moved) which had to be fixed. The doctor said that if
she wanted the plaintiff to “walk again”
she must sign
the consent form. The doctor did not tell her that the plaintiff had
TB. According to Dr Kaschula, the plaintiff
was mobile before the
first operation, albeit with such difficulty that she was unable to
mount the scale in order to be weighed.
His evidence was that he
could not, and would not have used terminology such as “walk
again” in the circumstances.
[8]
Mrs Z and Phumza corroborated the plaintiff’s evidence that
she walked before the first surgery but was unable to do so

immediately thereafter. According to Phumza they had to use an
office chair with wheels to mobilise the plaintiff at home. When
she
enquired from Dr Khashula why the plaintiff could not walk, he told
her that the operation was “still new, everything
would be
okay thereafter.”
[9]
Phumza explained that Dr Khashula had told her that they had made a
mistake during the first surgery because a bone in the plaintiff’s

back had moved and that they intended to rectify it. He said that
they could do this because the plaintiff was still young. He

promised her that the plaintiff would be able to walk thereafter.
According to Phumza, the restoration of the plaintiff’s
status
quo ante as described by the plaintiff and her witnesses, was a
condition precedent to her consent to the second surgery.
[10]
The plaintiff’s expert witness, Dr Mpotoane, testified that
when he consulted with the plaintiff, the records she made
available
to him confirmed a history of right leg TB going back as far as
2006, and that a right knee abscess was drained during
November
2010. Upon clinical examination Dr Mpotoane found multiple healed
scars on both knees.
[11]
In this regard Dr Christoffels confirmed that he was the author of
the entries on this page of the inter-departmental referral
form in
the paediatric outpatients department. Although the doctor appears
to have no independent recollection as to the identity
of the
patient he was dealing with or the source of the information which
he had he recorded, it is significant that the folder
number, the
names and the date admittedly relate to the plaintiff.
[12]
This
statement is obviously wrong. It is not in dispute that the first
scan was done on 20 January 2011, before the first surgery.
[13]
Professional nurse Sister Tshengu who was working in the plaintiff’s
ward (G5) at the time and who had made certain entries
in what was
submitted to have been her clinical records, testified that the
entry referring to the chasing of bloods meant that
the blood had
already been taken and that the results were outstanding and needed
to be expedited.
[14]
According to Sister Tshengu these entries (which she said she had
made contemporaneously) meant that the plaintiff was able to
move
her toes and her fingers. She said that she would have asked the
patient to move the extremities of all four limbs and would
have
observed whether she was able to do so. She would not simply have
relied on the patient’s say-so.  She would
also not have
“lied” and documented something which she had not
observed. If the patient failed this test she would
have reported it
to the doctor because it is an “abnormality”. She would
also have made a note of it. Tshengu explained
that what she had
noted and testified about was standard post-operative care, and that
they had been trained to do this.
She said that “logrolling”
was done with all spinal patients. This procedure was later
confirmed by Prof. Vlok who
was called as an orthopaedic expert on
the defendant’s behalf.
[15]
The report of Dr Mpotoane (the plaintiff’s expert witness)
reflects that when he consulted with the plaintiff and Phumza
during
November 2014, Phumza told him that the plaintiff did not suffer
from urinary incontinence up until after the second surgery.

According to Dr Kaschula permanent catheterisation was only
recommended and performed three years post-operatively. This would

accord with the patient information form, which reflects that the
plaintiff was admitted to Frere Hospital on 14 and 19 May 2014

(ostensibly for this purpose).
[16]
The deputy director (general administration) of Frere Hospital was
called to confirm that patients were not entitled to remove
their
folders from the hospital. In special cases lawyers were permitted
to copy records and had to pay an access fee. Alternatively,
the
hospital manager could arrange for copies of records to be made
available to a patient. She explained that there were notices
posted
in the hospital making it clear that the green folders were hospital
property and that patients were not entitled to remove
them from the
premises. She testified that the plaintiff’s entire folder had
disappeared from the filing room, never to
be seen again. It appears
to be common cause that the clinical notes referred to at the trial
by both parties were copied from
the copies which Phumza had made
when she took the plaintiff’s file home.
[17]
In this regard much of the trial was devoted to accusations and
counter accusations with respect to the absence of certain records.

It is the plaintiff’s case that the defendant’s staff
failed to keep accurate and full records. It is the defendant’s

case that relevant portions of the hospital records had gone missing
and that it was suspected that they were removed from the

plaintiff’s folder when Phumza was given the file to take
home. It is neither necessary nor appropriate at this stage to
rule
on this thorny and sensitive issue. The fact is that certain records
which may well have been of some assistance to this
court, were no
longer available at trial stage.
[18]
In this regard Kaschula explained that at that stage, he was
consulting with an average of 60 patients per day. He regarded the

plaintiff as an emergency with respect to intervention rather than
time. Differently put, his words were that the necessity to
operate
was an “imperative”.
[19]
During cross-examination Dr Kaschula added that even if the
plaintiff was suffering from active TB, his approach would have been

no different. In such circumstances he would have aggressively
determined the presence or otherwise of an intra-dural abscess
in
the spinal canal. If the plaintiff was suffering from active TB and
presented with an intra-dural abscess he would also have
performed a
vertebral cross-vasectomy (draining of the abscess) during the first
surgery, because determination of the presence
of an intra-dural
abscess independently is an aggressive procedure which further
destabilises the spine. He further mentioned
that active TB in
itself could also result in paraplegia.
[20]
A consent form for a 3D scan dated 13 January 2011 purports to have
been signed by one Phumza Z (described as the patient’s

sister) on behalf of one A Simayile.
[21]
According to Dr Kaschula a posterior fusion was aimed at preventing
the spine from collapsing further by “creating a bony
block
posteriorly that braces the spine as it were.” TB spine is the
only condition that indicates this type of surgery.
It is not done
for any other reason and he himself had never done it for any other
reason.
[22]
Dr Kaschula testified that during 2011 Frere Hospital did not have
scanning facilities. Scans were done by private radiologists
with
rooms at St Dominics Hospital. Hospital patients did not pay for
these scans. They are expensive, ranging between R15 000
and
R20 000 per scan.
[23]
Dr Kaschula explained that the plaintiff was detained at the
hospital for ten days post-operatively as he was concerned about
her
spinal stability. Her procedure had been elective and he wanted her
to have strict bed rest.
[24]
The patient information form confirms that the plaintiff attended
Frere Hospital on 1 March 2011 for   medical reasons.
[25]
This evidence coincides with an entry in the patient information
form, which reflects that the plaintiff was indeed hospitalised
in
the orthopaedic section from 19 to 23 September 2011.
[26]
Dr Kaschula, who maintained that he had an independent recollection
of this case, described it as an unusual, exceptional and

significant one, which lends itself to recall. The plaintiff was the
oldest patient that he had ever performed this type of fusion
on.
This type of fusion is typically performed on very young children,
usually between the ages of two and seven. The reason
for this is
that fusion in young children will allow for the vertebrae to grow.
By the time the patient has reached the age of
11 the surgeon is on
his “last legs with surgical options”. The patient only
has about three years of growth remaining.
He attributed the failure
of the first operation to achieve the results which he was hoping
for, to the plaintiff’s advanced
age and not to any particular
difficulties experienced during the surgery. Indeed, he described
the operation as one of the easiest
procedures in spinal surgery
(“nothing can go wrong”). He said that he had performed
about 30 similar but successful
operations on children between the
ages of two and seven. The plaintiff on the other hand, was in her
early teens at the time.
She was also the only patient on whom he
had performed this type of surgery, who presented with a
pre-existing neurological deficit.
Because of this and her advanced
age, he regarded her as an emergency patient.
[28]
A gibbus deformity is a form of structural kyphosis typically found
in the upper lumbar and lower thoracic vertebrae, where
one or more
adjacent vertebrae have become wedged. Gibbus deformity most often
develops in young children as a result of spinal
TB and is the
result of collapse of vertebral bodies (see Kasper D.L. et al
Harrisons
principles of internal medicine
16ed
2005 958; Garg, Ravindra Kumar, Somvanshi, Dilip Singh (2011-09-01)
Spinal
tuberculosis. A review: The Journal of Spinal Cord Medicine
34
(5): 440-454).This can in turn lead to spinal cord compression
causing paraplegia (see Ghandi, Aycock, Ryan, Berwald and Hahn

(2015):
Gibbus
Deformity: The Journal of Emergency Medicine
49
(3) 340-341).The gibbus deformity is marked by an especially sharp
angle. Viewed from behind, the resulting hunchback is more
easily
seen when bending forward. A kyphosis of more than 70 degrees can be
an indication of the need for surgery and these surgeries
can be
necessary for children as young as two years old, with a reported
average of eight years of age (see
Kyphosis:
Description and Diagnosis: Spine Universe.
Retrieved 2017-11-15).
[29]
Dr Counihan was the radiology registrar at Groote Schuur Hospital
and Cape Town University from 1987 to 1991.  In 1990 he
passed
the FF Rad (Diagnostic) S.A. of the College of Medicine of South
Africa. He worked as a full-time radiologist at Frere
Hospital (as
well as in private practice in a partnership in East London) from
1991 to 2015 (24 years). He retired from private
practice in 2015.
He claims to be extensively experienced in the field of spinal TB.
[30]
Dr Strydom’s report (which compared the MRI of 23 June 2017
with Dr Counihan’s  MRI report of 23 November 2011)

materially corroborates this finding. It also states that “there
does not appear to be interval change”.
[31]
Dr Mpotoane is a medically qualified specialist neurosurgeon with a
special interest in spine and pain pathology. He has been
in
practice since 2008
[33]
It is common cause that ‘the operation’ refers to the
first surgery.
[34]
However, later on in his evidence he conceded that a kyphosis is
evidence that the TB has been there for several months, and
that, on
a balance of probabilities, what one is dealing with here is spinal
TB.
[35]
Much later on in his evidence however Dr Mpotoane said the
following: ‘ … it does not necessarily mean that if I

happen to do an MRI I am wrong, or if he happens not to have done
it, he is wrong. It is an opinion, his line of thinking.’
He
agreed that it was not unreasonable for Dr Kaschula not to have
obtained a MRI scan, particularly in the light of the fact
that at
the time there were no MRI facilities available at both Frere
Hospital and at Cecilia Makiwane Hospital (its sister hospital
in
the area of East London).
[36]
In other words one does not necessarily know that it is working its
way through the system. It is because of this that persons
suffering
from the disease and its consequences only present for treatment
when the disease is at an advanced stage. Because
of its slow
development the disease could have been there for months to a year
without a person being aware of it. One may for
example be aware of
TB in the leg but unaware that it is present in another part of the
body as well.
[37]
In other words the symptoms become progressively worse over time.
[38]
This is manifested by disc collapse, destruction of the disc space
between adjacent vertebrae, destruction of the vertebral body
where
the thoracic vertebrae are affected, and anterior wedging of
adjacent thoracic vertebrae resulting in a gibbus deformity
or
kyphosis (an unnatural sharp bend in the spine) because of the
transmission of weight, creating a hunchback appearance.
[39]
Supra.  It is not in dispute that the scan was only located
after the trial had commenced, but sans the report. Dr Counihan
was
accordingly asked to report on the scan during the course of the
trial.
[40]
It is clear from the scan itself that T6 has disintegrated
completely leaving a union of T5 and T7. On the left side of the
spine anterior wedging (caused by the weight on the damaged tissue
of the vertebrae) with a loss of disc space is evident. Dr
Mpotoane
agreed that all of these are typical consequences of spinal TB, and
that as a differential diagnosis spinal TB would
have been “number
one” on his list.
[41]
In this regard Dr Mpotoane agreed that both scans showed features
typical of previous TB in the abdominal area (such as calcified

hilar nodes).  He could not however assume that because lung
images showed healed TB, that TB had healed in the spine by
the time
the first operation took place. This was because, in his words “…
every black man in this country, at one
stage or another, has had
TB, not knowing.”
[42]
In other words, it affects the spinal cord which in turn affects the
motor and sensory functions of the limbs.
[43]
It is common cause that late onset paraplegia is associated with
marked spinal deformities and that there is no guarantee that

treatment (whether it be in the form of chemotherapy or surgery)
will prevent paraplegia.
[44]
These being previous TB in the left leg, an abscess in the left
knee, pain in the right leg, paraesthesia, weakness of the lower

limbs, difficulty in walking and standing  and limping.
[45]
This opinion is documented in the joint minutes of Dr Schnaid (an
orthopaedic surgeon identified as the plaintiff’s expert)
and
Prof. Vlok (an orthopaedic surgeon identified as the defendant’s
expert) dated 27 November 2017.
[46]
Dr Vlok’s evidence and reports will be dealt with in more
detail in due course.
[47]
Dr Mpotoane opined that upon re-visits he would expect no
deterioration in the clinical picture and that he would then want to

do imaging to see whether what he was dealing with was increasing in
size or disappearing.
[48]
That is opening up the back and packing the bones as opposed to
cutting the bones back, shortening them, opening the chest, removing

the abnormal piece of bone, turning her back and putting in screws.
[49]
In this regard Dr Mpotoane explained that once a child presents with
TB of the spine the chances are that the deformity would
still
progress (whether addressed medically or surgically) resulting in
the development of further neurological problems, because
growing of
the spine may cause the deformity to get worse.
[50]
Prof. Vlok is a practising orthopaedic surgeon. He qualified with a
MB ChB degree at Stellenbosch University in 1970. He obtained
his
MMed (Orth) in 1976. During 1977 and 1978 he specialised in
orthopaedic surgery at Tygerberg Hospital. During 1978 he was
also
associated with the scoliosis clinic in the department of
orthopaedic surgery attached to the HF Verwoerd Hospital in

Pretoria. During 1980 he worked at the Robert Jones and Agnes Hunt
Orthopaedic Hospital in Oswestry (UK) in its department of spinal

disorders. During 1981 he returned to Tygerberg Hospital as
principle specialist in the department of orthopaedic surgery. From

1984 to 2012 he served as a professor at the University of
Stellenbosch and also as head of the department of orthopaedic
surgery
at Tygerberg Hospital. At the time of giving evidence he had
been in private practice in association with a neurosurgeon
specialising
in spinal surgery since 1991 (a period of 26 years).
[52]
Prof. Vlok explained that TB is very common in the anterior part of
the vertebral bodies. It affects adjacent disc spaces which
become
rotten and collapse. The TB forms a lot of puss (soft tissue mass)
which pours out causing a collapse. When the front
pillar of the
vertebral column collapses a kyphosis forms. He added that a patient
would normally suffer from more pain when
the spine collapses from
trauma or tumours. TB does not result in that much pain.
[53]
According to Dr Kaschula this was suggested to the plaintiff and her
family, but they refused further intervention.
[54]
Prof. Vlok explained that both the clinical notes and her blood
pressure recordings belied the suggestion that the plaintiff
was
completely paraplegic immediately after the first operation. The
blood pressure recordings showed that there was no insult
to the
spinal cord during the first operation.
[55]
Prof. Vlok explained that a “clinical” evaluation means
that in order to examine a patient’s legs, one examines
the
nervous system to see whether it is intact or not. That was why
spinal TB could be confirmed by X-rays and serological examinations.

Specimen results would only confirm TB in the acute phase, not after
it has healed.
[56]
According to Prof. Vlok anti-TB treatment would kill the micro
bacteria (which caused the disease to be contagious) within 24
hours
after which it would be safe to operate.
[57]
This is consistent with what Dr Kaschula said he would have done if
presented with an abscess.
[58]
See
Lee
v Minister for Correctional Services
2013
(2) SA 144
(CC) par. 37
[59]
In terms of
section 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
[60]
See
Schneider
NO and Others v AA and Another
2010
(5) SA 203
(WCC) at 211
[61]
By way of example, Dr Mpotoane who was called by the plaintiff
agrees that Dr Kaschula’s surgical decision making and
treatment of the plaintiff was reasonable.
[62]
1924 AD 438
at 461
[63]
The approach to be adopted was fully canvassed by Rogers AJA
(delivering judgment for the majority) in
BEE
v RAF
2018
(4) SA 366
SCA383 I to 384 F.
[64]
Michael
v Linksfield Park Clinic (Pty) Ltd
2001
(3) SA 1188
(SCA);
Medi-Clinic
Ltd v Vermeulen
2015
(1) SA 241
(SCA) paras 4-8.
[65]
See the reports of Dr Schnaid and Professor Vlok
[66]
On the plaintiff’s version, Phumza removed the plaintiff’s
personal medical folder from the hospital at the time
of the
surgery, took it home and made copies of some of its contents, and
then returned it. On the defendant’s version,
the folder was
empty. This resulted in the plaintiff discovering medical and
clinical records which would otherwise have been
in the possession
of the defendant.
[67]
This is particulary significant when viewed in the light of the
evidence given by the plaintiff’s expert Dr Mpotoane whose

version is that if the patient walked into the surgery with no pain
and she came out as a paraplegic in a wheelchair, one can
“assume”
that something went wrong during that surgery. This assumption is
not based on the defendant’s version.
Indeed, when it was put
to the doctor that the plaintiff’s unfortunate condition was
caused by a progressive khyphosis,
he said “If she was walking
after the operation and deteriorated, that is different. But if she
is in a wheelchair immediately
after the operation, that is a
problem.”
[68]
This is entirely consistent with Dr Khashula’s evidence, the
hospital and clinical records, the report and evidence of
Professor
Vlok and the reports and evidence of Dr Counihan.
[69]
In this regard the doctor’s clinical examination revealed
multiple healed scars on both the left and the right knees. Despite

these multiple healed scars it appears that the plaintiff told her
urologist, Dr Steyn, that she could not recall any injury
to the
leg.
[70]
Goliath
v MEC for Health
2015
(2) SA 97
SCA 104H-105A
[71]
Goliath
supra
103F-I
[72]
Extracted from
S
v Ndhlovu and others
2002
(2) SACR 325
(SCA) at para 44
[73]
The deputy director of general administration at Frere Hospital
[74]
Dr Kaschula testified that the outpatients clinic alone dealt with
on average, 200 patients a day, of which he would deal with
more
than 60.
[75]
Dr Mpotoane in his evidence gave a similar description. In the
circumstances of this case it seems that Dr Kaschula’s
intervention may well have been life preserving in the long term.
[76]
The heads of argument submitted by counsel on both sides have been
of invaluable assistance and I am indebted to them.
[77]
Rifafour is a combination of four drugs commonly used to treat and
cure TB.
[78]
The plaintiff’s version is that she was placed in and used a
wheelchair immediately after the first surgery.
[79]
The computer printout confirms that the plaintiff was admitted to
the orthopaedic section of the hospital from 19 to 23 September

2011.
[80]
Dr Kaschula testified that he could see that there was no active TB
in the bone due to the absence of a “salt and pepper

appearance” on the original X-ray and the first scan.