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[2016] ZAGPPHC 602
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P v Pretorius (74157/2013) [2016] ZAGPPHC 602 (14 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
14/7/16
CASE
NUMBER: 74157/2013
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
J
D
P
Plaintiff
and
DR
EUGENE
PRETORIUS
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiff instituted a claim for damages against the defendant on
the ground of medical negligence. As will appear in more
detail
infra,
the dispute pertaining to the medical negligence
in
casu,
centres around divergent views pertaining to the
conventional
versus
the alternative treatment of cancer.
[2]
During November 2010 the plaintiff was diagnosed with a stage 3
seminomatous germ cell tumor of the left testis (with metastases
to the lungs and pre-aortic area) ("the condition").
[3]
The plaintiff, after consulting an oncologist, decided to investigate
alternative treatment regimens and consulted the defendant,
a general
practitioner who provides Insulin Potentiation Therapy ("IPT").
[4]
It is common cause that the plaintiff was treated by the defendant
from November 2010 to February 2011. The plaintiff alleges
that the
defendant was from the inception of the treatment negligent and
claims an amount of R 700 000, 00 as damages suffered
due to the
defendant's negligence.
[5]
At the commencement of the trial, I was informed that the parties
have agreed to separate the issues of liability and quantum
and an
order to this effect was made. Consequently the trial only proceeded
in respect of the liability issue.
[6]
The medical facts pertaining to the plaintiff's condition and
subsequent treatment are largely common cause between the parties.
The issues in dispute pertain to alleged misrepresentations made by
the defendant to the plaintiff
alternatively a
breach of care.
FACTS
[7]
The following facts are common cause on the pleadings:
i. the plaintiff was
diagnosed with the condition on or about 3 November 2010 and his left
testis was surgically removed. The plaintiff
was thereafter referred
to Dr Piet Slabbert, an oncologist, for chemotherapy treatment;
ii. the plaintiff was not
comfortable with the treatment suggested by the oncologist and on or
about 8 November 2010 the plaintiff
consulted the defendant, who
recommended IPT;
iii. the treatment
commenced on 10 November 2010 and was, after 9 sessions, temporarily
suspended on 9 December 2010;
iv. treatment resumed on
20 December 2010 and the plaintiff received a further 7 sessions of
treatment, the last treatment date
being 8 February 2011;
v. the plaintiff
terminated the IPT treatment and underwent 4 sessions of
''BEP"
chemotherapy. The plaintiff is in remission.
EVIDENCE
[8]
The plaintiff testified that his consultation with the oncologist, Dr
Slabbert, did not convince him that the conventional method
of curing
his condition, to wit chemotherapy, was necessarily the correct
decision. Due to the doubts he harboured, he decided
to do some
research and became aware of IPT as an alternative method of
treatment.
[9]
During his research he discovered that the defendant administered IPT
for cancer patients, which led to the first consultation
he had with
the defendant on 8 November 2010.
[10]
During his first consultation with the defendant, the defendant
explained the concept of IPT to him and having perused the
plaintiff's pathology reports and CT scan, informed him that he was a
candidate for IPT. The defendant further told him that the
chances of
success were 90% and although it was at that stage not possible to be
exact, he most probably would need to undergo
10 - 14 sessions. He
could not recall whether the defendant did a physical examination at
the first consultation. The cost of the
sessions were initially R 6
800, 00 per treatment, which amount increased in January 2011 to R 7
000, 00.
[11]
The defendant explained to the plaintiff that IPT involves the
administration of insulin which results in a patient's blood
sugar
levels decreasing. Due to the lower blood sugar levels, the body is
more receptive to chemotherapy and therefore it is possible
to
administer a lower dosage of chemotherapy.
[12]
The treatment was administered twice a week and blood tests were done
regularly to monitor the plaintiff's condition. Pathology
reports
were obtained to establish the progress of the treatment. So-called
tumor markers indicate the acceptable range within
which certain
values should be. Two values are significant to wit,
Alpha-fetaprotein ("AFT") with a range of 0 - 10 and
Beta-
human chorionic gonadotropin ("Beta-HCG"), with a range of
0 - 5. The following appears from the pathology reports:
Date
AFT
Beta-HCG
10.11.2010
71
166
16.11.2010
98
227
19.11.2010
142
375
23.11.2010
192
401
26.11.2010
174
267
29.11.2010
158
191
3.12.2010
110
95
6.12.2010
71
46
9.12.2010
48
20
[13]
The plaintiff testified that the sessions were terminated on 9
December 2010 due to the fact that the defendant went on holiday.
The
defendant did not inform him that an interruption in treatment could
cause a resistance to further chemotherapy treatment.
He, however,
out of his own accord attended at the consulting rooms of a certain
Dr. Lindeque and received one IPT between 9 and
20 December 2010.
[14]
He saw the defendant on 20 December 2011 and received a further
treatment. The pathology reports during this period, revealed
the
following:
Date
AFT
Beta-HCG
14.12.2010
27
7
17.12.2010
15
2
24.12.2010
6
3
[15]
According to the plaintiff, the defendant brought him under the
impression, shortly before Christmas, that the cancer was in
remission. He formed this impression because the defendant told him
that the cancer markers were within
''the reference range''.
[16]
The pathology reports confirm that the plaintiff's cancer markers
were on 24 December 2010 within the prescribed range.
[17]
The AFT count improved and on 1 January 2011, the count in respect of
both AFP and Beta- HCG was 3. On 11 January 2011, the
value in
respect of AFP was 2, but the value in respect of Beta-HCG had
increased to 21.
[18]
Due to the aforesaid increase, the defendant suggested a further
course of treatment which treatment commenced on 13 January
2011.
[19]
Notwithstanding the further treatment, the Beta-HCG values steadily
increased, to wit:
Date
AFP
Beta-HCG
19.1.2011
2
66
24.1.2011
not tested
91
31.1.2011
4
84
3.2.2011
4
122
7.2.2011
5
147
[20]
The last treatment date was 8 February 2011.
[21]
Follow- up reports, however, indicated that the plaintiff's condition
was not responding positively to the treatment, to wit:
Date
AFP
Beta-HCG
13.2.2011
6
184
16.2.2011
6
165
22.2.2011
6
253
[22]
The plaintiff testified that according to his recollection, the
defendant only once examined him physically during the treatment
period.
[23]
He concluded his evidence by stating that the reason he instituted a
claim against the defendant is due to the fact that the
defendant did
not inform him of the following:
i. an interruption in the
treatment is critical and leads to an increased resistance to further
chemotherapy treatment; and
ii. IPT is not suitable
for the type of condition he had.
[24]
Lastly, the plaintiff was referred to a text book on IPT. The
defendant wrote the foreword and the following passages were
referred
to:
"Wie is die
ideale pasiënt vir IPT?
Die volgende
besonderhede oor die pasient is belangrik:
· ….
· …
·
Klein gewas
lading.
· …
.
·
Geen
metastase.
Dit beteken nie dat
pasiente op wie een of meer van hierdie voorwaardes me van toepassing
is nie, geen baat sal vind by IPT nie.
Dit is slegs die vasstelling
van die vermoedelike verloop daarvan wat da/k me so goed sal wees
nie"
and
'Dit is baie belangrik
om nie IPT -terapie te staak as die gewas duidelik besig is om te
krimp nie. Dtf kan baie gevaarlik wees
omdat die kanker weer,
waarskynlik met hernude krag, sal begin groei: Dit kan ook weerstand
teen die middel veroorsaak as die behandeling
onderbreek word
"
[25]
During cross-examination the defendant admitted that he has been in
remission for the past five years and consequently did
not suffer any
permanent damage as a result of the defendant's treatment. He,
however, mentioned that he suffered financial losses
and had to
undergo more conventional chemotherapy sessions as a result of the
treatment the defendant administered.
[26]
When asked what exactly his problem with the treatment administered
by the defendant was, the plaintiff responded that his
oncologist, Dr
Rens, told him that the low doses of chemotherapy could have made him
resistant to further treatment and that the
defendant neglected to
inform him of this fact.
[27]
It was put to the plaintiff that this eventuality did not realise
because he has responded positively to further treatment.
The
plaintiff responded that it appears clearly from the cancer markers
that the low doses did at some stage stop working due to
a resistance
building up to the treatment.
[28]
The plaintiff in essence repeated the rationale behind his decision
to opt for alternative treatment and added that his decision
was also
informed by his knowledge of a patient who developed kidney problems
due to conventional treatment. He confirmed that
the defendant
referred him to one of his patients that was successfully treated for
testicular cancer.
[29]
Asked whether financial reasons played a role in his decision, the
plaintiff responded that he did not take it into account,
because his
life was at stake. He, however, stated that his medical aid paid for
conventional treatment but did not pay for the
alternative treatment.
[30]
When confronted with the fact that the nodes in his lungs reduced in
size due to the treatment administered by the defendant,
the
plaintiff was reluctant, notwithstanding the medical evidence to this
effect, to concede thereto.
[31]
The plaintiff was also referred to a letter of Dr Rens dated 4 March
2011 in which it is stated that the plaintiff
"met kliniese
ondersoek is hy steeds in uitstekende toestand en tans asimtomaties
van sy metistatiese siekte.
"
[32]
The plaintiff admitted that he consented to IPT on the strength of
the information at his disposal at that stage. He, however,
insisted
that he would not have opted for IPT if he was made aware that the
treatment could lead to resistance to further treatment.
[33]
The plaintiff admitted that, even in the event of conventional
treatment, the measure of success of the treatment could not
be
guaranteed.
[34]
It was put to the plaintiff that he terminated the defendant's
treatment prior to its conclusion.
[35]
Dr van Niekerk, a specialist oncologist, who had specialist training
in prostate cancer, testified that a general practitioner,
such as
the defendant, does not possess formal training and experience to
treat cancer.
[36]
In South Africa one finds two types of oncologists. Firstly there are
medical oncologists who have ·'done 4 years specialised
training and a further two years in oncology. Medical oncologists
only specialise in chemotherapy. Clinical oncologists do 5 years
post-graduate training in the fields of oncology and are able to
treat with both radiation and chemotherapy.
[37]
All oncologists in South Africa belong to a body known as the South
African Oncology Consortium. The Consortium was established
to
inter
alia
ensure that treatment of cancer accords with acceptable
international standards. The treatment regime for each type of cancer
is
based on scientific research obtained from numerous clinical
trials. Once a treatment regime has been accepted it becomes
entrenched
in the treatment regime and medical aids will pay for such
treatment.
[38]
Dr van Niekerk was referred to the reports of the radiologist and
explained that it was important to establish the stage of
the cancer
to determine the long-term outcome, the treatment regime and to
prognostically inform the patient of where he is and
where he
possibly will be.
[39]
Having perused the radiologist reports, he was of the opinion that
the plaintiff's cancer was at the time at stage 3 due to
the lung
metastases. Had he been the plaintiff's treating oncologist, he would
immediately have induced chemotherapy with conventional
high doses.
The treatment would have been on a continual basis with each cycle
consisting of 21 days. After a cycle the patient
is given a week
break and thereafter the next cycle commences. The plaintiff would
have been subjected to four cycles, which would
have culminated in a
four month treatment regime. I pause to mention, that the plaintiff,
subsequent to terminating his treatment
with the defendant, did
undergo four cycles of chemotherapy.
[40]
Having had regard to the treatment regime administered by the
defendant, Dr van Niekerk testified that, although the defendant
used
the conventional BEP treatment, the doses were much lower. The doses
were around 5% of the conventional dose administered
by oncologists
in the circumstances.
[41]
According to Dr van Niekerk a cycle would have cost R 10 000, 00 to R
11 000, 00 in 2010.
[42]
Dr van Niekerk stated that although there are many medical
practitioners that claim the efficacy of IPT, it has no scientific
basis. Explaining the concept of a scientific basis, Dr van Niekerk
stated:
"... we need to
understand where our end goal will be and that is done by Rhenmar's
clinic or trials, in other words one group
will get, one would not.
Doses are changed and those outcomes are based on statistical
analysis through a large group, peer review
and come back down to
acceptable points of treatment, published in peer review journals,
which is the only way a doctor can determine
whether a certain
treatment is acceptable or not.”
[43]
In respect of IPT, Dr van Niekerk explained the treatment as follows:
''lt seems to claim
that what we do know is that we have on certain of the cancer walls
and membranes receptors, before we just
used to try and kill cancer
by poisoning it or killing it with radiation. Now we have started to
understand that there are certain
switch-on and switch-off mechanisms
that may be involved in the activity of the cancer and if we can stop
it, we may be able to
prevent the cancer, or to kill the cancer.
Although these are very experimental at this point. The one thing we
have found My Lady
is what we are terming insulin-like receptors,
also growth receptors.”
It seems that this has
a cascade effect to the cell to kill or to switch off the activity of
a cell, where the body will clean it
up by itself. And a lot of drug
lines are being developed along this basis. It seems that with that
the interpretation is that
if we then give insulin, we make the cell,
the tissue more permeable to chemotherapy There seems to be in vitro
studies that show
that this may have an effect which may also improve
the transport of drugs into cells.
"
[44]
Dr van Niekerk, however, insisted that there is presently no
scientific basis to confirm this theory.
[45]
According to Dr van Nierkerk, a very serious risk factor associated
with IPT, is that the drop in glucose levels in the blood
could lead
to damage to the brain cells. A further complication is that low
doses of BEP, although it might initially yield positive
results, at
some point have no effect on the cancer and actually start creating a
form of resistance to treatment. When this occur
an alternative
regime known as a salvage regime needs to be followed.
[46]
In respect of the plaintiff's cancer markers dropping in the initial
stage of treatment, Dr van Niekerk contributed it to the
fact that
the tumour was surgically removed. In his experience within 10 to 12
days of surgery the counts drop significantly low,
because the cancer
markers have been washed out of the body.
[47]
Dr van Niekerk explained that cancer markers are utilised to
determine the progress of treatment. Two types of situations arise,
to wit a partial remission and a complete remission. With a stage 3
cancer, a complete remission should occur very quickly and
the cancer
markers should be undetectable after the second cycle of treatment.
AFT should be less than one, because it will always
have a reading
and Beta-HCG should be below 3. Furthermore and due to the nodes that
were visible on the CT-scan, a further CT-scan
should be done to make
sure that there are no nodes.
[48]
Dr van Niekerk testified that it is impossible to determine whether
the initial significant drop in the plaintiff's cancer
markers is as
a result of the surgery or as a result of the treatment administered
by the defendant. He, however, stated that in
his experience it is
more likely that the drop is due to the surgery.
[49]
When referred to the evidence of the plaintiff, to the effect that
the defendant told him at the end December 2010 that a CT-
scan was
optional, Dr van Niekerk responded that a CT-scan is vital and a
standard procedure to determine whether the disease has
decreased,
disappeared or increased.
[50]
During cross-examination, Dr van Niekerk admitted that he had no
training in IPT. Dr van Niekerk conceded that a general practitioner
with long term experience in specialised treatment of cancer, will be
in a position to treat cancer. He remarked that a handful
of general
practitioners with the desired experience work under the South
African Oncology Consortium, but stressed that these
practitioners
follow the acceptable guidelines in their treatment of patients.
[51]
It was put to Dr van Niekerk that the defendant has an international
qualification in IPT and that IPT treatment is an acceptable
form of
treatment in certain medical spheres. Dr van Niekerk conceded this,
but insisted that IPT is not a recognised treatment
regime in South
Africa, Mr Geach SC, counsel for the defendant, put it to Dr van
Niekerk that there are in essence two schools
of thought in respect
of cancer treatment.
[52]
Dr van Niekerk could not dispute the fact that the defendant had 1O
years of experience in the treatment of cancer and that
he is a
member of the International Organisation of Integrated Cancer
Physicians. Dr van Niekerk admitted that the Health Professions
Council of South Africa would allow a general practitioner to treat
cancer, but emphasised that his conduct would be measured against
that of a reasonable oncologist.
[53]
Numerous further facts that could not be denied and or concessions
followed, to wit:
i. that the defendant
attended annual conferences in the United States of America to stay
abreast in the field of IPT;
ii. that the defendant
have had success in the treatment of cancer by using IPT; and
iii. that it is
impossible to judge the efficacy and safety of IPT.
[54]
Dr van Niekerk was referred to the CT-scan dated 4 March 2011 and
stated that in his opinion the CT-scan showed a significant
increase
in the disease which called for salvage therapy. He was then referred
to the contrary opinion expressed by Dr Rens in
his letter dated 4
March 2011 referred to
supra.
Dr van Niekerk stated that it
does not alter his opinion in respect of the same CTscan.
[55]
Dr van Niekerk confirmed that the mere fact that the defendant
administered IPT did not make him negligent.
[56]
The defendant was the only witness in the defence case. He in essence
confirmed the version that was put to the plaintiff and
Dr van
Niekerk. He testified that the plaintiff's condition could be
successfully treated with IPT and that the number of treatments
is
statistically determined depending on the type of cancer.
[57]
He stated that in his experience it has happened that patients
initially respond positive to the treatment and thereafter has
a fall
back. In such cases patients would require more treatment. The
defendant testified that he is an accredited tutor with the
International Organisation of Integrated Cancer Physicians in the
United States of America and that he gives lectures to other
doctors
at the annual congresses in the USA.
[58]
After the initial nine sessions of IPT, the defendant was satisfied
that the treatment showed a positive result and decided
to give the
plaintiff a break of two weeks. Blood was, however, still
contentiously drawn and he monitored the plaintiff's condition
with
reference to the pathology reports.
[59]
The defendant testified that he informed the plaintiff on or about 20
December 2010 that the plaintiff has, in a short space
of time,
responded positively to the treatment and a good chance existed that
he could go into remission. He denied that he told
the plaintiff that
he is in remission. This evidence corresponds with the plaintiff's
evidence that the defendant did not tell
him he is in remission, but
that the contents of the conversation brought him under the
impression that he is. The defendant's
version in this respect is
confirmed by the clinical notes he kept during the treatment of the
plaintiff.
[60]
The defendant testified that the treatment regime was not concluded
when the plaintiff terminated the treatment.
[61]
During cross-examination, the defendant agreed that IPT is neither in
South Africa nor in terms of the international oncologist
association
a recognised treatment for cancer is.
[62]
When referred to the book on IPT, the defendant stated that he did
not agree with all the medical facts in the book and that
the author
thereof is not a specialist in the administration of IPT. It was put
to the defendant that he neglected to inform the
plaintiff that IPT
treatment could lead to brain damage. The defendant responded that a
zero change of brain damage existed in
the type of treatment he
administered.
[63]
The defendant admitted that he did not inform the plaintiff that IPT
treatment could lead to a resistance to chemotherapeutic
medications,
but added that conventional chemotherapy could also lead to
resistance to the medication.
[64]
It was put to the defendant that he did not examine the plaintiff
physical during the course of the treatment. The defendant
denied
this and referred to his treatment charts which indicates that
physical examinations where conducted during the administration
of
each treatment.
[65]
The defendant was referred to his clinical notes and more
specifically the note on 12 January 2011 that one cancer marker is
normal and one has increased. To this the defendant added the
following question
"ander kanker variant?'
When
questioned on this remark, the defendant gave the following answer:
'Die rede is kanker
muteer gedurende terapie, kanker is 'n dinamiese siekte. So, as albei
merkers hoog was aanvanklik toe hy by
my aangekom het en
albei
die merkers nou genormaliseer het, U Edele, is die vraag hoekom net
een van die kanker merkers opgegaan het en nie beide nie.
"
[66]
According to the defendant, the increased count of Beta-HCG of 21 on
12 January 2011, could be attributed to the fact that
more cancer
cells had died. It is not an unknown phenomenon that dead cancer
cells cause a spike in the count.
[67]
The defendant testified that, after the nineteenth treatment, he was
unsure whether the treatment is still effective. He, therefore,
discussed the prognoses with the plaintiff and gave the plaintiff the
option to either continue with the treatment or to seek other
treatment.
[68]
When referred to the constant increase in the plaintiff's Beta-HCG
counts during January and February 2011, the defendant explained
that
the count varied as it did during the initial treatment, which could
have been an indicator that it was on the verge of decreasing.
His
clinical note on 22 February 2011 stated the following
''HCG weer
op na 'n vorige keer geval het ?? Draaipunt
voor finale val.
"
[69]
This concluded the relevant aspects of the defendant's evidence.
[70]
In determining whether the defendant misrepresented certain facts to
the plaintiff and/or was negligent in his treatment of
the plaintiff
it is first of all instructive to have regard to the applicable legal
principles. What is, however, clear at this
stage is that divergent
views between conventional treatment and alternative treatment of
cancer exist. Dr van Niekerk and the
body of conventional treating
doctors he represents, refer to IPT as
''hocus pocus';
no
doubt due to the fact that IPT is not based on the science associated
with conventional treatment. It is, however, also clear
that a
portion of the medical fraternity consider IPT to be an acceptable
alternative to conventional treatment.
APPLICABLE
LEGAL PRINCIPLES
[71]
The following extracts from
Castell v De Greef
1994
(4) SA 408
C succinctly summarises the legal principles applicable to medical
negligence:
i. The level of skill to
be possessed by a medical practitioner is measured against that of
his/her peers. [416 A - C]
"In this regard
the learned Judge said the following (at 509G-510A):
'Both in performing
surgery and in his post-operative treatment, a surgeon is obliged to
exercise no more than reasonable diligence,
skill and care. In other
words, he is not expected to exercise the highest possible degree of
professional skill (Mitchell v Dixon
1914 AD 519
at 525). What is
expected of him is the general level of skill and diligence possessed
and exercised at the time by members of
the branch of the profession
to which he belongs. (Van Wyk v Lewis
1924 AD 438
at 444,· see
also Blyth v Van den Heever
1980 (1) SA 191
(A) at 221A,· S v
Kramer and Another
1987 (1) SA 887
(W) at 893E-895C; Pringle v
Administrator, Transvaal
1990 (2) SA 379
(W) at 3841-385E.)"
(own emphasis).
ii. The mere fact that
treatment was not successful does not in itself constitute
negligence. [416C-416E]
''lt
must also
be borne in mind that the mere fact that an operation was
unsuccessful or was not as successful as it might have been
or that
the treatment administered did not have the desired effect does not,
on its own, necessarily justify the inference of lack
of diligence,
skill or care on the part of the practitioner. (Compare Van Wyk v
Lewis (supra at
462).).”
iii. Similarly, a mere
error of judgment does not necessarily constitute negligence on the
part of the medical practitioner. [416-4161]
"Lord Fraser
further observed as follows (at 281b):
Merely to describe
something as an error of judgment tells us nothing about whether it
is negligent or not. The true position is
that an error of judgment
may, or may not, be negligent,· it depends on the nature of
the error. If it is one that would
not have been made by a reasonably
competent professional man professing to have the standard and type
of skill that the defendant
held himself out as having, and acting
with ordinary care, then it is negligent. If, on the other hand, it
is an error that a man,
acting with ordinary care, might have made,
then it is not negligent.
"
NEGLIGENT
MISREPRESENTATION:
[72]
The plaintiff alleges that the defendant made the following
representations, which representations induced the plaintiff to
enter
into an agreement with the defendant:
"4.1.1 The
recommended treatment for the Plaintiff's condition was IPT and that
the Plaintiff was a suitable candidate for
the IPT treatment;
4.1.2 The IPT
treatment would cure the Plaintiff's condition,·
4.1.3 The Plaintiff
would have to undergo between 10 - 14 IPT treatments,·"
[73]
The treatment did, however, not cure the plaintiff's condition and
therefore the defendant was negligent in making the representations
in one or more or all of the following respects:
"6. 1 The
Defendant was aware and/or was ought to have been aware that the
Plaintiff was not a suitable candidate for IPT treatment,·
6.2
The
Defendant was aware and/or was ought to have been aware that the
plaintiff's condition has advanced to such a stage that the
IPT
treatment was not the appropriate treatment regime;
6.3 The Defendant was
aware and/or was ought to have been aware that the treatment would
not cure the Plaintiff's condition."
[74]
In respect of representations contained in paragraphs 4.1.2 and 4.1.3
supra,
the plaintiff admitted during evidence that the
defendant did not represent to him that the treatment will cure his
condition or
that he would only have to undergo 10 to 14 treatments.
[75]
It is common cause that the defendant did represent to the plaintiff
that he is a suitable candidate for IPT. Dr van Niekerk
expressed the
opinion that, due to the advanced stage of the plaintiff's condition,
he required immediate aggressive chemotherapy
which therapy is only
provided by oncologists.
[76]
The defendant did not agree. He testified that he had in the past
successfully treated conditions similar to that of the plaintiff
with
IPT.
[77]
According to the defendant, the outcome of treatment differs from
patient to patient and is not a forgone conclusion. He added
that
this principle apply to both IPT and conventional treatment.
[78]
The difficulty with the facts under consideration is the absence of
expert evidence in the field of IPT. Dr van Niekerk admitted
that he
has no training in IPT and could only express an opinion from the
experience he has drawn from conventional treatment of
cancer to wit,
oncology.
[79]
Without having had the benefit of the evidence of a qualified IPT
practitioner, it is difficult to determine whether the defendant's
treatment regime complies with the general level of skill and
diligence possessed at the time by members of the branch of the
profession to which the defendant belongs.
[80]
From the evidence it appears that oncologists in South Africa
consider IPT as
''hocus-pocus''.
In my view, the mere fact
that some medical practitioners elect to administer an alternative
treatment regime does not necessarily
constitute negligence. The
question remains whether the defendant was negligent in representing
to the plaintiff that he is a suitable
candidate for IPT. Having
regard to the evidence as a whole, I am not convinced that the
defendant was negligent in this regard.
Consequently the plaintiff's
claim based on negligent misrepresentation must fail.
DUTY
OF CARE
[81]
It is common cause between the parties that the defendant owed the
plaintiff a duty of care to perform his services with the
care and
skill to be expected of a reasonable general practitioner and without
negligence.
[82]
The plaintiff alleges that the defendant failed in this duty in at
least eleven respects, to wit:
"12.1 He failed
to perform a comprehensive and proper physical examination of the
Plaintiff on 8 November 2010 or when he attended
on the Plaintiff
whilst administering the IPT treatments.....
12.2 He failed to:
12.2.1 To obtain a
comprehensive history from the Plaintiff; and alternatively
12.2.2.To properly
note the Plaintiff's history, symptoms and treatment.
12.3 He failed to take
note of, alternatively to properly analyse, further alternatively to
act in accordance of his noting and
analysis of the pathology report
dated 10 November 2010.
12.4
He failed
to properly explain the nature of the IPT treatment to the Plaintiff.
12.5 He failed to
recognise that the IPT treatment was contra-indicated for the
Plaintiff;
12.6 He failed to
recognise, alternatively to timeously recognise that the Plaintiff
was suffering from a stadium
(sic)
3 mixed non-seminomatous
germ cell tumor;
12.7
He failed
to act in accordance with the fact that his treatment regime was not
improving the condition of the Plaintiff;
12.8 He failed to
advise the Plaintiff that the IPT treatments should not be
interrupted at all.
12.9 He interrupted
the IPT treatments;
12.10 He failed to
request a second or specialist opinion in the circumstances where he
both could and should have done so;
12.11 He failed to
refer the Plaintiff to a specialist oncologist in circumstances where
having regard to the Plaintiff's pathology
results and failure to
respond to the treatment, he both could and should have done so.
"
[83]
The plaintiff alleges that as a result of the aforesaid negligent
conduct, his condition was not cured and he had to undergo
further
treatment in the form of
"BEP"
chemotherapy. As a
result he suffered damages by incurring unnecessary medical costs.
[84]
In respect of the first three grounds of negligence, the evidence
proved that:
i. the defendant did
perform a comprehensive and proper physical examination of the
Plaintiff on 8 November 2010 and during subsequent
treatments;
ii. the defendant did
obtain a comprehensive history from the plaintiff and properly noted
the plaintiff's history, symptoms and
treatment.
iii. the defendant did
take note of, properly analysed and acted in accordance with his
analysis of the pathology report dated 10
November 2010.
[85]
The aforesaid is borne out by the defendant's evidence and confirmed
by the defendant's clinical notes and treatment charts.
[86]
In respect of the fourth ground, the plaintiff testified that he did
his own research prior to consulting the defendant. The
defendant
testified that he explained the nature of IPT to the plaintiff and
furthermore that he referred the plaintiff to one
of his patients who
was successfully treated. This evidence was not placed in dispute.
[87]
In respect of the remaining grounds of negligence, divergent views in
respect of the defendant's diagnoses and treatment of
the plaintiff
emerged from the evidence.
[88]
It is a fact that the plaintiff was not cured by the IPT treatment.
As set out
supra,
this, in itself, does not necessarily
justify the inference that the defendant lacked the necessary
diligence, skill or care expected
from practitioners practising in
his branch of speciality.
[89]
In order to properly analyse the defendant's treatment of the
plaintiff, it would, once again, have been useful to have regard
to
the general level of skill and diligence possessed and exercised by
practitioners that have the same expertise as the defendant.
This
evidence was not presented by the plaintiff.
[90]
The plaintiff bears the onus to establish, on a balance of
probabilities, that the defendant was negligent in his treatment
of
the plaintiff.
[91]
On the evidence, I am unable to come to such a finding and as result
the plaintiff's claim based on a breach of the duty of
care, must
also fail.
COSTS
[92]
The defendant employed a senior and junior counsel. Mr Geach SC,
submitted that the issues at hand, justified the employment
of two
counsel. I agree and such order will follow.
ORDER
In
the premises, I make the following order:
The plaintiff's claim is
dismissed with costs, which costs include the costs of a senior
________________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances
Counsel
for the Plaintiff :Advocate E C Labuschagne
SC
Instructed
by
:Savage Jooste & Adams Attorneys
Counsel
for the State
:Advocate B P Geach SC
and
: F De W Keet
Instructed
by
: Gert Nel Attorneys