About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 39
|
|
Van Vollenhoven v Venter (12314/2011) [2015] ZAGPPHC 39 (2 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case number:
12314/2011
Date: 2 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
SARAH SUSANNA VAN
VOLLENHOVEN
.............................................................................
Plaintiff
and
DR JCM
VENTER
.....................................................................................................................
Defendant
Heard: 23 APRIL
2014
Delivered
JUDGMENT
A.A.LOUW J
Introduction
[1] This is a case
about alleged medical negligence. On 29 February 2008 the defendant
performed a total hip replacement (THR) on
the plaintiff. She was at
that stage 72 years of age.
[2] It is common
cause that during the operation the plaintiff sustained an injury to
the sciatic nerve. The theatre time is recorded
as 08h26 to 11h09.
[3] The sciatic
nerve is the major nerve of the leg and is the nerve with the largest
diameter. In evidence it was described as
being as thick as a man’s
pinkie. This nerve runs down behind the thigh from the lower end of
the spine. Above the knee joint
it divides into two main branches
namely the tibial and common peroneal nerves.
[4] It is further
common cause that the injury to the peroneal component of the sciatic
nerve left the plaintiff with a left sided
foot drop. The drop foot
means that both the sensory and motor nerves to the foot are absent.
This kind of injury to a nerve is
known as axonotmesis which is
defined in the medical literature contained in bundle E as follows:
“
Neural
supportive sheaths are preserved but nerve fibres disintegrate. Motor
and sensory loss is complete. Recovery is complete
unless
regenerating nerve fibres must travel a long distance. Causes are
compression, traction, friction or ischaemia (fracture,
intraneuralinjections, freezing).”
[5] This is
confirmed by nerve conduction studies by Dr Schultz a
neurophysiologist. The report of Dr Schultz dated 30 September
2008
comes to the following conclusion:
“
1.
The current electro-diagnostic picture is one of a chronic and severe
left sided proximal sciatic neuropathy affecting the peroneal
components of the sciatic nerve maximally. No re-innervation or
MUAP’s from the peroneal innervated components from the
proximal sciatic nerve could be recorded.
2.
The lesion
was
localized as
follows: There is minor active denervation in the medial
gastrocnemius with intact MUAP recruitment. The short head
of biceps
femoris (only true peroneal innervated muscle above the knee) and
anterior tibial muscle showed absent MUAP recruitment
noted. This
indicates a partial proximal sciatic lesion affecting the peroneal
components maximally.
3. There has been
excellent re-innervation in the posterior tibial nerve component,
with some residual axonal loss demonstrated
due to reduced posterior
tibial CMAP amplitude and reduced recruitment pattern.
4. The functional
prognosis for recovery of the peroneal nerve component of the sciatic
nerve is poor and there is electrophysiologically
at 8 months post
injury complete denervation. ”
[6] The defendant
discussed these findings with the plaintiff on 13 October 2008. He
expressed his view that a Charnley retractor
(about which more later)
pressed on the sciatic nerve during the operation. According to his
file notes the plaintiff was also
advised that the prognosis was not
good. Possible treatment was an arthrodesis to the foot which means
that the foot would permanently
be fixed at a right angle to the
lower leg. The plaintiff testified that this option was not
acceptable to her. Another possibility
to her was to continue walking
with a splint. In any event it is not in dispute that the damage is
permanent.
[7] In the
particulars of claim the plaintiff relied on seven grounds of
negligence. At the end of the trial the plaintiff only
persisted with
the allegation in para 7.7 of the particulars which avers that the
defendant caused permanent and irreversible damage
to the plaintiffs
sciatic nerve during the performance of the operation.
[8] The plaintiff is
claiming damages in the amount of R700 000.
[9] By agreement
between the parties I was asked to first determine the liability of
the defendant with the quantum of damages to
stand over. I made such
an order in terms of rule 33(4).
Hip replacement:
generally
[10] There are two
major approaches to a THR. These are the anterior and posterior
approaches. In the case of the anterior access
to the hip is gained
through an incision above the femur, whilst in the posterior case it
will be below the femur. The posterolateral
approach is a variation
of the posterior approach.
[11] The defendant
used the posterolateral approach. The incision that is made in such a
case is described and illustrated in exhibit
“I” p1. It
is not necessary to describe the operation in detail. Suffice it to
say that to gain access to the femur,
cuts have to be made through
the skin, muscle and other tissues. During this process various
retractors are used. A retractor is
a surgical instrument used to
expose the operation site by drawing aside the cut edges of skin,
muscle and other tissues. Once
there is proper access to the femur
the hip is dislocated through a combination of flexion, abduction and
internal rotation. Thereafter
the femur head is cut off and the
prosthesis is inserted into the femur. This prosthesis or “artificial
femur head”
was shown to the court during the evidence of Prof
Weber. It is an artificial femur head designed to fit into the
sockets of the
hip bone with a tapering point which is the part going
into the femur.
[12] Once this has
been done the femur has to be reduced i.e. placed back into its
proper possession. From there on the operation
entails only the
removal of the retractors which were in place and suturing the
various layers of muscle, tissue and skin.
[13] The “golden
rule” is that at all stages caution has to be used to protect
the sciatic nerve. Thus the surgeons
at all stages have to be aware
of the location of this nerve. As already mentioned it is the largest
nerve in the body and its
location can be easily established, if not
visually, by palpation. Especially great care should be taken to
position the retractors
to avoid injury to the sciatic nerve.
The evidence
[14] The plaintiff
testified and on her behalf two expert witnesses namely Drs Naude and
Birrell. The defendant testified and Prof
Weber was called as an
expert on behalf of the defendant.
[15] Dr Naude, now
retired, was in private practice as an orthopaedic surgeon for
decades. He specialised in hip replacements and
had done
approximately 6000 such operations. His expertise is not in dispute.
Neither is that of Prof Weber who has a very impressive
curriculum
vitae and had performed approximately 10000 hip replacements. During
these thousands of operations neither of them caused
damage to the
sciatic nerve resulting in axonotmesis. The present case is also the
first case with such damage amongst the 600
hip replacements that the
defendant had performed.
[16] The evidence of
Drs Naude and Birrell was quite simply to the effect that utmost care
must be taken not to injure the sciatic
nerve, that in this case such
damage was done resulting in the drop foot and that this means that
due care was not taken to protect
the sciatic nerve. I quote the
following passage of the evidence of Dr Naude:
“
MR
WILLIAMS: [plaintiff’s counsel] We know that there is a lesion
and everybody talks about a lesion even Dr Weber talks about
a
lesion. He also surmises that it was the instrumentation?
—
That is correct, M’Lord.
Is
that the most probable cause? — That is what I think M’Lord
Everybody says that. Now, during the operation what are
the duties of
the surgeon
vis-á-vis
the
sciatic nerve. Especially in regard to the instrumentation?
—
The
surgeon must at all times make sure that he does not damage the nerve
because he knows where the nerve is although he cannot
see it always
you know where it is. You are supposed to know where it is and you
must avoid any instruments touching the nerve.
”
1
Evidence of the
defendant
[17]
He did not have an independent memory of this operation. The
intraoperative notes leave much to be desired. Prof Weber also
agreed
that these notes are insufficient. I quote the defendant’s note
relating to this operation:
“
29/02/2008
Narkotiseur: G. Tsesmellis 8h25
-
11h09
Assistant:
R v/d Berg
Debridement
linker heup. Ope spierloslating en primere sementlose THV (totale
heup vervanging) links.
Sien
oorspronklike notas vir inligting aangaande komponente gebruik”
2
[18] The defendant
could therefore just testify about how he generally performs these
operations. Of importance is the following
passage in his evidence:
“
Dit
is waar nerveus iskiaties toe loop. Die nerveus iskiaties betas jy
maklik daar met jou vingerpunte elke keer. Die nerveus iskiaties
is
‘n groot senuwees nie so dik soos jou voorvinger nie, so dik
soos jou pinkie. Ek betas dit ten minste een keer ‘n
week. Dit
is ook baie belangrik.
”
3
[19]
In regard to the different retractors he used his evidence in regard
to the Charnley retractors is to be found in his evidence
in chief.
4
It is also set out in the detailed instructions he gave to his
instructing attorneys during March 2011, which version he confirmed
during his evidence.
5
[20] Para 11.5 of
exhibit “J” reads as follows:
“
All
retractors used during the procedure were placed by myself and also
taken care of by myself. The assistant just hold to these
retractors
where it was manually necessary."
[21] In para 11.6 of
this same letter he stated the following regarding the Charnley
retractors:
“
The
Charnley retractor
was
now placed in the
wound. Also placed was the Charnley pin retractor that stayed in
position for
+/-
25
minutes. The
Charnley pin retractor was removed after debridement of the
acetabulum and preparation of the acetabulum. The Charnley
retractor
stayed in position in the wound during the preparation of the
proximal femur. However, the Charnley retractor is replaced
from time
to time and is not putting pressure on the same soft tissue all the
time. The Charnley retractor was removed at the end
of the procedure
after the hip
was
reduced and was
then in the position for
+/-
50 minutes.”
[22]
Under cross-examination the defendant confirmed that the most
probable cause of the injury was that the Charnley retractor
pushed
too hard against to the sciatic nerve.
6
[23] In answer to my
question he said:
“
Dit
is die mees waarskynlike moontlikheid soos wat ek al die tyd gesê
het en waarom ek dit voorgestel het aan die pasiënt
omdat ek al
die ander moontlike oorsake nie kon identifiseer nie.”
7
Professor Weber’s
evidence
[24] The crux of
Prof Weber’s evidence is in para 4.5 of his expert summary.
There he states the following:
“
Sciatic
nerve injury following the performance of a total hip replacement
procedure is a rare, but a well recognised and described
complication
of the procedure. It is an unfortunate complication that occurs in 1%
or less of total hip replacement cases. The
injury to the plaintiff’s
sciatic nerve
was
probably a
traction or an instrument injury which occurred during surgery. ”
[25] In the
following subparagraphs he details the different kinds of retractors
which were used and the approximate time that such
retractors were
used. Of course, this is all based on a reconstruction by the
defendant as he did not keep proper notes.
[26] He then comes
to the following conclusion in para 4.5.5:
"The
choice of retractors and the duration of their application in the
plaintiff’s case represent the standard described
use and
duration of use of those retractors. The retractors were placed by
the defendant personally. There
is
no evidence to suggest
that
the retractors were incorrectly placed,
or
that the retractors were left
in
situ
for
unacceptably long periods of time without release. The
occurrence
of the sciatic nerve injury in the plaintiff's case thus occurred
despite reasonable and proper
measures
bv the defendant to prevent its occurrence
.”
[27] However,
regrettably, despite his eminence I find that his evidence was not
objective. I shall quote a number of passages from
the record from
which it appears that he was biased. Many of his conclusions are
based on his view of the excellent reputation
of the defendant as
well as the defendant’s experience.
“
Mr
Delport
:
[defendant’s counsel]. It is the most successful mayor (sic)
procedure improving the quality of life that we know and prolonging
patients productive lives. So I would not say that it is acceptable
but it happens and sometimes the explanation is difficult.
Would
you say that this complication that this injury can occur
without
any negligence on the part of the surgeon?
—
It
can, 1
know
Dr Venter’s work...
”
8
“
Court:
Yes?
— The size of the incision was large and big enough and he did
a precision operation. I think one should see the operation
he did
like preparing a watch not like shoeing a horse
.
It is a precision operation he would have known if
anything
had gone wrong
.
It is not a wrestling match to try to get the instrumentation in
there. You need adequate exposure to do it and adequate retraction
and
in my view that is what he
did.
”
9
“I think that is the explanation that I would offer for non
negligent damage to the relaxation which is not always predictable
especially the woman the soft tissues and then also the
manipulations
of
the operation field and pelvis that might bring the nerve to the
retractor but not negligent. The retractor to the nerve.”
10
“
MR
DELPORT:
Dr
Venter’s description today of a technique usually used by him
and the manner in which he did this particular operation.
Do you have
any criticism on it? — No, if fact in my notes previously I
wrote
on
it exemplary
.
It is the same today I would
like
to see him teach young orthopaedic
surgeon
in the wav that he demonstrated
.,.”
11
“
Yes?
— I would like to point out that the biggest complication or
the most common complication of the posterior approach is
dislocation
of the hip joint.
He
is not known to have dislocations
of
the hip joint because of the size of the head that he uses
.
Therefore it is an indication of a
very
meticulous technigue that
in
his practice
posterior
dislocation are a very low incident and that is what you would have
expected if he was not doing proper surgery.?”
12
“
COURT
:
But I do not think you really answered the question, professor. You
were simply asked whether the intra operative notes were sufficient.
— I would say no.
Then
you, without being exhorted to do so you added the tail as he
explained, et cetera and what was now put to you by Mr Williams
is
that you seem to be defensive of the defendant, you did not just
answer the question. What do you say about that? ---
I
am defensive of the doctor
,
because after I read all the information I had I felt it was very
similar to two other cases M’Lord,
so
I became defensive because I felt that this is a not
uncommon
problem we see
.”
13
“
Mr
Williams:
(plaintiffs
counsel) Then you find it necessary to add again ‘the actions
of a careful, experienced orthopaedic surgeon’.
— That is
correct.
Batting for the
defence on a routine matter, correct? -- Well, that to me M’Lord,
it is such an important point because many
surgeons unfortunately do
not have preoperative evaluations and then the patients has to be
cancelled the night before, the patients
has not been to the
physician, so the moment I see that part of the work has been done by
a physician I regard that as careful
work up of an experienced
orthopaedic surgeon.
No,
no, no professor, we were talking about a routine thing...”
14
“
Alright,
so you now not, you now leave that in the air and then what troubles
the plaintiff is the following paragraphs, which is
again a shocking,
I may put it to you , endorsement. Doctor Venter is an experienced
orthopaedic surgeon, this is your reason,
and with many years of
practice and therefore what happened here is interpreted as an
unfortunate complication, that is the case.
—
Well,
that is correct. I know Doctor Venter
and
he does good work and from mv point of view he did an
operation
the wav he did it always and therefore I had to support
him,
because I could find nothing wrong in the number of
meetings
that I had with him
that
anything out of the ordinary happened, in fact there are precautions
he took or circumstances at surgery that were actually
better in even
what he put there and we will come to that later on.”
15
“But you say here there are complications that happen with this
type of surgery and because
he
is experienced
and
because he has many years of practice you assume what happened here
is an unfortunate complication, that is your reason. —
I took
... [intervenes].
At
that stages that is your reason. — Absolutely. I took hisj
accepted
his bona fides M’Lord
.
that what he did is what he always does
and
I accepted that he did a good operation
.”
16
“
Court:
When
do you make up your mind as to his reputation? — I have a very
peculiar practice M’Lord, and a lot of problem cases
get
referred to me and although I will not say it, because I did not get
many referrals, problems from him, we have done one or
two cases
together which he felt we should operate together,
so
the reason or the fact that he felt that we should
operate
together made me feel that he is. or made me interpret
that
he is a very respectable colleague
and
there were five or six orthopaedic surgeons working at that hospital
and I certainly have not heard a downside from him, but
I ...
[intervenes].”
17
“
COURT:
Ja,
it is definitely not a neuropraxia doctor, professor. -- It turned
out not to be. In the beginning one does not know, but after
the
nerve conduction studies we know and it is not only a simple traction
legion that recovers in time.
Okay, but what Mr
Williams is questioning you about is at that consultation after the
nerve conduction studies did he still have
any reason to think it was
neuropraxia? --- I do not think so. I think after these two nerve
conduction studies it was evident
that it was an axotmesis that
second... [intervenes]
Alright,
so
it was a glaring error on behalf of the defendant on a
matter
which there could be no doubt about at that stage not so?
---
Ja, that is how I interpret it, M’Lord.”
18
“
Scientific
proof, so why let us not just forget about the 1year? There is
scientific proof. — Ja.
19
”
(the emphases are mine).
Evaluation
[28]
In
Buthelezi
v Ndaba
20
the
SCA recently again confirmed that the maxim
res
ipsa loquitur
does
not apply to medical negligence cases. In order to hold the defendant
liable the plaintiff simply has to prove on a balance
of
probabilities that the defendant did not exercise the required skill
and care of a reasonably competent specialist in his field.
In regard
to the conflicting views of expert witnesses
Buthelezi
states
as follows:
“
[14]
I have said at the beginning that the outcome of the dispute as to
whether or not the appellant's performance of the surgery,
which led
to the respondent's injury, could be described as negligent,
ultimately turns on an election between the opposing views
of two
expert witnesses. It is true, of course, as the court a quo
accentuated in its judgment, that the determination of negligence
ultimately rests with the court and not with expert witnesses. Yet
that determination is bound to be informed by the opinions of
experts
in the field which are often in conflict, as has happened in this
case. In that event the court's determination must depend
on an
analysis of the cogency of the underlying reasoning which led the
experts to their conflicting opinions.”
[29]
It has been established beyond reasonable doubt that the damage to
the nerve resulted from the improper use of the Charnley
retractor.
This resulted in either a partial lesion or a pressure injury to the
sciatic nerve. From the passages quoted above it
is clear that Prof
Weber’s view that the operation was performed with proper skill
and care is based only on the following:
Firstly
,
the good reputation of the defendant and
secondly
that
the defendant demonstrated his excellent knowledge, skill and care in
doing such an operation during a consultation with Prof
Weber in his
Sandton chambers where a plastic model was used for the purposes of
such demonstration.
[30] I do not regard
these as good reasons. On the other hand, the evidence of the
plaintiffs experts, amount to a simple but in
my view a good reason
for holding the defendant liable. This is that it is probably the
Charnley retractor which caused the injury,
that all retractors were
placed and adjusted by the defendant only and that the resultant
damage shows that he did not exercise
proper skill and care in
protecting the sciatic nerve.
[31]
This case therefore differs from
Buthelezi
in
which case the cause of the patient’s urine incontinence after
the operation was unknown. The combined total of hip replacement
operations performed by the experts and the defendant is 16 600. Out
of all these cases this is the only one which resulted in
axonotmesis
and a drop foot. Pure logic therefore shows that in this exceptional
case the defendant must have made a negligent
mistake in causing the
injury. I therefore find that the defendant was negligent and that
the plaintiff is entitled to the relief
sought.
Order:
[32] I make the
following order:
1. It is declared
that the defendant is liable for all damages resulting from damage to
the sciatic nerve during the operation performed
on 29 February 2008.
2. The defendant is
ordered to pay the costs of the trial on the merits.
3. The costs are to
include the costs of senior counsel as well as the costs of the
reports and preparation of Drs Birrell and Naude.
A.A. LOUW
Judge
of the High Court
1
Record
61
2
Exhibit “F” p2
3
Record p189-190
4
Record
P193-199
5
Exhibit
“J”
6
Record
p252-253
7
See
also para 6 above regarding his consultation with the plaintiff on
13 October 2008
8
Record
p264
9
Record
p265
10
Record
p266
11
Record
p266
12
Record
p273
13
Record
p286
14
Record
p288
15
Record
p293
16
Record
p294
17
Record
p295
18
Record
p305
19
Record
p306
20
2013(5)
SA 437 (SCA)