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[2020] ZASCA 3
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Meyers v MEC, Department of Health , Eastern Cape (1010/2018) [2020] ZASCA 3; [2020] 2 All SA 377 (SCA); 2020 (3) SA 337 (SCA) (4 March 2020)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1010/2018
In
the matter between
FELICIA
MEYERS
APPELLANT
and
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN CAPE
RESPONDENT
Neutral
citation:
Meyers v MEC, Department of Health, Eastern
Cape
(1010/2018)
[2020] ZASCA 3
(4 March 2020)
Coram:
Ponnan, Plasket and Mbatha JJA and Koen and Dolamo AJJA
Heard
:
8 November
2019
Delivered:
4 March 2020
Summary:
Law of delict – negligence – whether
plaintiff discharged onus of establishing negligence on part of
surgeon who caused
two small injuries to plaintiff’s bile duct
during surgery to remove gall bladder.
Order
On
appeal from:
Eastern Cape Division of
the High Court, Grahamstown (Makaula, Bloem and Brooks JJ sitting as
court of appeal):
(1)
The appeal is upheld with costs.
(2)
The order of the full court is set
aside and substituted with the following:
‘
(a)
The appeal succeeds with costs.
(b)
The order of the court below is set aside and substituted with the
following:
“
(i)
The defendant is held liable for the damages, if any, that the
plaintiff has suffered in consequence
of the injury inflicted by Dr
Vogel, namely two perforations to her common bile duct, whilst
performing a laparoscopic cholecystectomy
at the Livingstone Hospital
on 2 March 2010;
(ii)
The defendant is ordered to pay the plaintiff’s costs
occasioned by this hearing,
such costs to include the qualifying fees
of Dr BH Pienaar;
(iii)
The matter is postponed sine die.”’
JUDGMENT
Plasket
JA (Koen AJA concurring):
[1]
More than 100 years ago, in
Mitchell
v Dixon
,
[1]
this court held in relation to the standard of care expected of
medical practitioners that a ‘medical practitioner is not
expected to bring to bear upon the case entrusted to him the highest
possible degree of professional skill, but he is bound to
employ
reasonable skill and care; and he is liable for the consequences if
he does not’. This appeal concerns whether a surgeon,
when
performing an operation, fell short of that standard.
[2]
On 2 March 2010, the appellant, Ms Felicia Meyers, was operated on in
the Livingstone
Hospital, Port Elizabeth by Dr Richard Vogel, a
surgeon employed by the Department of Health in the Eastern Cape
provincial government.
Her gall bladder was removed by means of a
minimal access surgical procedure known as a laparoscopic
cholecystectomy. It was common
cause that during this procedure two
small injuries, each about two millimetres in diameter, were caused
to the common bile duct,
with the result that bile leaked into her
stomach after the operation, causing infection. This required
surgery, also performed
by Dr Vogel, in order to remedy the
situation.
[3]
Ms Meyers instituted a claim for damages in the Eastern Cape Division
of the High
Court, Port Elizabeth, against the MEC for Health as
nominal defendant. In her particulars of claim she alleged that the
injuries
to her bile duct that occurred during the first operation
were caused by the negligence of Dr Vogel or members of his team in
one
of four ways, namely, by Dr Vogel failing to convert the
procedure from a laparoscopic cholecystectomy to an open
cholecystectomy;
by him failing to perform the procedure with
the care, diligence and skill required of a reasonable surgeon; by
him failing
to ensure that Ms Meyers’ bile duct was not cut
during the procedure; and by his failure to ensure that the
electro-cautery
device used in the procedure was properly insulated
and therefore fit for use during the procedure. In the plea, the MEC
denied
these allegations of negligence.
[4]
Revelas J dismissed the action with costs, on the basis that Ms
Meyers had not discharged
the onus on her to establish that the
injuries were the result of negligence on the part of Dr Vogel or one
of his team. With the
leave of Revelas J, Ms Meyers appealed to a
full court of the Eastern Cape Division of the High Court,
Grahamstown. Brooks J, with
the concurrence of Makaula and Bloem JJ,
dismissed the appeal with costs. Special leave to appeal was,
however, granted by this
court.
The
trial and the full court appeal
[5]
On the central issue involved, namely whether Dr Vogel or any member
of his team
[2]
had been
negligent in causing the injuries, one expert witness testified on
behalf of Ms Meyers. He was Dr B H Pienaar. Professor
P C Bornman was
called as an expert witness on behalf of the MEC. In addition, Dr
Vogel was qualified as an expert, although he
obviously had an
interest in the matter.
[6]
Dr Pienaar and Prof Bornman compiled a joint minute in which they
recorded their agreements
and disagreements in respect of the
injuries. It read:
‘
1.
We agree that the injury to the bile duct occurred during the
laparoscopic cholecystectomy.
2.
We agree that the injury was most likely caused by Dr Vogel and/or
other employees
at the time of the laparoscopic cholecystectomy on 2
March 2010.
3.
We agree that there were two defects in the common bile duct/common
hepatic duct.
(See second operation note dated 11 March 2010.)
4.
We agree that the injury occurred during the performance of the
procedure either
due to a mechanical laceration (instrument) or
electrothermal injury.
5.
With respect to whether the nature of this injury in this matter can
be construed
as the operation being performed negligently we disagree
in the following:
5.1
Pienaar is of the opinion that the injury in this matter was caused
in a negligent manner.
5.2
Bornman disagrees that the operation was performed negligently.’
[7]
In essence, Dr Pienaar was of the view that the mere fact that the
injuries were caused,
irrespective of whether they were caused by the
surgeon or a defective instrument, raised an inference of negligence.
Prof Bornman
took a different view. He said that if a major injury
had been caused, such as the severing of the bile duct rather than
the cystic
duct, negligence could be inferred because the surgeon
would have failed to properly identify the anatomical structures
prior to
dissecting. The same inference could not, however, be drawn
when a minor injury, such as those suffered by Ms Meyers, had been
inflicted. In the first scenario, the surgeon would not have acted in
compliance with what both expert witnesses referred to as
the ten
commandments of gallbladder surgery.
[8]
Revelas J found that the evidence of Dr Bornman was to be preferred
over that of Dr
Pienaar. She reasoned that Prof Bornman’s
opinions were ‘more in keeping with the test for negligence in
matters where
medical negligence is considered’ and that he
‘appeared to be a very objective expert’.
[3]
She concluded that he ‘adopted a logical and balanced approach
to the matter and had directed his mind to the question of
comparative “risks and benefits and reached a defensible
conclusion”’.
[4]
Dr
Pienaar’s approach, on the other hand, left ‘no room for
human error’, set an ‘unreasonably high standard
for
surgeons’ and was ‘dogmatic and unrealistic’.
[5]
[9]
Revelas J found that the error that had caused the injuries ‘seems
to be one
that any reasonably competent practitioner in Dr Vogel’s
field could also have made’.
[6]
She concluded that no negligent conduct had been established and she
consequently dismissed the claim with costs.
[10]
The full court found that Revelas J had correctly evaluated the
evidence of Dr Vogel against
the backdrop of the expert evidence of
Dr Pienaar and Prof Bornman, and that her conclusion that no
negligence had been established
was also correct.
[7]
Its reasoning, in arriving at this conclusion, was the following:
[8]
‘
Significantly,
there is no direct evidence which demonstrated that the surgeon
offended one of the “ten commandments”
by not identifying
the anatomy. Nor is there any direct evidence to demonstrate that he
offended the “ten commandments”
by dissecting in the
Calot’s triangle with hook diathermy or, indeed with any other
form of sharp instrument. Any attempt
to draw an inference from the
evidence that he offended either or both “commandments”
is fundamentally flawed by the
speculative nature of the postulations
as to what might have caused the perforations and by the direct,
unchallenged evidence given
by the surgeon of the methodology he
employed during the surgical procedure. That evidence reveals no
factual basis for a finding
that the surgeon offended one or more of
the “ten commandments”. Accordingly, no logical basis or
reasoning is identifiable
to support the view expressed by the
appellant’s expert that the fact that the surgeon must have
made contact with the common
bile duct in order to cause the
perforations unequivocally demonstrates negligence on his part.’
The
evidence
[11]
While the evidence of Dr Pienaar and Prof Bornman was extremely
useful, and interesting, for
purposes of detailing how laparoscopic
cholecystectomies are performed, the physiology involved and the
risks attached, Dr Vogel’s
evidence is of prime importance as
he conducted the operation in question. Prior to turning to his
evidence, it is necessary first
to say something of the operation
concerned.
[12]
A surgeon may either operate to remove a gallbladder laparoscopically
or by means of an open
procedure. The laparoscopic procedure is
arguably less invasive than the open procedure. In some cases,
however, surgeons have
little choice but to perform the open
procedure, or to convert to it if they experience difficulties during
the laparoscopic procedure.
Indeed, in the second operation, Dr Vogel
converted to an open procedure because of the inflamed and infected
area in which he
had to work.
[13]
In the laparoscopic procedure, surgeons insert four ports, or tubes,
into the patient’s
abdomen through which the video camera that
provides visualisation and the instruments are inserted and utilised.
The images from
the camera are magnified 16 to 18 times when they are
displayed on a screen. This enables the surgeon to identify
anatomical structures
and to see what he or she is doing. One
drawback of the system is that the surgeon has to work from
two-dimensional images in a
three-dimensional environment.
[14]
In order to remove the gallbladder, the surgeon is required to ‘open
up’ the area
around it by teasing away adhesions or fatty
tissue that may be present. This is to enable him or her to identify
the anatomical
structures of relevance. He or she must sever the
cystic duct and the cystic artery and then seal them with clips. The
gallbladder
is then free to be removed, but it must first be freed
from the liverbed. This is done by means of electro-diathermy. It is
then
extracted from the patient’s abdomen through one of the
ports.
[15]
The area in which the surgeon works is a small confined area. The
gallbladder lies against the
liver. It is connected to the bile duct
by the cystic duct. The area between the gallbladder and cystic duct,
the liver and the
bile duct form, roughly, a triangular area known as
Calot’s triangle. The cystic artery which, like the cystic
duct, must
be severed in order to remove the gallbladder, runs in
Calot’s triangle. During the trial, Prof Bornman drew a sketch
of
the area and marked Calot’s triangle. In brackets he added
the words ‘danger area’. His sketch is reproduced below.
[16]
Dr Pienaar was asked about the dimensions of the anatomical
structures concerned. He said that
the diameter of the bile duct
varies between four and eight millimetres and that the cystic duct
‘can be very short, 3, 4
or 5 mms but it can be as long as two
or three centimetres’. He added that ‘[o]ne works in a
very confined space’.
As far as the distance between the bile
duct and the gallbladder is concerned, he said:
‘
Oh
that would be two, three centimetres; anything between one and three
centimetres. Tissue at that point is covered by the peritoneal
layer.
And once that is opened up, the whole area or space will open up. If
however there is inflammation and one cannot identify
the structures,
that’s where the difficulty comes in.’
[17]
Calot’s triangle was described as a danger area because it is
in this zone that matters
can go wrong, particularly if a surgeon
does not stick to the ten commandments of gallbladder surgery. For
instance, if a surgeon
does not identify the structures properly, he
or she may dissect the bile duct instead of the cystic duct. Damage
to the bile duct
was described by Dr Pienaar as the ‘bane of
laparoscopic cholecystectomy’. Such injuries occur ‘with
some regularity’
but their extent and nature vary from the
minor to the extremely serious. They are part and parcel of the risks
inherent in the
procedure, whether laparoscopic or open. Prof Bornman
testified that the chance of bile duct injuries that occur during the
procedure
varies between 0.5 percent and 2 percent. This evidence was
not disputed.
[18]
While Dr Pienaar described Calot’s triangle as a no-go area, it
is more accurate to call
it a danger area, as Prof Bornman did. The
reason for this is that the dissection of both the cystic duct and
cystic artery take
place here and, apart from that, it is often
necessary for surgeons to work in this area in order to tease off
adhesions before
proceeding further. Prof Bornman pointed out that
there are times when a surgeon has to clear the area fairly close to
the bile
duct before he or she finds a suitable place on the cystic
duct to divide and clip it.
[19]
Because of the ever-present risk of damage to the bile duct –
and the severe results that
ensue if any damage is done – the
ten commandments direct that no sharp instruments or
electro-diathermy should be used in
Calot’s triangle. Instead,
as has been noted, surgeons use blunt instruments in this area to
tease off adhesions. The purpose
of this is to clear the area to
ensure that the surgeon is able to properly identify the cystic duct
and the cystic artery, before
dividing and clipping them.
[20]
With this explanation of the procedure, which I have drawn from the
evidence of Dr Pienaar, Prof
Bornman and Dr Vogel, I now turn to the
evidence of Dr Vogel concerning the procedures he performed on Ms
Meyers.
[21]
Dr Vogel was, at the time that he removed Ms Meyers’
gallbladder, an experienced surgeon.
He testified that he performed
about 40 to 50 laparoscopic cholecystectomies a year and that he had
done so for ten years prior
to Ms Meyers’ surgery. He had, he
estimated, performed between 400 and 500 such procedures.
[22]
Given the number of operations he performed, he was not able to
remember the operation on Ms
Meyers specifically. He was, however,
guided in his evidence by the operation notes that were made at the
time. He proceeded to
testify as best he could as to how the
operation was performed.
[23]
The notes indicate that he had first had to remove adhesions from the
gallbladder. He explained:
‘
My note states
that I’ve removed adhesions from the gallbladder. Now I think
Prof. Bornman explained what adhesions were.
When you get
inflammation of the gallbladder due to acute cholecystitis the
mentum, a fatty layer in the abdomen often is stuck
to the
gallbladder and we often have to remove that and other structures
like the colon can be pulled up, the duodenum can be close
to the
gallbladder. And that all has to be divided with a blunt grasper. It
sometimes can be a simple procedure where the tissue
comes off very
easily; and on occasions it can be quite a difficult dissection. I
haven’t made any note here that it was
a difficult dissection.’
[24]
He proceeded to state that the adhesions were ‘divided from the
fundus downwards’
and then, ‘once you have exposure of
the lower aspect which is called Hartman’s Pouch’, it is
moved away from
the bile duct before ‘one starts dissection in
Calot’s triangle’ using a blunt instrument to ‘tease
the
tissue off that area to expose the cystic duct and artery’.
[25]
He stressed that electro-diathermy is not used in Calot’s
triangle and stated:
‘
The
importance of dissection in Calot’s triangle is that you
dissect the cystic duct on the gallbladder side of the cystic
duct
and keep away from the common hepatic duct, the common bile duct
area. But you don’t clearly see . . . there’s
often a lot
of fatty tissue, fibrosis, so you don’t clearly see but you
always make a point of knowing where the common bile
duct is. And
that is one of the vital things that you dissect those two
structures, the cystic duct and the cystic artery, and
you clearly
see them entering the gallbladder.’
[26]
Having dissected the cystic duct and the cystic artery, he proceeded
to place clips on them.
When he had done so, he proceeded with hook
diathermy to remove the gallbladder from the liverbed or fossa. The
gallbladder was
then extracted. He inspected it, opened it and
removed three large stones, which he later presented to Ms Meyers.
[27]
When he was asked whether anything out of the ordinary occurred
during the operation, he said
that the only noteworthy aspect that
was mentioned in the operation notes was that adhesions to the
gallbladder were divided. He
explained that adhesions arose as a
result of inflammation. Once the inflammation had settled, scar
tissue formed around Calot’s
triangle. Dealing with adhesions
could have the effect of prolonging the operation and making it more
difficult.
[28]
In this case, once he had completed the operation, he had not
observed any indication of a bile
leak or evidence of the small
injuries he found in the repair operation. It was possible, he said,
that the bile had only begun
to leak later, but he was not in a
position to say that this was indeed the case.
[29]
He then turned to the second operation. He confirmed that he found
two injuries that he estimated
to be two millimetres in diameter.
They were on the bile duct above the clips that he had inserted on
the cystic duct. He said
of these injuries that he had never seen
anything like this before and neither had his colleagues that he
spoke to. In his operation
notes, he queried whether the cause of the
injuries was electro-diathermy. (This was one of the possible causes
identified by the
experts in their joint minute, and I shall deal
with it presently.) The other possibility that he postulated was that
the injuries
had occurred while he had been dissecting with a blunt
instrument in Calot’s triangle close to the bile duct.
[30]
Finally, in Dr Vogel’s evidence in chief, he was asked about
the so-called ten commandments
of gallbladder surgery that Dr Pienaar
and Prof Bornman had alluded to. He was asked by Revelas J to go
through the full list as
the experts had tended to focus on only one
– to identify the anatomical structures properly. He stated
that the first commandment
was to ensure proper access to the
patient’s abdomen. He stressed the importance of using four
ports for the procedure in
order to ‘get maximum exposure in
Calot’s triangle’. It was important to use a 30 degree
laparoscope ‘to
get an optimum view over Calot’s triangle
with the critical view of safety’. For the rest, he listed the
remaining
commandments as follows:
‘
To do your
dissection on the gallbladder side of the cystic duct, dissect on the
gallbladder side of the cystic duct and not on
the common bile duct
side of the cystic duct. Do not use electro-cautery in that critical
view of safety. Do not cut any duct or
structure until you clearly
see two structures clearly entering the gallbladder and identify it
as the cystic duct and the cystic
artery which we did clearly in this
case. Prof Bornman went through the critical view of safety to see
those structures against
the liver. The other thing he mentioned was
to dissect above Rouviere’s sulcus so that you’re not in
the danger zone
as such.’
[31]
When he was asked whether he applied the ten commandments in the
operation in question he answered
simply that this is ‘standard
for any laparoscopic cholecystectomy operation’.
[32]
I turn now to Dr Vogel’s cross-examination. I shall first deal
with his evidence concerning
electro-diathermy as a possible cause of
the injuries, and then the possibility of mechanically inflicted
injuries. This evidence
must be seen in the context of Dr Vogel not
being able to say definitively what caused the injuries, because he
was unaware of
them until he found them during the second operation.
[33]
Dr Pienaar’s evidence concerning the electro-diathermic cause
of the injuries was that,
in the first place, the instrument must
have touched the bile duct to cause the injuries. Dr Vogel disagreed.
He referred to what
he termed the pedicle effect in terms of which
current may be conducted by tissue to a site other than that where
contact is made
with the instrument. He conceded that this
explanation was speculative but was only tendered to explain that
direct contact between
the electro-diathermy instrument and the bile
duct did not necessarily have to have occurred.
[34]
He was also cross-examined on the second aspect of the
electro-diathermic cause of the injuries,
namely a malfunction of the
instrument. His evidence was that if the instrument had been faulty,
he would have noticed. He said
that a sister inspected it for breaks
in the insulation. When it was handed to him, he would have seen any
defect. And it would
not have functioned properly if there had been a
defect, and he would have noticed that.
[35]
One of the ten commandments was that electro-diathermy should not be
used in Calot’s triangle.
It was put to Dr Vogel that if
electro-diathermy had been used in Calot’s triangle, the
injuries that Ms Meyers suffered
were exactly what one would expect.
Dr Vogel’s answer was that, had he used electro-diathermy in
Calot’s triangle,
which he had not, that certainly would have
been a possibility. As a highly skilled surgeon, he knew not to use
electro-diathermy
in the so-called danger area.
[36]
When it was put to him that the probabilities were that he used
electro-diathermy in the critical
view of safety, and ‘erroneously,
accidentally made contact with the common bile duct’, he
immediately referred the
court to the operation notes where it was
recorded that ‘diathermy was used on a hook to [loosen] the
gallbladder from its
fossa’. Revelas J asked him to repeat his
evidence. He clarified that he had said that there was no evidence
that ‘diathermy
was used to dissect out the Calot’s
triangle, that critical area between the gallbladder, cystic duct and
common hepatic
duct’. He then stressed:
‘
There’s
no evidence in my op note that diathermy was used there and its
clearly stated that what we do in every operation
we use diathermy
only to remove the gallbladder from the bed of the liver where it is
safe to use after you have cut the cystic
duct and the cystic artery
which my sequence of events in my op note clearly state.’
[37]
Dr Vogel then repeated, when it was put to him that the explanation
for the injuries lay outside
the operation notes, that ‘I
clearly stated that hook diathermy was only used which is our
standard procedure in all 400
cases that I’ve done, we used
diathermy to remove the gallbladder from the fossa’. Prof
Bornman testified that this
was the appropriate time to use
electro-diathermy and it ought to have been safe to do so.
[38]
The second possible cause of the injuries was mechanical. It was put
to Dr Vogel that, as a result
of adhesions being present, he had
performed the operation under circumstances of poor visibility and in
this process caused the
injuries. His answer was that adhesions do
not necessarily cause poor visualisation but that he agreed with the
statement that
adhesions in Calot’s triangle could make
dissection more difficult. When asked by Revelas J whether adhesions
could affect
the proper identification of anatomical structures he
conceded that adhesions could prevent ‘a good visual picture of
the
actual Calot’s triangle’, but this depended on
exactly where the adhesions were. He explained how this problem was
dealt with:
‘
In the location of
that critical view and that would happen in a severely inflamed acute
cholecystitis. And I think Prof. Bornman
indicated our specific
technique that we trained with when you have soft inflamed adhesions
like that, and he trained us to use
a blunt sucker to gently tease
the adhesions off that particular or critical view. But these
adhesions I don’t recollect
that . . . you know they could have
been high up on the fundus of the gallbladder coming down which we
dissected off.’
[39]
The second aspect of the ‘mechanical’ explanation is that
Dr Vogel was dissecting
in the danger area. Dr Pienaar’s
evidence was to the effect that the only explanation for the injuries
was negligence. Dr
Bornman said that if a surgeon encountered
inflammation and adhesions in Calot’s triangle, he or she would
have to dissect
there in order to be able to identify the cystic duct
and the cystic artery and would of necessity have to dissect close to
the
bile duct. In these circumstances, the risk of injuries to the
bile duct would increase, but that risk must be taken in order to
avoid mis-identification of the relevant anatomical structures, with
the extreme consequences which that would entail. How much
dissection
in Calot’s triangle is necessary in order to sufficiently make
the necessary identifications is a matter of judgment.
Dr Bornman
pointed to the fact that the clips on the stump of the cystic duct
were close to the bile duct. This indicates that
Dr Vogel probably
had to tease off adhesions close to the bile duct in order to be able
to identify the cystic duct and the cystic
artery. In that teasing
process, with the blunt instrument, a surgeon could ‘inadvertently
injure the [bile] duct’
bearing in mind that the bile duct ‘is
a very thin structure’.
[40]
Although Dr Pienaar took the view that any injury caused to the bile
duct (or indeed other anatomical
structures) during a laparoscopic
cholecystectomy was due to negligence, and that the mere fact of the
injury was proof of negligence,
his evidence was, in important
respects, in line with that of Dr Vogel and Prof Bornman. He
conceded, for instance, that a surgeon
would be working in a small
area, that he or she may have to work close to the bile duct and that
sometimes, of necessity, a surgeon
would have to dissect in or close
to Calot’s triangle. He accepted that whenever a gall bladder
is removed, there is always
‘a real risk to injury of the bile
duct’.
[41]
He described the injuries in this case as being ‘extremely
small’ defects and ‘minute’.
Their cause was
speculative. He was of the view that, but for these two defects, Dr
Vogel’s work had been correctly performed.
Prof Bornman made
the point that Dr Vogel had identified all of the structures and did
not divide what should not have been divided.
In these circumstances,
to hold him liable for ‘a small defect like this’ was, in
his view, harsh.
[42]
Prof Bornman drew a distinction between minor injuries – such
as the injuries in this case
– and major injuries – such
as when a surgeon divides the bile duct instead of the cystic duct.
He said that if a surgeon
caused a major injury, that would in and of
itself be indicative of the surgeon having failed to apply the ten
commandments: he
or she would have divided a structure before having
properly identified it. The need to properly identify the cystic duct
and the
cystic artery ‘means that there has to be a degree of
dissection in the danger zone’ of Calot’s triangle.
[43]
When he was asked whether in his opinion, and based on the available
records, Dr Vogel had complied
with the ten commandments, he said:
‘
Well
that is obviously a difficult question to answer. But why I believe
that he has followed the rules is the fact that the cystic
duct was
divided and not the bile duct. And in order for him to have divided
the cystic duct he must have clearly identified the
structures. So in
my opinion he has done a sufficient number of dissections and the
rules that I have explained now to ensure that
he does not injure the
main bile duct but he correctly divides the cystic duct. In addition
to that there was no evidence of any
vascular injuries because often
a sign of major vascular injury . . .’
[44]
He disagreed with Dr Pienaar that any injury caused to the bile duct
must of necessity have been
caused by negligence on the part of the
surgeon. He said that in a matter like this, ‘to enable [one]
to see the critical
view of safety you need to do enough dissection
in this triangle, the Calot’s triangle’ and that ‘you
have to
dissect out the critical Calot’s triangle to be able to
identify your cystic duct particularly and also the cystic artery
which also runs in that triangle’. A surgeon may have no choice
but to dissect in Calot’s triangle and his or her view
of the
triangle may be ‘obliterated by inflammation, adhesions and so
on’. He also made the point that the triangle
is a very small
area.
[45]
When Dr Bornman was asked whether, in his opinion, an injury of the
size involved in this case
would necessarily have been brought about
by negligence, he said:
‘
No,
not necessarily as I’ve explained that that . . . unless you do
that dissection you’re going to stand a bigger chance
of
causing major injury in that situation. You have to dissect out that
critical view of safety and by doing so you’re going
from time
to time, depending on anatomy, the sort cystic duct, maybe a much
smaller triangle that you’re working, inevitably
at some stage
you’re going to be close to the bile duct. Obviously you don’t
want to be there but you cannot actually
tell until you’ve
reached a certain stage of the dissection. And as long as you remain
vigilant and try to use your anatomical
landmarks, which can be
difficult in an inflamed gallbladder, there is an element of risk,
albeit small but there is an element
of risk.’
[46]
For the sake of completeness, it is necessary to deal, albeit
briefly, with the allegation that
Dr Vogel’s negligence lay in
his failure to convert from a laparoscopic procedure to an open
procedure. The basis for this
ground appears to have been Dr
Pienaar’s opinion that Dr Vogel had taken an unduly long time
to perform the operation. The
argument proceeded that he must have
experienced difficulties and as a result, it would have been
‘prudent’ to have
converted to an open procedure. Dr
Pienaar and Prof Bornman agreed in their joint minute, however, that
Dr Vogel’s failure
to convert to an open procedure did not
necessarily constitute negligence on his part.
[47]
Dr Vogel testified that when operating, he did not clock-watch, and
that if he experienced difficulties,
he sometimes converted to an
open procedure as quickly as within five minutes of the commencement
of an operation. In this case,
there was no suggestion in the
operation notes that difficulties had arisen or that a lack of
progress indicated the need to convert
to an open procedure. He also
did not agree with Dr Pienaar’s opinion that 80 minutes was an
inordinately long time for the
operation in question. (Prof Bornman
agreed with Dr Vogel in this respect.) Dr Vogel added that the
presence of adhesions, which
is recorded in the operation notes,
would have added to the time taken to complete the procedure.
[48]
In cross-examination, it was put to Dr Vogel that the operation had
taken an unduly long time
and that this was as a result of ‘poor
visualisation which made it more difficult for you to do the
operation’. He
answered this as follows:
‘
No
I don’t buy the fact. And I think I explained it to M’Lady,
the time of this operation varies greatly depending on
the pathology,
the anatomy – plenty of other factors, patient, body, habits –
there are so many factors that come into
play. I don’t believe
any expert can extrapolate that a long time is due to poor
visualisation or a poorly performed op.’
Has
negligence been established?
[49]
The particulars of claim allege four bases for negligence on the part
of Dr Vogel and his team.
They are that Dr Vogel failed to convert
from a laparoscopic cholecystectomy to an open cholecystectomy; he
failed to perform the
procedure with the care, diligence and skill
required of a reasonable surgeon; he failed to ensure that Ms Meyers’
bile duct
was not cut during the procedure; and he failed to ensure
that the electro-diathermic instrument used in the procedure was
properly
insulated and therefore fit for use during the procedure.
[50]
For Aquilian liability to arise, the harm caused by the defendant
must have been both unjustified,
or, in other words, wrongful, and
culpable, in the sense of having been either negligently or
intentionally caused.
[9]
Put
differently, ‘[n]egligence, as it is understood in our law, is
not inherently unlawful – it is unlawful, and thus
actionable,
only if it occurs in circumstances that the law recognises as making
it unlawful’.
[10]
The
element of wrongfulness is not in issue in this matter and it was
common cause that the injuries were caused during the operation.
The
only issue that requires consideration is whether negligence on the
part of Dr Vogel has been established by Ms Meyers.
[51]
The test for negligence is well-known but worthy of repetition. In
Kruger v
Coetzee
,
[11]
Holmes JA held that negligence arises if a reasonable person in the
position of the defendant ‘would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss’ and ‘would
take
reasonable steps to guard against such occurrence’ but the
defendant failed to take those steps.
[52]
In a case such as this, where specialised skill is involved, the
general standard of the reasonable
person is adjusted upwards, as it
were, to that of the reasonable person in the field of endeavour
involved. In other words, while
a person possessed of, or professing
to be possessed of, specialised skills is not required to display the
‘highest possible
degree of professional skill’, he or
she will be held to ‘the general level of skill and diligence
possessed and exercised
at the time by the members of the branch of
the profession to which the practitioner belongs’:
[12]
he or she will be held to a standard of reasonable skill and care
within the area of his or her expertise or professed expertise.
[13]
In this case, then, Dr Vogel’s conduct is to be judged against
the standard of the reasonable surgeon performing a laparoscopic
cholecystectomy.
[53]
In assessing a person’s conduct in a case such as this, one
must guard against the ‘insidious
subconscious influence of
ex
post facto
knowledge’, and bear in mind that ‘[n]egligence is not
established by showing merely that the occurrence happened .
. . or
by showing after it happened how it could have been prevented’
– the reasonable person does not have ‘prophetic
foresight’.
[14]
[54]
In
Van
Wyk v Lewis
,
[15]
Innes CJ dealt with the question of the onus. He stated:
‘
The
question of
onus
is of capital importance. The general rule is
that he who asserts must prove. A plaintiff therefore who relies on
negligence must
establish it. If at the conclusion of the case the
evidence is evenly balanced, he cannot claim a verdict; for he will
not have
discharged the
onus
resting upon him.
In
determining whether the onus has been discharged, a court must
consider all of the evidence.
[16]
[55]
In this case, the onus rested on Ms Meyers to establish the
negligence that she has pleaded.
I turn now to a consideration of
whether she has discharged that onus.
[56]
I shall commence with the assertion that Dr Vogel was negligent in
not converting from a laparoscopic
procedure to an open procedure.
The highwater mark of this argument was that it may have been
‘prudent’ for Dr Vogel
to have converted to an open
procedure. The evidence of Dr Pienaar came nowhere close to
establishing this as a ground of negligence
on the part of Dr Vogel.
Even if it did, no evidence was adduced to establish that the
injuries were caused by the failure to convert
to an open procedure.
[57]
In his evidence, Dr Pienaar took the view that any injury to the bile
duct, irrespective of how
it may have been caused, was indicative of
negligence. In other words, the mere fact of the injuries led to an
inference that Dr
Vogel had been negligent in some or other way. As
Revelas J held in the trial court, that sets too high a standard to
which the
reasonable surgeon performing a laparoscopic
cholecystectomy is to be held, and leaves ‘no room for human
error, which logically,
not all surgeons may manage to escape’.
[17]
[58]
Her approach to the opinion of Dr Pienaar is consistent with this
court’s judgment in
Buthelezi
v Ndaba
,
[18]
in which an expert witness had also expressed the view that the fact
that an injury had occurred pointed to negligence on the part
of the
surgeon. Brand JA dealt with this evidence as follows:
‘
[16] Turning to
the conflicting views of the respective experts, it appears that Prof
Green-Thompson's underlying reasoning departs
from the inference that
the injury to the respondent's bladder would not have occurred if the
appellant was not negligent. To me
that seems reminiscent of an
application of the
res ipsa loquitur
maxim, which the court a
quo quite rightly found inappropriate in this case. I say quite
rightly because, as was pointed out in
the
locus classicus
on
medical malpractice,
Van Wyk v Lewis
1924 AD 438
at 462, that
maxim could rarely, if ever, find application in cases based on
alleged medical negligence. The human body and its
reaction to
surgical intervention are far too complex for it to be said that,
because there was a complication, the surgeon must
have been
negligent in some respect. Logic dictates that there is even less
room for application of the maxim in a case like this,
where it has
not even been established what went wrong; and where the views of
experts are all based on speculation — giving
rise to various
but equally feasible possibilities — as to what might have
occurred. Moreover, although Prof Green-Thompson
did not deny the
authority of the international publications, put to him in
cross-examination, that contradict his conclusions,
he simply seemed
to ignore their content. In sum I thus find Prof Green-Thompson's
opinion ill-supported by his reasoning.
[17] By contrast, Prof
Snyman's opinion, based on his expertise and experience in practice,
that this type of injury may result
from a hysterectomy operation
despite reasonable care on the part of the surgeon, appears to be
well supported by views expressed
in international journals in the
field. In fact, these publications seem to indicate that this type of
injury to the bladder is
generally accepted as one of the inherent
risks of a hysterectomy operation. In these circumstances, I consider
that the court
a quo erred in finding that negligence on the part of
the appellant had been established.’
[59]
In this court, no attempt was made to justify the high standard of
care postulated by Dr Pienaar.
Instead, the argument was advanced
that because injuries were caused to the bile duct, Dr Vogel must
have failed to comply with
one or more of the ten commandments –
and his negligence lay in that failure.
[60]
I have set out in detail the evidence of Dr Vogel. What is clear from
his evidence is that he
is a very experienced surgeon who knows and
applies the ten commandments as a matter of practice when he
performs, almost weekly,
a laparoscopic cholecystectomy. He testified
that had the electro-diathermy device been defective, it was likely
that the sister
who tested it would have noticed the problem and,
failing that, he would have noticed breaks in the insulation and the
resultant
defective working of the instrument. On the probabilities,
a defective electro-diathermy device can be discounted as a cause of
the injuries.
[61]
It can also be accepted that Dr Vogel did not used electro-diathermy
in Calot’s triangle.
His evidence in that respect is clear,
adamant and definite, and ought to be accepted. It is highly
improbable that an experienced
surgeon like him would depart from so
obvious and ingrained a precaution against undue injuries in a danger
area. His direct evidence
is to be preferred to that of Dr Pienaar,
who had no direct knowledge of the specific procedure in question,
but for the operation
notes, and whose evidence is largely based on
speculation.
[19]
Dr Vogel also
did not use any sharp instrument in Calot’s triangle, and there
appears to have been no suggestion that he
had done so. Once again,
the proposition that he had used a sharp instrument, given his track
record and experience, would be improbable.
He consequently did not
breach these two of the ten commandments, or as far as I can see, any
of the others.
[62]
Instead, Dr Vogel utilised the proper method of dealing with
adhesions in and around Calot’s
triangle by teasing them away
with a blunt instrument – the appropriate instrument for the
purpose – in order to give
himself a clear view of the
structures that he had to divide. He identified the correct
structures, divided them and clipped them
appropriately. Dr Pienaar
and Prof Bornman agreed that the operation was performed properly and
correctly in all respects save
for the two small injuries to the bile
duct.
[63]
In all probability, the injuries were caused while Dr Vogel was
teasing off adhesions within
Calot’s triangle. It was only this
teasing off of adhesions that could have caused the injury. Dr Vogel
would have had no
choice but to tease off any adhesions in Calot’s
triangle so that he could, as indeed, he did, identify the cystic
duct and
cystic artery. A failure by him to identify these structures
would have had far more serious consequences than the small injuries
to the bile duct. There are risks inherent in this process and one of
them is a risk of injury to the bile duct – a risk
that
materialises, according to Dr Pienaar, with ‘some regularity’.
In working in this area, it is a matter of judgment
on the part of
the surgeon as to how much to dissect in Calot’s triangle and
when he or she believes the area clear enough
to make a proper
identification of the structures.
[64]
In the terminology of
Kruger
v Coetzee
,
[20]
Dr Vogel, as a reasonable surgeon, would have foreseen the
possibility of harm to Ms Meyers’ bile duct during the
operation,
but he took steps to avoid that harm from materialising by
performing the operation in accordance with the ten commandments
which
were developed for the very purpose of avoiding that harm. In
these circumstances, I am of the view that Ms Meyers has not
discharged
the onus on her to prove on a balance of probabilities
that Dr Vogel was negligent when he caused the injuries. That means
that
the appeal cannot succeed.
The
order
[65]
I would dismiss the appeal with costs.
__________________________
C
Plasket
Judge
of Appeal
Ponnan
JA (Mbatha JA and Dolamo AJA concurring)
[66]
What occupied the attention of both courts below in this matter, and
on which Plasket JA and
I disagree, is whether or not Dr Vogel
applied the degree of professional skill and
diligence expected of members of his profession
when he
performed a laparoscopic cholecystectomy on the appellant, Ms Meyers.
[67]
The general rule is that she who asserts must prove. In a case such
as this it was accordingly
for Ms Meyers to prove that the damage she
sustained was caused by Dr Vogel’s negligence. As it was put in
Goliath
v MEC for Health, Eastern Cape
:
[21]
‘
The
failure of a professional person to adhere to the general level of
skill and diligence possessed and exercised at the same time
by the
members of the branch of the profession to which he or she belongs
would normally constitute negligence (
Van Wyk v Lewis
1924 AD
438
at 444). A surgeon is in no different a position to any other
professional person (
Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 488C).
It has been pointed out that a “medical practitioner is not
expected to bring to bear upon the case entrusted
to him the highest
possible degree of professional skill, but he is bound to employ
reasonable skill and care” (
Mitchell v Dixon
1914 AD 519
at 525). As
Scott J put it in
Castell
v De Greef
1993 (3) SA 501
(C) at
512A–B, “(t)he test remains always whether the
practitioner exercised reasonable skill and care or, in other
words,
whether or not his conduct fell below the standard of a reasonably
competent practitioner in his field” (cited with
approval in
Buthelezi v Ndaba
2013 (5) SA 437
(SCA) para 15)
.’
[68]
In
Premier
of the Western Cape Province v Loots NO
,
[22]
Brand JA explained:
‘
For
its legal basis the argument rested on the so-called concrete or
relative approach to negligence. According to this approach
it cannot
be said that someone acted negligently because harm to others in
general was reasonably foreseeable.
A
person’s conduct can only be described as negligent with
reference to specific consequences. Yet, the relative approach
does
not require that the precise nature and extent of the actual harm
which occurred was reasonably foreseeable. Nor does it require
reasonable foreseeability of the exact manner in which the harm
actually occurred. What it requires is that the general nature
of the
harm that occurred and the general manner in which it occurred was
reasonably foreseeable. At some earlier stage there was
a debate as
to whether our courts should follow the relative approach as opposed
to the so-called abstract or absolute approach
to negligence. But it
now appears to be widely accepted . . . that our courts have adopted
the relative approach to negligence
as a broad guideline, without
applying that approach in all its ramifications.’
[69]
A court is not called upon to decide the issue of negligence until
all of the evidence is concluded.
[23]
When an inference of negligence would be justified, and to what
extent expert evidence is necessary, no doubt depends on the facts
of
the particular case. Any explanation as may be advanced by or on
behalf of a defendant forms part of the evidential material
to be
considered in deciding whether a plaintiff has proved the allegation
that the damage was caused by the negligence of the
defendant. As
Wessels JA
pointed
out in
Van
Wyk v Lewis
:
[24]
‘
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.’
[70]
The facts and history to the litigation are comprehensively set out
in the judgment of my learned
colleague.
As is
commonplace in cases of this kind, Ms Meyers was simply unaware of
what had occurred during the
cholecystectomy,
because
the procedure was carried out under general anaesthetic. But,
by
the time she came to close her case before Revelas J, the following
had become either common cause or undisputed: On 2 March
2010 Dr
Vogel performed a laparoscopic cholecystectomy on the appellant for
the removal of her gall bladder. During the course
of the procedure
he inflicted two small injuries, each of about two millimetres in
diameter, to her common bile duct. A week later,
on 9 March 2010, the
appellant was re-admitted to hospital with acute bile peritonitis. On
11 March 2010 Dr Vogel performed a surgical
repair to the bile duct
injury. The essence of Ms Meyers’ case is that Dr Vogel failed
to observe reasonable care whilst
performing the laparoscopic
cholecystectomy and, by reason thereof, an untoward act occurred
producing a new, independent injury.
[71]
We are here concerned with an unconscious patient who has suffered an
admitted injury. That being
so, the spectre of negligence on the part
of the attending surgeon loomed large. At the close of Ms Meyers’
case before Revelas
J, her evidence, together with that of Dr Pienaar
and the documentary exhibits, was sufficient as to place an
evidentiary burden
upon Dr Vogel to shed some light upon the
circumstances attending Ms Meyers’ injury. Failure to do so
meant that, on the
evidence as it then stood, he ran the risk of a
finding of negligence against him. For, whilst Ms Meyers, as the
plaintiff, bore
the overall onus in the case, Dr Vogel nonetheless
had a duty to adduce evidence to combat the prima facie case made by
Ms Meyers.
[25]
It remained for
him to advance an explanatory (though not necessarily exculpatory)
account that the injury must have been due to
some unpreventable
cause, even if the exact cause be unknown.
[72]
Dr Vogel was simply unable to account for the injury. It was put to
him in cross-examination
that ‘the cold hard fact is you are
unable to tell this Court how those perforations occurred’, to
which he replied:
‘[t]hat is correct’. Dr Vogel testified
that he could not ‘recall this specific operation’, so he
could
only go by what he had written in his ‘op note’. He
added:
‘
My
note states that I’ve removed adhesions from the gallbladder.
Now I think Prof. Bornman explained what adhesions were.
When you get
inflammation of the gallbladder due to acute cholecystitis the
mentum, a fatty layer in the abdomen often is stuck
to the
gallbladder and we often have to remove that and other structures
like the colon can be pulled up, the duodenum can be close
to the
gallbladder. And that all has to be divided with a blunt grasper. It
sometimes can be a simple procedure where the tissue
comes off very
easily; and on occasions it can be quite a difficult dissection. I
haven’t made any note here that it was
a difficult dissection.’
However,
the operation note itself contained no explanation for the injury and
Dr Vogel was driven to concede that the explanation
for the injury
‘lies outside of the operation note’.
[73]
Thus, absent an explanation from Dr Vogel, the evidence of the expert
witnesses, in particular
Prof Bornman, assumed heightened
significance.
The experts agreed in their
joint minute that ‘the injury occurred during the performance
of the procedure either due to a
mechanical laceration (instrument)
or electrothermal injury’. Before turning to a consideration of
the two possible causes
of the perforations agreed upon by the
experts in their joint minute, it is necessary to briefly dispose of
two further hypotheses
mooted by Dr Vogel during his evidence,
namely, a faulty instrument and what he described as the ‘pedicle
effect’.
First, those were not raised with nor did they occupy
the attention of the experts in their expert summaries or when they
agreed
on a joint minute. In that regard Prof Bornman testified:
‘
You
have now agreed that the two perforations were either caused by
mechanical laceration or an electro-thermy. --- That’s
correct.
We’re not dealing
with speculation about anything else, it was one of those two things
that caused it. --- In all probability.’
Second,
the experts were not called upon to deal with or express any opinion
on these hypotheses when they testified. Third, Dr
Vogel was
constrained to accept that if the instrument had been faulty, he
should have noticed it. And, fourth, Dr Vogel conceded:
‘
And
you are unable to say that there was a pedicle effect? --- No I’m
unable to say.
You’re
speculating that that was a possibility. --- That’s a
possibility.’
[74]
An electrothermal injury was first raised as a possibility by Dr
Vogel in his operation note
during the surgical repair. As he
testified:
‘
You
then wrote question mark diathermy injury. I assume from that that
you queried the possibility of it being a diathermy injury.
--- That
is correct M’Lady. As I stated earlier I have never seen an
injury like this. I do not have colleagues that have
ever explained
that injury to me. So at the time of the operation I did contemplate
that this could possibly be a diathermy injury.
Subsequently to that
the other option has emerged that it could also have been an injury
from dissection or tethering of plain
fibrotic tissue in Calot’s
triangle.’
During the course of his
evidence, however, he all but discounted that as a possible cause of
Ms Meyers’ injury. In that regard
his evidence ran:
‘
Now
I want to suggest to you that as you correctly pointed out one of the
vital requirements of a surgeon performing this procedure,
is to not
work with a diathermy device in Calot’s triangle. --- That is
correct.
The reason for that
commandment, to use the term, is that if you do use a diathermy
device in Calot’s triangle there is a
great risk of an injury
to the common bile duct. --- That is correct M’Lady.
And the terminology you
used is in your evidence in chief you said the surgeon must not use
electro-thermy in the critical view
of safety. --- That is correct.
Now in this particular
operation if you did use the diathermy device in the critical view of
safety, there would have been a risk
of perforating the common bile
duct. Would you agree with me on that? I’m not saying you did
at this stage, I’m saying
if you did. --- You’re saying
if I did use diathermy in the critical view there is a risk.
There was a risk of
direct contact with the common bile duct. --- That is correct, I
agree with that.
And if that occurred then
perforations such as these that you found is what you would expect to
find. --- If I had used diathermy
which I didn’t use in the
critical angle, that would be a possibility.’
Later, Dr Vogel added:
‘
I’ve
already made the suggestion to you – I don’t want to
repeat myself but you would agree with me that –
and again I’m
putting a . . . proposition to you to enable you to comment on it.
You would agree with me that if you did
use diathermy in Calot’s
triangle and you made direct contact with the common bile duct, that
is something which would have
been incorrect and the injury would
have then been avoidable. --- Using diathermy in that critical angle
close to the common bile
duct is incorrect.
Correct.
The
surgeon does not need to do it and he should not do it. --- Should
not do it.’
[75]
Turning to the first possibility recorded in the joint minute of the
experts, namely, that ‘the
injury occurred due to a mechanical
laceration with an instrument’. On that score Dr Pienaar
testified:
‘
Those
are the two possibilities. Now just to deal firstly with the first
possibility, the mechanical laceration. When a surgeon
conducts the
LC, if he does so properly, can a mechanical laceration occur to the
common bile duct? --- I do not think it should
happen M’Lady.
Why do you say that? ---
If one identifies the structures, you know exactly where you are,
you’ve got absolute control of
the instrument, you should not
damage any structures in the vicinity. With a laparoscopic
cholecystectomy there are some guidelines
that there are areas that
one should not dissect in.
COURT
There are areas which one should not? --- One
should not dissect in. So those are boundaries and areas with a no
entry sign.
MR
NIEKERK
Just to put it into very simple
terms would Dr Vogel have used sharp instruments which could cause a
mechanical laceration to the
common bile duct? --- Absolutely. Yes,
one would use scissors. You could use a hook dissector. We use an
instrument that you suck
with, that has got a sharp edge. There are a
number of instruments that could have caused the injury, yes.
Was it necessary for any
of those instruments to be at the common bile duct? --- I do not
think so, M’Lady.
Is this something that
should be known . . . should a surgeon know to stay away from that
area? --- I think that is drummed and
hammered into us all the time,
yes, because of the consequences of damage to the common bile duct.
You’ve already said
that injuries to the common bile duct is something unfortunately
which happens fairly regularly? --- It
does happen.
Are surgeons made aware
of this? Should they be aware of this through training or otherwise?
--- We are made aware of this by training.
It is one of the banes of
general surgery if you want – damage to the common bile duct –
it’s a subject that
is often discussed and advised that it
should be prevented.
If Her Ladyship should
find that . . . it’s not even necessary for a finding but if
the injury occurred due to a mechanical
laceration, is that
acceptable in the circumstances? --- No M’Lady, not in my
opinion. It constitutes an injury to the bile
duct.
And had Dr Vogel not
ignored the so-called no entry signs, and he had performed the
operation properly, would the injury to the
bile duct have occurred?
--- I do not think so M’Lady. What I mean is if he had stayed
away from the common bile duct, the
injury would not have occurred.
And
at the risk of my repeating myself, should he have been aware of the
need to stay away from the bile duct? --- I would certainly
expect
that, M’Lady.’
[76]
Revelas J held:
‘
In
my view, Dr Pienaar’s approach leaves no room for human error,
which logically, not all surgeons may manage to escape.
It was not in
dispute that Dr Vogel had performed approximately 500 operations of
the type under discussion, and that the injury
to the plaintiff’s
bile duct was his first error of this nature. In the absence of any
proof to the contrary, I am bound
to accept . . . Dr Vogel’s
observation (as noted down by him during the repair procedure) that
the injury comprised of two
small perforations.
Based
on all the evidence presented, the error in question seems to be one
that any reasonably competent practitioner in Dr Vogel’s
field
could also have made. Dr Pienaar’s reasoning is simply put,
that the injury to the bile duct would not have occurred
if Dr Vogel
was not negligent and since the injury did occur, Dr Vogel was
negligent. He therefore, in my view, set an unreasonably
high
standard for surgeons. Errors do occur. That is human nature, and to
hold that all such errors constitute negligence would
be dogmatic and
unrealistic.’
[77]
It is unclear to me why Revelas J preferred the evidence of Prof
Bornman to that of Dr Pienaar,
or how acceptance of the former’s
evidence necessarily impelled her to the conclusion that Dr Vogel was
not negligent. During
his evidence in chief, Prof Bornman stated:
‘
So
there are minor injuries and there are major injuries. And the major
injuries that I just described are where the surgeon fails
to adhere
to, we call it the ten commandments. What the surgeon needs to do is
before he divides any structure, he must ensure
that he has
identified the anatomy properly. And in particular to know that he is
dealing with the cystic duct and not with the
bile duct. That
inevitably means that there has to be a degree of dissection in the
danger zone. And we can easily refer to that
as Calot’s
triangle. Whereas Dr Pienaar correctly points out there are other
vascular structures there as well: arteries
and veins and so on. So
that unless you have identified the anatomy there and you dissect out
Calot’s triangle, and we call
it the critical view of safety
and by that we mean that you have to do enough to make sure that what
you’re going to divide
is going to be the cystic duct. If you
haven’t done that and you then divide the bile duct then in my
view, and it is now
generally accepted that kind of injury is a
negligent act because the surgeon has not taken the precautions of
making sure he has
seen all the structures; he has divided it at the
stage where he is absolutely sure that he is not dealing with the
bile duct but
with the cystic duct, and then proceeds from there.’
When asked whether Dr
Vogel adhered to or complied with the ten commandments, Prof Bornman
responded: ‘Well that is obviously
a difficult question to
answer’. He then stated:
‘
But
why I believe that he has followed the rules is the fact that the
cystic duct was divided and not the bile duct. And in order
for him
to have divided the cystic duct he must have clearly identified the
structures. So in my opinion he has done a sufficient
number of
dissections and the rules that I have explained now to ensure that he
does not injure the main bile duct but he correctly
divides the
cystic duct. In addition to that there was no evidence of any
vascular injuries because often a sign of major vascular
injury . . .
[is] injury to the hepatic artery.’
[78]
Under cross examination, Prof Bornman added:
‘
Now
Dr Pienaar’s evidence is further that if the anatomy is
properly identified then the common bile duct injury will not
occur.
Cannot occur. --- Well I think this is where the question is more
difficult to answer. I have explained already it depends
on what type
of injury we are talking about. If you don’t identify the
anatomy, then you run the risk of causing a major
bile duct
trans-section procedure.
Well where you and Dr
Pienaar are also in agreement is that there’s a no go area. ---
There is a no go area but it is a no
go area where you have to go at
some stage to do the operation otherwise you can . . . never do
a standard laparoscopic cholecystectomy.
The part is you must,
part of identifying the anatomy is identifying the no go area. Not
so? --- M’Lady I think we’re
beginning to struggle with
the terminologies we’re talking about here. The Calots triangle
is not a no go area, it’s
a dangerous area; it’s not a no
go area.
. . . What I’m
saying is that Dr Pienaar’s evidence is that the common bile
duct is a no go area. And part of identifying
the anatomy is
establishing where that is so that you know you do not go there. ---
It’s absolutely correct. But if I may
refer you to the sketch,
the triangle is what you dissect out. The one leg of the triangle is
the bile duct. So that is the area
you’re dissecting. So I
agree with you, you try and stay as far away from that plain but at
some stage you need to dissect
out the cystic duct and the region
around the cystic duct to be able to get a critical view of safety,
so that in doing that dissection
in that field which you refer to as
no go area, the bile duct invariably can be close to that area. In
fact in the era of open
cholecystectomy I have to remind you, is that
there they have insisted on dissecting down until you get the bile
duct; because
the reason for that was they didn’t want to leave
a long cystic stump because there was a syndrome ascribed to that.
Nowadays
we say no it doesn’t matter.
Let us not get lost in
miscommunication. Let’s first look at where there is agreement.
We agree that the common bile duct
should not be injured in any way.
--- Ja that’s absolutely correct.
That is something any
surgeon doing this operation must keep in mind, you agree? ---
Absolutely.
He must be aware that he
must not injure the common bile duct because it has severe
consequences for the patient. --- Indeed so.
It is not necessary for
the surgeon to make direct contact either with the instrument or with
an electro-thermal device to make
contact with the common bile duct.
--- No it’s not necessary but there are times and part of the
dissection that you cannot
be hundred percent sure. . . .
Now Dr Pienaar says that
if you identify the anatomy properly and you follow the proper rules,
you will not make direct contact
with the common bile duct. And you
agree with that in your report. --- Ideally you want to stay away
from the bile duct. I understand
that.
You say that in your
report. --- Yes.
You say that the surgeon
must concentrate on not being too close to the common bile duct.
--- Ja that is correct.
Now to take that one step
further in logic, what Dr Pienaar says makes perfect sense. If there
is any injury to the common bile
duct where the surgeon should not
have made contact, the logical inference is he made contact when he
should not have done so.
Not so? --- That is correct.
So what we are saying . .
. and Dr Pienaar is saying is that he made a mistake; he made contact
with the common bile duct when he
should not have done so. You agree
with that surely? --- Ja but I think the definition of what is a
mistake and whether that mistake
is as such an act of negligence or
is it actually just part of the risk of performing the operation. In
this particular type of
injury . . . .
. . . The first part of
the inquiry is should the surgeon avoid making contact with the
common bile duct. --- Ja I agree with that.
. . . .
The second inquiry from a
legal point of view is should the surgeon avoid doing so and can he
avoid doing so. --- Can I just rephrase
it: the surgeon can make
contact with the bile duct and if you do dissection of that area as
long as obviously you don’t
injure it, you can dissect up along
the bile duct if he’s defined it clearly. So it’s not
simply a question you’re
not allowed to contact the bile duct.
Operations have been performed, other types of operations we dissect
the bile duct and nothing
happens. So merely just to say you’re
not allowed to touch the bile duct I disagree with. You mustn’t
touch it in such
a nature that it can cause damage.
I think you and Dr
Pienaar are in agreement on that. He explained it. He said there can
be controlled contact. So if you make contact,
if you cause an injury
to the common bile duct you should know that you’ve done it and
you should fix it up there and then.
--- I disagree. We are still not
sure at what stage the leak occurred. I can tell you now from own
experience that the small little
injury to the duct . . . is not an
easy injury to pick up . . .
. . .
We are not at odds there.
But I do not want to digress, I want to just finish the point we were
on. If is for Her Ladyship to decide
at the end of the matter whether
Dr Vogel was negligent or not. --- Sure.
Questions which Dr
Pienaar has answered and which you ought to have answered in your
report was should Dr Vogel have been aware
that he should not injure
the common bile duct. --- Absolutely.
He must have been aware,
not so? He is far too competent, he must have . . . . The next
question is should he have avoided injuring
(intervention) --- Could
you just rephrase the sentence . . .
He must have known that
he should avoid injuring the common bile duct. --- Okay ja, we’ve
been there.
I
mean he must have known that. That is the first question that you
were asked. The second question is could he have avoided injuring
the
common bile duct. And you’ve answered that positively as well.
You said that he can do the operation properly identifying
the
anatomy and then not cause damage to it. --- Sure.’
[79]
In my view, as the above quoted excerpt from the evidence of Prof
Bornman reveals, the differences
between him and Dr Pienaar, if any,
are more illusory than real. Dr Pienaar appeared to recognise this
when he stated:
‘
Prof.
Bornman has expressed his disagreement in the joint minute and he is
of the view that the operation was not performed negligently.
Well he
disagrees that the operation was performed negligently. --- I have
taken note of that M’Lady.
It was in Prof. Bornman’s
opinion that a common bile duct injury is not due to negligence. ---
Prof. Bornman qualifies injury
to the bile duct as far as I know, due
to the severity of the injury, whether it is negligent or not.
Are you in agreement with
that? --- No I’m not M’Lady. An injury to the bile duct
is an injury to the bile duct. It
is preventable if one sticks to the
rules.
Later he added:
‘
M’Lady
any injury to the bile duct not intended during a laparoscopic
cholecystectomy, whether it is caused by the surgeon
or by a
defective instrument, in my opinion is negligence. It doesn’t
matter as to the grade and severity of the injury,
whether that
qualifies that it has negligence or not.
. . . .
Well
Prof. Bornman’s view is that it is not necessarily accurate.
What is your view on it? --- M’Lady I think I’ve
actually
exhausted the fact that in my opinion any injury to the common bile
duct is a negligent action. Prof. Bornman qualifies
his statement
where he says “While I agree in principle that a bile duct
injury can be regarded as an act of negligence .
. .”. He then
goes on to qualify that and says it’s only major bile duct
injuries. Now is it then . . . let’s
say there’s an
injury, it can only become negligent if it’s now really major
damage. If there’s a leak like in
this instance where the
patient suffered, she had an acute abdomen, she had bile peritonitis,
can that still be regarded as a minor
injury and therefore not
negligent? And I really think that is not for me to argue. That is my
viewpoint. And I’m not going
to be swayed from that.’
[80]
It is so, as the evidence in this case reveals, that the intersection
between law and medicine
is often complex. Here there is simply no
acceptable evidence as to how the injury came to be inflicted.
Importantly, according
to Dr Vogel, it was not a difficult
dissection. In re-examination Prof Bornman stated:
‘
But in my comment
as well I agreed in principle that a bile duct injury during
laparoscopic . . . can be regarded as an act of negligence.
This view
relates to major bile duct injuries as I explained yesterday where
there is complete bile duct dissection. This occurs
when the surgeon
fails to take the necessary steps to avoid mis-identifying of the
bile duct for the cystic duct.’
This,
to my mind, encapsulates the fallacy in Prof Bornman’s
approach. Whilst a major injury such as a complete bile duct
dissection may well, in and of itself, afford proof of negligence,
the converse is not necessarily true. A minor injury, without
more,
would not necessarily constitute evidence of an absence of
negligence. It seems to me that in his approach Prof Bornman
impermissibly reasons backwards from effect to cause. The extent of
the injury, particularly a relatively minor one, hardly answers
the
anterior question, namely, how did the injury come to be inflicted in
the first place? Prof Bornman did not know how the injury
came to be
inflicted. In his evidence in chief Prof Bornman was asked: ‘Can
we really say how it [the injury] happened or
is it speculation?’
He replied:
‘
Unfortunately
it is speculation. That it happens is no question about it. That it
happened at some stage during a dissection that
is a fact. But was it
a diathermy injury or was it a mechanical injury with the teasing, I
cannot be sure.’
That
notwithstanding, his view appears to have been: however the injury
may have been inflicted, it was not on account of any negligence
on
the part of Dr Vogel.
[81]
Both Prof Bornman and Dr Pienaar were at one on the need for a
surgeon to properly identify the
anatomy and structures. Both
accepted that dissecting in the danger zone, namely Calot’s
triangle, without having properly
identified the structures would
constitute negligence. However, Prof Bornman was unable to explain
why, if Dr Vogel had properly
identified the bile duct, he made
direct contact with it. In that regard the record reads:
‘
You told Her
Ladyship Dr Vogel did identify all the structures properly. This
morning. --- Well he must have identified the bile
duct. It was just
unfortunately at the time when he was too close.
Why was he too close if
he had identified where it was? --- (No audible reply).
. . .
Now in this particular
case – let’s forget about what happens in other cases –
in this particular surgical procedure
was there any reason for Dr
Vogel to make direct contact with the common bile duct? --- No there
was no reason to do that.
. . .
This is . . .
unfortunately it is on record, you’ve given a long response
which has nothing to do with the question. With
respect my question
was in this particular surgical procedure performed by Dr Vogel on
the 2
nd
March 2010 was there any reason for him to make
direct contact with the common bile duct? --- No that should be
avoided to the
point that you injure it. But sometimes you have to
dissect close to the bile duct in order to make sure you see your
critical
view of safety.
Did he have to do that in
this particular procedure? --- It’s for him to answer that
M’Lady.
You cannot say that? ---
I cannot. I don’t know what the circumstances exactly was. I’m
talking about a general principle
. . . .’
[82]
In my view, at the close of Ms Meyer’s case, after both she and
Dr Pienaar had testified,
there was sufficient evidence which gave
rise to an inference of negligence on the part of Dr Vogel. In that
regard it is important
to bear in mind that in a civil case it is not
necessary for a plaintiff to prove that the inference that she asks
the court to
draw is the only reasonable inference; it suffices for
her to convince the court that the inference that she advocates is
the most
readily apparent and acceptable inference from a number of
possible inferences.
[26]
That
inference remained undisturbed by the evidence of Dr Vogel. And, as I
have attempted to show, Prof Bornman’s evidence
did not tip the
scales against Ms Meyers. In short, when Prof Bornman’s
evidence is read together with the evidence of Dr
Pienaar (as, to my
mind, it should be), no reasonable suggestion has been offered as to
how the injury could have occurred, save
for negligence on the part
of Dr Vogel.
[83]
In the result:
(1)
The appeal is upheld with costs.
(2)
The order of the full court is set aside and substituted with the
following:
‘
(a)
The appeal succeeds with costs.
(b)
The order of the court below is set aside and substituted with the
following:
“
(i)
The defendant is held liable for the damages, if any, that the
plaintiff has suffered in consequence
of the injury inflicted by Dr
Vogel, namely two perforations to her common bile duct, whilst
performing a laparoscopic cholecystectomy
at the Livingstone Hospital
on 2 March 2010;
(ii)
The defendant is ordered to pay the plaintiff’s costs
occasioned by this hearing,
such costs to include the qualifying fees
of Dr BH Pienaar;
(iii)
The matter is postponed sine die.”’
__________________________
VM
Ponnan
Judge
of Appeal
APPEARANCES
For
the appellant: D
Niekerk
Instructed
by:
Swarts
Attorneys, Port Elizabeth
Bezuidenhouts
Inc, Bloemfontein
For
the respondent: B L Boswell
Instructed
by:
State
Attorney, Port Elizabeth
State
Attorney, Bloemfontein
[1]
Mitchell
v Dixon
1914
AD 519
at 525.
[2]
The
evidence never mentioned any member of Dr Vogel’s team or
implicated any of them in any conduct that could have caused
the
injuries.
[3]
Trial court’s judgment p
ara
41.
[4]
Trial court’s judgment p
ara
42.
[5]
Trial
court’s judgment paras 39-40.
[6]
Trial court’s judgment p
ara
40.
[7]
Full
court judgment para 27.
[8]
Full
court judgment para 26.
[9]
Perlman
v Zoutendyk
1934 CPD 151
at 155;
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371
(D) at 377D-E.
[10]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 12.
[11]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-F.
[12]
Van
Wyk v Lewis
1924 AD 438
at 444;
Charter
Hi (Pty) Ltd and Another v Minister of Transport
[2011] ZASCA 89
para 32. See too P Q R Boberg
The
Law of Delict
at 346-347; Jonathan Burchell
Principles
of Delict
at 87-89.
[13]
Mitchell
v Dixon
(note 1) at 525.
[14]
S v
Bochris Investments (Pty) Ltd and Another
1988 (1) SA 861
(A) at 866I-867B.
[15]
Note
12 at 444. See too
Medi-Clinic
Ltd v Vermeulen
[2014] ZASCA 150
;
2015 (1) SA 241
(SCA) para 16;
Goliath
v MEC for Health, Eastern Cape
[2014] ZASCA 182
;
2015 (2) SA 97
(SCA) para 12.
[16]
Arthur
v Bezuidenhout and Mieny
1962
(2) SA 566
(A) at 574B;
Sardi
and Others v Standard and General Insurance Co Ltd
1977 (3) SA 776
(A) at 780C-H.
[17]
Trial court’s judgment p
aras
39-40.
[18]
Buthelezi
v Ndaba
[2013]
ZASCA 72
;
2013 (5) SA 437
(SCA) paras 16-17.
[19]
Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436H-437A;
Roux
v Hattingh
[2012] ZASCA 132
;
2012 (6) SA 428
(SCA) paras 19-20;
MV
Banglar Mookh: Owners of MV Banglar Mookh v Transnet Ltd
[2012] ZASCA 57
;
2012 (4) SA 300
(SCA) paras 50-53;
Vousvoukis
v Queen Ace CC t/a Ace Motors
[2015] ZAECGHC 64;
2016 (3) SA 188
(ECG) paras 68-69.
[20]
Note
11.
[21]
Goliath v MEC for Health, Eastern Cape [2014] ZASCA 182; 2015 (2) SA
97 (SCA) para 8.
[22]
Premier
of the Western Cape Province v Loots NO
[2011]
ZASCA 32
;
[2011] JOL 27067
(SCA); 2011 JDR 0250 (SCA) para 13
(footnotes omitted).
[23]
Arthur
v Bezuidenhout and Mieny
[1962]
2 All SA 506
(A);
1962 (2) SA 566
(A) at 573H.
[24]
Van Wyk
v Lewis
1924
AD 438
at 461-462.
[25]
Pillay
v Krishna & another
1946 AD 946
at 952-953.
[26]
AA
Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A); see also
Cooper
& another NNO v Merchant Trade Finance Ltd
2000
(3) SA 1009
(SCA).