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[2012] ZAKZPHC 29
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Nbdaba v Buthelezi (1354/2009) [2012] ZAKZPHC 29 (22 May 2012)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO.: 1354/2009
In the matter between:
PRISCILLA ZANELE NBDABA
PLAINTIFF
and
G. T. T.
BUTHELEZI
DEFENDANT
JUDGMENT
JAPPIE, J.
:
[1] The Plaintiff,
Priscilla Zanele Ndaba, brought an action for damages against the
Defendant, Dr Gabriel Buthelezi, a specialist gynaecologist and
obstetrician based on the latter’s alleged negligence in
the
performance of a total abdominal hysterectomy on her.
[2] During January 2006 the
Plaintiff experienced severe abdominal pain which caused
her to seek
out and consult with the Defendant. After an examination the
Defendant diagnosed the Plaintiff as having severe
pelvic
inflammation. The Defendant prescribed for her antibiotics and
antifungal medication.
[3] On the 19 January 2006
the Plaintiff once again consulted with the Defendant as she
was
still experiencing abdominal pain. An examination was carried
out and the Defendant found no abnormalities with the Plaintiff’s
uterus and consequently suggested that a laparoscopic evaluation be
done which was arranged for the 23 January 2006.
[4] The laparoscopic
evaluation was done on the 23 January 2006 and it showed that the
Plaintiff had a congested uterus indicating the presence of
inflammation. The Defendant once again saw the Plaintiff on the
27 January 2006 and discussed with her the results of the
laparoscopic examination. The Defendant further discussed with
the Plaintiff the option of having a hysterectomy. The Plaintiff
expressed an interest in this. However, according to the
Defendant, he had some reservations about performing the procedure as
there were certain compromising factors in her situation.
The
factors under consideration at that stage were that the Plaintiff was
HIV positive and that she was diabetic. According
to the
Defendant these factors could have a poor effect on the healing
process after the procedure. The Defendant explained
the
situation to the Plaintiff
[5] The Defendant once
again consulted with the Plaintiff on the 10 February 2006 and
at
this consultation the Plaintiff expressed the desire for a total
abdominal hysterectomy and arrangements were made for the procedure
to be done on the 13 February 2006.
[6] On the morning of the
13 February 2006 the Plaintiff was admitted to the Midlands
Hospital,
Pietermaritzburg where the Defendant performed the total abdominal
hysterectomy on the Plaintiff.
[7] The Plaintiff remained
in hospital for a few days and was discharged from hospital
on 17
February 2006. Immediately thereafter she developed diarrhea
which caused her to be readmitted to hospital on the 18
February
2006. She remained in hospital for a further 2 days and was
discharged on the 20 February 2006.
[8] According to the
Plaintiff some five or six days later she noticed that she had become
incontinent and pus and urine were passing through her vagina.
[9] According to the
Plaintiff she saw the Defendant on the 10 March 2006 and complained
to him that she had become incontinent and that she was experiencing
dripping of urine from her vagina. According to the
Plaintiff
the Defendant was unsympathetic and told her that if she had a
complaint she ought to report this to his council.
He further
told her that she should take up her complaint with her medical aid.
[10] According to the Defendant what
occurred during the course of the visit on the 10 March 2006
is the
Plaintiff complained of only occasionally experiencing urinary
incontinence. Because the Plaintiff had been fitted
with an
indwelling catheter after her surgery he concluded that the
Plaintiff’s incontinence was due to a urinary infection
which
was not uncommon after a hysterectomy. He treated her for this
condition prescribing for her certain antibiotic.
This was the
last occasion when he interacted with the Plaintiff as a patient.
[11] Nevertheless, the Plaintiff once
again came to see him on her about the 15 May 2006. On
this
occasion she told him that she was unhappy with the way she had been
treated by him. She informed him that she had developed
a
problem which had been attended to by Dr. Dada. However Dr.
Dada’s intervention had been unsuccessful and it was
anticipated that she would have to undergo a further operation.
She demanded from the Defendant compensation for her further
medical
expenses. According to the Defendant it could have been at this
stage when he informed the Plaintiff that she should
take up her
complaint with her medical aid. This was the last occasion that
he, the Defendant, saw the Plaintiff.
[12] Abdool Kader Dada is a urologist
practicing in Pietermaritzburg. He testified that on
the 17
February 2006 the Plaintiff was referred to him and she complained of
urinary incontinence. She informed him that
on the 13
th
February 2006 she had undergone a total abdominal
hysterectomy. He arranged for a cystogram which was performed
on
the 20 March 2006. The cystogram confirmed that the
Plaintiff had developed a vesico-vaginal fistula. He explained
that a hole had developed between the Plaintiff’s bladder and
vagina which caused urine and pus to pass out through her vagina.
The site of the fistula was where the outer bladder wall met the
outer wall of the vagina.
[13] On 22 March 2006 the Plaintiff was
taken to theater and a repair of the fistula was attempted.
However, the first attempt at repairing the defect failed. The
fistula recurred shortly after the surgery performed by him.
Dr
Dada explained that this was due to an infection at the site of the
fistula which delayed in healing because of her diabetes
and HIV
status.
[14] On 10 April 2006 he met with the
Plaintiff and advised her that it would be best to allow the
infection to settle down for about three months and then to
re-attempt to close the vesco-vaginal fistula. On 29 June 2006
Dr. Dada once again operated on the Plaintiff. On this occasion
the surgery was successful and the vesco-vaginal fistula
was
repaired. Dr. Dada consulted with the Plaintiff on the 31 July
2006 and found that she was no longer complaining of urinary
incontinence and it appeared as if the surgery performed by him had
been successful. This was his last consultation with
the
Plaintiff.
[15] Professor Green-Thomson, is a past
chief specialist and was head of the Department of Obstetrics
and
Gyneocology at the King Edward VIII Hospital, Durban and at the
Medical School of the then University of Natal.
He was
provided with a bundle of documents which contained inter alia, the
clinical notes of the Defendant, the report on the Plaintiff
by Dr.
Dada, radiological and ultrasound reports and the hospital records of
the Plaintiff. From these documents he compiled
a medico-legal
report in which he set out and explained the cause, the formation and
development of the vesco-vaginal fistula suffered
by the Plaintiff.
[16] Professor Green-Thomson testified
as to the compilation of his report and explained in evidence
the
reasons for his opinion and conclusions. He was extensively
cross-examined.
[17] According to Professor
Green-Thomson the documentation showed that the Plaintiff had
developed
a vesco-vaginal fistula which had been situated between the
posterior wall of the fundus of the bladder and the anterior wall of
the vagina. He stated that the fistula occurred as a direct
result of the surgery performed on her on the 13
th
February 2006 by the Defendant. The progressive increase in
urinary incontinence, complained of by the Plaintiff, starting
as
occasional and ending up as total urinary incontinence is typical of
devascularisation which caused ongoing tissue necrosis,
progressive bladder damage, which then gave rise to a progressive
increase in the size of the fistula and a worsening of the urinary
incontinence. He further expressed the view that the
Plaintiff’s diabetes and HIV status could not be blamed for the
primary bladder damage which caused the development and
presentation of the fistula. He explained that
the
bladder had been devascularised because the Defendant had failed to
adequately separate the bladder from the uterus during
the
performance of the hysterectomy.
[18] Professor Green-Thomson expressed
the view that the fistula that resulted can be construed as
a result
of the Defendant’s negligence. He explained that
the Defendant ought to have taken precaution and care
to ensure that
the bladder was separate and free at the time when he performed the
surgery, particularly at the time of effecting
homeostasis at the
vault of the vagina.
[19] During the cross-examination of Dr
Green-Thompson he gave detailed evidence as to the anatomy
of the
area where the fistula had formed. His evidence also contained
detail as to how a surgeon should perform
a hysterectomy and
the possible complications that could occur if not performed
properly.
[20] Professor Leon Snyman is a
gynaecological oncologist and is at present the principal specialist
at the Department of Obstetrics and Gynaecology at Kalafong Hospital
at Atridgeville, Pretoria. He disagreed with the
opinion
expressed by Professor Green-Thomson in that he regarded as unlikely
that the fistula occurred as a result of a devascularisation
of the
bladder during the performance of the surgery. He expressed
this view because there is no note by the Defendant that
he (ie the
Defendant) had cauterized in the area where the fistula
developed. Professor Snyman expressed the view that
the most
likely event which gave rise to the formation of the fistula is
either , the formation of a small haematoma or
uncollected
blood in the area where the fistula developed. He testified
that the blood could have come from the
vault (of the
vagina)and that it could have tracked its way to the back of
the bladder where it remained undetected and uncollected.
[21] The only person who can give
direct testimony as to how the Defendant performed the surgery
is the
Defendant himself. The Defendant, however, when asked if he
could recall what he did during the procedure gave the
following
answer:
“The details of when she was wheeled into the threatre, put
under anesthetic, what happened, what I did, the steps in the
procedure, no I would not recall.”
The Defendant further explained that according to his medical notes
he performed a standard total abdominal hysterectomy.
He
explained that as far as he can recall there was nothing which
indicates that there was anything unusual which had
occurred when he
performed the surgery. The Defendant testified that he
performed the surgery in his usual manner. The
only
occurrence that could in a sense be construed as unusual
happened towards the end of the operation when there was oozing
on
the vaginal vault which he dealt with by putting in extra stitches in
that area. He further explained that the oozing
was somewhat
unusual because he could not recall another case where he had
recorded that there was oozing following on a hysterectomy.
[22] When the Defendant was asked for
his view as to how and why the Plaintiff had developed
a
fistula he gave the following explanation:
“On the balance of probabilities, and taking into account that
she had had a previous Caesarian section performed on her,
and that
usually in such instances, there is greater adherence between the
bladder and the uterus/cervix/vagina area, it could
be that somewhere
along the line of dissecting the bladder from the uterus, there might
have been compromise of the bladder wall
in that region where the
dissection was taking place. Whether this would have been to
[through ?] difficulty with formation
of a proper and natural plane
between the bladder and the uterus, or whether it was poor technique,
or whether it was rough handling,
as the other issues that have been
mentioned in the past about how this situation would come to pass.
But the long and short of
it would be that somewhere along the line,
something would have caused the bladder wall in that region to be
compromised.
And as has been indicated, in many instances where
this happens, or in some instances where this – where there is
such compromise
of the blood vessels, of the blood supply to that
region of the bladder, there may not be obvious evidence of that at
the time.
Yes. --- Yes.
But you see this – it appears to be between you and Professor
Green-Thompson on this point, seems to be common cause that
at some
stage there must – the bladder must have been compromised,
because that’s where the VVF developed? –
Yes.”
[23] In his evidence the Defendant did
not say how it came about that the bladder could have been
compromised and that this was simply a matter for speculation.
However, he conceded that if the bladder had been compromised
it
should not have happened.
“And if it suggested to you that is should not have happened,
what your response would be? -- Ja, my response would
be, it
should not have happened, I would agree with that. It should
not have happened.”
[24] When he was cross-examined about
the oozing he noted that had occurred on the vault of
the
vagina, he expressed the view that this could have been caused
by the inadequacy of a stitch that was already in place.
He
further conceded that the oozing could have resulted in some blood
flowing to the rear of the bladder. Even though he
had a vague
recollection he was certain that he had established adequate
haemostasis which included stopping the source of the
bleeding and
removing all blood or clots from the operative field. That
being so, he was confident that if any blood had
tracked towards the
back of the bladder he would have removed it. However, he
nevertheless conceded that he could have missed
some blood that found
its way to the back of the bladder. The Defendant then conceded
that as a result of the oozing, if
some blood had tracked its way to
the back of the bladder and that he may have missed this could
have result in an infection
in the general area which would have
given rise to a heamotoma and exacerbated the formation of the
fistula.
[25] At the commencement of the trial
the parties had agreed that in terms of rule 33(4) to
separate
the question of liability from the issue of the quantum of damages.
The issue to be decided at this stage is whether or
not the Plaintiff
can show that the Defendant, when he performed the total abdominal
hysterectomy, did so negligently, resulting
in the development
and formation of a vesico-vaginal fistula. The onus of proof
lies upon the Plaintiff. The maxim
res ipsa loquitur
do
not apply. The Defendant would be liable only if it can
be shown that he failed to exercise reasonable skill and
care in the
performance of the procedure.
[26] In deciding what is reasonable skill and care the evidence
of an expert in the field is of assistance. The decision
of
what is reasonable under the circumstances is, however, for the Court
to determine. The Court, of course, will have regard
for the
views of the expert, but it is not bound to adopt those views.
[27] The two experts, Professor
Green-Thompson and Professor Snyman expressed conflicting and
contradictory
views. However, both were in agreement that there
must have been a primary event or “trigger” which
led
to the formation of the fistula.
[28] According to Professor
Green-Thompson the “trigger” was the devascularization of
the wall of the bladder which occurred when the Defendant, during the
course of the procedure, separated the wall of the bladder
from the
wall of the uterus. Professor Green-Thompson expressed the view
that the devascularization of the wall of the bladder
in the
circumstances of this case can be said to be negligent.
[29] According to Professor Snyman, the
“trigger” was either a haemotoma which formed
after the
procedure or uncollected blood which settled at the back of the
bladder which gave rise to an infection leading
to the necrosis
of the bladder wall and thus to the formation of the fistula.
In his report, supported in his testimony,
Professor Snyman expressed
the view that an important aspect that must be considered is that
there is no conclusive scientific
evidence anywhere in the world
regarding the true phathogenesis of post-hysterectomy vasco-vaginal
fistulas. Everything written
in this regard is mainly
speculation. Professor Snyman expressed the view that the development
of a fistula is recognized as an
unavoidable complication. That
being so, he concluded that the complication of the vesco-vaginal
fistula that occurred in
the case of the Plaintiff was probably not
as a result of any negligence on the part of Dr. Buthelezi.
[30] It was argued on behalf of the
Defendant, by Adv. Marais SC, that on all the evidence the Defendant
had executed the procedure in “a text book style”
and other than the oozing on the vaginal vault had observed
and noted
no other complications. In the immediate post operative period,
there were no indications of incorrect surgery
or complications.
It was submitted that whatever had triggered the fistula must have
been so minor that it remained unobserved
and therefore cannot be
attributed to any act or omission on the part of Dr Buthelezi.
[31] It was further submitted that as
there is no clear evidence as to what actually triggered the
fistula,
the Plaintiff, on whom the burden of proof rests, had failed to
establish any negligence on the part of the Defendant
and
consequently the Court ought to absolve the Defendant from the
instance.
[32] It may be so that Professor
Green-Thompson and Professor Snyman are in disagreement as to what
the possible trigger event was that set off the development of the
fistula. However, it is, in my view possible to find on
a
balance of probability what that event could have been.
In
Govan v Skimore 1952 (1) 732 Selke, J at 734 A
said the
following:
“In a criminal case, however, as I understand it, every
fact material to establish the guilt of the accused must,
unless it is admitted, be established by proof beyond reasonable
doubt, and inferences from facts must, in order to be permissible,
be
such as leave no reasonable doubt of the propriety and correctness.
That is a difference between the proof requisite
in civil and
criminal proceedings.
Rex v Blom supra
, was a criminal
case, and in my opinion, it is a fallacy to suppose that that the
second principle in Blom’s case represents
the minimum degree
of proof required in a civil case, for, in findings of facts, or
making inferences in a civil case, it seems
to me that one may, as
Wigmore conveys in his work on
Evidence
(3
rd
ed.,
para 32), by balancing probabilities select a conclusion which seems
to be the more natural, or plausible, conclusion from
amongst several
conceivable ones, even though that conclusion be not the only
reasonable one.”
[33] The two experts, professor
Green-Thompson and professor Snyman have postulated two different
trigger events. According to professor Green-Thompson the
trigger event was the devascularization of the bladder wall.
According to professor Snyman the trigger event was either a
haemotoma in the area where fistula developed or an infection
resulting
from uncollected blood at the back of the bladder.
[34] Doctor Buthelezi in his evidence
excluded the latter possibility. According to Dr Buthelezi
he
had removed all unnecessary blood or clots from the operative field.
Although he conceded the possibility that he may
have missed some of
the blood there is no evidence to suggest that he did indeed miss any
of the blood which resulted from the
oozing.
[35] Insofar as the trigger event put
forward by professor Green-Thompson is concerned, ie. the
devascularization of the bladder wall, the Defendant conceded
this could have occurred “
on the balance of probabilities
.”
[36] It seems to me, that on the
available evidence and in particular in the light of the Defendant’s
aforesaid concession, that the probable cause for the formation of
the vesico
-
vaginal fistula was a devascularization of the
bladder wall which occurred during the performance of the procedure.
[37] Having determined the probable
cause for the formation of the fistula the issue now is whether
it
can be said that this was due to the negligence of the Defendant.
[38] In
Van Wyk v Lewis
1924 AD 438
Wessels JA
said at 461-2:
“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 fall short he is
negligent.”
[39] In
Michael and another v
Linksfield Park Clinic (PtY) Ltd And another
2001
(3) SA 1188
at paragraph 34 the Court said the following:-
“In the course of the evidence counsel often ask the experts
whether they thought this or that conduct was reasonable or
unreasonable, or even negligent. The learned Judge was not
misled by this into abdicating his decision making duty.
Nor, we are sure, did counsel intend that that should happen.
However, it is perhaps as well to re-emphasise that the question
of
reasonableness and negligence is one for the Court itself to
determine on the basis of the various, and often conflicting, expert
opinions presented. As a rule that determination will not
involve the considerations of credibility but rather the examination
of the opinions as the analysis of the essential reasoning,
preparatory to the Court’s reaching its own conclusion on the
issue raised.”
[40] When the Defendant was
cross-examined by counsel for the Plaintiff, Adv. Moola SC, on the
issue
of the bladder wall being compromised, the following exchange
occurred:-
“You can’t recall as what you did during the operation in
regard to the bladder, wall except to say you would have
performed
and used your standard technique – Yes. Would that be
fair to you?
So if the bladder and we must accept because it is common cause that
the bladder was compromised, you can only speculate as to
how that
may well have happened? – Yes. You can’t take it
any further than that? – No I could not.
And if it is
suggested to you that it should not have happened, what would your
response be? – Ja my response would be it
should not have
happened. I would agree with that
it should not have
happened
.
But we know it did happen? – We know it did happen?- Yes”
[41] Having come to the conclusion that
the trigger event which set off the formation of the fistula
was the
devascularization of the bladder wall, the Defendant who is in the
best position to pronounce whether he was negligent
or not, conceded
that the devascularization ought not to have occurred. That
being so the Defendant on his own showing did
not exhibit the
requisite skill and care that was required of him in the given
circumstances. Consequently it is my view
that the Defendant
whilst in the performance of the total abdominal
hysterectomy acted negligently in causing the bladder
wall to become
devascularized.
[42] In the result the order that I
make is as follows:
1. Defendant is
ordered to pay the Plaintiff such damages as either agreed or as
the
Plaintiff may establish at trial.
2. The Defendant is
ordered to pay the Plaintiff’s costs of the hearing to
date.
DATE OF HEARING: 15 March 2012
DATE OF JUDGMENT: 22
May 2012
Counsel for the Plaintiff:
Advocate F. Moola SC
Instructed by:
Attorneys Sarawan & Company
Counsel for the Defendant:
Advocate Jean Marais SC
Instructed by:
Macrobert Incorporated