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[2008] ZAWCHC 318
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Kosana v MEC for Health, Western Cape (9230/2005) [2008] ZAWCHC 318 (23 January 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
CASE
NO: 9230/2005
In
the matter between:
YANGAKOSANA
Plaintiff
and
THE
MEC FOR HEALTH, WESTERN CAPE
Defendant
JUDGMENT
DELIVERED ON 23
rd
JANUARY 2008
HJ
ERASMUS, J
Introduction
[1]
The plaintiff is Yanga Kosana in her representative capacity as
mother and legal guardian on behalf of Philasandre Kosana (hereafter
"Philisandre" or "the baby") who was born on 6
th
January 2002.
[2]
The defendant is the Minister of Health, Western Cape, in his
official capacity as the member of the Executive Council responsible
for health in the Western Cape, which includes the George Hospital,
George.
[3]
On 6
th
January 2002 the plaintiff was admitted to the George Hospital and
gave birth to Philasandre. On 8 January 2002 the baby was diagnosed
as having yellow jaundice. She was given two exchange transfusions,
the second after a peripheral arterial line was inserted into
the
left radial artery. After the second exchange transfusion, the baby
developed a swollen left arm and hand. She was discharged
from
hospital on the 2
nd
February 2002. On 7
th
February 2002 she was re-admitted to the George Hospital and on 19
th
February 2002 her left arm was amputated below the elbow.
[4]
On 14
th
September 2005 the plaintiff issued summons against the defendant
claiming damages in the amount of R9 298 936.00 for alleged medical
negligence on the part of members of the staff of the George
Hospital.
[5]
At the commencement of the trial, I ordered, at the request of the
parties, a separation of the issues in terms of Rule 33(4).
The
subsequent trail was concerned only with the questions of liability
and causation. At the trial, the plaintiff was represented
by Mr PF
Cloete; the defendant by Mr D Irish and Ms N Bawa.
The
course of events
[6]
In order to place in perspective, the issues in dispute and the
expert and other evidence adduced by the parties, it will be
convenient at this stage to set out in broad terms the course of
principal events as it unfolded during the period 6
th
January 2002 (when the baby bom) to 19
th
February
2002 (when her left forearm was amputated). The facts are largely
common cause.
[7]
Philisandre was a healthy infant: at birth she weighed 3260g and the
Apgar score was 9/10,10/10 and 10/10 at 1, 5 and 10 minutes.
[8]
On the morning of 8 January 2002 the nursing records indicate that
the infant appeared to be jaundiced. A total serum bilirubin
(TSB)
was requested. The TSB value was high and double-light phototherapy
was instituted. A diagnosis of ABO blood group incompatibility
was
made. The TSB value kept increasing and on 9 January it was decided
to perform an exchange transfusion. An umbilical venous
catheter was
inserted and the exchange transfusion was performed in the early
evening of 9
th
January. During the exchange transfusion, the baby's condition
deteriorated. She became tachypnoeic, had nasal flairing and a slight
grunt. The exchange transfusion was stopped for a while and oxygen by
head box was administered. After the completion of the exchange
transfusion, the baby showed signs of tachypnoea and renal failure. A
blood count done after the exchange transfusion showed a
low
haemoglobin level and high platelet count.
[9]
The total serum bilirubin level kept increasing and it was decided to
perform a second exchange transfusion. The second exchange
transfusion was performed in the early evening of 10
th
January. A peripheral arterial line was inserted into the left radial
artery. This radial artery cannula was inserted as blood
could no
longer be withdrawn from the umbilical venous line even after the
umbilical venous catheter had been replaced in order
to secure an
open venous line. Fluid could however still be transfused through the
line. The exchange transfusion was done by the
withdrawal of blood
through the arterial line and the infusion of blood through the
umbilical venous catheter.
[10]
Prior to the first exchange transfusion there were signs of
haemolysis. After the first and second exchange transfusions there
were signs of ongoing haemolysis and of a bleeding tendency which
manifested itself as haematuria (blood in the urine) and
haematochezia
(blood per rectum). Presumably because of the infant's
bleeding tendency (haematuria and haematochezia) it was decided in
the early
hours of 11
th
January
to discontinue the heparin which had hitherto been added to the
saline solution administered through the arterial line.
[11]
Some hours after the completion of the second exchange transfusion,
the baby became pyrexic and tachycardic; she had a high
blood glucose
level, a prolonged capillary filling time and was tachypnoeic. Dr J
Smit, the paediatrician on call, was consulted.
An infection screen
was ordered; dexamethasone was administered for a possible blood
transfusion reaction; intravenous antibiotics
was commenced to
counter any septicaemia and a bolus (50ml) of normal saline was
given.
[12]
Dr Breytenbach assessed the baby at about lOhOO on 11 January and
described her as acutely ill, possibly due to either septicaemia,
or
to meningitis or to kernicterus. She had apnoeic spells and was
treated with phenobarbitone as Dr Breytenbach was concerned
that the
apnoea may have been convulsions related to early kernicterus. It was
not clear at that stage whether the apnoeic spells
could be
attributed to septicaemia or to the previously high bilirubin levels.
[13]
There were no signs on 11 January of compromised arterial blood
supply to the baby's left hand and fingers, such as pallor,
coolness,
poor capillary refill time or discolouration. On the contrary, the
patient persistently demonstrated both a good radial
pulse and good
capillary refill time.
[14]
At 14h20 on 11
th
January a blood culture is performed but the site from where the
culture was taken is not recorded. At the time when the blood
culture
was performed the nursing staff noted that it appeared as if the
arterial line had tissued ("arteriele lyn in weefsel").
Dr
Van der Walt, a consultant paediatrician, was summoned. She noticed
that the left arm was swollen. Dr Van der Walt testified
that when
she saw the initial swelling at approximately 14h45 on 11
th
January, it was very minor and in fact she had to compare the arms to
notice it. She said that the "area was not well circumscribed.
It was a vague fullness on the middle part of the inner arm."
She identified it as being halfway between the elbow and the
wrist
and more to the ulnar side. The limb's vascularity was not
compromised.
[15]
Dr Van der Walt was able to withdraw blood from the arterial line but
encountered resistance when she tested injecting saline
through the
line. She accordingly decided to remove both the arterial line and
the umbilical venous line, which was leaking blood.
In view of the
improvement of the baby's haemological status, it was at that time
unlikely that another exchange transfusion would
be required.
[16]
From the blood culture, a gram positive staphylococcus aureus was
cultured and reported on 13
th
January. Treatment with the anti-biotic Rocephin (Cefriaxone) was
continued.
[17]
Further blood tests at 15h00 on 11
th
January 2002 reflect a white cell count of 15.3, and a lower platelet
count of 34 (a blood test taken at 6h40 on the morning of
11
th
January reflected a platelet count of 56). At about 20h00 on 11
th
January the baby is given a transfusion of platelets. The full blood
count of the blood sample taken at 08h00 on 12
th
January showed a high white cell count of 25.3 (Professor Kirsten
pointed out that the white blood cell counts were influenced
by the
donor blood used during the exchange transfusion, as well as the two
doses of dexamethasone: corticosteroids increase the
total white
blood cell count.); and an increased, but even after the transfusion
still below normal range, platelet count of 121.
A blood sample taken
at approximately 08h45 on 13
th
January showed a slightly lower white cell count of 20.2, decreased
platelets of 83 and a negative C-reactive protein (CRP) level
done
pursuant to a screening latex test, a qualitative test which
according to Professor Kirsten has a very high false negative
rate. A
blood sample taken at 09h00 on 16
th
January showed a white sell count of 22.8, a platelet count of 116
and a high CRP reading obtained by a quantitative test which
is done
by a machine as opposed to the latex screening test, and which is
very accurate.
[18]
From 11
th
January onwards the left arm becomes a cause of concern. On 12
th
January the nursing records show that the swelling of the arm has
progressed up to the axilla. The arm is elevated. On 13
th
January
there is blue discoloration of the arm but the swelling to the axilla
seems to be less. The hand remains swollen but with
good capillary
refill. A successful start is made with breast-feeding (in the
nursing notes it is observed, "Goed gesuig").
[19]
At 9h00 on 14
th
January Dr Breytenbach refers the case to surgery. At 9h35 the baby
is seen by the orthopaedic surgeons (Drs Bruere, La Grange,
Le Grange
and Moodley) who noted that there is an induration of the upper arm
and swelling of the hand. Capillary refill was good.
They queried an
area of skin necrosis and indicated that they would continue to
observe. A sample of interstitial fluid from the
subcutaneous tissues
of the left forearm was taken by needle aspiration. From the fluid,
an enterobacter species was later isolated.
Dr Bruere said in
evidence that he observed the sample being taken and that it was done
according to sterile protocols.
[20]
At 21h25 on 14
th
January the nursing note states that the baby is pink and reacts well
to stimulation. There are no signs or respiratory distress;
saturation is 95%. The baby passes soft yellow stools and no blood
present is in the stools or urine. The left arm and hand are
still
oedematous but the condition has improved and there is good capillary
refill.
[21]
By 14h30 on 15
th
January 2002 it is noted that the baby's condition is much improved
although there is not much spontaneous movement. The baby cries
when
her left arm is touched and the left arm and hand are still swollen
but fingers are less swollen and are warm and pink. On
the left
forearm there are blue patches with blisters ("blase"). It
is further remarked that towards the axilla the arm
seems to be more
swollen and more painfull ("Verder na oksel lyk meer seer en
meer geswel"). The patient's general condition
is observed to be
much better.
[22]
By
23hl0
on 15th
January
2002 it is noted that the patient is pink, reacts to stimuli but does
not move around much. The left arm is still oedematous,
hand and
fingers are swollen but feel warm. The baby does not move her
fingers. The vesicles were still present and the patient
was
sensitive to touch.
[23]
On 16
th
January Dr Dhoodhat (who at the time was a community service doctor
in the Department of Paediatrics) notes that the baby was very
responsive and moving; that the left arm was swollen and discoloured,
and that the bay was not moving the arm. Capillary refill
was "very
good". Dr Dhoodat makes the first query of a wrist drop (his
note reads: "? Wrist drop"). At 8h45
on the same day, the
baby is seen by the orthopaedic surgeons and in response to the query
of wrist drop, they noted that the arm
was neurovascularly intact.
This visit by the orthopaedic surgeons and the decisions they took
are considered in greater detail
below in paragraph [57].
[24]
At 14h20 on the 17
th
January it is noted that the left arm is still in an elevated
position, that the hand is visibly less swollen and that the hand
still appears blue. The blue patches on the arm show more blisters
and the discoloration is more purplish. The swelling in the
axillary
area is less and the skin appears purplish. The impression is that
pain to touch is less. It is further noted that the
general condition
of the bay is improving and that the left arm also shows improvement.
[25]
From 18
th
January onwards general improvement of the arm and hand is recorded.
Thus at 22h35 on 20
th
January it is recorded in the nursing notes:
Left arm still be
(sic)
elevated.
Upper arm less swollen, forearm still swollen but less, blisters
still present. Hand and fingers feel warm. Good capillary
filling.
Arm shows improvement generally.
During
the succeeding days, movement of the left arm is recorded but there
is minimal movement of the fingers.
On
25
th
January a splint is applied to the left arm.
[26]
On two occasions there are references to the left hand forming a
"claw". At 10h30 on 27
th
January the nursing note states:
Beweeg armpie
maar nie vingertjies. Lyk na klou figuur.
At
13h45 on 29
th
January it is noted:
Spalkie aan
linker polsgewrig. Vingers maak klou vorm.
[27]
On 29
th
January Dr Moodley notes that the skin on the left arm is blistered
and desquamating. The baby moves the arm but there is no grasp
reflex. On 31
st
January Dr Moodley notes the presence of necrotic skin on the left
arm and further notes: "? radial nerve injury - wrist drop."
[28]
On 1
st
February Dr Moodley again records necrotic skin on the left arm and
the possible presence of left radial palsy manifesting with
a wrist
drop. She decides to discuss the possible discharge of the infant
with Dr Bruere.
[29]
On 29
th
January and 2
nd
February a physiotherapist, Mrs Ackerman, worked with the baby by way
of passive movement of the left arm ("passiewe bewegings
van die
linkerarm"). Mrs Ackerman explained that what the treatment
involved was movement by the physiotherapist of the baby's
arm, which
included the shoulder, elbow, pulse hand and fingers.
[30]
At 13h20 on 2
nd
February the infant is seen by Dr Moodley and Dr Dippenaar. The
decision is taken to discharge the baby, to be followed by a visit
to
the orthopaedic clinic within a week. The final nursing note reads as
follows:
Wiegieverpleging
pienk en aktief. Abdomen sag, nie opgeset. Neem en behou voedings
baie goed. Passeer urine en stoelgange. Linkerarmpie
nog in spalk.
Baba beweeg armpie met tye en met aanraking. Nog steeds ietwat
sensitief met aanraking. Vingers pienk en voel warm,
minimale
beweging in vingers
The
nursing note at discharge reads as follows:
Vitale tekens
binne normale perke. Velkleur pienk. Linker armpie in spalkie en
voorligting gegee aan moeder ivm versorging. Neem
en behou voedings
goed.
[31]
The baby is re-admitted to hospital on 7
th
February with multiple sores on the left arm and an observation is
made of possible cellulitis and/or fasciitis. On 11
th
February the presence of cellulites was noted in the doctors' notes
and in the nurses' notes of the same day, wound sepsis is recorded.
On the same day it is noted that that the left hand is cold and
without a pulse. On 14
th
February consent is sought for amputation but the mother insists on
getting a second opinion. On 18
th
February the infant is re-admitted and a left mid-arm amputation is
performed on 19 February.
The
plaintiffs cause of action
[32]
The defendant admits that the doctors and medical staff employed at
the George Hospital had an obligation to provide the plaintiff
and
the baby with medical advice, service and treatment with the skill,
diligence and care reasonably required in the same or similar
circumstances of hospitals, doctors and medical staff in their
respective fields of specialisation with the requisite level of
expertise and to do so in a manner which is not negligent. The
defendant avers that on the admission of the plaintiff and her
daughter Philasandre, the doctors and medical staff of the George
Hospital had acted accordingly in providing medical services and
related care.
[33]
The plaintiffs Particulars of Claim were amended on several
occasions, the last time during the course of the trial when it
gave
rise to considerable argument. In paragraph 13 of the Particulars of
Claim as finally amended it is stated:
13.
In breach of Defendant's obligations as set out above, health
professionals in the employ of the Defendant but whose full and/or
further particulars are unknown to Plaintiff, negligently between 11
January and 19 February 2002,
inter
alia:
failed
to consult with an experienced neonatologist at an early stage;
failed
to ascertain whether arterial supply of the left arm had been
compromised or not, by means of Doppler or other technology
such as a
pulse-oxymeter;
failed
to ascertain the possible level of vascular occlusion by means of
e.g. an arteriogram;
kept
the arterial line m situ in the left arm, for more 10 hours without
any anticoagulant (between, some time before 04h20
on 11 January
2002 and 14hl5 11 January 2002), exposing Philasandre to a high risk
of thrombosis;
failed
to initiate contralateral limb warming when vascular compromise was
or should have been noted;
failed
to consider and to perform a sympathetic cervical block;
failed
to initiate anticoagulant or thrombolytic therapy at the appropriate
time;
failed
to treat Philasandre's arm with nitroglycerine application;
failed
to timeously refer Philasandre to the surgical orthopaedic
disciplines, or to an anaesthetist;
failed
to intervene surgically when it was appropriate to do so;
13.11
failed
to perform a fasciotomy;
13. 12 failed to debride necrotic
tissue;
13.13 failed to perform explorative surgery;
13.
14 discharged Philasandre on 2 February 2002, despite evidence of the
presence of a left-sided radial nerve palsy manifesting
with a wrist
drop, necrotic skin and a painful left arm, and at a time when it was
therefore inappropriate to do so;
13.15
elevated Philasandre's left arm, and kept it elevated for some time,
when it was inappropriate to do so.
[34]
The fifteen grounds in respect of which it was contended that the
doctors and medical staff at the George Hospital would be
shown to
have been negligent were all canvassed, in greater or lesser detail,
during the course of the trial. Counsel for the plaintiff
relied on
but two of those grounds of negligence in argument at the end of the
trial. These are:
A
failure to operate on the baby's arm on or about 16
th
January
2002, in accordance with the allegations contained in sub-paragraphs
13.10 - 13.13 of the plaintiffs Amended Particulars
of Claim.
The
inappropriate discharge of the patient on 2nd February, 2002, as
alleged in sub-paragraph 13.14 of the plaintiffs Amended
Particulars
of Claim.
[35]
The plaintiffs case has during the course of the trial undergone
considerable shift, and much of the evidence of the two experts
called by the plaintiff has been effectively abandoned. The shift in
the plaintiffs case will, to the extent that it may be relevant,
be
considered below when the remaining two grounds of negligence on
which the plaintiff relies, are considered.
The
issue of negligence
[36]
It is well established that what is expected of a medical
practitioner is the general level of skill and diligence possessed
and exercised at the time by members of the branch of the profession
to which he or she belongs.
1
The standard of care and skill required of a specialist is that of
the reasonable specialist within the particular field of medical
specialisation. In
Louwrens
v
Oldwage
2
the
Supreme Court of Appeal cited the following statement
3
with approval:
A specialist is
required to employ a higher degree of care and skill concerning
matters within the field of his speciality than
a general
practitioner. The objective 'reasonable physician test' is
subjectified to the particular branch of medicine to which
the
specialist belongs. This means that it is expected from a specialist
in the treatment of his patients to act as a reasonable
specialist
would have done under similar circumstances.
The
test is expressed somewhat differently, but to the same effect, in
Bolam
v Friern Hospital Management Committee
4
in
which McNair J, in instructing a jury, stated that -
the real
question you have to make your minds up about
...
is whether the
defendants, in
acting in the way they did, were acting in accordance with a practice
of a competent body of professional opinion
..
and
that a medical practitioner -
is not guilty of
negligence if he has acted in accordance with a practice
accepted as
proper by a responsible body of medical men skilled in that
particular art.
In
estimating the level of skill and diligence possessed and exercised
at the time by members of the branch of the profession to
which a
specialist belongs (the
responsible
body
of medical men skilled in the particular art), "the evidence of
qualified surgeons or physicians is of the greatest assistance".
5
[37]
At the trial, each party adduced the evidence of eminently qualified
experts. Professor Johan Smith, a specialist paediatrician
and
registered neonatologist at the Tygerberg Children's Hospital and
associate professor in the Faculty of Health Sciences of
the
University of Stellenbosch, and Professor SW Moore, a specialist
paediatric and general surgeon, Head of Paediatric Surgery
at the
Tygerberg Children's Hospital and professor of surgery in the Faculty
of Health Sciences of the University of Stellenbosch,
gave evidence
for the plaintiff. The defendant adduced the expert evidence of Dr AN
Numanoglu, a specialist paediatric surgeon
attached to the Department
of Paediatric Surgery at the Red Cross War Memorial Children's
Hospital and senior lecturer in the University
of Cape Town, of Dr MS
Solomons, an orthopaedic surgeon and Head of the Groote Schuur
Hospital Hand Unit and lecturer in the Department
of Orthopaedic
Surgery of the University of Cape Town, and of Professor GF Kirsten,
a specialist paediatrician and registered neonatologist,
principal
specialist and head of the neonatal intensive care unit at the
Tygerberg Children's Hospital and professor in the Department
of
Paediatrics and Child Health in the Faculty of Health Sciences of the
University of Stellenbosch.
6
[38]
The experts expressed divergent and conflicting opinions. A meeting
of the experts was arranged in an effort to resolve the
differences.
The experts reached agreement on a number of matters (a minute of the
meeting was placed before the Court as Exhibit
"B").
However, on the issue of the cause of the left forearm tissue
ischaemia they were unable to reach agreement. Professors
Smith and
Moore were of the opinion that the arterial line in the left radial
artery and its management was the principal cause
of the ischaemia.
Dr Numanoglu was of the view that there is significant evidence that
point to septicaemia as the underlying cause
of the forearm
ischaemia. Dr Solomons is unable to identity the pathogenesis and
ultimate cause of the forearm ischaemia.
[39]
Professor Kirsten, who was drawn into the fray much later, did not
participate in the meeting of experts. By reason of the
fact that the
summary of Professor Kirsten's expert opinion under Rule 36(9)(b) was
only filed on 20
th
November 2007, the fourteenth day of the trial, counsel agreed that
his view that the limb symptomology is most consistent with
deep vein
thrombosis of the left arm
7
, would not be canvassed at the trial. Professor Kirsten was of the
opinion that the baby had an underlying infection, and his
evidence
in regard to the question of infection and other issues proved
invaluable.
[40]
In
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
8
it
is emphasised -
that the question
of reasonableness and negligence is one for the Court itself to
determine on the basis of various and often conflicting,
expert
opinions presented. As a rule that determination will not involve
considerations of credibility but rather the examination
of the
opinions and the analysis of their essential reasoning, preparatory
to the Court reaching its own conclusion on the issues
raised.
An
expert witness -
...
must furnish criteria for testing the accuracy and objectivity of his
or her conclusion. The Court must be told of the premises
upon which
the opinion is based.
9
In
evaluating the evidence of expert witnesses, the Court has "to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning".
10
It is further pointed out
11
that, in assessing the competing and contrasting evidence of
scientific experts, it must be borne in mind that "expert
scientific
witnesses tend to assess likelihood in terms of scientific
certainty". In
Ocean
Accident and Guarantee Corporation Ltd v Koch
12
Holmes
JA stressed that in a civil case the degree of proof required in a
Court of law is not "absolute science" but a
balance of
probability. This view found expression also in the judgment of the
House of Lords in the Scottish case of
Dingley
v The
Chief
Constable, Strathclyde Police
13
:
[o]ne cannot
entirely discount the risk that by immersing himself in every detail
and by looking deeply into the minds of the experts,
a Judge may be
seduced into a position where he applies to the expert evidence the
standards which the expert himself will apply
to the question whether
a particular thesis has been proved or disproved - instead of
assessing, as a Judge must do, where the
balance of probabilities
lies on a review of the whole of the evidence.
(The
passage is cited with approval in
Michael
and Another
v
Linksfield
Park Clinic (Pty) Ltd and Another
14
).
What
is, therefore, required of a trial Judge in a civil matter is to
determine to what extent the opinions advanced by the experts
are
founded on logical reasoning and how the competing sets of evidence
stand in relation to one another, viewed in the light of
the
probabilities.
15
[41]
A case such as this, where the parties place before the Court the
divergent opinions of distinguished experts, cannot therefore
be
decided by simple preference. In
Maynard
v
West
Midlands Regional Health Authority
16
Lord
Scarman said:
I have to say
that a judge's 'preference' for one body of distinguished
professional
opinion to another also professionally distinguished is not
sufficient to establish negligence in a practitioner whose
actions
have received the seal of approval of those whose opinions,
truthfully expressed, honestly held, were not preferred.
...
For in the realm of diagnosis and treatment negligence is not
established by preferring one respectable body of
professional
opinion to another. Failure to exercise the ordinary skill of a
doctor (in the appropriate speciality, if he be a specialist)
is
necessary.
With
reference to these words, Lord Browne-Wilkinson said in
Bolitho
v
City
and Hackney Health Authority
17
:
The assessment of
medical risks and benefits is a matter of clinical judgment which a
judge would not normally be able to make without
expert evidence. As
the quotation from Lord Scarman makes clear, it would be wrong to
allow such assessment to deteriorate into
seeking to persuade the
judge to prefer the one of two views both of which are capable of
being logically supported. It is only
where a judge can be satisfied
that the body of expert opinion cannot be logically supported at all
that such opinion will not
provide the benchmark by reference to
which the defendant's conduct falls to be assessed.
The
Supreme Court of Appeal gave its stamp of approval to this approach
1
o
in
Michael
and Another
v
Linksfield
Park Clinic (Pty) Ltd and Another
18
and
Louwrens
v Oldwage.
19
Other
witnesses
[42]
Some of the doctors and other medical staff who were involved in the
treatment of the baby also gave evidence on behalf of
the defendant.
They were: Dr WFJ Bruere, a specialist orthopaedic surgeon who was
head of orthopaedic surgery at the George Hospital
at the time, and
Drs WJJ Breytenbach and Dr HS Van der Walt, both specialist
paediatricians. Sister LN Uithaler, who had been intimately
involved
in the treatment of the baby, and Mrs LC Ackerman, a physiotherapist,
were also called to give evidence on behalf of the
defendant.
[43]
The three doctors, all specialists, were not called as experts and no
expert summaries were filed on their behalf. Yet their
expert
knowledge as medical specialists cannot be ignored. After all, their
conduct in the treatment of the baby is to be evaluated
by the
standard of care and skill required of the reasonable specialist
within their respective fields of specialisation. The evidence
they
gave was therefore not purely factual: they gave evidence not only of
the clinical facts they observed and of which they had
personal
knowledge, but also of their inferences from those facts and their
conclusions as to the appropriate action in the circumstances.
Thus
both Dr Bruere and Dr Van der Walt stated in evidence that their
observations of the clinical picture did not lead them to
the
inference that there was a compartment syndrome. In
cross-examination, Professor Moore's hypothesis in regard to the
existence
of a compartment syndrome was canvassed with them and they
were invited to state their opinions thereon
20
.
[44]
The direct and credible evidence of a witness who has personal
knowledge of the facts to which he or she testifies, generally
carries great weight.
21
21
The opinions of the experts in this case are based upon inferences
drawn from facts proved by the testimony and records of others.
For
this reason, the evidence tendered by the doctors and other medical
staff who had been directly involved in the treatment of
the baby
should be carefully considered and accorded due weight in the face of
the opinions of the experts, however experienced
and eminent they may
be.
The
failure to operate on or about 16
th
January 2002
[45]
The first of the two remaining grounds of negligence on which the
plaintiff relies, is the alleged failure to operate on the
baby's arm
on or about 16 January 2002, in accordance with the allegations
contained in sub-paragraphs 13.10 - 13.13 of the further
amended
particulars, being a failure to intervene surgically "when it
was appropriate to do so"; a failure to perform
a fasciotomy, a
failure to debride necrotic tissue; and a failure to perform
"explorative surgery".
[46]
In argument, counsel for the plaintiff submitted that there was
probably a compartment syndrome present in the baby's forearm
from
about 14
th
or 15
th
January, that the attending orthopaedic surgeons (in particular Dr
Bruere) was aware of the symptoms indicative of a compartment
syndrome, that a reasonable orthopaedic surgeon in his position would
have intervened surgically on or about 16
th
January and that he was negligent in failing to do so.
[47]
Compartment syndrome arises from swelling in the "compartment"
formed by the sheet of fibrous tissue, the fascia,
which envelopes a
muscle. In the forearm the two major compartments are the extensor
and flexor compartments. Prompt recognition
and treatment of an acute
compartment syndrome in a forearm compartment is necessary, for
prolonged ischaemia can result in irreversible
changes in the
muscles, nerves and vascular endothelium, leading to permanent
disability of the and and wrist. Professor Moore
explained that if -
for whatever
cause, if you get swelling inside of those compartments you
will get pressure
on the artery, you'll get pressure on the nerves and that will
increase. So any hint that there is a compartment
syndrome, every
surgeon knows that the most important thing to think about and to
evaluate is to do a fasciotomy by which it means
you just cut the
skin, the underlying tissues and that fascia over the muscles, it
releases the pressure and allows the blood to
get in.
Dr
Solomons pointed out that as a general rule, skin death or amputation
is not a consequence of compartment syndrome.
[48]
The contention that on or about 14 or 15 January there was a
compartment syndrome present in the baby's forearm is not premised
on
the mechanism Professor Moore relied upon for his postulated
compartment syndrome. Professor Moore's evidence was that the
compartment syndrome was occasioned by a thrombus forming more or
less at the site of the radial artery cannula, and that the thrombus
then propagated itself proximally up the radial artery towards the
bifurcation of the brachial artery, in the process compromising
arterial supply to one or other of the compartments in the forearm.
There was extensive debate in cross-examination as to the method
by
which it would be the flexor compartment (supplied principally by
arteries arising from the ulnar artery with collateral supply
from
above the elbow) and not the extensor compartment (supplied by the
radial network with an extensive collateral supply) that
was
initially affected, if the swelling noted did indeed have any
relation to a compartment. The plaintiff no longer relies on
the
theory propounded by Professor Moore, and it was conceded in argument
that it was improbable that there was an arterial thrombosis,
[49]
It was further conceded in argument that the most likely cause of the
postulated compartment syndrome was probably septicaemia.
In making
this concession, the plaintiff effectively abandoned the evidence to
the contrary of Professor Smith, and indeed also
that of Professor
Moore. The concession that there was an underlying infection present
is well justified in the light of the evidence
of Dr Numanoglu and
that of Professor Kirsten. In response to an invitation to express a
view as to the probability or otherwise
of the baby undergoing some
form of infective process, Professor Kirsten said:
To my mind there
is no doubt, there is overwhelming evidence, there is the clinical
picture, the increase in the white blood cell
count, a staphylococcus
aureus that was cultured, a drop in the platelet count and then the
eventual decrease in the C-reactive
protein levels. I have no doubt
that this baby had an underlying infection. I think the only problem
there was that the first CRP
level was done using the incorrect
method and if at that time on the 13
th
they have used the other method it could have been a completely
different impact in that it could have been higher and we would'nt
have had this debate.
22
[50]
Mr Cloete found support in the evidence of Dr Numanoglu and Professor
Moore for the submission that any compartment syndrome
in this case
might have been caused by septicaemia. In his report under Rule
36(9)(b) and in his evidence, Dr Numanoglu stated
that the hospital
records suggest that the ischaemic changes which occurred in the
baby's arm were the result of bacterial septicaemia,
and
specifically, bacterial endotoxaemia leading to endothelial damage,
microthrombosis and haemorrhagic necrosis. In cross-examination,
Dr
Numanoglu agreed that the leaking of the fluid part of the blood
outside the blood vessels and capillaries can increase the
pressures
within the compartments and can lead to compartment syndrome. Dr
Numanoglu stated that the process is an uncommon phenomenon
which has
been the subject of a retrospective review of about 100 patients at
the Red Cross War Memorial Hospital over a 28 year
period from 1978
to 2000. Professor Moore agreed that -
the micro
circulation gets involved and there is necrosis which causes
swelling in the
compartments and then the rest of the thing is fairly standard.
Having
said that, Professor Moore immediately stresses that he does not
believe that before the 16
th
January there was in this case evidence of bacterial septicaemia.
[51]
On the question whether it was possible that septicaemia could lead
to compartment syndrome, Dr Solomons said in evidence:
Whether infection
can cause a compartment syndrome or an infection of muscle and the
arteries and nerves deep inside the forearm,
I have never seen it, I
have never heard about it, I have never read about it, but I'll defer
to the opinion of the neonatologists
and pediatrician surgeons. I
wouldn't know whether that's possible, or not.
For
the purposes of this case, it is not necessary to make a finding on
the question whether septicaemia can cause compartment syndrome.
What
is of relevance in this case is, assuming that septicaemia can cause
compartment syndrome, the question whether the septicaemia
had in
fact caused a compartment syndrome. In other words, were the clinical
features indicative of compartment syndrome present
and, in
particular, were they present before or on 16
th
January 2002?
[52]
Dr Solomons emphasised that the diagnosis of acute compartment
syndrome remains principally a clinical diagnosis. He agreed
that -
[fjhe hallmark of
diagnosis is a swollen, tense, and tender compartment that does not
improve with elevation.
23
Dr
Solomons described the swelling as a wooden-like tenseness. An
oedematous swelling, which is a subcutaneous swelling, is soft
and
spongy and not consistent with that of a compartment syndrome which
is woody and hard.
[53]
Another feature of acute compartment syndrome referred to in the
literature and confirmed by Dr Numanoglu, Dr Solomons and
Professor
Kirsten, is pain. The pain caused by ischaemic muscle death in
compartment syndrome is unremitting agony - in the words
of Dr
Solomons, "It's just unremitting, unrelenting, sheer agony".
He agreed with the statement by Stevanovic and Sharpe
24
that the pain often causes a patient to have a progressively
increasing narcotic requirement, and even with increasing pain
medication,
the pain is not relieved. Dr Solomon explained that the
pain will go away after a time, the reason being that the pain fibres
have
been ischaemic for so long that they eventually die away.
[54]
Dr Solomons further pointed out that discolouration of the skin and
blistering are atypical of compartment syndrome. He added
that he had
seen many, many compartment syndromes but -
I have never seen
or heard of a compartment syndrome presenting with skin lesions.
Stevanovic
and Sharpe
25
do
not include skin lesions in their "5 p's" of the diagnosis
of compartment syndrome: pain, pain with passive motion,
pallor,
pulselessness, and pareshesia and paralysis.
[55]
Dr Bruere examined the baby for the first time at approximately 09h25
on 14
th
January. At that stage there was swelling of the forearm and the
hand, and extensive swelling with discoloration of the skin. There
was an area of skin that was discoloured to such an extent that he
thought it was threatening to become necrotic. There was also
swelling on the inner aspect of the upper arm, extending up into the
axilla. The swelling was a subcutaneous induration of tissue
confined
to the skin and the sub-skin tissue He established this on
examination because these structures could be freely moved
over the
underlying muscles, which means that the swelling was outside the
deep investing layer of fascia of the arm. The capillary
filling was
good. Dr Bruere was of the view that the swelling was caused by a
subcutaneous infection of the limb, and his view
was supported by the
enterobacter bacteria cultured
26
Dr Bruere said that at the time he saw the patient on 14
th
January, he found nothing in the baby's presenting symptoms that was
compatible with a diagnosis of compartment syndrome in the
baby's
forearm.
[56]
In regard to his awareness of compartment syndrome, Dr Bruere
testified that he had "done orthopaedics" for 35 years
and
that -
the first and
foremost thing you do when you look at a swollen or injured limb is
to establish the neuro-vascular status of that
limb. That is the
first thing you do. You feel for the pulses, you check for sensation,
you check for movements, muscular function.
If — you make sure
that the swelling does not involve a compartment. So you look for all
the signs of compartment syndrome.
It is fundamentally ingrained in
any orthopaedic surgeon's mind. And anybody who does orthopaedic
surgery thinks that way, especially
in the circumstances of George
Hospital, where you're dealing with large volumes of neglected
trauma, neglected infections and
that sort of thing
[57]
Dr Bruere, along with Drs La Grange and Moodley, again see the baby
at 08h45 on 16
th
January. In the nurse's notes, sister Uithaler recorded the
following:
Gesien deur Dr La
Grange, Dr Bruere & Dr Moodley: Arm deeglik bestudeer. Bespiegel
dat skade reeds gedoen is. Eerste gedeelte
van voorarm? reeds
nekroties is. Wil baba teater toe neem. Wil kyk wat onder aan gaan;
Besluit weer om nog dop te hou vir 1 dag
of twee. Hou ge-eleveer op
druipsakkies. Nie sodat handjie hang nie. Baba oor algemeen baie
beter. Indien ouers kom sal Dr La Grange
met ouers wil praat indien
hulle vrae het.
Sister
Uithaler testified that she was not party to the discussion and that
she merely wrote down her impressions of what she heard.
Neither
sister Uithaler nor Dr Bruere has any independent recollection of the
discussion which had taken place between the orthopaedic
surgeons.
According to the note, the surgeons were in a quandary as to what
exactly to do and whether an interventionist or conservative
approach
should be adopted.
Dr
Bruere's said that the orthopaedic team usually did ward rounds
together and what the note reflects, is the doctors in attendance
debating the case among themselves. He added that the discussion of
going to theatre was part of their debate, of their analysis
of the
case: at that point, there was no threat to the patient; the necrosis
was not becoming more extensive and the baby was getting
better and,
indeed, breastfeeding. In other words, there was no point in opening
up the arm and operating, especially in that they
did not think there
was compartment syndrome. In the end they decided that they were not
going to go in, but that they would wait
and see what happens.
[58]
Dr Bruere said that he considered it bad practice to operate on
compromised tissue "just because you want to have a look".
Support for this view is found in the evidence of Dr Solomons who
said that in the presence of both staphylococcus aureus and
enterobacter organisms he would have counselled against surgical
intervention. Dr Numanoglu drew attention to the further
consideration
that the baby's general condition would have to be
taken into account as the child's condition needs to be fit for a
general anaesthetic
to be able to performance fasciotomy, otherwise
one might be taking a greater risk by doing a fasciotomy on a sick
child because
of the anaesthetic complications.
[59]
In the doctor's note pertaining to the visit of Drs Bruere, La Grange
and Moodley on 16
th
January, Dr La Grange wrote "neurovascular intact". Dr
Bruere said that the note was in response to the wrist drop query
raised earlier that morning in the note of Dr Dhoodat and reflected
the orthopaedic surgeons' assessment of the wrist drop situation,
and
the fact that they were confident that there was no compartment
syndrome. Both Dr Bruere and Dr Solomons pointed out that wrist
drop
is not caused by an extensor compartment syndrome, but by a problem
to the nerve supply to the muscles higher up in the arm
which control
the movement of the wrist. Wrist drop, as repeatedly emphasized by Dr
Solomons, and indeed also by Professor Moore,
implies radial nerve
palsy. This is also apparent from Dr Moodley's note on 31
st
January: "? radial nerve injury - wrist drop", and her note
on 1
st
February: "radial n palsy —» wrist drop". The
causes of wrist drop are various and the presence of wrist
drop may
in a baby even be no more than an indication of pseudo-palsy, which
is a self-protective mechanism against pain. Professor
Kirsten said
that wrist drop in a baby is often the result of an arm being
stretched in delivery, a condition which heals in time.
Dr Bruere was
of the view that the wrist drop in the present case was most likely a
temporary paresis resulting from the elevation
of the baby's arm.
[60]
Mr Cloete submitted that in view of the reduction of hand and finger
movement noted on 15
th
January by the nurses and Dr Faber, and the wrist drop noted by Dr
Dhoodat on 16
th
January, it is probable that compartment syndrome was present by 15
th
January. However, two salient features of compartment syndrome were
not present. First, the tenseness or "hardness" of
the
swelling that characterises compartment syndrome was not noted by any
of the nurses or doctors. Dr Van der Walt, who saw the
baby late on
the afternoon of Monday 14 January, remarked that the arm was more
swollen that it had been when she previously saw
the baby on the
preceding Friday, but that "it was not a hard swollen arm";
it was not "rock hard swollen"
in the manner she would
associate with compartment syndrome. Secondly, the unrelenting pain
that characterises compartment syndrome
was not noted by any of the
nurses or doctors. There are notes that the arm was sensitive to
touch. Dr Bruere testified that pain
of the arm to touch does not
originate from pressure in the compartment but is caused by
inflammation around the nerves in the
subcutaneous plane and is thus
not an indication of compartment syndrome. Dr Solomons was of the
view that an otherwise well neonate
who had compartment syndrome
would be extremely irritable, miserable and showing signs of extreme
distress. Professor Kirsten said
that if a baby has pain, it will
"usually cry all the time". In fact, the general condition
of the baby was improving
over the period 12
th
to
15
th
January. At 08h00 on 13
th
January it is stated in the nursing note that the baby "lyk
beter vandag", and in a note made at 13hl0 it is stated,
"baie
beter". On the 14
th
it is noted, "Toestand toon verbetering sedert verlede week",
and in a note made at 14h30 on the 15
th
it is stated, "Toestand baie beter". On 13
th
January a successful start is made with
•
breast-feeding
27
; a fact which, as Mr Irish submitted, is hardly compatible with the
insistent and unremitting agony which a compartment syndrome
would
cause.
[61]
Though the first of the two remaining grounds of negligence on which
the plaintiff relies is the alleged failure to operate
on the baby's
arm on or about 16 January 2002, Mr Cloete highlighted certain
further clinical signs, indicative of compartment
syndrome, which
became manifest after 16
th
January. He referred to the Dr Solomon's concession that Dr
Breytenbach evidence that the muscles in the baby's arm seemed to
shrink in size, might be indicative of compartment syndrome. However,
Dr Solomons added that Dr Breytenbach's observation that whole
forearm was blue with a clear line of demarcation between the
blueness and the rest of the forearm is not something you normally
see in a compartment syndrome.
[62]
Mr Cloete further referred to the entry in the nursing records on
25
th
January in which the arm was described as "voel styf en hard
plek-plek en huil as armpie gebuig word", and the entry
on 26
th
January, when it was noted that the arm was not swollen, that the arm
"voel styf en hard". Dr Solomons conceded that
the
tenseness could be explained by compartment syndrome, though he found
it difficult to understand, if the compartment syndrome
had started
(as the plaintiff alleges) way back on 16
th
January, why the arm would be painful at this stage.
[63]
The third "classic sign" of compartment syndrome which Mr
Cloete referred to is clawing of the hand. The first reference
to
clawing appears in a nursing note made at 10h30 on 27
th
January: "Lyk na klou figuur". At 13h45 on 29
th
January there is a note: "Spalkie aan linker polsgewrig. Vingers
maak klou figuur". Dr Van der Walt said in evidence
that there
was clawing of the baby's hand on or after 27 January. In the notes
of the orthopaedic staff there is no mention of
clawing of the hand.
Dr Moodley of the orthopaedic staff saw the baby on 31
st
January and again on 1
st
February, and on both occasions she noted a wrist drop.
28
Had
there been clawing, she would surely have noticed and noted it. On
29
th
January and 2
nd
February the physiotherapist worked with the baby by way of passive
movement of the left arm.
29
Mrs Ackerman said in cross-examination that if there had been a claw
with characteristic stiffness of the muscles, she would not
have been
able to fulfil her task as a physiotherapist. Dr Bruere was sceptical
about the nurse's observation of a claw, especially
since the nurse's
second observation was made after splint had been applied. A splint,
he said, forces the fingers into a position
resembling a claw, an
observation also made by the physiotherapist. Dr Bruere said that he
would have been "very" upset
and worried if he had seen a
claw in the child, but that he is confident that they did not miss a
flexion contracture of the long
flexes of the forearm.
[64]
In my view, Dr Bruere and his orthopaedic team on the 14
th
and 16 January rejected compartment syndrome on reasonable grounds as
a possible diagnosis. Their decision not to intervene surgically,
either by way of a fasciotomy or by way of "explorative
surgery", was in the circumstances reasonable and not negligent.
The
discharge of the patient on 2
nd
February 2002
[65]
The second of the two remaining grounds of negligence on which the
plaintiff relies is the alleged inappropriate discharge
of the baby
on 2
nd
February 2002, as alleged in sub-paragraph 13.14 of the further
amended particulars. The discharge is alleged to have been
inappropriate
by reason of the fact that at the time of discharge
there was evidence of a left-sided radial nerve palsy manifesting
with a wrist
drop, necrotic skin and a painful left arm.
[66]
Upon discharge, the left hand was still in a splint and the mother
was instructed as to the care of the hand
30
.
An appointment was made for further physiotherapy on 7
th
February. Dr Solomons confirmed that it is standard practice that any
child with a wrist drop would get a splint and physiotherapy
to
maintain a passive range of motion.
[67]
When the baby was discharged it was no longer sick, it had recovered
from the jaundice and the sepsis
31
.
The baby had two small open wounds on her forearm in respect of which
all signs of infection had cleared. Dr Bruere testified
that he and
Dr Dippenaar agreed that the baby was fit to be discharged:
We thought the
mother was responsible and caring and the child was healthy. It was
feeling well. It had no temperature. The CRP
was
5.
There was no concern about the wounds on the arm, and we decided that
it would be sensible to allow this child to go home and then
come
back for follow up the next week.
As
to the state of the arm Dr Bruere said:
Those (sores)
were skin defects. I can't remember if the actual dead skin had come
off, or if they were like scales sitting there,
or scabs. I'm not
sure about it, but I know that I was happy that there was no active
infection or any threat to that arm coming
from that ulceration.
As
far as wrist drop is concerned, it has been pointed out above that
the causes of wrist drop are various. Professor Kirsten pointed
out
that wrist drop in a baby is often the result of an arm being
stretched in delivery (which is not the position in the present
case), that it is a condition which heals in time and that there is
nothing one can do in a hospital to speed it up. He stressed
that
"[w]rist drop on its own is not a contraindication to send a
child home."
When
asked whether the baby was in pain at the time of discharge, Dr
Bruere said that the baby looked healthy and fine, and was
on the
mother's arm. Professor Kirsten said that the sores, though healing,
might have caused some residual pain which could have
been controlled
by an analgesic such as Panado syrup. He added that if a baby has
pain, it will usually cry all the time. There
is no indication that
upon discharge the baby was distressed and crying. Upon discharge of
the baby, Panado syrup was prescribed
for use as needed
32
.
On
the face of it, it would seem that there was on the 2
nd
February no indication that a further stay in hospital was required.
[68]
Mr Cloete submitted that it is clear from the plaintiffs responses to
the defendant's requests for particulars for trial that
(i) it has
always been then plaintiffs case that the negligence caused the
amputation, and (ii) such negligence occurred during
the whole period
between 11
th
January 2002 and the date on which the arm was amputated, and that
the plaintiffs amendment of the introductory paragraph of paragraph
13 of her Amended Particulars of Claim regarding the period of
negligence had in fact been unnecessary. Mr Irish, on the other
hand,
contended that the plaintiffs case as pleaded was that the alleged
inappropriate and negligent discharge of the baby only
affected the
level of the amputation of the baby's arm.
[69]
In paragraph 7 of the defendant's request for further particulars for
purposes of trial, the plaintiff was
inter
alia
asked
(i) what could or should have been done which could have avoided the
amputation, and (ii) when such should have been done.
The response to
the first question was that the treatment of the baby should have
been managed with the requisite degree of skill
and expertise, and
that the relevant health care professional failed to do so in the
respects set out in paragraph 13 of the plaintiffs
particulars of
claim. The response to the second question was:
The negligence of
the relevant health care professionals in the employ of the Defendant
commences when the arterial line was kept
in
situ
without
anticoagulant from sometime before 04h20 on
11
January 2002 for a period of more than 10 hours, and continued
thereafter until the arm was amputated.
In
paragraph 16.7 of the defendant's request of further particulars for
purposes of trial, the plaintiff was asked:
On what basis
does Plaintiff contend that Philasandre should not have been
discharged at the time when she was discharged?"
The
reply was as follows:
Because
Philasandre had a critically ischaemic limb when she was discharged.
The loss of motor function in a critically ischaemic
limb is of
particular significance as loss of motor function heralds impending
muscle necrosis.
In
response to a further question, the plaintiff stated:
The Defendant's
employees, by discharging Philasandre with a critically ischaemic
limb, failed to exercise the general level of
skill and diligence
possessed and exercised by members of the branch of the profession to
which they belong.
[70]
In regard to the effect, or result of the discharge of the baby on
2
nd
February,
the following case was made in the evidence adduced on behalf of the
plaintiff at the trial. In the summary of Professor
Smith's expert
opinion filed under Rule 36(9)(b) in which it is stated:
Earlier
intervention could probably have prevented the development of
cellulites and therefore limited the extent of the amputation.
In
his evidence in chief, Professor Smith confirmed this view and
stated:
In my view the
discharge from hospital was not indicated and represents sub-optimal
clinical practice. Earlier, in my view, earlier
intervention could
probably have prevented the development of cellulitis which we will
get to later on and therefore could have
limited the extent of the
amputation.
He
added that the fact that the baby was inappropriately discharged -
is also borne
out by the fact that the infant developed cellulitis and that it
would not and
should not have occurred if the infant was in hospital.
Professor
Smith explains this statement as follows:
Cellulitis in the
situation probably occurred due to neglect after the infant was
sent home
33
With inappropriate management and as a consequence of
developing
progressive poor blood flow to the tissues the infant became more and
more prone to secondary infection.
Professor
Smith was then asked whether it is correct that on the day of
discharge there was not evidence in the hospital records
of
cellulitis. His response was, "It appears like that yes."
[71]
Professor Moore in his evidence explicitly confirmed the following
statement is the summary of his expert opinion filed under
Rule
36(9)(b):
It is my opinion
that the discharge of the patient with a critically ischaemic arm had
an influence on the eventual outcome and
was probably responsible for
the fact that the amputation had to be revised at a higher level than
the initial amputation level.
In
evidence he elaborated on this point of view by stating that -
I felt that by
not dealing with the problem when there was a claw hand,
when there was
sepsis, severe sepsis, by discharging the patient home to whatever
bugs there might be there to improve on I suppose,
and delay the
amputation it increased the level of sepsis and led to the fact that
it could'nt be just a dry gangrene which could
just be cut off and
one a nice, clean surgical closure; it had to be a stage procedure
which involved further surgery, two further
operations to get it
closed which included shortening the bone so that the muscles could
cover it and left the child with a relatively
short arm .Now that's
the only point I wanted to make from it and a did'nt criticise the
actual amputation and looking at the picture,
it's not a bad result.
[72]
The evidence of Professor Moore calls for two preliminary
observations. First, there is no evidence in the hospital records
or
other testimony placed before the Court, that the baby was discharged
"with a critically ischaemic arm". On the contrary,
on 11
th
February, the fourth day after re-admission, the orthopaedic surgeons
note that the edges of the ulcers on the baby's left arm
are
"granulating well". As Dr
Numanoglu
pointed out, granulation is part of the healing process and
incompatible with an inadequate blood supply to the affected
areas.
[73]
The second preliminary observation relates to Professor Moore's
contention that the delay of the amputation increased the level
of
sepsis and led to the fact that there was not merely a dry gangrene
which could be excised in one, clean surgical closure, and
that it
had to be a staged procedure which involved further surgery. This is
not borne out by the evidence of Dr Bruere and the
contemporary
hospital note - Dr Bruere in doing the amputation found dry gangrene
without any sign of suppurating or infected wet
gangrene.
[74]
The plaintiffs case as made out in the evidence of Professors Smith
and Moore is that if surgical intervention had taken place
earlier
(before the discharge of the baby), the eventual outcome might have
been amputation at a lower level. This has consistently
been their
attitude throughout. Thus in the notes dated 19
th
October 2006 of the meeting of experts, it is recorded that
Professors Smith and Moore were of the opinion that the timing of the
discharge from hospital was inappropriate as "it may have
affected the level of amputation". At the meeting of experts,
Dr
Numanoglu agreed that the discharge on 2
nd
February was inappropriate, but was of the view that it did not make
any difference "to the outcome / level of amputation".
[75]
Dr Numanoglu's view in regard to the discharge of the baby was that
the baby had been very ill, that she was more vulnerable
to further
setbacks, that she still had skin lesions on her arm, and that one
would like to see that the ulcers had healed before
discharge, or
were closing or almost closed. In response to a question in
cross-examination whether the deterioration that took
place between
2
nd
February (discharge) and 7
th
February
(re-admission) would have taken place if the baby had remained in
hospital, Dr Numanoglu said, "It's difficult to
say".
Elsewehere in his evidence he said:
If you just look
at the wound itself, which is under control and with regards to the
sepsis, one can follow it up. One can follow
the patient in an
outpatient setting or even a day hospital setting. If you just look
at the wound and the treatment of the wound.
This
approach is supported by Professor Kirsten who said that the decision
whether or not to discharge a child with necrotic skin
on a forearm
would be one within the domain of surgeons and orthopaedic surgeons
who deal with many babies on an outpatient basis,
and -
They know in
which ones they can close the wound or wounds, send the mother and
baby home, and then reassess because it is a slow
healing process.
[76]
Dr Bruere, who had examined the baby prior to discharge, was of the
opinion that there was no active infection or any infective
threat to
the arm. In my view, his decision to discharge the baby with follow
up at the orthopaedic clinic was in accordance with
accepted practice
and cannot be faulted.
Causation
[77]
Mr Cloete submitted that a causal link exists between the failure to
intervene surgically on or about 16
th
January 2002 and the eventual amputation of the baby's arm. The
contention is that had a fasciotomy been performed on the baby's
forearm on or about 16
th
January, it is improbable that she would have been discharged from
hospital on 2
nd
February.
The discharge from hospital on 2
nd
February and the consequences thereof (infection) caused the eventual
amputation of the arm on 19
th
February: had she not been discharged on 2
nd
February (which would probably been the case if she had undergone a
fasciotomy on or about 16
th
January 2002) her arm would not have become infected and would
probably not have been amputated.
[78]
In developing the argument of a causal link, Mr Cloete placed
considerable reliance on the evidence of Dr Numanoglu and Dr
Solomons
that the baby's high temperature upon re-admission on 7
th
February might have been indicative of sepsis, and Dr Numanoglu's
concession that it is probable that the arm became infected between
discharge on 2
nd
February and re-admission on 7
th
February. Dr Bruere and Dr Solomons agreed that it was less likely
that the arm would have become infected had the baby remained
in
hospital, and if did happen in hospital it would immediately have
been treated appropriately. Dr Numanoglu said that the further
deterioration of the arm between re-admission on 7
th
February and 11
th
February,
when the presence of cellulites and the absence of a radial pulse,
could have been due to the escalation of the infection,
though he did
not exclude other possibilities.
[79]
The existence of such a causal link is premised on the necessity of
surgical intervention on or about 16 January. If there
had been no
necessity to intervene surgically at the time, the absence of
surgical intervention cannot be a cause of the eventual
amputation.
It has been held above that there is no merit in the first of the two
remaining grounds of negligence on which the
plaintiff relies;
namely, the alleged failure to operate on the baby's arm on or about
16 January.
[80]
Moreover, it has further been held above that the discharge of the
baby on 2 February was not inappropriate and not negligent.
If there
was no wrongful conduct, there can be no legal liability.
Conclusion
[79]
The plaintiff has not established negligence on the part of the
defendant's employees on the two remaining grounds relied on
at the
end of the trial. The claim must accordingly be dismissed.
[80]
There is no reason why costs should not follow the result, such costs
to include the costs consequent upon the employment of
two counsel.
The defendant is also entitled to the qualifying costs of the expert
witnesses, Dr AN Numanoglu, Dr MS Solomons and
Professor GF Kirsten,
and the costs incurred in bringing to Cape Town, Dr WFJ Bruere, Dr
WJJ Breytenbach, Dr HS Van der Walt, Sister
LN Uithaler and Mrs LC
Ackerman.
[81]
The following orders are made:
1.
The plaintiffs claim is dismissed with costs including the costs
consequent upon the employment of two counsel.
2.
The plaintiff must pay the qualifying costs of the expert witnesses,
Dr AN Numanoglu, Dr MS Solomons and Professor GF Kirsten.
3.
The plaintiff must pay the costs incurred in bringing to Cape Town,
Dr WFJ Bruere, Dr WJJ Breytenbach, Dr HS Van der Walt, Sister
LN
Uithaler and Mrs LC Ackerman.
HJ
ERASMUS. J
1
Van
Wyk
v
Lewis
1924
AD 438
at 444;
Van
der Walt v De Beer
[2005] ZAWCHC 24
;
2005
(5) SA 151
(C) at 154H.
2
2006
(2) SA 161
(SCA) at 171C.
3
From
Claasen and Verschoor
Medical
Negligence in South Africa
(1992)
at 15.
4
[1957]
2 All ER 118
(QBD); also reported at
[1957] 1 WLR 582
and
1 BMLR 1.
See further the remarks of Lord Scarman in
Maynard
v
West
Midlands Regional Health Authority
[1984]
1 WLR 634
(HL) at 638.
5
Van
Wyk v Lewis
1924
AD 438
at 444
6
Professor
Kirsten had been indirectly involved in the treatment of the baby to
the extent that after the first and prior to the
second exchange
transfusion, Dr Breytenbach, a specialist paediatrician at the
George Hospital, sought his advice. Apart from
the telephonic
advice, Professor Kirsten had no further involvement in the
treatment of the baby.
7
Deep
vein thrombosis may be due to congenital thrombophilia, or to an
acquired factor such as,
inter
alia,
an
indwelling catheter or infection.
8
2001
(3) SA 1188
(SCA) at 1200D—E.
9
Holtzhauzen
v Roodt
1997
(4) SA 766
(W) at 773A. See also
S
v
Adams
1983
(2) SA 577
(A) at 586C where Hoexter JA cites with approval a
statement of Ramsbottom J in
R
v Jacobs
1940
TPD 142
to the effect that it is not possible to test the
correctness of a expert's opinion so as to form a proper judgment
upon it "unless
the expert witness states the grounds upon
which he bases his opinion."
10
Michael
and Another v Linksfield Park Clinic (Ply) Ltd and Another
2001
(3) SA 1188
(SCA) at 12001.
11
AU201E.
12
1963
(4) SA 147(A)atl59B.
13
2000
SC (HL) 77 at 89D—E.
14
2001
(3)SA1188(SCA)atl201G.
15
Louwrens
v
Oldwage
2006
(2) SA 161
(SCA) at 175H.
16
[1984]
WLR 634
at 639.
17
Motor
Vehicle Assurance Fund
v
Kenny
1984
(4) SA 432
(E) at 436H, cited with approval by a Full Bench in
Stacey
v Kent
1995
(3) SA 344
(E) at 439A.
18
2001
(3) SA 1188
(SCA) at 1201C.
19
2006
(2) SA 161
(SCA) at 175E—I.
20
This
does not mean that I suggest that the evidence of these doctors must
be treated as part of the expert evidence, as was apparently
done in
the trial court in
Maynard
v
West
Midlands Regional Health Authority
[1984]
1 WLR 634
(HL). At 639 Lord Scarman remarks that "the judge
recognised that the defence had called a formidable number of
distinguished
experts, among whom it was legitimate to
include
Dr Ross and Mr Stephenson themselves ....." The claim in that
case was based on alleged
negligence
on the part of Dr Ross and Mr Stephenson in the treatment of the
plaintiff.
21
Motor
Vehicle Assurance Fund
v
Kenny
1984
(4) SA 432
(E) at 436H, cited with approval by a Full Bench in
Stacey
v Kent
1995
(3) SA 344
(E) at 439A.
22
The
blood test results that underlie this conclusion are set out above
in paragraph [17].
23
Milan
Stevanovic and Frances Sharpe "Management of Established
Volkmann's Contracture of the Forearm in Children" (2006)
22
Hand
Clinics
99-111
at 101.
24
In
the article cited in the preceding footnote at 101.
25
In
the article cited in the preceding footnote at 101.
26
See
paragraph [19] above.
27
See above paragraph [18].
28
See
paragraphs [27] and [28] above.
29
See
above paragraph [
25
].
30
The
relevant nurse's note is cited in paragraph [30] above.
31
In cross-examination of Professor Kirsten, Mr Cloete put it to him
that this was common cause.
32
The prescription says "Panado PRN".
33
The
fact that something might have happened after the baby had been sent
home was also alluded to by Professor Moore. The issue
was, however,
not further explored at the trial.