Oldwage v Louwrens (10253/01) [2004] ZAWCHC 9; [2004] 1 All SA 532 (C) (19 February 2004)

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[2004] ZAWCHC 9
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Oldwage v Louwrens (10253/01) [2004] ZAWCHC 9; [2004] 1 All SA 532 (C) (19 February 2004)

IN THE HIGH COURT OF
SOUTH AFRICA
REPORTABLE
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO:
10253/01
In the matter between
JAMES PETER OLDWAGE
Plaintiff
And
DR HENK D LOUWRENS
Defendant
JUDGMENT
DELIVERED ON 19 FEBRUARY 2004
YEKISO, J
INTRODUCTION
[1] On the 8
th
June 2000 the Defendant, a vascular
surgeon, performed a vascular surgery on Plaintiff at Panorama
Medi-Clinic (hereinafter referred
to as “Panorama”) to relieve
him of severe pain in his right leg. There is a dispute as regards
the precise nature of the operation
the Defendant performed. The
initial averment in the pleadings was that the operation performed
was the so-called
femoro-femoral
by-pass operation. At the
commencement of trial the Defendant applied for an amendment of
paragraph 8.2 of the Defendant’s Plea,
the amendment sought being
the deletion of the words
“femoro-femoral
by-pass procedure
”
wherever such words appear in paragraph 8.2 and by the substitution
thereof with “
ilio-femoral
by-pass procedure”. Paragraph
9 of the Defendant’s Plea was to be amended by inserting an
admission that the Defendant performed
an
ilio-femoral
by-pass
operation and finally, deletion of the words
“femoro-femoral”
in paragraph 13.1.2.1 of the Defendant’s Plea and by the
substitution thereof with the words
“ilio-femoral”
.
Initially Plaintiff, through Counsel, indicated that the proposed
amendment would be opposed. Plaintiff subsequently changed
its
position, advising that the amendment sought would no longer be
opposed subject to it being recorded that the operation purportedly
performed was not being admitted. Thus the precise nature of the
operation purportedly performed is still in dispute.
[2] On 20 October 2003 Plaintiff filed a Notice of Amendment in terms
of Rule 28 seeking to amend its Particulars of Claim by the
insertion
of paragraph 7A immediately following paragraph 7.4 of the
Particulars of Claim. The effect of the proposed amendment
would be
the addition of “assault” as an alternative cause of action in
Plaintiff’s claim. In the same proposed amendment,
Plaintiff
sought to add “contumelia” as a further sequelae to the alleged
breach or misrepresentation as paragraph 9.8 after
the existing
paragraph 9.7; Paragraph 10.1 was to be amended by adding “assault”
as an alternative cause of action and, finally,
paragraph 10.3 was to
be amended to include “contumelia” as one of the several
categories of general damages suffered. The Defendant
did not oppose
the amendment sought so that after the expiry of the
dies
induciae,
Plaintiff’s Particulars of Claim were deemed so
amended.
[3] Turning to the facts of the matter, Plaintiff was admitted at
Panorama on 7 June 2000, a day preceding the date of the operation.

On that day the Defendant performed an angiogram on him. The
operation was performed the following day. Plaintiff was discharged
from Panorama on Sunday, 11 June 2000.
[4] On discharge from hospital, so it is contended on behalf of
Plaintiff and so did Plaintiff testify in evidence, Plaintiff was
not
relieved of pain he experienced prior to the operation. On
Wednesday, 14 June 2000 Plaintiff consulted a Dr Kieck, a
neuro-surgeon,
in his rooms at Vincent Pallotti Hospital, Pinelands.
Dr Kieck examined Plaintiff and diagnosed a prolapsed disc as the
source
of pain Plaintiff experienced at the time. On 21 June 2000
and at Vincent Pallotti Dr Kieck performed a laminectomy on
Plaintiff.
Plaintiff remained in Vincent Pallotti until Sunday, 24
June 2000, on which latter date he was discharged and relieved of
pain.
[5] A few days after his discharge from Vincent Pallotti and in an
attempt to do some physical exercise, as he was accustomed to
do
prior to undergoing the vascular operation, Plaintiff went for a walk
with his wife when he discovered that, after walking a short
distance
of about 30m, he experienced cramps and pain in his left leg. This
necessitated Plaintiff to rest, but the pain would
recur as soon as
he would resume walking.
[6] Plaintiff subsequently saw Dr Kieck for a follow-up operation on
Monday, 3 July 2000. On this occasion Dr Kieck noted that
Plaintiff
claudicates. Dr Kieck further noted that Plaintiff ‘s left foot
was cold to touch; that the pulses in the left leg
were negative and
that, according to Plaintiff, this symptom manifested after the
vascular operation.
[7] In the course of trial it became apparent that when Plaintiff
consulted the Defendant and subsequently operated on, Plaintiff
presented an extensive vascular disease. When pain persisted after
this operation he consulted Dr Kieck who diagnosed a prolapsed
disc
in the L4/5 lumbar region as a source of pain necessitating a
laminectomy which Dr Kieck performed on 21 June 2000. The Plaintiff
thus not having been relieved of pain he experienced after the
vascular operation, the primary issue I have to determine, amongst
other ancillary issues, is what medical intervention, if any, was
reasonably required to address the pain Plaintiff experienced prior
to the performance of the two operations on him. In order to
determine this issue and, of course, other related issues, it is
necessary
to examine Plaintiff’s health history prior to the
operations on 8 June 2000 and 21 June 2000 by the Defendant and Dr
Kieck respectively.
HEALTH HISTORY PRIOR
TO PERFORMANCE OF THE OPERATIONS
[8] Except for a laminectomy which was performed on him at Dundee, in
the Province of Kwazulu Natal during 1972, Plaintiff was otherwise
fit and healthy up until 27 April 2000 when Plaintiff sustained an
injury to his back in Cedarberg, Clanwilliam, Cape. At that stage
Plaintiff and his wife occupied a flat in Milnerton. The flat was
situated on the fourth floor of a block of flats and could only
be
accessed by four flights of stairs. Plaintiff utilized a flat on the
second floor of the same building as an office.
[9] During December 1999 Plaintiff purchased two mountain bicycles
for himself and his wife. This, so Plaintiff testified in
evidence,
was at the suggestion of his wife in order that they could
exercise regularly. At regular intervals, Plaintiff and his wife
would
visit the Clanwilliam Dam area where they would either stay
with Plaintiff’s brother, George, or would stay at a house referred
to in evidence as “The Thatch Roof House
”
. During such
visits, Plaintiff would undertake regular exercise activities such as
walks and bicycle rides.
[10] On one such visit on the long weekend commencing 27 April 2000
Plaintiff and his wife went for a walk next to the Clanwilliam
Dam
when, during such a walk, Plaintiff slipped landing on his buttocks
and hurting his lower back in the process. Plaintiff was
laid up
for the rest of that long weekend with significant backache. As a
result of this incident, Plaintiff and his wife returned
to Cape Town
earlier than anticipated due to discomfort and inconvenience
Plaintiff experienced subsequent to the slipping incident.
[11] On his return to Cape Town the back injury was treated
conservatively by way of bed rest and after a few days Plaintiff
resumed
work as before. Towards the end of May 2000 Plaintiff
experienced increasing and later intense pain in his right leg. On
5 June
2000 he visited Dr Simons, a general practitioner, for the
first time. While waiting in the reception room prior to seeing Dr
Simons,
Plaintiff did not sit down, but leaned against the wall or a
table. This was because of severe pain he experienced at the time.
[12] When Plaintiff subsequently consulted Dr Simons he complained of
five days of pain in the lower aspect of the right leg which
was
preceded by numbness especially when getting out of bed; the pain was
aggravated by movement and radiated up to the right buttock.
Dr
Simons performed a single leg raise test on Plaintiff. Dr Simons
neither made notes regarding any complaint of claudication
on the
part of Plaintiff, any pain in the right foot, discolouration of the
right foot, abnormal temperature in the right foot nor
the precise
nature of any neurological tests he may have performed.
[13] Dr Simons referred Plaintiff to the Defendant for an appointment
at the latter’s rooms at Panorama on Tuesday, 6 June 2000.

Plaintiff duly visited the Defendant as arranged. He took a taxi
because it would have been too uncomfortable to drive because
of
pain. Plaintiff handed to the Defendant a note sealed in an
envelope given to him by Dr Simons. The contents of this note
are
not known as it was neither discovered nor produced in evidence.
[14] After taking an oral history the Defendant examined Plaintiff on
his examination couch. Plaintiff did not remove his trousers
as it
was too painful to do so. Defendant examined Plaintiff in the groin
by loosening Plaintiff’s trousers. Defendant examined
Plaintiff’s
right foot. In the consultation preceding the examination the
Defendant did not ask Plaintiff whether he had experienced
any
symptoms of claudication nor did he take any record of Plaintiff’s
exercise regime or eating habits. The Defendant did not
perform a
Doppler test on Plaintiff. Plaintiff did not mention the fall in
Cedarberg to the Defendant, nor did the Defendant direct
any enquiry
to Plaintiff which would have elicited that information.
[15] After examining Plaintiff, the Defendant held the view that
Plaintiff was suffering from a problem with his vascular circulation
resulting in blockages in his arteries, that the problem could be
addressed by the insertion of a balloon into Plaintiff’s arteries
or a graft to replace certain of the blocked veins in the body with a
plastic prosthesis and that further tests were required before
the
Defendant could determine which surgical procedure would be
appropriate. Plaintiff went home and returned the following day
when an Electrocardiogram (ECG) was performed and after he was given
a sedative later in the day, the Defendant performed an angiogram
on
him. The angiogram confirmed an occlusion of various arteries in
Plaintiff’s right iliac system, the internal iliac artery
and the
superficial femoral artery in the left leg. He was subsequently
admitted to the ward. Plaintiff was informed that a by-pass
operation was necessary to relieve him of his pain.
[16] An operation was performed on Plaintiff by the Defendant some
time between 08h45 and 12h45 on the morning of Thursday, 8 June
2000.
As has already been pointed out, Plaintiff was discharged on
Sunday, 11 June 2002 still not relieved of pain he experienced
prior
to the performance of the operation.
THE
PERIOD BETWEEN THE FIRST AND SECOND OPERATION
[17] The Defendant had in the meantime departed for a conference in
America and had left Plaintiff in the care of Dr Michaelowsky.
On
discharge from Panorama, Plaintiff was seen by Dr Michaelowsky.
Shortly before his discharge Plaintiff told Dr Michaelowsky
that he
continued to experience a similar pain in his right leg to that which
he had experienced before the operation. According
to Plaintiff Dr
Michaelowsky’s response was that Plaintiff should give it time.
Plaintiff’s wife, who had gone to the hospital
to collect him,
overheard this discussion. The discussion took place whilst Dr
Michaelowski examined Plaintiff prior to his discharge.
On his
discharge, Plaintiff was unable to walk very far and had to make use
of a wheelchair when leaving the hospital. Upon returning
to his
flat that Sunday morning, Plaintiff ascended the flight of stairs
with great difficulty. He had to be supported throughout
by his
wife. It was necessary for them to rest on a chair at each landing
along the way.
[18] Plaintiff continued to complain about pain in his right leg
until Monday, 12 June 2000. He directed various telephone calls
to
Dr Simons in an endeavour to discuss the ongoing discomfort with him.
Dr Simons eventually spoke to Plaintiff late in the afternoon
on
Monday, 12 June 2000. The following day Dr Simons attended to
Plaintiff who was then in his office on the second floor and examined
him on a makeshift couch. Plaintiff’s wife testified that
Plaintiff complained to Dr Simons that the pain in the right leg was
now worse than before and that, on this occasion, his left foot was
cold. Dr Simons corroborates Plaintiff’s wife’s evidence
in
this regard. He prescribed certain analgesic drops and told
Plaintiff to give the leg time to recover.
[19] In a state of frustration, Plaintiff then proceeded to telephone
a number of medical specialists in an attempt to obtain advice
regarding his pain. He eventually made contact with Dr Freddie
Kieck’s rooms whereafter an appointment was set up for the
following
day.
[20] Plaintiff saw Dr Kieck in his rooms at the Vincent Pallotti
Hospital in Pinelands on Wednesday, 14 June 2000. After a Magnetic
Resonance Imaging (MRI) scan Dr Kieck diagnosed a large rupture of
the L4/5 disc with root compression. Dr Kieck advised that
Plaintiff
undergo surgery within the next week to alleviate the pain.
[21] Dr
Kieck’s
handwritten notes taken
in that consultation record a slight pain of approximately a week in
Plaintiff’s right lateral calf which
got worse after three days; an
“on/of”
back problem which manifested for three to four
weeks every few years; acute backache for two weeks in April 2000
when the back was
out; Plaintiff’s general practitioner thought he
was suffering from peripheral vascular disease; Plaintiff had
undergone iliac
femoral by-pass the previous week; the original pain
was still there; that it was terrible and presented in the
buttock/thigh/calf
and that Plaintiff was more comfortable at rest
while bending was worse.
[22] Upon examination Dr Kieck noted that Plaintiff experienced pain;
the leg-raise examination on the right leg was limited to 30
degrees
and Plaintiff’s pulses on the right were recorded as positive while
those on the left were recorded as negative.
[23] On the same day Dr Kieck addressed a letter to Dr Simons in
which he set out full details of his observations and proposed
management
of the problem. Although the letter is addressed to Dr
Simons at his fax number at his rooms, Dr Simons denies receiving the
fax.
[24] Plaintiff continued to experience pain in his right leg for the
following week. On Wednesday, 21 June 2000 Dr Kieck operated
on
Plaintiff’s back and performed a right L4 laminotomy. Dr Simons
assisted in that operation but did not see Plaintiff at any
stage
between 15 and 21 June 2000, nor did he inform Plaintiff that he was
aware of the intended operation or of the fact that he
had been
invited by Dr Kieck to assist therein.
[25] Plaintiff was immediately pain free after the lumber operation
and was discharged from Vincent Pallotti on Saturday, 24 June
2000.
When returning home on that occasion Plaintiff was able to ascend the
four flights of stairs to his flat with much greater
ease than after
the first operation.
[26] A few days after Plaintiff had been discharged from Vincent
Pallotti he attempted to recommence exercising and went for a walk
with his wife. Plaintiff would have proceeded very gingerly due to
the operation wounds. During his first walk Plaintiff immediately
showed signs of claudication in his left leg.
FOLLOW-UP
CONSULTATION WITH DR KIECK
[27] Plaintiff saw Dr Kieck for a follow-up consultation on Monday, 3
July 2000. During that consultation Dr Kieck noted that Plaintiff
claudicated in the left leg after walking a distance of 30 metres;
that the left foot was cold to touch; the pulses in the left leg
were
negative and that the claudication had manifested after the vascular
operation.
CONSULTATION WITH
DEFENDANT ON 4 JULY 2000
[28] In the meantime the Defendant had returned from his trip abroad
and was back at work on Monday, 19 June 2000. His appointment
book
for Tuesday, 20 June 2000 indicates that an appointment he had with
Plaintiff at 14h30 on that day had been cancelled. Defendant
was to
have telephoned Dr Kieck on that day. Defendant’s appointment
book for Thursday, 22 June 2000, reflects that Defendant
was to have
telephoned Dr Kieck. Dr Kieck would have performed the laminectomy a
day before. Judging by the tick next to Dr Kieck’s
name and
telephone number, it would appear that the call was indeed made.
[29] On Monday, 26 June 2000 Defendant wrote a letter to Dr Simons in
which letter the Defendant sets out details of the consultation
he
had with Plaintiff on Tuesday, 6 June 2000; an analysis of the
angiogram performed on Wednesday, 7 June 2000 and the particulars
of
the by-pass operation performed on Thursday, 8 June 2000.
The letter concludes that the Defendant was aware of the lumbar
surgery performed on Plaintiff by Dr Kieck and concludes with the
following sentence:
“
This may be a case of double
pathology but I hope that he will now be able to return to work.”
[30] On Tuesday, 4 July 2000 Plaintiff saw Defendant in the
reception area of his rooms. Plaintiff states in his evidence that
the Defendant did not examine him whilst the Defendant, on the other
hand, is adamant he examined Plaintiff on this last occasion.
This
dispute will be dealt with later in this judgment. In any event,
according to Plaintiff no examination was conducted but
merely a
discussion relating to Plaintiff’s then current complaint of
claudication. This is not surprising as Plaintiff, by
all
accounts, had lost confidence in the Defendant. According to
Plaintiff the Defendant informed Plaintiff that the claudication
problem could not have been foreseen during the vascular operation
and that there was nothing that could be done to remedy the problem.

Instead the Defendant advised Plaintiff to lead a healthier
lifestyle. Plaintiff also informed the Defendant of the back
operation
he had undergone and of the subsequent pain relief in his
right leg.
[31] On
the same day that Plaintiff saw the Defendant, the latter wrote a
further letter to Dr Simons in which letter he (the Defendant),
for
the first time, mentioned the complaint of claudication. The letter
further records that on examination all pulses were present
in the
right leg; only a femoral pulse was apparent in the left leg and that
a total occlusion of the superficial femoral artery
was the likely
cause of Plaintiff’s symptoms of claudication.
THE ISSUES: BREACH, MISREPRESENTATION AND ASSAULT
[32 The issues which, in the final analysis, will call for
determination are whether the Defendant acted in breach of his
obligation
arising from the agreement entered into between Plaintiff
and the Defendant, whether the Defendant misrepresented to Plaintiff
that
the vascular procedure performed would relieve Plaintiff of the
severe pain; whether Plaintiff consented to such procedure and if
no
consent was given or proved whether, in that event, the Defendant’s
conduct constitutes assault rendering him liable for whatever
damages
Plaintiff might prove. A finding on these latter issues has to be
preceded by a finding as regards what medical intervention,
if any,
was reasonably required to address Plaintiff’s complaint regarding
pain during the period Monday, 5 June 2000 to Thursday,
8 June 2000.
As a point of departure I propose to refer to the relevant portions
of the pleadings.
[33] Paragraphs 6 and 7 of Plaintiff’s
Particulars of Claim in their amended form, which I propose to quote
in full, read as follows:
“
6 In breach of the agreement
between the parties Defendant failed to exercise the degree of care
and skill required of a specialist
vascular surgeon in that
Defendant:
failed to take a full and
proper medical history, inter alia, regarding the “pinched nerve”
complaint;
Failed to examine Plaintiff
adequately;
Failed to diagnose Plaintiff’s
symptoms correctly;
Failed to appreciate that the
Plaintiff’s symptoms were indicative of nerve compression in the
lumbar region with referred pain
down the leg;
Failed to appreciate that the
co-existence of vascular and neuropathic pathology is perfectly
possible and not uncommon and that
his symptoms at that stage were
not related to vascular insufficiency;
Failed to refer Plaintiff to
an appropriate
speciality
for
further treatment;
Failed to procure Plaintiff’s
informed consent by
inter
alia
failing to
advise, warn and inform Plaintiff that:
The proposed femoro-femoral
by-pass operation had a well known complication of possible
claudication of the left leg;
The status of the left leg
(vascular occlusion) presented a high probability that the
aforesaid complication would ensue;
The alternative procedure of
an aorto bifemoral plus femero-popliteal by-pass was available and
much more appropriate under
the circumstances;
Failed to perform the correct
procedure in respect of the presenting complaint;
Failed to perform the more
appropriate procedure to remedy the underlying vascular occlusion;
Alternatively, and in any
event Defendant, in breach of his aforesaid duty of care,
unlawfully and negligently acted as set out
in the preceding
paragraphs.
Alternatively to paragraph 6
above:
Plaintiff
avers that:
Plaintiff agreed to undergo
the aforesaid femoro-femoral by-pass operation as a result of
Defendant presenting to Plaintiff that
such operation was essential
and that, if Plaintiff did not undergo such operation, Plaintiff
would not recover from certain
medical complications that Plaintiff
was at the time experiencing.
The said representation was
false in that the aforesaid procedure was not essential and in that
Plaintiff did not require the
said procedure in order to recover
from the medical complaints that Plaintiff was suffering from;
The said representation was
material and made with the intention of inducing the Plaintiff to
agree to the aforesaid procedure.
Relying on the truth thereof,
Plaintiff did so agree;
The said representation was
negligently made by Defendant, having regard to the Defendant’s
professional skill and expertise
and the information which could,
upon a reasonable enquiry, have been obtained by the Defendant
which would have shown that the
said representation was untrue;
7A Alternatively to the
aforegoing, and in any event, by reason of the fact that Plaintiff
was not informed of the aspects set out
in paragraph 6.7.1 to 6.7.3
above, Plaintiff’s alleged informed consent to the operation
performed on the 8
th
of June 2000 was not procured and such operation accordingly
constituted an assault on Plaintiff.”
[34] In his plea the Defendant denies having acted in breach of the
agreement entered into and further denies having made any
misrepresentation,
negligent or otherwise, save for admitting that:
“
13.1.1 He did not pursuant to
the angiogram, hold the opinion that Plaintiff’s symptoms as
described to him, were indicative of
nerve compression in the lower
lumbar region with referred pain down the leg;
He did not advise Plaintiff
that:
The proposed femoro-femoral
by-pass operation had a well-known complication of possible
claudication of the left leg;
The status of the left leg
(vascular occlusion) presented a high probability that the said
complication would ensue
which advice he did not give
because it would have been incorrect.”
FACTS
IN DISPUTE
[35] Apart from the evidence by five expert witnesses, being the two
vascular surgeons, two neuro-surgeons and a radiologist, four
other
witnesses gave evidence, it being Plaintiff, Plaintiff’s former
wife, Plaintiff’s brother, George and of course the Defendant
in
person. A number of disputes arose out of the evidence which was
tendered over a period spanning eight court days.
[36] As is correctly submitted by both
Mr Gamble
and
Mr Van
Riet,
who appeared for the Plaintiff and the Defendant
respectively, the correct approach to adopt in the determination of
such disputes,
in the circumstances of this matter, would be to focus
on areas of such disputes rather than the individual disputes
themselves.
Following this approach and, in broad terms, such areas
of disputes are the following:
Plaintiff’s physical condition prior to the onset of pain and the
examination by the Defendant on Tuesday, 6 June 2000, it being
the
Defendant’s contention that under no circumstances could Plaintiff
have been physically active as he claimed to have been
in his
evidence particularly in the light of the results of the angiogram.
The nature, locality and extent of Plaintiff’s pain (and other
relevant medical complaints) at the time that he saw Defendant
on
Tuesday, 6 June 2000;
The question whether there was double pathology;
Whether the Defendant took all reasonable steps in his examination
of Plaintiff and in coming to his diagnosis?
Whether Plaintiff consented to the operation performed by the
Defendant, and if so, whether such consent was properly informed;
Whether Plaintiff was pain free immediately after the vascular
surgery and, if not, when was he relieved of the pain he had
initially
complained about;
The causal link between Plaintiff’s subsequent (and present)
complaint and Defendant’s breach of his obligation arising from
an
oral agreement entered into;
A proper determination of these disputed issues would, in the nature
of things, involve making a determination on the credibility
of the
various factual witnesses, the extent to which such factual witnesses
are reliable and, the last but not the least, the probabilities.

This would be in line with the approach recently re-stated by the
Supreme Court of Appeal in
SFW Group Ltd and Another v Martell et
Cie & Others 2003(1) SA 11
(SCA) where the following is said
at
p141 par 5:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability and (c) the probabilities. As to (a) the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness’ candour and demeanour in
the witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracrucial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b),
a witness’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities
he had to experience or observe the event in question and, (ii) the
quality, integrity and independence of his recall
thereof. As to
(c), this necessitates an analysis and evaluation of the probability
or improbability of each party’s version
on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine
whether the party burdened with
the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the real one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
[37] The objective striven for in the determination of these disputes
is obviously with a view to determine whether the Defendant’s
conduct complained of falls within the permissible limits within
which he had to operate in the exercise of his professional duties
in
his pre-operative advice to Plaintiff, during surgery and in his
post-operative treatment of Plaintiff, if any.
[38] The Plaintiff basis his claim on breach by the Defendant of his
obligations arising from the oral agreement entered into in
one, more
or all of the respects set out in paragraph 6 of his Particulars of
Claim. In amplification thereof Plaintiff avers in
his Particulars
that the Defendant failed to exercise the degree of care and skill
required of a specialist vascular surgeon in one,
more or all of the
respects alleged in paragraph 6 of Plaintiff’s Particulars of
Claim.
[39] As an alternative cause of action to the one set out in the
preceding paragraph, Plaintiff avers that he agreed to undergo the
surgical procedure performed as a result of false or negligent
misrepresentation by the Defendant, such misrepresentation having
been made with the intention to induce Plaintiff to agree to the
procedure performed, and, relying on the truth thereof, Plaintiff
did
agree to undergo the operation. Plaintiff thus avers in his
Particulars that because of such false or negligent misrepresentation
he acted to his detriment and consented to the vascular surgery
performed and that such consent, because of such
misrepresentation,
was not properly informed. It is appropriate at
this stage to make some observations about the general principles
applicable to
the question of breach of duty or otherwise negligence
on the part of a medical practitioner both in his or her
pre-operative advice,
performance of surgery and in the
post-operative treatment of a patient.
APPLICABLE
PRINCIPLES
[40] Innes, A C J, as he then was, held as far back as 1914
“that
a medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest 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. The burden of
proving that the injury
of which he complains was caused by the Defendant’s negligence,
rested throughout upon the Plaintiff.
The mere fact that the
accident occurred was not itself
prima
facie
proof of
negligence.”
(See
Mitchell v Dixon
1914
AD 519
at
525)
[41] And at p526, the learned judge further observed
“…
a medical practitioner is not necessarily liable for wrong diagnosis.
No human being is infallible: and in the present state
of science,
even the most eminent specialist may be at fault in detecting the
true nature of a diseased condition. A practitioner
can only be
held liable in this respect, if his diagnosis is so palpably wrong as
to prove negligence, that is to say, if his mistake
is of such a
nature as to imply an absence of reasonable skill and care on his
part, regard being had to the ordinary level of skill
in the
profession.”
[42] As Strauss correctly points out, this
dictum
still holds
good today although medical science has made tremendous strides since
1914 and today’s technological aids being vastly
superior to those
in 1914, that despite such technological advances of our century,
medicine still is not - and probably never will
be – an exact
science comparable to mathematics. Much depends on the skill and
experience of the individual practitioner. (SA
Strauss: Doctor,
Patient and the Law 3
rd
edition 1999 at 252)
[43] The principle enunciated in
Mitchell v Dixon
supra was
followed in a number of subsequent decisions, notably
Buls and
Another v Tsatsarolakis 1976(2) SA 891(T); Correira v Berwind 1986(4)
SA 60(ZHC); Castell v De Greeff 1994(1) SA 408
(C) amongst others.
[44] Foreign case law, in particular judgments of the English courts,
although generally do not constitute a binding precedent to
our
courts, have always had considerable persuave force and are often
referred to by our courts (See
Castell v De Greeff
supra at
416 and a reference therein to the judgment of the English Appeal
Court
and the House of Lords
in Whitehouse v Jordan and
Another
[1980] UKHL 12
;
(1981) 1 All ER 267(HL))
[45] In
Whitehouse v Jordan
supra, the English Appeal Court held that a “mere error of
judgment” on the part of a medical practitioner does not constitute
negligence. In this regard Ackerman J in
Castell v De Greeff
supra, said the following at p416 E-H:
“
It has on occasions been
suggested that a ‘mere error of judgment’ on the part of a
medical practitioner does not constitute negligence.
In
Whitehouse v Jordan and Another (1981) I All ER 267(HL) the House of
Lords, inter alia, considered the correctness of the
statement by
Denning MR in the Court of Appeal that:
‘
We
must say, and say firmly, that, in a professional man an error of
judgment is not negligence.’
The House of Lords held this to
be an inaccurate statement of the law. At 281a Lord Fraser of
Tullybelton expressed the view that:
“
I
think Lord Denning MR must have meant to say that an error judgment
‘is not necessarily negligent’.”
Lord Fraser further observed as
follows (at 281b):
“
Merely to describe something
as an error of judgment tells us nothing about whether it is
negligent or not. The true position is
that an error of judgment
may, or may not, be negligent; it depends on the nature of the error.
If it is one that would not have
been made by a reasonably
competent professional man professing to have the standard and type
of skill that the defendant held himself
out as having, and acting
with ordinary care, then it is negligent. If, on the other hand, it
is an error that a man, acting with
ordinary care, might have made,
then it is not negligent. “
[46] With these principles in mind, I shall now proceed in the
determination and the resolution of the areas of dispute adopting
the
approach as stated by the Supreme Court of Appeal in
SFW Group &
Another
supra, and in the final analysis, determine whether the
Defendant’s conduct in his pre-operative advice, performance of
surgery
and post-operative treatment of Plaintiff, if any, is
culpable, and if so, whether such culpability attracts any form of
liability.
PLAINTIFF’S
PHYSICAL CONDITION PRIOR TO CONSULTATION WITH THE DEFENDANT
[47] What appears to be common cause between the parties, and indeed
this is not disputed by the Defendant, is that Plaintiff experienced
considerable pain when he consulted Dr Simons on 5 June 2000; that
the pain persisted until his initial consultation with the Defendant
on 6 June 2000; that the examination of Plaintiff by the Defendant
and the subsequent surgery performed was intended to relieve him
of
this pain. What is being challenged by the Defendant is the
Plaintiff’s physical condition, in particular his ability to
exercise
prior to the manifestation of this intense pain. The crux
of Plaintiff’s complaint, apart from the fact that he was not
relieved
of pain after the vascular surgery was performed, is that he
now claudicates after walking a distance of somewhat 30 metres; that
he did not experience this symptom prior to performance of the
surgery; that this symptom manifested immediately after Plaintiff
had
undergone the vascular surgery and that because of this claudication
his ability to exercise to the extent he could before the
vascular
operation has been compromised.
[48] Plaintiff’s health history and
lifestyle prior to the onset of pain is set out in paragraphs 8 to 16
of this judgment. Only
the salient features thereof will be
repeated here for purposes of evaluation. These are the following:
Plaintiff and his wife occupied a flat situate on the fourth floor
of the block of flats; that the flat could only be accessed
by four
flights of stairs; that Plaintiff utilized a flat on the second
floor of the same building as an office; that he could
ascend a
flight of stairs from the ground floor to his office and from the
office to his flat on the fourth floor with ease, an
exercise he no
longer could do shortly after the vascular operation was performed;
during 1999 Plaintiff purchased two mountain bicycles for himself
and his wife, this apparently having been at his wife’s
suggestion,
in order that they could exercise regularly, and that
his exercise regime included cycling, walking, paddle-skiing and
other aquatic
activities in and around Clanwilliam;
on a regular basis Plaintiff and his wife would cycle together prior
to the evening meals, an exercise he no longer could do after
he
vascular operation was performed;
during one such visit to Clanwilliam Plaintiff and his brother
cycled together up a mountain pass, and because of the steepness
of
the mountain hill, they had to have stoppages and had to rest at
regular intervals;
on one such visit during the long weekend commencing 27 April 2000,
Plaintiff and his wife went for a walk next to the Clanwilliam
Dam
when, in the process, the Plaintiff slipped, landing on his buttocks
and hurting his lower back. After the fall Plaintiff
was
incapacitated for a period of about ten days whereafter he returned
to work and resumed his daily vocational duties and his
exercise
regime;
[49] In short therefore, Plaintiff’s case is that he had conducted
a normal lifestyle up to the time he fell at Clanwilliam. This
lifestyle included regular cycling, walking, paddle-skiing and other
aquatic activities in and around Clanwilliam Dam and, notably,
he
never experienced any problem ascending the stairs to his flat and
between the flat and the office on a daily basis. Apart
from some
discrepancies, which in my view are minor, Plaintiff’s ability to
exercise and his exercise regime is supported by his
wife and his
brother. I have already pointed out that Plaintiff’s exercise
regime is vigorously challenged by the Defendant and
this challenge
is on the basis of the results of the angiogram which the Defendant
performed on Plaintiff on 7 June 2000.
[50] Towards the end of May 2000 Plaintiff began experiencing
numbness in the lower back and pain in the right leg which became
increasingly
severe. Because of this severe pain Plaintiff
consulted Dr Simons.
EXAMINATION
OF PLAINTIFF BY DR SIMONS
[51] Dr Simons has no independent recollection of symptoms Plaintiff
manifested when he examined him. He had to refer to his clinical
notes in order to refresh his memory. The notes taken by Dr Simons
arising from his examination of Plaintiff indicate that the
latter
complained of pain both below and above the right knee, particularly
on the outer aspect of the lower right leg. In his
diagnosis Dr
Simons excluded nerve entrapment as the probable source of
Plaintiff’s pain at the time. Dr Simons further noted
that such
pain was preceded by numbness, especially when getting out of bed,
was aggravated by movement and radiated up into the
right buttock.
[52] Dr Simons further noted that there were no foot pulses present
in either of Plaintiff’s feet, that he could detect femoral
and
popliteal pulses on Plaintiff’s left leg but nothing on the right
leg. He made no note of any complaint of claudication on
the part
of Plaintiff; made no note of any pain in Plaintiff’s right foot;
made no note of any discolouration of the right foot;
made no note of
any abnormal temperature present in the right foot nor did he make
any note of the precise nature of any neurological
tests performed by
him. He performed a single leg raise test on Plaintiff and while
doing so Plaintiff exclaimed
“for
heaven’s sake don’t let that leg drop”.
Subsequent to
this examination Dr Simons arranged an appointment for Plaintiff to
consult the Defendant at the latter’s rooms at
Panorama on Tuesday,
6 June 2000. Dr Simons held the view that Plaintiff’s pain was of
vascular origin hence his referral of
Plaintiff to a vascular surgeon
in the person of the Defendant.
EXAMINATION
OF PLAINTIFF BY THE DEFENDANT
[53] The Defendant cannot remember the contents of the referral note
by Dr Simons except a reference therein to a vascular problem.

After the examination of Plaintiff the Defendant also held a view
that Plaintiff’s problem was of a vascular nature and recommended
an aorta by-pass procedure to alleviate Plaintiff’s ailment. The
Defendant recommended Plaintiff undergoes angiography which
the
Defendant duly performed on Wednesday, 7 June 2000. As has already
been pointed out in paragraph [15] above the angiogram confirmed
an
occlusion of various arteries in Plaintiff’s right iliac system,
the internal iliac artery and the superficial femoral artery
on the
left leg. The Defendant concludes in his evidence that the
angiogram pictures confirmed his clinical suspicion of poor blood
flow to the right leg. The result of the angiogram show that the
left internal iliac artery was totally occluded as is the left
superficial femoral artery. It is on the basis of the results
analysis of the angiogram that Defendant challenges Plaintiff’s
physical condition in particular his ability to exercise, prior to
performance of the vascular surgery.
[54] What is significant to note is that when the Defendant
performed the angiogram, according to his evidence, it was not for
the
purpose of diagnosing the extent of blood flow in Plaintiff’s
right lower leg or for purposes of evidence, but to establish the
“geography” of Plaintiff’s arteries in the iliac system in
order to obtain the appropriate site for the location of the by-pass
operation.
[55] Prof De Villiers, a
vascular surgeon, was called to testify in Plaintiff’s case. It
was put to Prof De Villiers, under cross-examination,
that under no
circumstances could Plaintiff ever have been able to be physically
active in the manner he claimed he could in his
evidence prior to the
onset of his pain in the light of the angiographic images. Prof De
Villiers refuted this statement and cited
as a matter of his personal
experience an 85 year old patient of his whose vascular condition was
worse than that of Plaintiff on
basis of the angiogram, who decided
against a vascular operation and had decided on a regular exercise to
achieve the required relief.
The view of Prof De Villiers is that
Plaintiff’s ability to exercise prior to undergoing vascular
surgery cannot be rejected
purely on the basis of the angiographic
images.
[56] Dr Harris-Jones, a vascular radiologist, also called to testify
in Plaintiff’s case highlighted the following features in
his
interpretation of the angiographic images arising from the angiogram
performed by the Defendant and these are that:
Whilst there is a noticeable total occlusion of the right common
iliac and the superficial femoral artery there is good collateral
flow of blood in both the left and the right leg.
He was of the opinion that the second “run” of the angiogram did
not give a representative view of the arteries in the right
leg.
The angiogram only reflects the state of the patient’s arteries in
a resting position whilst the angiogram is being performed.
The
experts, including those of the Defendant, were agreed that
Plaintiff’s arteries would have become dilated when he exercised,
that this may have improved blood flow and may have resulted in a
different picture to the one reflected in the angiogram.
Dr Harries-Jones concludes as follows in his evidence:
“
But what concerned me, was
that I believe people on seeing this arteriogram, say it is
impossible for this man to ride a bicycle for
a kilometer or two
kilometers, three kilometers. That is true if you look at this study
as it is shown now. But if the study is
not representing the real
picture, then your impression, one’s impression that this man may
not be able to exercise, could be incorrect.
That’s what I’m
trying to indicate.”
[57] Dr Harris-Jones
further observes in the evidence that whilst there is total occlusion
of the right iliac arterial system and
a total occlusion of the
superficial femoral artery on basis of the angiogram, there are
nonetheless large collateral arteries supplying
both the right and
left leg. The interpretation of the angiographic images by Dr
Harris-Jones, particularly in the light of good
collateral blood flow
in both the left and the right leg, casts doubt on any conceivable
urgency in the performance of the vascular
operation. In view of
the fact that the angiogram was performed on Plaintiff in a resting
position and whilst his arteries were
not dilated, Plaintiff’s
evidence regarding his exercise regime prior to the onset of pain he
experienced before he saw both Dr
Simons and the Defendant cannot, in
my view, be rejected purely on basis of the angiogram.
THE NATURE AND
EXTENT OF PLAINTIFF’S PAIN
[58] I have already
pointed out elsewhere in this judgment the fact that when Plaintiff
consulted the Defendant in his rooms on Tuesday,
6 June 2000 he was
under considerable pain. This is common cause between the parties.
The Defendant conceded as much in his evidence
that when Plaintiff
limped into the examination room, there was no doubt that he had a
severe pain. What I need to determine is
the nature and the
locality of such a pain and whether the vascular procedure performed
by the Defendant was the appropriate measure
to relieve Plaintiff of
such pain.
[59] There are divergent
views amongst the experts as regards the nature and locality of the
severe pain Plaintiff presented when
he consulted Dr
Simons and the Defendant. Prof De Villiers, whose view is shared
by Dr Shafiek Parker, a neuro-surgeon,
also called to testify in
Plaintiff’s case, is of the view that that the type of pain
Plaintiff experienced pre-and post-operatively
is of a neuralgic
nature. On the other hand Dr De Kock, whose view is shared by Dr
Stein and Prof Immelman, is of the view that
the pain Plaintiff
presented prior to the vascular surgery is of a vascular nature and
that any pain of a neuralgic nature could
only have developed
afterwards.
[60] The approach to
follow in the evaluation of conflicting expert evidence pertaining to
the alleged professional negligence of
a medical practitioner was
recently restated by the Supreme Court of Appeal in
Michael &
Another v Linksfield Park Clinic (Pty) Ltd & Another 2001(3)
SA1188
(SCA).
[61] On a question of how
one establishes the conduct and views of the notional reasonableness
of a medical practitioner without a
collective or representative
opinion, the Court held as follows at p1200 par 36:
“
[36] That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions
advanced are
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case
of
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1998]
AC 232
(HL (E). With the relevant
dicta
in the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following effect.
[37] The
court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
of
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice.
The court must be satisfied that such opinion has a logical basis,
in other words that the expert has considered comparative risks
and
benefits and has reached ‘a defensible conclusion’ 9at 241G –
242B)
[39] A
defendant can properly be held liable, despite the support of a body
of professional opinion sanctioning the conduct in issue,
if that
body of opinion is not capable of withstanding logical analysis and
is therefore not reasonable. However, it will very
seldom be right
to conclude that views genuinely held by a competent expert are
unreasonable. The assessment of medical risks and
benefits is a
matter of clinical judgment which the court would not normally be
able to make without expert evidence and it would
be wrong to decide
a case by simple preference where there are conflicting views on
either side, both capable of logical support.
Only where expert
opinion cannot be logically supported at all will it fail to provide
‘the benchmark by reference to which the
defendant’s conduct
falls to be assessed’ (at 243A-E).”
[62] I have already
referred to the symptoms Plaintiff presented when he consulted Dr
Simons and Dr Kieck in paragraphs [12] and [20]
of this judgment. At
the cost of repeating myself the symptoms Plaintiff complained of
when consulting Dr Simons were five days
of pain in the lower aspect
of the right leg preceded by numbness especially when getting out of
bed; aggravation of that pain which
shoots up to the buttock. Dr
Kieck also noted that Plaintiff experienced pain (original pain was
still there); that the pain was
terrible and presented in the
buttock/thigh/calf and that Plaintiff was more comfortable at rest
while bending was worse.
[63] According to Prof De
Villiers, the symptoms which Plaintiff presented to Dr Simons on 5
June 2000, and the pain which manifests
from these symptoms, are not
related to continued walking or exercise. His view is that the
notes as recorded by Dr Simons reflecting
pain and the locality of
such pain (lower aspect of the right leg preceded by numbness
especially when getting out of bed) are suggestive
of “sciatica”,
being nerve entrapment related to lumbar disc prolapse. These
symptoms were presented when Plaintiff consulted
the Defendant on
Tuesday, 6 June 2000.
[64] Dr Shafiek Parker
shares Dr De Villiers’ view as regards the nature of the symptoms
and pain Plaintiff presented both to Dr
Simons and the Defendant.
He also specifically notes that the notes taken by Dr Simons when he
initially consulted with Plaintiff
are indicative of “sciatica”
and very suggestive of nerve entrapment. Conceding that when
Plaintiff consulted the Defendant
he(Plaintiff) also presented an
extensive vascular disease, his view is that Plaintiff should have
been diagnosed with a dual pathology,
being a vascular disease and a
neuralgic disease and should have been referred to a neurologist for
an assessment of the neuralgic
disease.
[65] On the other hand,
the broad view shared by the Defendant’s experts is that the
symptoms and pain Plaintiff presented to Dr
Simons and the Defendant
are indicative of “ischaemia”. They are of the view that after
Plaintiff had undergone the vascular
surgery the blood supply to his
right leg was significantly improved, that he became more mobile
after surgery and possibly exerted
himself to the extent he suffered
a disc prolapse. In effect what they say is that when Plaintiff
consulted Dr Simons and the Defendant
Plaintiff presented pain of
ischaemic origin as against pain of a neuralgic nature.
[66] I have already
pointed out in paragraph [16] of this judgment that on discharge from
Panorama on Sunday, 11 June 2000 Plaintiff
was still not relieved of
pain he experienced prior to the vascular operation being performed.
Further, I have already pointed out
in paragraph [25] that after
performance of the lumbar operation Plaintiff was immediately pain
free and was now able to ascend the
four flight of stairs to access
his flat with much greater ease than after the first operation.
[67] In my view the
opinion expressed by Prof De Villiers and Dr Parker as regards the
probable source of Plaintiff’s pain is based
on logical reasoning
and, on basis of evidence tendered, their conclusion could very well
be said to be defensible. (See
Michael & Another v Linksfield
Park Clinic (Pty) Ltd
supra). Based on these views and the
probabilities based on evidence, I can conclude with confidence that
the nature of pain Plaintiff
experienced both pre and post the
vascular operation was of a neuralgic nature and not of a vascular
origin. For reasons already
stated I find the body of opinion as
expressed by Drs De Kock, Stein and Prof Immelman in this regard
incapable of withstanding logical
analysis and support.
DUAL PATHOLOGY
[68] Prof De Villiers has always been of the view that when Plaintiff
consulted Dr Simons on 5 June 2000 he presented symptoms suggestive
of a neurological disease in the form of “sciatica
”
and
not symptoms indicative of a vascular disease. In his view these
symptoms were present when the Plaintiff consulted the Defendant
on 6
June 2000 and Dr Kieck on 14 June 2000. Prof De Villiers is
accordingly of the view that when Plaintiff consulted the Defendant
he (Plaintiff) presented a dual pathology which he understands to
mean, and so are Drs Stein, Simons and Prof Immelman, an instance
where a person presents symptoms indicative of one of two problems or
where symptoms of one problem overlaps or possibly masks symptoms
of
another disease. So does Dr Britz, the Defendant’s neurological
expert, understand the term “dual pathology” as is evident
in his
expert summary. This also seems to be the Defendant’s
understanding of the term “dual pathology” for, in a letter
addressed
to Dr Simons dated 26 June 2000, the Defendant concludes
with the remarks:
“Apparently
he continued to experience severe pain after discharge and had to
have a second operation by Dr Kieck for a prolapsed
disc. His foot
pulses were in tact. This may be a case of double pathology but I
hope he will now be able to return to work.”
. But when
the Defendant was cross-examined on this point he became evasive,
sought to attach a different meaning to this term
to the point of
downplaying its relevance, suggesting instead that it was simply a
“throw away line” and a convenient way to
end the letter.
[69] Dr Simons, under cross-examination, and in an answer to the
question what he understands by the term ”double pathology”
went
on to say that when he first saw Plaintiff, he was of the view that
there were two pathological processes on the go, the one
being the
vascular component and possibly a second one which may have been the
back or a disc. Plaintiff should have had these
symptoms when he
consulted with the Defendant the following day, Tuesday, 6 June 2000.
There is no way these symptoms could have
evaporated overnight.
Moreover, Dr Simons agrees that Plaintiff’s symptoms, as recorded
by Dr Kieck are, in general terms, consistent
with his observations,
namely, the calf, being the area where the pain is centrally
pronounced and radiation up the buttock being
the secondary area
where the pain was manifestly pronounced.
I have already made the point that on discharge from Panorama
Plaintiff was not relieved of pain. The relief only came about after
Plaintiff had undergone laminectomy at Vincent Pallotti. The pain
was ongoing before and after the vascular operation and the relief
only came about after the laminectomy was performed.
[70] Plaintiff states in his evidence that he first complained about
the ongoing pain after surgery at about 17h00 the same date
the
vascular operation was performed. The Defendant does not recall
this complaint and indeed his visit to the ward when the complaint
ought to have been made. The second complaint Plaintiff made to the
Defendant, still about the ongoing pain, was in the morning
of
Friday, 9 June 2000 before the Defendant departed for America. A
similar complaint was made to Dr Michaelowski on Plaintiff’s
discharge on Sunday, 11 June 2000. All of these complaints, in my
view, ought to have excited a suspicion that all is not well in
Rome;
that the source of Plaintiff’s pain could not have been from a
source as originally anticipated and, accordingly, would have
justified a further investigation which probably would have involved
referral of Plaintiff to a neuro-surgeon.
[71] Prof De Villiers’ evidence is that if the Defendant had
diagnosed the neuralgic pain, the Defendant in all probability would
have referred Plaintiff to a neuro-surgeon, and if that would have
been done, the neurological problem would have been addressed
first.
[72] I am thus of the view
that when Plaintiff consulted the Defendant on Tuesday, 6 June 2000,
he presented two conditions, namely,
that of an extensive vascular
disease and a neurological problem arising from the nerve entrapment
in the lumbar region, that it
was the neurological problem which was
the source of pain Plaintiff experienced at the time and that it was
this condition which
had to be treated for the relief of that pain.
WAS
THE DEFENDANT’S EXAMINATION OF PLAINTIFF REASONABLE ?
[73] In the determination of whether the Defendant took all
reasonable steps in his examination of Plaintiff, it is perhaps
appropriate
to cite the remarks made in the introduction to the
Medical Law Student Guide presented by Professors S A Strauss and M C
Maré of
the University of South Africa. Those remarks are to the
following effect:
“…
Of
all the professions, none is more intimately involved with the law
than the medical profession. Protecting man, his life, personality,
physical integrity, health, honour and dignity is one of the
fundamental objects of the law. Medical Science depends in no small
degree on the law to create an atmosphere conducive to practice,
research, and advancement, and calls on the law to determine the
permissible limits within which it may operate.”
If one were to look at the number of guidelines regulating every
facet of medical practice, from the initial consultation, medical
examination, ethical and professional rules, guidelines for good
practice, seeking patients’ consent, one’s immediate reaction
would be that the medical profession is one of the most over
regulated professions in the world. But it is specifically because
the medical profession deals with protecting man’s life,
personality, physical integrity, health and dignity that the medical
profession
appears to be the focus of constant search light.
[74] It is for reasons cited in those introductory remarks that the
Health Profession’s Council of South Africa, a statutory body
regulating the medical profession, has issued various guidelines
regulating good practice, ethical rules and professional
self-development,
which the medical profession is expected to adhere
to.
There is no certainty as to the legal status of these guidelines
except to say they constitute general practice accepted in the
medical
profession.
[75] The Plaintiff first consulted Defendant on Tuesday, 6 June 2000.
The consultation could have taken place after 13h30 as Plaintiff
had
arranged to see the Defendant at that time. According to Plaintiff,
this was after he had handed over to the Defendant a referral
note
given to him by Dr Simons a day before, being Monday, 5 June 2000.
The Defendant does recall having been handed Dr Simons’s
referral
note by Plaintiff. He cannot recall what the contents of the letter
were except to specifically recall that there was
reference in it to
a “vascular“ problem. Furthermore, the Defendant cannot recall
what was said or discussed during such consultation
except to say he
would have followed a normal pattern during such a consultation. He
would have made notes of such a consultation
at the back of the
admission form and, at a later stage, would have gone through the
notes, dictate a formal letter containing all
the information
gathered during such a consultation to the referring general
practitioner and keep such a letter as his notes.
He would then
keep the handwritten notes for a period of time and, according to his
evidence, once the load of paper has built
up, he would then dispose
of such notes by destroying them for purposes of recycling.
Whatever notes he may have made in his consultation
with Plaintiff,
so did the Defendant say in his evidence, he may either have
destroyed or disposed of for recycling.
[76] The guidelines applicable to medical practitioners and dentists
on keeping of patients’ records, define a “medical record”
as
follows:
“
A
medical record is constituted by any record made by a medical
practitioner at the time of or subsequent to a consultation with,
an
examination of, or the application of a medical or surgical procedure
to his or her patient and which is relevant to thereto.”
.
The notes referred to by the Defendant fall squarely within the
definition of a medical record in terms of this definition.
Paragraph 4 of the guidelines already referred to and under the
heading “Compulsory Keeping of Records” provide that a medical
practitioner shall, amongst other things, enter and maintain records
relating to the assessment of the patient’s condition and
the
proposed clinical management of the patient. In turn, paragraph 6
of the guidelines already referred to, provides that such
records
shall be stored for a period of not less than 6 years from the date
they became dormant. The guidelines further provide
that other
personal records should be kept for a period of eight years after the
conclusion of the treatment.
The Defendant does not have any record relating to the consultation
he had with Plaintiff other than a reference to such a consultation
in a letter addressed to Dr Simons dated 26 June 2000. He does not
have a copy of Dr Simons’s referral letter nor does Dr Simons
have
it in his file.
[77] The Defendant does recall, based on a letter addressed to Dr
Simons dated 26 June 2000, that Plaintiff complained of pain on
the
outer part of the lower leg, just above the ankle; that his foot was
painful; that the pain was severe for the past five days;
that
stepping on the foot made the pain worse. He does recall Plaintiff
informed him he smokes 30 to 40 cigarettes a day; he suspected
that
Plaintiff had a vascular problem; he could not feel any pulses in the
right leg, which, according to him, is abnormal; he did
feel pulses
in the left leg; he could not feel the right pulse at all so that he
could not compare the two pulses; that Plaintiff
was limping as he
walked into the examination room and that he clearly was in pain.
[78] After examining
Plaintiff, he came to the conclusion that Plaintiff was suffering
from severe peripheral “ischaemia” which
required immediate
intervention. However, he recommended that an angiogram be
performed before the exact course of management
could be determined.
It is not clear on basis of his evidence how long this consultation
lasted.. An arrangement was made for
the angiogram to be performed
the following day. The angiogram was performed the following day,
Wednesday, 7 June 2000. After performance
of the angiogram Plaintiff
was admitted to undergo an aorta-femoral bypass procedure the
following day, Thursday, 8 June 2000.
[79] According to the Defendant’s evidence, both as regards the
initial consultation and the physical examination of Plaintiff,
the
enquiry during such consultation seems to have focussed on
Plaintiff’s professed vascular disease as the proximal cause of
the
pain Plaintiff experienced at the time. This is not surprising in
view of what the Defendant does recall of a reference to a
“vascular”
problem in a referral letter addressed to him by Dr Simons.
[80] The Defendant directed no enquiry to Plaintiff as regards his
ability to exercise, or his ability to perform the ordinary daily
physical functions which would be expected of a normal healthy
person; no enquiry was made as regards whether Plaintiff had a
history
of claudication or whether there was a particular incident
linked to the cause of Plaintiff’s complaint.
[81] I have already made the point in paragraph [54] above that when
the Defendant suggested to Plaintiff that the angiogram be performed
it was with a view to establishing what the Defendant referred to in
his evidence as the “geography” of Plaintiff’s arteries
in the
iliac system so as to obtain the appropriate sites for the location
of the bypass prothesis and not for purposes of diagnosing
the extent
of Plaintiff’s blood flow in Plaintiff’s right lower leg. After
the angiogram had been performed Defendant performed
surgery on
Plaintiff the following day, Thursday, 8 June 2000. Further, I have
already made the point elsewhere in this judgment
that after
Plaintiff had undergone the operation, he was not relieved of the
pain he had prior to undergoing surgery and had subsequently
consulted Dr Kieck who had performed laminectomy on him on 21 June
2000 whereafter Plaintiff was relieved of pain.
[82] The Defendant did not
make contemporaneous handwritten notes when he consulted and
physically examined Plaintiff and, if he did,
as he claims to have
done in his evidence, he had these destroyed shortly after he had
despatched his letter dated 26 June 2000 to
Dr Simons or such notes
may have been disposed of for recycling. The only indication of the
symptoms Plaintiff manifested shortly
before the operation by the
Defendant are the handwritten notes by Dr Simons made during the
consultation he had with Plaintiff on
Monday, 5 June 2000.
[83] It is accepted by all the parties concerned that when Plaintiff
consulted with the Defendant on Tuesday, 6 June 2000, he manifested
an extensive vascular disease which required surgical intervention.
The issue to be determined is whether, on the probabilities,
the
vascular disease Plaintiff manifested at the time was the source of
pain and discomfort Plaintiff experienced at the time and
if so,
whether it required urgent surgical intervention.
[84] Under cross-examination the Defendant initially testified that
after he had physically examined Plaintiff he had determined
that
Plaintiff’s vascular disease needed urgent attention. This he
said in an explanation as to why he had booked the theatre
for an
operation the following day, 8 June 2000. Asked why he was of the
view that the disease needed urgent intervention he responded
that
his earlier reference to urgency was a mistake and all that he had
meant to convey was that an attempt had to be made to assist
Plaintiff as expediently as possible. In his letter to Dr Simons
dated 26 June 2000 the Defendant states that Plaintiff’s right
foot
was clearly “ischaemic” with blue discolouration and decreased
temperature. He diagnosed a severe peripheral “ischaemia
”.
The Defendant held this view despite the presence of sufficient
collateral blood supply as is clearly evident in the angiographic
images. In the absence of clear indication of lack of blood supply
to the body extremities such as the right foot in the instance
of
this matter, I fail to see how the Defendant could determine that the
source of pain and discomfort Plaintiff experienced at the
time of
his examination could be of severe peripheral ischaemic origin
requiring urgent surgical intervention.
[85] The Defendant omitted to enquire into Plaintiff’s ability to
exercise; he failed to establish if Plaintiff’s complaint was
linked to any particular incident; the symptoms Plaintiff manifested
at the time were suggestive of a neuralgic disease; he failed
to
diagnose the neuralgic disease when symptoms suggestive of “sciatica”
were glaring; he failed to inform Plaintiff that the
vascular
operation was not urgent; that Plaintiff could undergo vascular
surgery at a later stage probably when he could afford the
procedure
of his preference; he failed to keep contemporaneous notes when
consulting and examining Plaintiff. The cumulative effect
of all
these factors justifies no other conclusion other than that the
standard adopted by the Defendant does not measure to the
reasonable
standard expected of a man of his calling. Whether Plaintiff
consented to the procedure performed, is the next issue
to be
determined.
CONSENT
[86] In the determination of the issue as to whether or not Plaintiff
consented to the operation performed on him by the Defendant
it is
necessary to make some observations about the general principles
applicable to the whole concept of consent to treatment or
what
generally has become known as the doctrine of informed consent.
[87] For a medical
practitioner to be able to invoke a patient’s consent as a ground
of justification, it must be shown that the
patient not only
consented to the injury and the medical intervention proposed, but
that the patient also consented to the risks
and consequences
consequent upon such medical intervention. Consent will therefore
only be valid where it is based on essential
knowledge regarding the
nature and the effect of the proposed treatment. This entails that
consent must be informed
(See
Claasen NJB and Verschon, T: Medical Negligence in South Africa p62)
A consent to treatment will only be “informed” if it is based on
substantial knowledge concerning the nature and the effect of
the act
consented to. Thus a medical practitioner is obliged to warn a
patient of the material risks and consequences which may
ensue during
and consequent to the proposed treatment.
[88] In
Castell v De Greef,
already referred in paragraph
[43] supra, at
425
Ackerman J formulates the following test in
the determination of whether or not consent has been given in any set
of circumstances
and whether such consent is informed:
“
For consent to operate as a
defence, the following requirements must, inter alia, be satisfied:
the consenting party must have
had knowledge and been aware of the nature of the harm or risk;
the consenting party must have
appreciated and understood the nature and extent of the harm and
risk;
the consenting party must have
consented to the harm and assumed risk;
the consent must be
comprehensive, that it extend to the entire transaction, inclusive
of its consequences.”
[89] There is a duty on the medical practitioner properly to inform
the patient of the risks attendant on his or her treatment and
its
dangers. The object is to enable the patient to decide whether or
not to run the risk of consenting to the treatment or procedure
proposed (see
Chester v Afshan
[2002] EWCA Civ 724
;
(2002) 3 All ER 552
at 572e)
.
In
Richter and Another v Estate Hamman 1976(3) SA 226
(C)
the Court held that a doctor’s conduct in informing a patient
of the material risks attendant to the proposed treatment or
procedure
should be adjudged by the standard of the reasonable
medical practitioner faced with a problem concerned. The court
postulates
this approach as follows at 232e
“In
reaching a conclusion (as regards the disclosure of a risk by the
doctor) a court should be guided by medical opinion as to
what a
reasonable doctor, having regard to all, the circumstances of the
particular case, should or should not do. The court must,
of course,
make up its own mind, but it will be assisted in doing so by medical
evidence,”
[90] The full bench in
Castell v De Greef
supra did not follow the approach in
Richter
.
It held at 426 that a medical practitioner is obliged to warn the
patient consenting to a medical treatment of a material risk
inherent
in the proposed treatment holding that
“a
risk is material if, in the circumstances of a particular case:
a
reasonable person, in the patient’s position, if warned of the
risk, would be likely to attach significance to it or
the
medical practitioner is or should reasonably be aware that the
particular patient, if warned of the risk, would be likely to
attach
significance to it.”
This standard which, in my
view, and as was indeed held in
Castell v De Greef
supra,
focuses on patient autonomy rather than the views of the medical
profession, is in conformity with the fundamental right of
individual
autonomy and self-determination. I am thus bound to follow this
approach unless satisfied it is clearly wrong, which
is not.
[91] The question as to
whether or not consent was given in any set of circumstances is one
of fact. The law does not, save in certain
specific instances,
prescribe how the required consent should be procured. Based on this
approach I shall now proceed to determine,
on basis of evidence, if
the consent purportedly procured from Plaintiff was an informed one.
WAS AN INFORMED
CONSENT GIVEN ?
[92] The Defendant did not
produce any record or notes of a consultation he had with Plaintiff
on Tuesday, 6 June 2000. It appears
on basis of evidence that
arising from such a consultation and the subsequent examination of
Plaintiff, the latter was offered the
aorta-bifemoral procedure to
address his problem. This offer, so it appears on basis of
evidence, was subject to an angiogram being
performed on Plaintiff
which was done on Wednesday, 7 June 2000. Shortly after the
angiogram was performed, Plaintiff was admitted
to the ward.
According to Plaintiff’s evidence no further discussion took place
after the angiogram was performed until the early
evening when the
Defendant was called into the ward and the discussion of the cost
implications of the proposed treatment ensued.
It also appears
that a Mrs Cloete, who was in the employ of Panorama at the time, was
present when the discussion took place.
Plaintiff stated in his
evidence that it was not clear to him what was being discussed in
this discussion except to say only one
procedure was suggested to
him. Nothing was said to him, according to his evidence, about the
precise nature of the procedure suggested
or any material risks
attendant on the procedure proposed.
[93] When
the Defendant was asked when Plaintiff’s informed consent was
obtained to the procedure performed the Defendant replied
that as far
as he could recall, the required consent was obtained in the evening
of Wednesday, 7 June 2000 after a lengthy discussion
about the cost
implications. When further asked if the consent was obtained on
Wednesday evening in the ward, the Defendant’s
response was that he
is not certain, that it could have been in the evening or it could
have been the next morning, that is the morning
before the operation.
It either could have been late in the evening of Wednesday, 7 June
2000 or the following morning, so the
Defendant said. The Defendant
stated further that the required consent was discussed with the
Plaintiff verbally and once consent
was given the patient would sign
a form. The Defendant was then referred to the form Plaintiff
signed in the morning of 8 June
2000 and asked if that is the consent
form relied on and the Defendant replied in the affirmative. The
Defendant states in evidence
that the procedure performed on
Plaintiff is ilio-femoral by-pass operation but, on basis of the
consent form, Plaintiff consented
to a femoro-femoral by-pass
operation.
[94] The Defendant further
states in his evidence that the procedure required to be performed on
Plaintiff was not urgent despite
the fact that Plaintiff experienced
severe pain at the time. There is no evidence to suggest that the
Defendant did discuss this
lack of urgency or that the procedure
could be performed at a later stage in order for Plaintiff to decide
when it would be appropriate
and convenient for him to undergo the
proposed operation.
[95] I have already
referred to Plaintiff’s version that in the discussion he had with
the Defendant, in the presence of Mrs Cloete,
only one procedure was
suggested to him and no other procedure was discussed with him other
than the one the Defendant offered.
If consent to the alternative
procedure was offered and accepted in this discussion, it would have
been accepted and, therefore,
consent procured in the presence of Mrs
Cloete. Mrs Cloete who could have corroborated the Defendant’s
version was not called
to testify nor was she amenable to be
subpoenaed by Plaintiff. The inference is thus irresistible that
either her evidence would
have supported the Plaintiff’s version or
would not have supported the Defendant’s version. But if she
would have supported
the Defendant’s version it is inconceivable
why she should not have been called (See
Durban City Council v S A
Board Mills Ltd
1961 (3) SA 397(A)
at
405F
)
[96] I am unable to find,
on basis of evidence before me, that Plaintiff was properly
counselled before the vascular operation was
performed, that other
options, other than the procedure performed, were properly discussed
with him, in particular that he did not
need to undergo the vascular
operation immediately, that he was advised of the material risks
attendant to such operation and that
he had given an informed consent
to such operation.
[97] It is contended on
behalf of Plaintiff that the operation performed on him did not
relieve him of the pain he experienced at
the time; that the
Defendant did not advise Plaintiff of a material risk of claudication
which could ensue after such a procedure
and because the Defendant
omitted to inform Plaintiff of this risk, any consent which Plaintiff
may have given was not properly
informed.
In paragraph 7A of the
amended Particulars of Claim Plaintiff alleges that, in the absence
of consent which is properly informed,
the Defendant’s operation on
Plaintiff constitutes an assault and, on basis of this assault,
Plaintiff is entitled to recover damages.
Does the Defendant’s
conduct, in the absence of informed consent, constitute “assault”?
This issue will be determined now.
ASSAULT
[98] In a number of
decisions the courts have always held that in instances where a
medical practitioner administers treatment to
a patient without the
patient’s informed consent, such conduct constitutes assault.(See
Esterhuisen v Administrator, Transvaal 1957(3) SA 710(T), Lampert
v Hefer N.O. 1955(2) SA 507(A), Steffberg v Elliot
1923 CPD 148
amongst others.) As to the requirements for a valid and informed
consent see
Castell v De Greef
supra at 425H and cited in full
in paragraph [88] of this judgment There is a school of thought that
such conduct on the part of
a medical practitioner, if it falls short
of assault, it nonetheless could amount to a violation of a right to
privacy.
[99] In
Broude v
McIntosh & Others 1998(3) SA 60(SCA)
Marais JA considered it
a strange notion that this type of conduct should be juristically
characterised as an assault. He makes
the following remarks at 671:
“
Pleading
a cause of action such as this as an assault to which the plaintiff
did not give informed consent is of course a familiar
and
time-honoured method of doing so. However, I venture to suggest
with respect that its conceptual soundness is open to serious
question and merits re-consideration by this Court when an
appropriate case arises.”
In my view these remarks
are no more than an
obiter dictum
so that, bound as I am by
the ratio of the Full Bench of this division in
Castel v De Greef
supra,I therefore find that the Defendant’s conduct, to the extent
that whatever consent which may have been given was not properly
informed, constitutes assault.
WHEN WAS PLAINTIFF
RELIEVED OF PAIN?
[100] It is common cause
that the Defendant performed an operation on Plaintiff on Wednesday,
8 June 2000. When Plaintiff regained
consciousness after the
operation he immediately became aware that the pain in his right leg
about which he had initially complained
to Dr Simons was still
present. His evidence is when he informed the Defendant of this
fact, the latter responded that he should
give the matter time. The
Friday morning the pain persisted. He caused the Defendant to be
called and had informed him of the persistent
pain. The Defendant’s
response was similar and had indicated to Plaintiff that he should
give the matter time. The Defendant
had also informed his wife with
whom he had maintained constant contact by telephone whilst in
hospital that the pain had not abated.
[101] After a visit by the
Defendant the Friday morning Plaintiff asked for an equipment which
Plaintiff referred to in evidence as
“monkey chain” to be
installed above his bed to help pull himself up. He had found this
useful when he had a lumbar operation
back in 1972. A strong pain
killing injection was administered at 11.00am. The pain continued
unabated. When no relief was
forthcoming he decided to bear the
pain and had stopped complaining. His intention was to attempt to
secure his discharge from hospital
as soon as possible. To him the
hospital had become the devil’s den.
[102] Plaintiff was
discharged from hospital during the morning of Sunday, 11 June 2000.
His wife was at the hospital to collect
him. She had gone to
hospital by taxi as she could not drive due to her advanced state of
pregnancy. She overheard a discussion
between Plaintiff and Dr
Michaelowski when the latter was examining Plaintiff on his
discharge, when Plaintiff complained that the
pain was the same.
This aspect of Plaintiff’s evidence was not challenged nor was Dr
Michaelowski called notwithstanding his
availability to testify.
The basis for an inference stated in paragraph [94] of this judgment
is equally applicable on this aspect
of the matter.
[103] Plaintiff’s pain
persisted at home to an extent that he telephoned Dr Simons on
several occasions during the Monday, of 12
June 2000. Dr Simons
subsequently saw and examined Plaintiff on Tuesday, 13 June 2000.
Dr Simons confirms that when he consulted
Plaintiff subsequent to his
discharge from hospital, the latter still complained of pain in the
right leg stating that it was worse
than before; that as far as he
could recall the pain was of similar locality, but more pronounced
when he saw Plaintiff on this occasion.
Dr Simons confirms that
Plaintiff’s left foot was noticeably cold. He had at that stage
assessed Plaintiff’s pain to be neurologically
based. He
prescribed certain pain killing drops. Plaintiff suggested to Dr
Simons that the wrong operation was performed.
[104] Subsequent to this
consultation Plaintiff telephoned a number of specialists and
eventually came into contact with Dr Kieck.
He subsequently
consulted Dr Kieck. It is common knowledge that Dr Kieck performed
neuro-surgery on Plaintiff a week later whereafter
Plaintiff was
immediately relieved of pain. Plaintiff saw Dr Kieck for a
follow-up operation on Monday, 3 July 2000. I accordingly
find
that Plaintiff was probably relieved of pain on 21 June 2000 when Dr
Kieck performed laminectomy on him.
CLAUDICATION AND
CAUSATION THEREOF
[105] There appears to be
consensus between Plaintiff and Defendant that Plaintiff claudicates.
The dispute revolves around the averment
by Plaintiff that his
current state of claudication is as a direct consequence of the
vascular operation. The Defendant, on the
other hand, takes the
position that Plaintiff’s current state of claudication has nothing
to do with the vascular operation performed;
it is not a risk
attendant to or consequent upon the vascular operation in as much as
the Defendant did not advise Plaintiff of this
risk because such
advice would not be correct.
[106] Prof De Villiers
ascribes Plaintiff’s current state of claudication to a “steal
syndrome” caused by the diversion of blood
flow from the donor limb
to the diseased limb, that this “steal phenomenon” is an inherent
risk to the type of operation the
Defendant performed on Plaintiff,
that this complication should have been anticipated irrespective of
whether there is a proximal
or distal stenosis.
[107] On the other hand,
the view held by the Defendant and his experts is simply that if the
take-off site of the graft is located
on or below a proximal
stenosis, it will have no effect on the donor limb, and in view
thereof, no diversion of blood flow will ensue.
This contention
causes me great difficulty. In the first instance, the very
procedure which the Defendant claims to have performed
is in itself
in dispute. The consent form signed by Plaintiff indicates that
Plaintiff consented to a
femoro-femoral
by-pass operation.
The Defendant, on the other hand, contends he performed an
ilio-femoral
by-pass operation. No operation notes were
either produced or discovered to verify the kind of procedure
Defendant performed on
Plaintiff. There is of course a significant
difference between these two operations although both are classified
or fall in the
category of so-called “cross-over” operations, the
take-off point of the graft being at differing places, with the ilio-
femoral
being performed higher up than the femoro-femoral procedure.
It is therefore difficult to uphold the Defendant’s contention
without,
in the first instance, being in the position to determine
which procedure was performed. The Defendant was assisted by Dr
Charl
Dreyer. According to the Defendant Dr Dreyer would have been
in a position to testify as to the take-off site of the graft on
the
left leg and also confirm the type of operation performed. But Dr
Dreyer was not called to give evidence on behalf of the Defendant.
[108] Claudication,
according to
The World Book Medical Encyclopaedia: Your Guide to
Good Health,
is the limping that is usually caused by pain.
Intermittent claudication, on the other hand, which is the symptom
Plaintiff is
currently experiencing, is pain or cramp in the calf
muscle after exercise. It is relieved by rest, but the pain recurs
when the
muscle is again exercised. The cramp like pain is the
result of inadequate blood supply with the resultant inadequate
amount of
oxygen to the calf muscle. Plaintiff contends that he did
not experience this symptom prior to an operation and that this
symptom
only manifested immediately he had undergone vascular
surgery.
[109] There is a further
difference of opinions amongst experts as regards the cause of
Plaintiff’s current symptom, Prof De Villiers
holding the view that
Plaintiff ‘s current symptoms are as a direct result of the
vasculary surgery performed on Plaintiff by the
Defendant. Prof De
Villiers postulates the position as follows in his evidence:
“…
there
is less blood supply to the left leg and therefore you get
claudication. So in that respect, in respect of the operation done
by Dr Louwrens, in that respect he is responsible for it.”
In support of this view
Prof De Villiers relies on the view expressed in a recent publication
Vascular Surgery(5
th
Ed)
by Robert B
Rutherford, MD. The passage relied upon at p983 of the
aforementioned work reads as follows:
“
It
is possible to produce steal in the donor extremity after femoro
femoral bypass if there is outflow occlusive disease (eg. Superficial
femoral artery occlusion) on the
donor
side. Even if this is not likely to become clinically manifest,
however, unless there is greater flow demand (eg. with exercise),
donor iliac artery stenosis or poor cardiac function.”
[110] As I have already
pointed out, the Defendant’s experts harbour a different view. Dr
De Kock, whose view is supported by
the Defendant and as well as the
Defendant’s other experts says the following in his expert summary:
“
When
after femoro-femoral bypass procedure, the blood supply to his right
leg was significantly improved, he became more mobile as
a result of
which he developed claudication in the left leg and possible exerted
himself to the extent where he suffered a disc prolapse.”
Dr De Kock is further of
the view that, because Plaintiff had an occlusion of the left
superficial femoral artery and relying on the
angiographic images of
Plaintiff’s blood supply, there is no way that Plaintiff could have
been active enough prior to undergoing
surgery to precipitate
symptoms of claudication.
[111] I have already made
a comment about the angiogram performed on Plaintiff in paragraphs
[54] and [81] of this judgment. My
comments and observations made
in the aforementioned paragraphs are equally applicable here save to
repeat that the angiogram does
not purport to establish a detailed
investigation of Plaintiff’s vascular arterial system on basis of
which a conclusion could
be drawn on Plaintiff’s pre-operative
mobility.
[112] Prof
De Villiers states in his evidence that the risk of steal arising
following an ilio-femoral or femoro-femoral by-pass operation
is in
the order of 15%. In support of this contention he refers to a
clinical study of war veterans, the Veterans Administrative
Co-operative Study and the Veterans Administration Hospitals. In
this study, so Prof De Villiers testified, three hundred and
seventeen
patients who had femoro-femoral by-pass surgery were
examined for post-operative vascular changes that developed in the
donor limb.
Unmasked claudication developed in 7%; new claudication
related to steal developed in 3,5%; prognosis of pre-operative
claudication
developed in 1,7% and concludes that the donor limb
pressure measurements post-operatively is in the order of 15%.
(See
Archive Surgery – Volume 126, June 1991 p681)
[113] Plaintiff developed
the following symptoms shortly after the operation was performed; his
left foot was cold to touch; the right
pedal pulse was stronger than
the left; Dr Jansen (the anaesthetist) noted that the right pulse was
stronger than the left; Plaintiff’s
left foot was noticeably cold
when examined in his office by Dr Simons; when examined by Dr Kieck
on 14 June 2000 he noted a weak
pulse in the left limb and when
further examined by Dr Kieck on 3 July 2000 Plaintiff complained of
claudication all of which are
symptoms indicative of compromised
blood supply in Plaintiff’s left lower leg.
[114] In my view the
opinion expressed by Prof De Villiers is based on logical reasoning,
has a logical basis, accords with objective
evidence and capable of
logical support. I am further of the view that the symptoms of
claudication Plaintiff is currently experiencing
are as a consequence
of the vascular operation performed by the Defendant, that
Plaintiff’s current symptoms are an inherent risk
of a significant
nature and that the Defendant failed to inform Plaintiff of this risk
adequately or at all.
SUMMARY OF FINDINGS
[115] In paragraph [36] of
this judgment I listed a number of areas of disputes which would
first have to be determined before arriving
at a conclusion as to
whether or not Plaintiff has succeeded in proving the issue of the
alleged breach by the Defendant of his contractual
obligations;
whether Plaintiff agreed to undergo the operation performed as a
result of any form of misrepresentation by the Defendant,
negligent
or otherwise, and if so, whether Plaintiff acted to his detriment and
whether Plaintiff consented to the procedure performed
by the
Defendant and if not, whether, in that event, Defendant’s conduct
constitutes assault.
[116] As to Plaintiff’s
physical condition, in particular Plaintiff’s ability to exercise
prior to the onset of pain and to seeing
the Defendant, I have in
paragraph [57] of this judgment determined that Plaintiff’s ability
to exercise prior to experiencing
severe pain and subsequent
consultation and operation by the Defendant cannot be rejected purely
on basis of the angiogram; as to
the nature, locality and source of
pain Plaintiff experienced prior to the vascular operation and which
pain continued unabated after
the vascular surgery, I have
determined in paragraph [67] that that pain was of neuralgic origin
rather than of vascular origin;
in paragraph [72] I have determined
that when Plaintiff consulted Defendant, Plaintiff presented a dual
pathology in that a vascular
disease and a neuralgic disease
co-existed at the time of such consultation; that the Defendant for
reasons stated in paragraph [85]
of this judgment, failed to take
reasonable steps in his examination of Plaintiff and in doing so
failed to diagnose dual pathology;
in paragraph [96] I have
determined that the Defendant failed to procure Plaintiff’s
informed consent and that, on the probabilities,
Plaintiff was
relieved of pain immediately or shortly after the laminectomy was
performed, the latter being an answer to the question
what medical
intervention was reasonably required to relieve Plaintiff of the
severe pain.
[117] Based on my findings
which I have summarised in the preceding paragraph, I therefore
conclude that the Defendant, in his consultation
and pre-operative
advice to Plaintiff, acted in breach of his contractual obligations
in the respects set out in paragraph 6 of Plaintiff’s
Particulars
of Claim and, in particular, the Defendant failed to procure
Plaintiff’s informed consent in respect of the operation
performed
on Plaintiff and, in absence of consent which is properly informed,
the Defendant’s conduct constitutes assault. In
the light of the
finding I have made, it is not necessary for me to determine the
issue of misrepresentation alleged in paragraph
7 of Plaintiff’s
Particulars of Claim.
[118] As a result of the
Defendant’s breach of his contractual obligations Plaintiff
suffered damages as more fully set out in paragraph
9 of Plaintiff’s
Particulars of Claim the extent and quantum of which, per agreement
between the parties, is still to be determined
and which damages are
as a result of failure by the Defendant to discharge his contractual
obligations as has already been pointed
out
[119] Based on the evaluation of evidence tendered and various
findings made in the process of such evaluation I therefore find as
follows:
[119.1] The Defendant
acted in breach of his contractual obligations arising from the oral
agreement entered into between Plaintiff
and the Defendant on 6 June
2000.
*[119.2] The Defendant is
ordered to pay Plaintiff’s costs on a party and party scale such
costs to include the qualifying expenses
of:
[119.2.1] Prof D R De
Villiers
[119.2.2] Dr S Parker
[119.2.3] Dr E P
Harris-Jones
……………………….
N J Yekiso, J