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[2020] ZASCA 89
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A M and Another v MEC for Health, Western Cape (1258/2018) [2020] ZASCA 89; 2021 (3) SA 337 (SCA) (31 July 2020)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1258/2018
In
the matter between:
A
M FIRST
APPELLANT
S
M SECOND
APPELLANT
and
MEC
FOR HEALTH, WESTERN
CAPE RESPONDENT
Neutral
citation:
A
M and another v MEC Health,
Western Cape
(1258/2018)
[2020] ZASCA
89
(31 July 2020)
Coram:
Wallis, Swain, Molemela, Mokgohloa and Dlodlo JJA
Heard
:
10 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on Friday the 31st
day of July 2020.
Summary:
Medical negligence – plaintiff's
case based on expert evidence – requirements for such evidence
to be admitted –
duties of expert witnesses – direct
evidence preferable to reconstruction after the event – trial
court's findings
of fact - not lightly disregarded – diagnosis
and treatment of child presenting with head injury –
instructions on
discharge.
ORDER
On
appeal from:
Western Cape Division of
the High Court (Binns-Ward J sitting as court of first instance):
The
appeal is dismissed.
JUDGMENT
Wallis
JA (Swain, Mokgohloa and Dlodlo JJA concurring)
[1]
Shortly after 6.00 pm on 23 August
2011 the first appellant, Mr M brought his six year old son, J,
to the Trauma Unit at Red
Cross Memorial Hospital. A trauma nurse
determined that all his vital signs (blood pressure, heart and
respiratory rate and temperature)
were normal. He was walking, alert
and responsive. Dr Horn, the duty registrar, examined him and
concluded that he had suffered
a minor injury, which she described as
a bump on the head. After a brief discussion with his father, she
discharged him. He was
taken home, arriving shortly after 7.00 pm,
and put to bed in the bed he shared with his parents. They came to
bed at about 9.30
pm. In the ordinary course his father woke at
around 3.30 am to prepare for work. He tried to rouse J to take him
to the toilet,
but found him to be in an unusually deep sleep.
Concerned, Mr M telephoned the hospital and was told that, if J was
still sleeping
deeply at his normal waking time of 6.30 am, he
should be brought back to the hospital. Shortly after this J wet the
bed and
vomited and his parents rushed him back to the hospital
arriving at about 4.00 am. Tragically this was too late, because a CT
scan
disclosed that he had suffered an extradural haematoma, caused,
in common parlance, by a bleed between the skull and the brain.
[1]
An emergency craniotomy was
performed, but it was too late to prevent the serious brain injury
that has left J with cerebral palsy
and spastic quadriplegia.
[2]
Mr and Mrs M instituted action in both their
personal capacities and on behalf of J against the Member of the
Executive Committee,
Health of the Western Cape (the MEC) to recover
damages arising from J’s injuries. The action came to trial
before Binns-Ward J,
who delivered a comprehensive judgment
rejecting the allegations of negligence levelled against Dr Horn and
dismissing the Ms’
claims. The appeal is with his leave.
[3]
The sole issue in the appeal is
whether Dr Horn was negligent in her treatment of J. The nature of
the allegations of negligence
requires some explanation of J’s
injuries. A
CT scan performed when J
returned to hospital on 24 August 2011, established that the ‘bump’
on his head was caused
by a subgaleal haemotoma,
[2]
and that he had sustained a linear fracture in the left
temporo-parietal area of the scalp behind his left ear. This was
accompanied
by the rupture of the middle meningeal artery resulting
in a left extradural haematoma between the skull and the dura
surrounding
the brain. The pressure exerted by this on the brain
caused J’s injury.
[4]
Dr Horn could not have detected this fracture from her examination of
J on 23 August 2011, because a linear fracture cannot be
detected by
a routine examination and palpation of a head injury such as that
suffered by J. It would have been detected by a CT
scan or a skull
X-ray. At Red Cross Memorial Hospital any further investigation would
have been by way of a CT scan. Accordingly,
the first question the
trial court needed to answer was whether Dr Horn should have ordered
a CT scan.
[5]
The scope of that issue was considerably narrowed
because the experts agreed, subject to the one point mentioned below,
that on
Dr Horn’s observations a CT scan was not
indicated.
[3]
The qualification was that had the bump on J’s
head felt fluctuant or ‘boggy’ on palpation reference for
a CT
scan was indicated. Dr Horn agreed and said she would have
ordered a CT scan if the bump had felt boggy on palpation. The only
dispute was therefore the narrow factual one of whether on palpation
the bump felt boggy. The judge held that it was not established
on a
balance of probabilities that it was boggy. The primary thrust of the
appeal is against that factual finding.
[6]
Two alternative arguments were addressed on behalf of the appellants.
The first was that Dr Horn should not have discharged J,
but kept him
at the hospital for further observation and re-examination. It was
claimed that this would have resulted in his condition
being detected
and treated earlier. The other was that the advice given to Mr M when
J was discharged in regard to monitoring his
condition was inadequate
and he should have been told to wake him every two hours. Had this
been done it was submitted that the
deterioration in his condition
would have been detected earlier and he would have been brought back
to the hospital for the necessary
treatment.
The
issues and the approach to the appeal
[7]
Whether the bump on J’s head was fluctuant
or boggy was a factual question. In determining it the judge assessed
the evidence
and credibility of Dr Horn. She said that in the course
of her examination she had felt the bump. While at the time of the
trial,
nearly seven years later, she did not have a specific
recollection of how it felt, she believed that it was firm and not
boggy.
Otherwise she would not have described it in her notes as a
bump and her usual practice in dealing with a head injury that felt
boggy was to order a CT scan. Against that was the evidence of
Dr Edeling, who said that given the nature of the underlying
subgaleal haematoma it must inevitably have felt boggy on palpation.
Professor Taylor disagreed for reasons that will be examined
later
[8]
The judge found Dr Horn to be a
careful and credible witness. He said that her evidence on this point
could not be rejected. That
involved both findings of credibility and
fact. It is trite that an appeal court is reluctant to disturb
findings of that character
by a trial judge, who was steeped in the
atmosphere of a lengthy trial and had the advantage of seeing and
hearing the witnesses.
Such findings are only overturned if there is
a clear misdirection or the trial court’s findings are clearly
erroneous.
[4]
That has consistently been the
approach of this court and the Constitutional Court as reflected
recently in the following passage
from
ST
v CT
:
[5]
‘
In
Makate
v Vodacom (Pty) Ltd
the Constitutional Court, in reaffirming the trite principles
outlined in
Dhlumayo,
quoted
the following dictum of Lord Wright in
Powell
& Wife v Streatham Nursing Home:
“
Not to have seen the
witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judges, and unless
it can be shown
that he has failed to use or has palpably misused his advantage, the
higher court ought not to take
the responsibility of reversing
conclusions so arrived at, merely on the result of their own
comparisons and criticisms of the
witnesses and of their own view of
the probabilities of the case.”’ (Citations omitted.)
[9]
The appellants did not point to any
misdirection by the judge in regard to this issue. Their task
therefore was to demonstrate that
his conclusion that he could not
reject Dr Horn’s evidence was clearly erroneous and that he
should have accepted Dr Edeling’s
evidence that the bump
inevitably had to have been fluctuant (boggy). Both conclusions were
necessary in order to discharge the
onus of proving negligence. That
was a formidable task. It was made more formidable by the fact that
Dr Horn’s evidence
was direct evidence, whereas Dr
Edeling’s was a reconstruction based on Dr Horn’s
clinical notes and the information
that became available the
following day from the CT scan. It has frequently been pointed out
that direct and credible evidence
of events usually carries greater
weight than the opinion of an expert seeking to reconstruct those
events afterwards, especially
where the material on which that is
based is scant.
[6]
[10]
The alternative argument that Dr Horn should have
kept J in the Trauma Unit for further observation falls in a
different category.
The first underlying premise was that,
notwithstanding Dr Horn’s conclusion after her examination of J
that his injury was
minor, she should not have discharged him because
good practice required her to keep him in the unit for further
observation for
a period of time, suggested to be one hour. The
second premise was that had she done so J would, as he did in the car
on his way
home, have fallen asleep and this would have caused alarm
bells to sound leading to further investigation, more particularly a
CT scan.
[11]
It was common cause that the decision
to discharge J was a matter of clinical judgment. The only attack on
the accuracy of her diagnosis
was based on the contention that the
bump must have been fluctuant or boggy. If that attack failed the
further argument had to
proceed on the basis that Dr Horn’s
diagnosis that J had suffered a minor head injury was correct given
her clinical observations.
The question then was whether
a
reasonable medical practitioner applying the degree of professional
skill and diligence of a member of the medical profession
in charge
of a trauma unit at a hospital,
[7]
would not have discharged J but kept him at the unit for
further observation. There was a dispute between the expert witnesses
on
that issue. It fell to be considered by the trial judge in terms
of principles discussed in
Michael v
Linksfield Clinic
[8]
and
MediClinic v Vermeulen
.
[9]
Provided Dr Horn’s decision to
discharge J had the support of a reasonable and respectable body of
medical opinion she was
not negligent, even though other reasonable
and respectable medical opinions might have held a different view.
[12]
If the decision to discharge J was not negligent,
the second argument fell to be rejected. If she was negligent there
was the further
issue of whether, had she kept him for observation
for an hour, the course of events would probably have been different.
That involved
a consideration of the observation and treatment that J
would have received had he not been discharged. The trial judge did
not
reach that point because he concluded that there was no
negligence in the decision to discharge J.
[13]
The third argument raised a number of factual
issues. The first was what Mr M was told when J was discharged into
his care. It was
common cause that he was handed a standard document
prepared by the hospital and intended to be given to parents and
guardians
of children who had presented with head injuries and were
being discharged. He conceded under cross-examination that Dr Horn
had
told him to monitor J’s condition. Whether her explanation
went beyond that was disputed. The judge held that it was not
established that she had ‘failed to say enough’. The
appellants contended that he should have found that Dr Horn
did
not give adequate instructions to Mr M on how to monitor J during the
night and in particular should have instructed him to
wake J at least
every two hours to check for unusual drowsiness. This raised issues
of credibility and a challenge to the judge’s
factual findings
similar to those that arose in relation to the first issue.
[14]
As with the second issue, a finding in favour of
the appellants would have raised the further question of whether Mr
and Mrs M’s
actions would have resulted in a different course
of events had such instructions been given. To determine that
required findings
of fact as to the probable steps they would have
taken; if and when they would have been alerted to the possibility
that there
was something seriously amiss; what they would then have
done; and whether that would have resulted in the problem being
surgically
addressed and resolved before any harm was suffered. In
view of the grounds on which he decided the case the judge did not
reach,
or make any findings in regard to, these factual matters.
The
evidence
[15]
The only witnesses who gave evidence in regard to the
events of 23 August 2011 were Mr M and Dr Horn. Even that was
attenuated
in that Mr M was not present at most of the events in
regard to which he testified. Most importantly, he was not present
when the
accident happened or during Dr Horn’s examination of J
as he had gone to fetch the hospital file. The correct approach to
their evidence, especially where it was disputed, was to weigh it
against the general probabilities in the light of any issues
concerning their credibility or reliability.
[10]
[16]
Three doctors testified as expert witnesses. They were Dr Goosen, a
general surgeon with experience of trauma surgery and the director
of
the Netcare Union Hospital Trauma Unit, Alberton. The second was
Dr H J Edeling, a qualified neuro-surgeon, who retired
from
surgical practice in 2008 and has since then spent almost 95 percent
of his time in medico-legal practice. He has consulted
as a
professional witness and provided over 3000 medico-legal reports;
attended over 1000 pre-trial expert meetings and given evidence
in
over 200 cases. Both he and Dr Goosen gave evidence on behalf of
the appellants. The third expert, called on behalf of
the MEC, was
Professor A Taylor, the clinical head of adult neurosurgery at Groote
Schuur Hospital, an associate professor at the
University of Cape
Town. He was also at the time the president of the Society for
Neurological Surgeons of South Africa; the president
of the
Federation of South African Surgical Societies and the incoming
president of the World Federation of Interventional and
Therapeutic
Neuroradiology. He was still in active surgical practice operating
usually on four or more days a week.
[17]
Something needs to be said about the role of expert
witnesses and the expert evidence in this case. The functions of an
expert witness
are threefold.
[11]
First, where they have themselves observed relevant
facts that evidence will be evidence of fact and admissible as
such.
[12]
Second, they provide the court with abstract or general
knowledge concerning their discipline that is necessary to enable the
court
to understand the issues arising in the litigation. This
includes evidence of the current state of knowledge and generally
accepted
practice in the field in question. Although such evidence
can only be given by an expert qualified in the relevant field, it
remains,
at the end of the day, essentially evidence of fact on which
the court will have to make factual findings. It is necessary to
enable
the court to assess the validity of opinions that they
express. Third, they give evidence concerning their own inferences
and opinions
on the issues in the case and the grounds for drawing
those inferences and expressing those conclusions.
[18]
Before an expert witness may be
called it is necessary to deliver a summary of the witness’s
opinions and the reasons therefor
in terms of Uniform Rule 36 (9)(
b
).
This court held in
Coopers
[13]
that the summary must at least
include:
‘
…
the
facts or
data
on
which the opinion is based. The facts or
data
would
include those personally or directly known to or ascertained by the
expert witness, e.g., from general scientific
knowledge, experiments,
or investigations conducted by him, or known to or ascertained by
others of which he has been informed
in order to formulate his
opinions, e.g., experiments or investigations by others, or
information from text-books, which are to
be duly proved at the
trial.’
[19]
In the same case, Wessels JA
said:
[14]
‘…
an expert's opinion
represents his reasoned conclusion based on certain facts or data,
which are either common cause, or established
by his own evidence or
that of some other competent witness. Except possibly where it is not
controverted, an expert's bald statement
of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be
undertaken if the process of reasoning
which led to the conclusion,
including the premises from which the reasoning proceeds, are
disclosed by the expert.’
For
those reasons the court said that ‘
the
summary must at least state the sum and substance of the facts and
data which lead to the reasoned conclusion (i.e., the opinion)’
[20]
The need for clarity as to the facts
on which an expert’s opinion is based has been stressed in a
number of cases. In
PriceWaterhouseCoopers
v National Potato Co-operative Ltd
[15]
the following passage from a Canadian
judgment
[16]
was cited with approval:
‘
[326]
“
Before
any weight can be given to an expert’s opinion, the facts upon
which the opinion is based must be found to exist
”
[327]
“
As long as there is some admissible evidence on which the
expert’s testimony is based it cannot be ignored; but it
follows
that the more an expert relies on facts not in evidence, the
weight given to his opinion will diminish”
.
[328]
An opinion based on facts not in evidence has no value for the
Court.’
[21]
The opinions of expert witnesses
involve the drawing of inferences from facts. The inferences must be
reasonably capable of being
drawn from those facts. If they are
tenuous, or far-fetched, they cannot form the foundation for the
court to make any finding
of fact.
[17]
Furthermore, in any process of
reasoning the drawing of inferences from the facts must be based on
admitted or proven facts and
not matters of speculation. As
Lord Wright said in his speech in
Caswell
v Powell Duffryn Associated Collieries Ltd
:
‘
Inference must be carefully
distinguished from conjecture or speculation. There can be no
inference unless there are objective facts
from which to infer the
other facts which it is sought to establish … But if there are
no positive proved facts from which
the inference can be made, the
method of inference fails and what is left is mere speculation or
conjecture.’
[18]
[22]
In my view these requirements were disregarded in this case. The
experts instructed on behalf of the Ms were in certain respects
not
instructed on the basis of facts that could be, or were, proved at
the trial in regard to the mechanics of J’s injury.
There was
no endeavour to clarify the facts known to Dr Horn, or the facts
about her diagnosis and treatment of J. She was criticised
in
relation to matters that were known to be irrelevant, such as her
failure to perform an otoscopy. Her notes and other documents
were
subjected to forensic scrutiny and criticism of a type one encounters
with the most pedantic lawyers. Conclusions contrary
to her diagnosis
were expressed on the basis that her notes were not as complete as Dr
Goosen and Dr Edeling thought desirable.
The medical literature was
used selectively to bolster arguments and not for the purpose of
informing the court of the current
approach to the clinical
assessment of head injuries in children and the range of accepted
medical views. Instead it was directed
at justifying exceptions to
the established consensus. Initial theories, advanced to justify
claims that a skull X-ray or CT scan
should have been performed, were
shown under cross-examination to be untenable and abandoned.
[23]
In the result, the eventual argument that Dr Horn negligently
diagnosed J with a minor injury proceeded on a basis that was not
pleaded; was not reflected in the expert’s summaries; was not
debated at the pre-trial meetings between the experts; was
referred
to in passing during counsel’s opening address; and first
emerged, fully formed, in Dr Edeling’s evidence
on the
fourth day of the trial. All the other arguments directed at
suggesting that Dr Horn was negligent in arriving at her diagnosis
have been abandoned. This is an unsatisfactory state of affairs and
resulted in a lengthy trial much of which was devoted to ploughing
through the minutiae of academic articles.
[24]
A proper use of the provisions of Uniform Rules 37
and 37A would have avoided many of these problems and enabled the
trial to proceed
and finish in the estimated three to four days
instead of taking ten days spread over three months. The ten
pre-trial meeting minutes,
or progress certificates in relation to
such meetings, show that the ‘meetings’ were conducted
telephonically or by
way of correspondence, without any engagement on
the nature of the disputes between the parties or any real endeavour
to clarify
and limit the issues. The impression is overwhelming that
these were seen as nothing more than a necessary formality in order
to
secure a trial date. What should have happened in an endeavour to
narrow the issues was that witness statements should have been
delivered from both Mr M and Dr Horn. Broadly speaking that is what
Rule 37A(10)(
e
)
contemplates. It is what is customary in many jurisdictions.
[25]
Turning to the experts the instructions given to
them on the facts should have been disclosed. Where necessary,
clarification should
have been sought to enable proper instructions
to be given. Instead opinions were expressed on the basis of
conjecture and, in
one instance, on a misreading of Dr Horn’s
notes. An agreed bundle of academic articles should have been
prepared together
with an executive summary of their contents. That
would have largely obviated the need to trawl through them, reading
sections
into the record disguised as questions. The issues at the
trial should have been clearly defined in terms of Rule 37A(11)(
c
).
Instead of refusing the particulars for trial requested in relation
to the expert summaries of Drs Goosen and Edeling they should
have
been furnished.
[26]
Following that course, as is required
in many jurisdictions, especially when dealing with expert witnesses,
would have brought greater
clarity to the proceedings. While Rule
36(9) was innovative when introduced in 1963, times have moved on and
the preparation of
expert summaries by lawyers, who often have only a
tenuous grasp of the real issues in a case, frequently give rise to
problems
of this type. It would be desirable for the Rules Board to
reconsider the rule. A useful change would be to require the experts
to prepare and deliver their reports in their own words and to
include both a statement recognising that the report is furnished
for
the assistance of the court and a statement of truth.
[19]
Having said that I turn to consider
the three issues described earlier.
Was
the bump on J’s head fluctuant?
[27]
The fracture suffered by J was not
detectable by a conventional examination involving palpation of the
bump on his head. The rupture
to the middle meningeal artery was
likewise not detectable by those means. However, there is always a
risk, albeit small,
[20]
of such a fracture in that position
on the head. The presence of a subgaleal haemorrhage or haematoma is
a recognised warning sign
of the possible presence of a fracture. All
this was common cause and known to Dr Horn.
My
colleague Molemela JA, whose dissent (the second judgment) I have
read, refers to an article
[21]
that makes this very point. Two
observations are necessary about this article. First, it considered a
cohort of patients who had
suffered blunt trauma to the head leading
to loss of consciousness, definite amnesia, witnessed disorientation,
persistent vomiting
or persistent irritability. J presented with none
of these features. Second, while it is correct that 51% of those
children who
had both a scalp haematoma and an inter-cranial injury
had suffered a linear skull fracture, this represented only 10,3
percent
of those children who presented with a scalp haematoma.
[28]
It was also common cause that if the bump was
fluctuant to the touch when being palpated that would have been a
clear indication
that J had suffered a subgaleal haemorrhage, calling
for further investigation in the form of a CT scan. Hence, if the
bump on
J’s head felt fluctuant when palpated, Dr Horn should
have ordered a CT scan. Dr Goosen testified that it is something that
is taught at undergraduate level and Dr Horn said she was aware of
it. Therefore, if the bump was fluctuant the failure to refer
J for a
CT scan was negligent.
[29]
Such negligence could only have arisen in one of
three ways. The first was that Dr Horn did not palpate the bump at
all. The second
was that she did so, but in such an inept manner that
she failed to detect that it was fluctuant. The third was that she
did detect
that it was fluctuant, but nonetheless did nothing about
it. That last possibility can be discarded because it was not
suggested
to her in cross-examination and there is no reason to think
that she would have behaved in a fashion that flew in the face of her
own medical knowledge.
[30]
In her evidence in chief Dr Horn was clear that
she had palpated the lump on J’s head. She said:
‘
He did have a noticeable bump
behind the ear. Therefore I would look then at the bump, note its
location – not necessarily
in my notes – but I did, and
then examine the bump itself in order to feel its consistency, and in
the case of that being
a possibility, the potential of an underlying
skull fracture, which cannot always be palpated.’
[22]
In
regard to the consistency of the bump, she said:
‘
I unfortunately do not recall
what it felt like, but I do believe that in order for me to have
written ‘bump’ it may
have been solid. I am very sure
that at the time had it been a boggy fluctuant swelling I would have
made a note of that at the
very least, but I am afraid I do not
specifically recall the consistency of the bump.’
There
is nothing implausible in this. The description of the swelling as a
bump, without qualification conveyed that there was nothing
untoward
about it. It was unnecessary to add anything to that simple
description. What difference would it have made to have added
the
adjective ‘firm’ before ‘bump’? The
description only required qualification if it was fluctuant or
boggy.
Dr Horn explained that in the case of a fluctuant or boggy swelling
she would have noted it because of her awareness of
the risk of an
underlying skull fracture. In answer to a question from the judge she
said that her examination of the bump ‘was
not at the time
suspicious of an underlying skull fracture’. The absence of an
adjective describing the bump provided no
evidence to support a
conclusion that it was fluctuant or boggy.
[31]
The second judgment attaches some importance to
the following passage in Dr Horn’s cross-examination:
‘
You had fairly conceded
yesterday, and I think this morning in your evidence, that you did
not in fact or you cannot remember feeling
the consistency of the
bump? -- I cannot remember what the bump felt like, no.
. . .
I am suggesting to you, Dr Horn, that you probably
missed it, you did not feel it. You did not feel for consistency and
therefore
did not note it. Do you accept that? -- I cannot refute it.
Court: Sorry your question was I put it to you that it
is?
Mr van der Merwe: What I suggest is that it is likely
that you in fact did not feel the bump for consistency and therefore
did not
record it. -- It is possible but that would not have been my
normal practice.’
My
colleague views that as a concession by Dr Horn. I do not, because in
saying that she could not refute the proposition being
put to her by
counsel Dr Horn was not agreeing to it. Consistent with the careful
approach that characterised the entirety of her
evidence, adverted to
in paras 48 and 56, she said that she could not refute counsel’s
proposition, that is, prove that it
was wrong or disprove it.
[23]
She did not accept it or agree with
it as a matter of fact, because she added that it would have been
contrary to her normal practice
and indeed her knowledge of what she
should be looking for in palpating the swelling on J’s head.
[32]
The second judgment criticises Dr
Horn’s notes and quotes Dr Goosen as saying that students
are taught ‘if it’s
not there it wasn’t done’.
That aphorism was inapplicable here, because Dr Horn recorded that
there was a bump, so
there was something there in the note. The
question was what this meant and the criticism related to her failure
to describe it
in detail. This overlooked the fact that in her view
there was nothing more to describe. The absence of a reference to it
being
boggy is not evidence that it was boggy. On the contrary it was
evidence that it was not boggy, because, had it been otherwise,
she
would have recorded it. This is very different from the situation in
Topham
,
[24]
where the doctor had failed to detect
a dislocation of the patient’s femur. He claimed that, in
addition to obtaining and
examining an X-ray, he had examined her
pelvis to check for such a dislocation, but no such examination was
reflected in his notes.
In those circumstances evidence of his usual
practice was unhelpful as was his suggestion that the patient must
have suffered the
dislocation after his examination.
[33]
The appellants’ challenge to Dr Horn’s
evidence rested entirely on Dr Edeling’s assertion in evidence
in chief
that: ‘If a doctor had put a finger on that bump at
that time, it would have felt boggy.’ When asked why this was
so,
he answered: ‘Because it was blood.’ Under
cross-examination he remained adamant that the scalp haematoma with
which
J presented on 23 August must at that time have felt boggy when
palpated. He expanded on this in cross-examination, saying:
‘
[I] cannot say as an
absolutely certainty that it was boggy. But [in all] probability, it
can only have been boggy. If you look
at the volume of blood that is
visible on the CT scan, or if we imagine the volume of blood that
would give rise to a lump that
would be perceived by Dr Horn as
having the dimensions of an egg in cross-section, I believe that a
lump of that size contains
sufficient fluid to be able to palpate the
fluctuant nature of the bump. So, I cannot accept that the bump
described by Dr Horn,
or the volume of blood seen on the CT scan in
this case, could have felt anything other than boggy.’ (The
insertions are
the natural words in two places where the transcript
reads ‘indistinct’.)
[34]
This was a remarkably dogmatic assertion given
that nowhere in any of the documents filed in relation to Dr
Edeling’s evidence
had he previously made such a statement. Its
acceptance involves attributing to Dr Edeling an entirely
inexplicable failure, at
any stage prior to trial, to rely on
something that he there testified was fundamental, elementary and
obvious to anyone examining
J. His first expert summary contained no
reference to the consistency of the bump, or to the fact that it had
been caused by a
subgaleal haematoma. Nor was there any reference to
the relevance of it being fluctuant or boggy. The summary said that
the statement
in Dr Horn’s notes ‘No other neurology’
showed that she had identified a neurological deficit and this was a
clear indication for admission to hospital, neurosurgical
consultation and observation. Dr Edeling’s opinion was
that
the presence of a skull fracture and the development of a
subdural haematoma was foreseeable and should have been investigated
by a skull X-ray.
[35]
Dr Goosen did not refer in his expert summary to
the significance of the bump being fluctuant, but complained that the
notes did
not record the size or other attributes of the swelling.
Like Dr Edeling he construed Dr Horn’s notes as meaning that
she
had detected a neurological deficit. He said that the documented
history of J’s injury and the clinical findings, that is,
the
perceived neurological defect, required further investigation
including either an X-ray or a CT scan.
[36]
Both summaries relied heavily on interpreting Dr
Horn’s notes as saying that she had identified a neurological
defect in J.
The notes read:
‘
Pt’s foot caught and he
fell bumping
Ⓛ side of head. °LOC,
°vomiting, °seizures.
Examination: Pt awake & alert. GCS 15/15.
Vitals: RR
22, HR 92
, BP 104/68, T 36.1°
Bump Ⓛ temporal area above & behind ear.
PEARL. Congruent Ⓝ eye movements.
No other neurology.
Ⓟ
- Reassurance
- HIF
- F/U PRN’
Save
that the figures for J’s vital signs have been transposed from
the margin, this is an exact reproduction of the note.
A layperson
would require some explanation of the symbols and abbreviations, but
not so a doctor. Transposed into plain language
for the benefit of
readers of this judgment it read:
‘
Patient’s foot caught
and he fell bumping
Ⓛ side of head.
No loss of consciousness. No vomiting. No seizures.
Examination: Patient awake & alert. Glasgow Coma
Score 15/15.
Vitals: Respiratory rate 22, Heart rate 92, Blood
pressure 104/68, Temperature 36.1°
Bump Ⓛ temporal area above & behind ear.
Pupils equal and reactive to light. Congruent normal eye
movements.
No other neurology.
Parent - Reassurance
- Head Injury Form
- Follow up. As need arises (from the Latin
pro re
nata
)’
[37]
All of the metrics in the first four lines of the
note were normal. The next two reflected the results of two standard
focal tests
when dealing with head injuries. The first involves
shining a light into the patient’s eyes and checking that the
pupils
reacted normally. The second involves asking the patient to
follow a moving object, such as the doctor’s finger or a pen,
to see if the eyes follow the movement together. According to the
note the results for both tests were normal. In that context
the note
‘No other neurology’ meant that everything was normal and
J displayed no indications of any neurological deficit.
How then did
Dr Goosen and Dr Edeling come to think that it meant precisely the
opposite and found their expert opinions on the
error?
[38]
There was no satisfactory explanation for this.
Both summaries suggested that the word ‘congruent’ was
illegible, although
it is not and should not have been to experienced
medical practitioners. They would have known that Dr Horn performed
the two basic
tests described in the previous paragraph and
‘congruent’ would be the word used to describe the result
as normal.
Even if it were illegible to them, they should not have
approved a fundamentally defective expert summary without
ascertaining
what the word was. The attorneys instructing them should
have been asked to clarify the matter. As Dr Horn was a specialist
orthopaedic
surgeon employed at Red Cross Memorial Hospital a simple
request to the defendant’s attorneys would have provided the
desired
clarification.
[39]
Once the error was discovered it was essential
that the summaries be withdrawn and fresh ones filed, but this did
not happen. Two
months after these two expert summaries were filed,
the respondent filed a summary by Professor Peter, which contained
the following
statement:
‘
In the two expert witness
reports it is alleged that it is implied in the notes that there was
a focal neurological abnormality.
I can see nothing to suggest that.
It is clear that Dr Horn thought her neurological examination was
normal. I have been instructed
that Dr Horn confirms that she found
no neurological abnormalities when she examined J on 23 August 2011.’
Thereafter
in July 2016 the experts had a meeting at which they agreed that,
when Dr Horn discharged J, he had no physical neurological
deficits,
that is, his physical neurological function was probably normal.
Notwithstanding that the whole basis for, or at least
a significant
portion of the substratum of, the expert summaries had now
disappeared, revised summaries were not delivered. When
a
supplementary summary was delivered in respect of Dr Edeling in
November 2016, he made no mention of the recantation. Dr Goosen
glossed over it in his evidence without explanation beyond a
complaint that the examination was brief. Dr Edeling tried to explain
it away by saying that at the time it wasn’t clear to him at
what point the skull fracture was diagnosed and that it was
possible
that the skull fracture was known about before the decision to
discharge. This was palpable nonsense as further cross-examination
showed.
[40]
As pointed out in para 22 there was no endeavour
to provide proper expert summaries as required by the Rules of Court
in relation
to the evidence given by Drs Goosen and Edeling. In the
result the trial commenced on a basis that was fundamentally flawed
based
on opinions of negligence on the part of Dr Horn that were
abandoned during the hearing in favour of a new theory. The
suggestion
in the heads of argument in this court that:
‘
The expert witness summaries
and joint minutes, and subsequently the evidence at the trial
focussed the enquiry relating to culpability
on … the size,
location and consistency of the subgaleal haematoma on the side of
J’s head,
with
particular emphasis on whether the swelling was boggy or fluctuant,
or firm
’
(Emphasis
added)
was
not borne out by the record.
[41]
The original summaries were silent on bogginess,
as had been the particulars of claim and the further particulars for
trial. Dr
Edeling’s supplementary summary had a paragraph
reading:
‘
A
significant swelling of the scalp, especially if it is fluctuant or
“
boggy
”
,
can be a marker for an underlying skull fracture.’
Professor
Taylor agreed that this was so.
They also
agreed that the Royal College of Surgeons had published new
guidelines for skull X-rays and CT scans that included ‘presence
of a boggy swelling particularly in the parieto-temporal region’.
Dr Edeling said that in accordance with these guidelines
J should
have been investigated by a skull X-ray, but Professor Taylor
disagreed because ‘J was not recorded to have a boggy
scalp
swelling’. Had Dr Edeling’s clear view been that
the swelling had to be boggy, one would have expected
him to say so.
[42]
Only when the case was being opened was the issue
raised, and, even then, only indirectly, when counsel said:
‘
What we say, is that the
doctor had not seemingly at least felt the swelling and felt for a …
(intervention)
COURT:
Bogginess
of …
MR VAN DER MERWE:
Bogginess, and, having not done that, the doctor
was also therefore not alerted to the fact that this was a particular
type of swelling
that needed to be – where J needed to be kept
for observation because of the danger of the haematoma developing.’
It
seems that counsel was suggesting that Dr Horn did not palpate the
swelling, a contention not pursued.
[43]
It is not as if the point was difficult to
explain. All it required was a statement that, given the amount of
blood shown on the
CT scan and the description of the bump by Dr
Horn, as well as its situation on the left tempero-parietal area of
the scalp behind
the left ear, it was probable that when J was
examined on 23 August at 6.15 pm the swelling would on palpation have
been fluctuant
or boggy and a reasonably competent member of the
medical profession would have ordered the taking of a CT. A failure
to detect
what must have been present would have been negligent.
[44]
No explanation was given for the absence of any
such clear statement of opinion. The judge correctly said that Dr
Edeling came to
this view very late in the day. Accordingly, this
evidence needed to be approached with a measure of caution. It bears
all the
hallmarks of an attempt to justify his opinions when the
initial basis for them proved untenable.
[45]
The medical literature furnished to the trial
court identified a boggy swelling as an indication for further
investigation by way
of a CT scan. However, none of it gave support
to Dr Edeling’s contention that the bump on J’s head must
have felt
boggy when palpated by Dr Horn. The reason for this emerged
from the evidence of Professor Taylor. He explained that, when there
is trauma to the skull, bleeding most frequently occurs where there
is damage to the loose connective tissue between the galea
and the
periosteum that adheres to the outer surface of the skull. The galea
itself is firm and connected to the epidermis and
dermis by dense
connective tissue where there is little scope for blood to
accumulate. Accordingly, most bleeding occurs where
the loose
connective tissue is disrupted, providing space for blood to
accumulate. The bleeding emanates from little blood vessels
in that
area of the head, not from the fracture. Where there is considerable
disruption of the loose tissue – the technical
term for which
is degloving – there is a much bigger space into which bleeding
can occur and this results in the swelling
being fluctuant or boggy.
The swelling is, in his words, very floppy and easy to distinguish
clinically. It is most usually encountered
with children under the
age of two years.
[46]
Professor Taylor rejected the suggestion that
where there is a subgaleal haematoma the swelling cannot feel firm
when palpated.
He did so on the basis of his direct experience when
operating of encountering swellings that were firm, but with bleeding
into
the subgaleal space. He explained that whether a swelling feels
fluctuant depends on whether and to what extent the loose connective
tissue is disrupted. In J’s case it was not possible to assess
this from the clinical notes or the CT scan.
[47]
The judge found this evidence persuasive. So do I.
First, it was based on practical clinical experience from someone who
is in an
operating theatre on a regular basis, as opposed to a
witness who gave up surgical practice a number of years before the
trial.
That clinical experience was not challenged in
cross-examination. Second, his evidence that fluctuant swellings are
most commonly
encountered in children under the age of two was not
challenged. Third, he gave a reasoned explanation for it, namely that
it depended
on the extent to which the loose tissue was damaged. A
significant deformation separating the layers between the galea and
the
periosteum would provide a space into which bleeding would occur
without filling it, so that blood would accumulate, without filling
the space. In that event that palpation would have the distinctive
boggy feeling. If there was no significant disruption of the
loose
tissue bleeding would only occur in confined spaces and would feel
firm. Fourth, Professor Taylor was not dogmatic in his
evidence and
said that it was not possible on the available information to say
whether the swelling would have been fluctuant when
Dr Horn examined
J. Finally, Professor Taylor received some support from Dr Goosen,
who said that it is difficult to assess from
a scan taken the day
after Dr Horn’s examination its consistency at the time of
examination, because it would have changed
in the interim.
[48]
Dr Edeling did not deal with the issue of disruption of the loose
tissues or any of the other issues raised by Professor Taylor.
He
based much of his conclusions on the description of the lump as being
about the size of an egg, or the estimation that it was
about four to
five centimetres across and raised by about one centimetre. These
were necessarily approximations. When the CT scan
was taken the
swelling was about 7 centimetres across and raised by 700
millimetres. It is not possible to determine how much bleeding
had
occurred when Dr Horn examined J, or how much more bleeding occurred
in the sub-galeal space after J was discharged.
[49]
As noted earlier, Dr Horn said that if the
swelling had been fluctuant, she would have noted that fact and
ordered a CT scan as
she did with another patient shortly afterwards
that evening. Counsel sought to rely on certain concessions extracted
in cross-examination
to show that this evidence could not be
accepted. Like the judge I do not find these criticisms justified.
From the outset of her
evidence Dr Horn was very careful to
distinguish between those matters she could clearly recall of the
events nearly seven years
before and those she could not. Each of the
alleged concessions arose because she said that she could not
specifically recall the
particular matter on which she was being
examined. However, her concessions that she had no specific
recollection of particular
things, or that she was not in a position
to ‘refute’, that is, disprove a proposition, cannot be
taken as her agreeing
to matters inconsistent with the overall thrust
of her evidence. In general, they were nothing more than an
acceptance by a careful
witness that she could not, of her own clear
recollection, dispute certain propositions. But that is a far cry
from saying that
those propositions were established on a balance of
probabilities.
[50]
Dr Horn’s evidence was that she conducted a
proper examination of J’s injury. She palpated the swelling on
his head
and noted it as being simply ‘a bump’. No doubt,
if she had been aware at the time that in 2018 she would have to give
evidence about these events, her note would have been fuller and
included the dimensions of the bump, its consistency and details
of
how she took J’s history and the grounds upon which she
concluded that there had been no loss of consciousness, no amnesia
and no seizures. But that is a counsel of perfection and the note was
entirely consistent with her view that on a proper examination
this
was a harmless bump on the head of a child showing no signs of
neurological deficit. The medical notes prepared by a duty
doctor in
a trauma unit are not to be parsed as, or equated to, a detailed
commercial contract or statute.
[51]
Dr Horn said that she did not remember what the
bump on J’s head felt like. That redounds to her credit not her
detriment.
After nearly seven years a precise recollection would have
been unlikely. She consistently said that she was aware of the
implications of a fluctuant swelling and would both have noted it and
referred J for a CT scan. She explained that her use of the
word
‘bump’ was consistent with it feeling solid and not
boggy.
[52]
In the course of cross-examination an issue arose
as to the nature of the bump at the time of Dr Horn’s
examination. It started
with the proposition that a haematoma would
have blood in it and that this is what causes a swelling to feel
fluctuant. It continued
as follows:
‘
And we know in fact that this
was a scalp haematoma. With the benefit of hindsight we know that
that was in fact the case. We do
know that --- Yes, we
…(intervention)
It is noted on the record ---- Yes, we know that at the
time of the CT scan hours later – in fact ten hours later –
there was a haematoma.
The scalp haematoma, yes. --- Yes. And the extradural …
And so the scalp – so the bump was a scalp
haematoma? We can accept that? --- I am not sure that I am willing to
concede that
point.
Well up to now that was the – certainly not
suggested to any of the plaintiff’s witnesses who testified,
that that bump
wasn’t the scalp haematoma that was detected in
the CT scan --- If I may, as I said, the CT scan was performed 10
hours after
his presentation.
We are well aware of that …. --- Yes.
…
and in fact the CT scan was
used in cross-examination by counsel to suggest that the very same
scalp haematoma had a different appearance
the following morning. ---
And it very well may have. So even – I do admit that I cannot
remember the consistency. I do believe
that, if there was a fluctuant
swelling, I would have noted it and I would have responded
accordingly. I think – well it
will just be conjecture but that
would be my evidence.
COURT
:
Sorry. Could you just expand on your reasons for not being willing to
– you said I am not sure that I am willing to concede
that the
bump was a scalp haematoma. Why did you say that? --- The reason in
my reasoning is that if you have a force that is sufficient
to
fracture a skull then that same force is imparted to the scalp is it
not, and in the same way as you would have a bump where
there is no
underlying fracture, but swelling of the scalp and the structures
therein, that could also cause a swelling. And I
know that – I
was here yesterday and heard the experts refute that point. But if
you are asking me whether I will concede
the fact that there must
have been a subgaleal haematoma at that time, according to my notes
there was not.’
[25]
[53]
It is apparent from this passage that counsel and
the judge were at cross purposes with the witness. Counsel was asking
her questions
about the bump and her perceptions from her
examination. He then put to her that ‘with the benefit of
hindsight’ the
bump was a scalp haematoma. Dr Horn’s
response was to point out that this only became apparent ten hours
later when
the CT scan was performed. Plainly she was contrasting
what was known to her when examining J and what became known with the
benefit
of hindsight. She was not willing to concede that at the
earlier time she was aware that the bump was a scalp haematoma. Seen
in
the context of a cross-examination directed at what she observed
in her examination of J, it was entirely natural for her to refuse
to
concede that
at the time of the
examination
she thought the bump was a
subgaleal haematoma. Her answer to the judge explained that a
swelling could arise from an injury without
a fracture. The last line
of her answer made it clear that she was directing her answer at what
she knew at the time of her examination
and saying that according to
her notes there was no subgaleal haematoma at that time.
[54]
That understanding of Dr Horn’s evidence is
consistent with her subsequent answers:
‘
When you say according to your
notes you are now talking about according to page 1 of the trauma
unit records? --- Yes.
The note is what you are referring to? --- Yes.
You know that there was a bump? --- Yes.
But you don’t describe in that note the
consistency? --- No, I don’t.
That is why you don’t want to make the concession?
--- Yes, because I do believe that if it had been a boggy or
fluctuant
swelling, I would have noted it.
We have heard that. I am exploring something slightly
different. If the bump was something else than a scalp haematoma
would that
not have been detectable in any event on a CT scan, albeit
sometime later? --- Possibly, if there was swelling of layers of the
scalp.
So, we don’t have on the record any other
explanation of the bump other than that it was a scalp haematoma at
this stage.
Will you concede that? --- I will concede that.
So, the likelihood is that the bump was the scalp
haematoma? --- This is true.
And if you concede that then it is likely, given that it
was a collection of blood, that it would have felt boggy? It is
likely?
--- It is likely.’
[55]
Until counsel said that he was trying to ‘explore
something slightly different’ Dr Horn was plainly talking about
her
conclusions after examining J. The next question posed to her was
whether the scalp haematoma would have been detectable on a CT
scan
‘albeit sometime later’. In other words, the question was
not directed at what she could have determined at the
time she
examined J, but at what could have been determined by a CT scan at a
later time. Quite rightly, knowing as she did that
the CT scan the
following day had detected the scalp haematoma, she agreed that this
was possible and that it was likely that it
would have felt boggy.
But that cannot be read as saying that she thought it would have felt
boggy the previous evening. A concession
to that effect would have
been wholly inconsistent with the entire body of her evidence. The
submission that the context involved
an unequivocal acknowledgement
that the swelling felt boggy
when she
examined J
cannot be accepted.
[56]
The distinction Dr Horn was at pains to draw
between those matters of which she had a specific recollection
and those where
she was reliant upon her notes, her usual practice
and her knowledge of the clinical signs for the presence of a
possible skull
fracture is evidenced by her evidence under
re-examination, when she said:
‘
Well
due to the fact that my memory is imperfect and the only thing I can
rely on really is my written notes and the occasional
brief memory of
that evening, I do not have a recollection of what the bump felt like
and I would therefore be untruthful if I
said I can definitely object
– I can’t remember the word he used
[26]
–
to what the plaintiffs’
advocate stated. So, even though I am very sure within myself that I
would have examined the bump
and that I would have noted a fluctuant
swelling, due to the fact that I cannot remember I cannot state it
and I did not document
it.’
[57]
This passage reflects the evidence of a painfully
honest witness trying to be as helpful as possible to the court and
unwilling
to reject as untrue propositions in regard to matters of
which she had no direct recollection. Mr Duminy SC correctly said in
the
course of argument that she projected ‘as someone who had
great empathy’. Had she been seeking to conceal an error on
her
part it would have been easy for her to assert a specific
recollection of the consistency of the bump, but she did not do so.
One other factor is relevant. She was still on duty when J was
admitted at the trauma unit on the morning of 24 August 2011. At
the
outset of her evidence she told the court that, after J’s
re-admission and the emergency procedures he underwent: ‘I
did
reflect quite a bit and think and mull over the initial examination
and findings’. That was less than twelve hours after
she had
examined him. I find it difficult to believe that if she had made the
elementary error of not palpating the bump, or ignoring
the fact that
it was fluctuant, that she would not have recognised this at the
time. The submission that she had made such an error
suggests that
she engaged in a protracted course of dissembling and concealment
that would be inconsistent with the judge’s
assessment of her
as an honest witness and her evidence as a whole. Counsel did not
contend otherwise.
[58]
My colleague is critical of Dr Horn’s
reliance in certain passages of her evidence on her normal or usual
practice and the
judge’s reliance on this evidence.
[27]
With respect I cannot agree. None of
Dr Horn’s statements in regard to her usual or normal practice
were challenged in cross-examination
and they clearly conformed to
sound clinical practice. It is therefore incorrect to say that her
normal practice is unknown. The
fact that she had no precise
recollection of the facts is irrelevant. I may have no recollection
or record of my preparation for
an appeal heard some years ago, but
that does not mean that a statement of my usual practice in regard to
the preparation of appeals
is to be disregarded as of no value. An
invariable practice, if accepted, is strong evidence that, on the
particular occasion under
consideration, that practice was followed.
I agree with my colleague that the issue of negligence can only be
determined in the
light of all the evidence.
[28]
That includes Dr Horn’s
evidence in its entirety, which must be weighed against the manifest
difficulties with the plaintiffs’
expert evidence. There was no
direct evidence contradicting Dr Horn. Finally, it must be borne in
mind throughout that the onus
of proving negligence rested on the
plaintiffs.
[29]
[59]
Dr Horn’s evidence was direct evidence of
the examination and diagnosis of J’s condition on 23 August
2011. By contrast,
Dr Edeling’s evidence was a
reconstruction of what he thought might have happened, based on
elements of speculation
and conjecture. In those circumstances, the
trial judge’s finding that he could not reject Dr Horn’s
evidence and that
the onus of proof was not discharged cannot be
faulted. The main ground of appeal must therefore fail.
Should
J have been kept for further observation?
[60]
The appellants’ heads of argument contended
that, even if the evidence as to whether the swelling was boggy or
firm was evenly
balanced, Dr Horn ought on various grounds to have
foreseen the possibility that J’s skull was fractured. I
understand the
second judgment to accept this contention. The
submission was that on the grounds set out in this section Dr Horn
should at the
least have suspected that J might have suffered a skull
fracture and accordingly not discharged him when she did. The
suspicion
on which this contention was based was something more than
the inherent risk in any head injury of an underlying skull fracture.
The heads of argument identified seven factors that it was submitted
should have led Dr Horn to foresee that notwithstanding her
clinical
observations J might have suffered a skull fracture. I will deal with
each in turn.
[61]
The first factor was that in
consequence of her failure to record the time of the incident on the
trauma unit treatment record form,
Dr Horn ‘had no idea’
of how much time had passed since J suffered his injury.
[30]
That is not correct. Dr Horn said
that she assumed that approximately two hours had passed since the
accident and the basis of this
assumption was not explored in any
detail with her. While she did not note the time on the treatment
form, the assumption was in
fact correct. The incident had occurred
at about 4.00 pm that afternoon and she examined J at 6.15 pm that
evening. The cross-examination
on this point was directed at
suggesting that the injury might have been suffered recently and
therefore it was inappropriate to
discharge him without further
observation. It was not suggested that, given her clinical
observations, after a delay of over two
hours since the injury it was
inappropriate to discharge J. As that is what occurred, any fault on
her part cannot be related to
what subsequently happened.
[62]
The next point was that, in her notes, Dr Horn
recorded that J had fallen inside the house after tripping on a step
or stair. The
contention was that she did not note the type of
surface, hard and unrelenting, on which J had fallen. However, there
is no reason
to disbelieve her explanation that she assumed it was a
hard and unrelenting surface because he would not have suffered an
injury
of the type in question form falling on a soft surface such as
a carpeted floor.
[63]
The third contention is that the notes did not
record J’s level of pain. In the absence of any evidence that J
was suffering
from any unusual level of pain apart from the natural
soreness that would follow from having fallen and hit his head, this
point
is entirely abstract. In agreement with Professor Taylor, Dr
Goosen said that had J suffered from any severe pain his pulse rate
would have been elevated, but it was not. On four occasions Mr M said
that J told him his head was sore, not that he complained
of a
headache. He did not suggest that J complained of any unusual pain
not to be expected from his hitting his head. Soreness
and a headache
are both conceptually and practically different, soreness being
external and arising from external physical injury,
while a headache
is internal.
[64]
Mr M’s evidence was that when he returned
from work J was sitting on a bed with his sister. That he then burst
into tears
is hardly a surprising response by a child that has hurt
itself. Thereafter he was able to tell his father what had happened.
He
stopped crying in the car and was recorded as being alert and
responsive in the clinical notes. Mr M said he was capable of telling
the doctor what had happened. There was no evidence that he was
suffering from or complaining of pain beyond having a sore head
as
was to be expected from his having hit his head. There was no mention
of a headache. Nor did Mr M say that he informed Dr Horn
that J was
complaining of pain or a headache. Dr Horn’s evidence was that
he was not crying or holding his head or otherwise
indicating that he
was in pain.
[65]
The fourth contention was a repetition of the
previous one, this time expressed as a failure to determine J’s
‘headache
severity’. As there was no evidence that J
then, or at any stage suffered from a headache there is no merit in
it. The word
‘headache’ does not appear in Mr M’s
evidence. He spoke only of J’s head being sore. While a
worsening
headache would, as the second judgment says, have been a
sign of something possibly more serious in J’s condition, there
is no basis for construing the evidence that J said his head was sore
as showing that he had or complained of a headache.
[66]
The fifth contention was that Dr Horn did not
determine if J had amnesia and did not test for orientation as to
time, person and
place. As to the former she explained that she does
not pursue this with young children because of their possible
unreliability.
As to the latter she explained that when assessing the
verbal component of the Glasgow Coma Score (the GCS) there was no
indication
of disorientation and therefore no need to perform any
further tests. In any event there was no evidence that J was either
amnesiac
or disorientated. On the contrary his father said that J had
told him what happened and was able to tell the doctor what happened.
There is nothing to indicate that had Dr Horn made any more enquiries
in relation to these items she would have been given information
or
discovered anything that would have altered her diagnosis.
[67]
The sixth point was that Dr Horn did not perform
an otoscopic test to exclude basal skull fracture. She explained why
she did not
think that necessary and it was common cause that J did
not suffer a basal skull fracture. This was a non-issue.
[68]
The final point was a submission that Dr Horn’s
observation that J was ‘mopey’ or ‘miserable’
or downcast’
was a pointer to the fact that he was probably in
pain. It is not surprising, as she pointed out, for a child to be
miserable when
it has bumped its head, which is sore, and has been
rushed to hospital near bedtime. A little misery in those
circumstances is
perfectly normal. There was no evidence that because
he felt slightly miserable J was in any unusual pain apart from a
sore head.
[69]
Nothing in any of these points
justified the contention that Dr Horn’s treatment of J was
in any way deficient. Nothing
supported the contention that further
exploration of any of these matters would have altered Dr Horn’s
diagnosis or her decision
that this was a minor injury and J could
safely be discharged. The impression one gains from the way in which
these matters were
raised in the course of the trial and in the
submissions in the heads, was of counsel casting around for grounds
to criticise Dr
Horn’s conduct in the hope that Micawber-like
‘something would turn up’.
[31]
Further
observation – the experts’ view
[70]
The joint minute of experts of Dr
Goosen, Dr Edeling and Professor Peter said that, when Dr Horn
discharged J he probably had no
neurological deficits. In other
words, his neurological function was probably normal. That accorded
with Dr Horn’s diagnosis,
after clinical examination, that he
had suffered a minor injury and could be safely discharged into his
parents’ care. Lastly,
contrary to the views in their expert
summaries both Dr Goosen and Dr Edeling conceded that on the basis of
those clinical observations
and the existing guidelines at Red Cross
Memorial Hospital, neither a CT scan nor a skull X-ray was
indicated.
[32]
That those guidelines reflected the
views of a respectable and responsible body of medical opinion had to
be accepted in the light
of a study referred to during the trial
called the PECARN study
[33]
and the NICE guidelines for head
injury assessment and early management.
[34]
These two studies were directed at
assessing in what circumstances CT scanning, which itself carries
risks of radiological damage,
should be ordered in respect, inter
alia, of children of J’s age. The guidelines in place at Red
Cross Memorial Hospital
were based on these guidelines, which have
been widely accepted around the world.
[71]
Dr Goosen’s evidence was that even if J was
a low risk patient the potentially catastrophic consequences if he
was discharged
needed to be borne in mind before discharging him. The
problem with this is that it is true of every case of minor head
injury
in a child. The possibility of a catastrophic event is
inherent in such injuries, albeit extremely unlikely. The adoption of
this
extremely cautious approach would be that large numbers of
perfectly healthy children would have to be kept in hospital trauma
units for extended periods of time without any need to do so.
[72]
Largely for the same reason Dr Edeling said that
several separate observations of the patient needed to be undertaken.
Professor
Taylor disagreed, as had Professor Peter before him, and
said that in circumstances where no further investigation was
indicated
in accordance with internationally accepted guidelines, as
adopted in the Western Cape Head Injury Guideline Handbook, the
proper
course of action was to discharge the patient into the care of
a parent or other responsible person. They could be relied upon to
monitor the patient and return to hospital if adverse symptoms became
apparent.
[73]
In the summaries and the evidence, much time was
spent over the proper interpretation of the guidelines. As this was a
question
of the meaning to be attached to a document involving no
technical issues that evidence was just as inadmissible as evidence
of
contracting parties’ understanding of their contract. As it
happened Dr Horn had been unaware of those guidelines and had
regard
to the guidelines issued by the Red Cross Memorial Hospital for the
management of head injuries. These informed hospital
staff that the
majority of patients are those with minor head injuries who are
brought in by concerned family members or friends
and that the first
task was to identify which minor head injuries required investigation
or admission.
[74]
The appellants’ reliance on the Western
Province Guidelines as founding the contention that J should not have
been discharged,
but kept at the Trauma Unit for further observation,
implicitly recognised that the guidelines embodied a recognised
standard of
care accepted by reasonable and respected medical
opinion. Only on that basis would any departure from the guidelines
provide a
foundation for a contention of negligence. However, even if
there was a departure from the guidelines, that would not necessarily
establish negligence. It would still be necessary to establish that
what actually occurred departed from the standard of care that
a
reasonable and respected body of medical opinion would regard as
acceptable treatment by a trauma doctor situated as was Dr Horn.
I
mention this because Professor Taylor who played a substantial role
in drafting the guidelines explained how they are implemented
in
practice and made reference to general practice in South African
hospitals in dealing with cases of this type. To the extent
that this
may have involved a departure from the guidelines the question
remained whether that amounted to negligence.
[75]
The guidelines commence with a section on the
initial assessment of the patient. This is to be performed within 15
minutes of initial
contact. Its purpose is to determine whether the
patient is at high or low risk for brain injury. This requires the
assessment
of the patient’s GCS; measurement and recording of
vital signs; and a check on what happened. The guidelines then
provide
that if the patient is assessed as low risk they should be
re-examined within an hour and the need for imaging established. The
appellants’ contention was that Dr Horn’s examination of
J was the initial assessment in the guidelines and that no
further
assessment was thereafter taken before he was discharged.
[76]
Professor Taylor disagreed. He said that the
initial assessment was that undertaken by the Trauma Unit nurse when
J arrived at the
unit. While Mr M only referred to Dr Horn and did
not mention a nurse as playing any part in examining J, one of the
documents
in the Trauma Unit records was a triage form completed on
J’s admission. Dr Horn’s unchallenged evidence was that
this
was completed by a nurse in the unit. She obtained the details
of J’s vital signs that were incorporated in her notes from
this form. This was not disputed. What was challenged was whether
this was the initial assessment referred to in the guidelines,
so
that Dr Horn’s examination was the re-examination contemplated
by the guidelines.
[77]
There is undoubtedly a measure of ambiguity about
the wording of the guidelines, which Professor Taylor, as one of its
authors,
acknowledged. On the one hand the description of the initial
assessment includes a number of things undertaken by the Trauma Unit
nurses, such as the taking of the patient’s vital signs and
determining whether the patient is high or low risk. On the other
the
diagrammatic representation includes a number of elements that formed
part of Dr Horn’s examination, such as excluding
any focal
neurological deficit and examining the swelling. In practice it
appears that the triage assessment is treated as the
initial
assessment and the registrar’s examination as the
re-examination within an hour. It emerges clearly from Professor
Taylor’s evidence that what occurred on 23 August 2011 was
consistent with the way in which the guidelines were implemented
in
practice.
[78]
It seems to me to be a sterile debate to try and
impose a particular interpretation on the guidelines and then to use
that to determine
whether J’s treatment accorded with sound
clinical practice. A more profitable approach is to examine the
evidence as a whole
to determine whether what happened was in
accordance with the standards of acceptable treatment of a reasonable
and respected body
of medical opinion. We know from the evidence of
Professor Taylor that it was and is the approach adopted at Red Cross
Memorial
Hospital and there is nothing to suggest that it has had any
adverse consequences. It is also, according to him, consistent with
the practice adopted at emergency units throughout South Africa. This
evidence was not challenged. It was consistent with the Red
Cross
Memorial Hospital protocol which dealt with the discharge of patients
who are fit for discharge immediately after the section
on
determining whether a CT scan was necessary.
[79]
On a wider front the guidelines were adapted from
the NICE guidelines referred to in para 65. They require an initial
assessment
within 15 minutes of arrival at an emergency department to
determine whether the patient is high or low risk for clinically
important
brain injury. Thereafter they require re-examination within
one hour by an emergency department clinician. The latter assessment
is particularly directed at determining the need for imaging using a
CT scan. A scan is indicated in any situation where
certain
identified risk factors, largely common to those identified in the
PECARN study, are present. It is unnecessary to detail
these as J
displayed none of these signs. Nor did he display any of the signs
for admission and observation.
[80]
The most relevant provision of the NICE guidelines
is the one dealing with discharge and follow-up of patients. It
reads:
‘
If CT not indicated on the
basis of history and examination the clinician may conclude that the
risk of clinically important brain
injury to the patient is low
enough to warrant transfer to the community, as long as no other
factors that would warrant a hospital
admission are present …
and there are appropriate support structures for safe transfer to the
community and for subsequent
care (for example, competent supervision
at home).
In other words, if the doctor thinks the injury is minor
and does not warrant a CT scan or admission for observation, the
patient
can be discharged and sent home, in the case of a child to be
cared for by its parent, or parents, or other caregiver.
[81]
The standing of the NICE guidelines
as a standard of acceptable clinical care was not disputed. They were
consistent with the PECARN
study. They were also consistent with the
approach to the management of minor brain injuries in the Advanced
Trauma Life Support
for Doctors (ATLS
®
)
manual relied on by Dr Goosen.
[35]
It described the process of
management for patients with a GCS of 13-15 as follows. First there
should be a general examination
to exclude systemic injuries followed
by a limited neurological examination. If no CT scan was indicated
and the patient did not
meet any of the criteria for admission
discharge from hospital should follow.
[82]
The process of assessment and examination followed
generally at Red Cross Memorial Hospital and followed in this case by
Dr Horn
complied with accepted clinical practice here and
internationally. She cannot be faulted for doing so. There is no
merit in this
argument. It is accordingly unnecessary to deal with
the separate question whether, if he had been kept at the Trauma Unit
for
another hour as suggested, J’s condition would have
deteriorated and given rise to concern resulting in further
investigation.
We cannot tell whether he would then have remained
awake, or whether his falling asleep would have sounded any alarm
bells. It
is equally possible that it would have been regarded as
normal. His father said that he was sleeping normally in the car and
when
they returned home.
The
adequacy of the discharge instructions
[83]
It was accepted that a reasonable medical
practitioner ought to have made sure that the patient’s carer
understood the discharge
instruction sheet before departing from the
hospital. It was submitted that Mr M ought to have been informed to
look out for drowsiness.
There was a dispute of fact whether he was.
There was no dispute that he was not advised to wake J at regular two
hourly intervals
during the night in order to check for drowsiness.
It was disputed that this represented sound clinical advice or that a
failure
to do so was negligent.
Was
Mr M warned about drowsiness?
[84]
Mr M was handed the hospital’s standard head
injury discharge form. This said:
‘
Bring your child back to
hospital immediately at any time of the day or night if he/she should
complain of:
-
a severe
headache
-
become
increasingly difficult to wake
-
loose
(sic) consciousness
-
start
vomiting excessively
-
have fits
or develop paralysis
-
or in any
way behave peculiar (sic).’
He
said that he took the form home and read it around 8.00 pm that
evening after dinner. He did not suggest that he found it obscure
or
difficult to understand.
[85]
Mr M could not remember what Dr Horn said to him
other than that, if he had any concerns, he should phone the
hospital. Under cross-examination
he accepted, because those were the
instructions recorded by Dr Goosen in his expert summary, that Dr
Horn said that he should
‘monitor’ J ‘or something
like that’. He explained that he understood that to mean that
he and his wife
should keep an eye on him as a parent normally does
when a child is sick.
[86]
Dr Horn’s evidence was that she could not
recall what she said to Mr M. She remembered a discussion with him
and said that
her usual practice was to explain her decision not to
send a child for a scan and reassure the parent. She would as a
matter of
practice briefly mention the salient risk factors and tell
parents to look out for drowsiness, sleepiness, vomiting and seizures
or fitting, as those could be signs of a developing brain injury. The
factual dispute arose because Mr M did not accept this. He
claimed
that if he had been warned about drowsiness as a risk he would have
returned to the hospital much earlier when J fell asleep
in the car
on the way home.
[87]
Dr Horn was cross-examined about her advice. The
relevant passage reads as follows:
‘…
[W]ell J’s
father says you asked him to monitor him, to monitor J, to watch him.
That is how – he remembers the word
‘monitor’ but
he interpreted that to mean watch. --- That could be the correct
interpretation.
And he specifically said when he was asked in
cross-examination that you did not say to him that he must bring J
back in the event
that he got drowsy or – specifically with
reference to drowsy, let me leave the or part. So J’s father is
adamant in
his evidence that you did not say that to him. Can you
contest that as you stand here now? --- Because I do not have word by
word
recollection of the conversation we had, I cannot contest it no.
I understand. You cannot contest it. That is – can
we just proceed on the assumption that you did say that to him? ---
Yes
please.
If you did say that you didn’t give any further
explanation as to how to look out for drowsiness did you? --- No I
think it
is self-explanatory.’
[88]
Even if one assumes in favour of counsel that the
penultimate question is mistyped and should read ‘… you
did
not
say
that to him’, one cannot ignore the careful qualification Dr
Horn gave to the previous answer, namely that because she
did not
have a word by word recollection of the conversation she could not
contest what Mr M said. That was of a piece with the
entire body of
her evidence that, if she did not specifically recall something, she
was not prepared to deny unequivocally whatever
counsel was putting
to her. That was a mark of her fairness and honesty as a witness. It
is a far cry from that to contend, as
was done in the heads of
argument, that she conceded that she did not warn Mr M about
drowsiness.
[89]
The judge accepted that both Mr M and Dr Horn were
doing their best nearly seven years after the event to describe what
occurred.
There was nothing in the inherent probabilities that
pointed in favour of one version rather than the other. That is no
doubt why
counsel sought to contend that it was disposed of by a
concession.
[90]
The Afrikaans version of the discharge form was
the same as the English, save that it added in the second item
‘becomes drowsy’
(‘meet lomerig word’).
Considerable play was made of this to argue that because of the
omission the Ms were not alerted
to the problem of drowsiness. The
form may have been deficient, but it could not affect whether Dr Horn
told Mr M to be on the
alert for drowsiness.
[91]
On this limited evidence it was not reasonably
open to the trial court to make a definitive finding that Dr Horn did
not highlight
drowsiness as a risk that the Ms should have been alert
to in keeping an eye on J. Nor could it be found that she did not
explain
the very simple hospital form adequately. The form was not
elegantly phrased, but it said clearly that they should bring him
back
to the hospital immediately if they observed anything peculiar
about J’s behaviour. The obvious reason for the form was to
make it clear to the parent that although no significant problem had
been detected by the doctor, there was a risk that something
might
have been missed and so they should be alert to any peculiarities in
their child’s behaviour.
Should
Mr M have been advised to wake J during the night?
[92]
On another tack, because the form referred to
difficulty in waking the patient, it was contended that it required
that J be woken
at regular intervals. Dr Horn did not advise this and
Mr M was not asked how he understood this item. It does not appear
that he
gave it that construction. That would not, however, dispose
of the issue of whether sound clinical practice required that J be
woken at regular intervals to check on his state of drowsiness and
alertness.
[93]
Dr Horn was cross-examined on the
suggestion that she should have warned Mr M to wake J regularly to
check for drowsiness. Her response
was that, if she thought such a
step necessary, she would have admitted J. It was submitted that this
was the incorrect approach
and that Mr M should have been told to
wake J at least every two hours during the night to check on his
condition and see that
there was no difficulty waking him. Both Dr
Goosen and Dr Edeling advocated this.
[36]
Professor Taylor said that at most
waking a child once in the night was sufficient.
[94]
The medical literature did not
support Drs Goosen and Edeling. Their evidence was based on the 2008
edition of the ATLS manual,
which recommended waking the patient
every two hours. However, the persuasive authority of that
recommendation as an indication
of proper clinical practice was
removed by its withdrawal in the 2014 edition. The NICE guidelines
did not suggest that this was
a requirement when a child was
discharged after a head injury. The most direct reference to this
issue was an article by Schutzman
and others.
[37]
The second judgment is critical of
reliance on this article because it does not include details of the
evaluation preceding a decision
to discharge. But that is beside the
point, because it is not cited in support of the decision to
discharge J, but in regard to
the approach to be adopted to waking a
child after discharge.
It
said that a child should be discharged if there was no suspicion of
inflicted injury; they had a GCS of 15/15; had returned to
a baseline
level of function, that is, his vital signs and physical functioning
were normal; and there were no extracranial injuries
warranting
admission, provided there were capable caretakers who could reliably
observe the child and return it for care if indicated.
In regard to
discharge instructions the authors said:
‘
It is not necessary to awaken
most children. Whether it is important to awaken some children to
identify the very few who may be
experiencing a change in
neurological condition is uncertain, since no evidence addresses this
question. …
Those patients who had a concerning mechanism or
prolonged symptoms who do not undergo neuroimaging may be awakened
from sleep every
four or more hours, particularly if being discharged
during evening or night time hours.’
J
did not fall in the latter category. On balance therefore it was not
shown that waking a child at regular intervals constituted
general
clinical practice, much less that a failure to instruct parents and
other carers that they should do so involved a departure
from proper
practice. The medical literature placed before the court did not
suggest that Dr Horn’s approach that, if a child
needed to be
woken at intervals during the night, they should be admitted to
hospital for that to be done by medical professionals
was
inconsistent with a body of reasonable and respected medical opinion.
Interestingly no evidence was led to show that in the
case of
patients kept in hospital for observation the practice was to wake
them at regular intervals during the night.
[95]
Those conclusions mean that the third ground of
appeal cannot succeed. It is appropriate, however, to go further,
because even if
it could be said that Dr Horn failed to warn Mr M in
regard to drowsiness, or if sound clinical practice indicated that J
should
have been woken during the night, in my view the appellants
failed to establish on a balance of probabilities that the outcome
would have been any different.
Would
the outcome have been any different?
[96]
In order for the tragic outcome of this case to
have been different J would have had to return to the hospital
displaying symptoms
that would lead to further and timeous
investigation by way of a CT scan and surgery to relieve the
extradural haematoma. The first
difficulty in the path of reaching
that conclusion is that it cannot be concluded on a balance of
probabilities on the evidence
that J’s condition was at any
stage, until the early hours of 24 August, such that his parents
would have decided to return
to hospital with him. The second, which
is related to it, is that it is not possible to determine at what
stage on the evening
of 23 August his condition would have
deteriorated to an extent that it would have triggered an alarm. This
meant that it
could not be said on a balance of probabilities that it
would have been apparent in sufficient time for him to have been
taken
back to hospital, the problem diagnosed and emergency surgery
performed.
[97]
During Dr Horn’s examination J was alert and
responsive. There was no suggestion that he was drowsy at any earlier
stage before
arriving at the hospital. Mr M said that he was awake
sitting on the bed when he got home and he then burst into tears.
However,
he was sufficiently alert to be able to convey to his father
what had happened. He stopped crying before they reached the
hospital.
There was no hint of drowsiness during his examination by
the triage nurse and Dr Horn. The conclusion is that when he left to
return home he was not drowsy, although he was slightly miserable.
[98]
While they were driving to collect his mother from
work after leaving the hospital, J lay down and fell asleep in the
car. It is
not clear how soon that happened, but it was sometime
between leaving the hospital shortly after 6.30 pm and reaching Mrs
M’s
place of work at about 7.00 pm to collect her. We don’t
know whether she was already aware that J had hurt himself, but she
got in the back seat of the car and cradled his head in her lap. That
afforded an opportunity to soothe him and examine the swelling
on his
head. There is no indication that this caused anything other than
natural maternal concern. When they arrived home Mr M
carried J in
from the car and put him to bed in the bed he shared with his
parents. According to Mr M, he was sleeping normally
and not in a
deep sleep. He could not recall whether, as would usually be the
case, he took J to the toilet before putting him
to bed. Like Dr
Horn, after the elapse of nearly seven years he could not recall what
he did, although that would have been what
he would ordinarily have
done.
[99]
It should be borne in mind that J had bathed
earlier in the afternoon at his aunt’s house before being
dropped off at his
parents’ home into the care of his older
brother. He was already in his pyjamas and Dr Horn recalled that he
was wearing
pyjamas at the hospital. Ordinarily he had supper at
about 7.00 pm and went to bed at about 8.00 pm. It was therefore a
little
earlier than usual for him to go to sleep, but his sleep was
normal. He had been given Panado, a mild analgesic, at the hospital
and his parents thought, from past experience with their two older
children, that this helped children to sleep. They joined him
in the
family bed at about 9.30 pm. One infers from the fact that nothing
untoward was reported that they too slept, until Mr M
woke in his
customary fashion at about 3.30 am and had difficulty waking J to
take him to the toilet.
[100]
Clearly neither Mr nor Mrs M saw anything untoward
in J that evening. Even without the administration of Panado, it was
hardly surprising
that he fell asleep in the car on the way home. His
experience that afternoon had been unpleasant and he was upset. His
head was
sore and he had been rushed to the unfamiliar environment of
a hospital trauma unit. That is a worrying experience for any six
year old, and his anxiety would have been aggravated by his father’s
anxiety. He would have sensed something might be seriously
wrong.
This was all reflected in Dr Horn’s assessment that he was a
little bit ‘mopey’. He was already dressed
for bed and
bedtime was approaching. Few parents would have been surprised at his
falling asleep in the car and clearly his parents
were not surprised.
Mrs M manifestly did not think that there was anything peculiar about
his behaviour when she was sitting with
his head on her lap in the
car. She did not give evidence so we can accept that this was so.
Indeed, had it been otherwise I have
little doubt that she would have
told her husband to take J back to the hospital immediately.
[101]
Apart from not knowing whether J was taken to the
toilet, we have no evidence of any discussion about providing supper
for him in
accordance with the family’s usual practice. Nothing
was said about his parents’ observations when they put him to
bed; or how frequently they went to check on him; what they saw when
they did; any change in the condition of the swelling on his
head;
and what they observed when they themselves went to bed. They had
been told to keep an eye on him and I am sure that they
did. The only
reason nothing was said about these matters can be because there was
nothing to say. Anything untoward would have
led them to contact the
hospital, as Mr M did at 3.30 am the following morning. While they
were in bed with him they experienced
nothing to indicate that J’s
sleep was disturbed or in any way unusual.
[102]
In other words, there was no evidence of anything
about J being asleep that would have raised a concern or indicated to
them that
they should return to the hospital. It was not suggested
that they should not have permitted J to go to sleep in the ordinary
way.
They did not need to guard against ordinary tiredness, but to
look for signs of something unusual or abnormal. There was no
evidence
that there was anything unusual or abnormal in J sleeping.
In those circumstances the absence of a specific mention of
drowsiness
as potentially a sign that something was wrong cannot
justify a conclusion, on a balance of probabilities, that mentioning
it would
have meant that J would have returned to the hospital that
evening and been successfully diagnosed and treated.
[103]
The problem is compounded by the fact that it is
not possible on the evidence – and no-one tried to do so –
to identify
at what stage there would have been a change in J’s
condition that would have provoked alarm. This is also a major
difficulty
with the contention that waking J at regular intervals
would have made a difference. It flows from the development mechanism
of
an extradural haematoma from which it is impossible to tell at
what stage prior to 3.30 am J started to display symptoms that would
have caused alarm to his parents and resulted in them taking him back
to the hospital. Dr Goosen explained that the haemorrhage
progresses
slowly over time. Because the durable hard membrane protecting the
brain does not give way easily the haematoma develops
slowly. But
there comes a stage where the pressure on the brain shoots up and
what has been a slow progression becomes a disaster.
Dr Goosen
said it is known as ‘talk and die’.
[104]
This phenomenon is known as the Monroe-Kellie
doctrine. It is described in the ATLS
®
manual in the following terms:
‘
The doctrine states that the
total volume of the intracranial contents must remain constant,
because the cranium is a rigid nonexpansible
container. Venous blood
and cerebrospinal fluid [CSF] may be compressed out of the container
providing a degree of pressure buffering…
Thus very early
after injury a mass such as a clot may enlarge while the ICP
[intercranial pressure] remains normal. However, once
the limit of
displacement of CSF and intravascular blood has been reached, ICP
rapidly increases.’
The
effect appears from the graph accompanying that description
reproduced below. It illustrates the period of compensation for
the
effect of the haemorrhage followed by a rapid increase in pressure at
the point of decompensation, rapidly reaching herniation.
Dr Edeling
suggested that the point of decompensation occurred at about midnight
in J’s case, but it could have been earlier
or later.
[See
PDF for image]
[105]
The suddenness of a patient’s decline means
that it is difficult to tell at any stage that they are suffering
from an extradural
haematoma. Even had he been awakened once or twice
during the night there was no basis to determine when J would have
manifested
symptoms causing alarm and resulting in his urgent return
to hospital.
[106]
For those reasons, the appellants failed to prove
that a warning about drowsiness or an instruction to wake him at
intervals would
on a balance of probabilities have meant that J would
have been taken back to hospital, diagnosed with an extradural
haematoma
and undergone remedial surgery before suffering the
injuries that he did. The factual position is that his parents did
not detect
anything untoward in him during the evening, when they
went to bed or during the night. Had they been instructed to wake him
there
is nothing to indicate when this would have been done or what
it would have disclosed given the way in which the haematoma
developed.
Result
[107]
In the result the appeal must fail.
What happened to J was a tragedy and his parents deserve every
sympathy for what they have suffered
as a result. However, medical
science has not advanced to the stage of diagnostic infallibility and
there will be cases where,
notwithstanding the best efforts of the
medical profession, a tragedy like this occurs. Sympathy is not a
ground for imposing legal
liability in this or any case.
[38]
[108]
The MEC did not seek a costs order. There was no
separate appeal in relation to the costs order in the High Court, but
given the
concession in regard to the cost of the appeal, we trust
that a similar approach will be taken to those costs. In the result
the
order is simply that the appeal is dismissed.
___________________________
M
J D WALLIS
JUDGE
OF APPEAL
Molemela
JA (Dissenting judgment)
[109]
I have read the judgment penned by my colleague,
Wallis JA (the first judgment). I disagree with its reasoning and
conclusion. I
am of the view that Dr Horn’s negligence is plain
from her own evidence, viewed against the backdrop of the provisions
of
the applicable guidelines. Extracts of her evidence will be
liberally quoted in the succeeding paragraphs of this judgment. In my
opinion, the evaluation of evidence and the reasoning of the court a
quo are flawed and its judgment ought not to be supported.
For the
reasons set out hereunder, I would uphold the appeal with costs.
[110]
The elements of a delictual claim
[39]
and the approach to expert evidence
have already been canvassed in the first judgment and in the judgment
of the court a quo. In
the interests of not burdening this part of
the judgment, I will not re-state the applicable legal principles.
[111]
As a point of departure, it is necessary to allude
to what Dr Edeling referred to as the cornerstone of head injury
management.
He said:
‘
The whole purpose of
neurological management of head injured patients is to prevent,
detect and manage secondary complications.
So whatever condition you
get the patient, you assess the patient. Then there is always, in all
patients with a head injury, a
certain risk, and the risk differs in
different contexts. There’s always a risk that the patient will
deteriorate. And it
is because of that risk that a cornerstone of the
management is a period of several observations, which is necessary to
determine
if the patient [is] remaining stable, or getting better, or
getting worse.’
[112]
It is common cause that J had, as a result of his
fall, sustained a large swelling above and behind his left ear. The
location of
the swelling was described as temporo-parietal. Mr M
estimated the diameter and height of the swelling to be half the size
of a
tennis ball. He stated that it was the enormity of that swelling
that made him to take J directly to Red Cross Children’s
hospital, instead of his family general practitioner. It is common
cause that J had sustained a linear fracture in the left
temporo-parietal
area.
[113]
Dr Horn testified that the ‘closed
tissue’ injury she had recorded in her notes referred to a
bruise where there was
no damage to the skin.
In
their article, Greenes and Schutzman
[40]
observed that most linear fractures have
an overlying haematoma or soft-tissue swelling. According to them,
larger haematomas in
the temporal or parietal regions are more likely
to indicate a fracture. They also mentioned that treating physicians
rated scalp
hematomas as small (barely noticeable), moderate or large
(‘obvious swelling and/or boggy consistency’).
Dr Goosen testified that it was
generally agreed that scalp haematomas in the temporal/parietal or
occipital regions confer the
greatest risk for intracranial injury.
He emphasised that even a low risk of complications relating to a
head injury had to be
weighed against the catastrophic consequences
that could eventuate, hence the need for the attending doctor to be
‘very,
very cautious’.
[114]
It bears emphasis that one of the
studies relied upon by Dr Goosen, was the one mentioned in the
article authored by Burns.
[41]
The study’s primary objective
was to investigate whether scalp haematoma presence, location and
size were associated with
intracranial injury in children presenting
to the emergency department of a hospital following minor head trauma
and to determine
whether this relationship differed with patient age.
The Burns article observed that 51% of children with a scalp
haematoma and
intracranial injury had an underlying linear skull
fracture on CT. The conclusion was couched as follows:
‘
In this large cohort of
children aged 0 through 16 years presenting to the [Emergency
Department] following mild head injury, we
found that the presence of
a scalp hematoma, particularly in non-frontal regions and of large
and boggy size, was associated with
an increased odds of intracranial
injury. Our findings also indicate that clinical concern is not only
warranted in children younger
than 24 months, but also in older
children and adolescents . . . Although children 0 to 6 months of age
were at highest odds,
the
presence of a scalp hematoma also independently increased the odds of
[intracranial injury] in older children and adolescents
.
An underlying linear skull fracture may contribute to the increased
odds of intracranial injury in children with a scalp haematoma
following minor head injury but cannot solely be relied upon when
determining the need for additional neuroimaging . . . .’
(Own
emphasis.)
[115]
It is common cause that Dr Horn did
not record the consistency of J’s bump in her notes. It bears
mentioning that the definition
of the word ‘bump’ in the
Oxford dictionary is ‘
a
swelling on the body, often caused by a blow’.
There is no suggestion that it
bears any relation to the consistency of that swelling or lump. Dr
Horn’s explanation that
her recordal of the swelling as a
‘bump’, must have been because it was firm and not
boggy,
[42]
is implausible, in my view.
Although
Prof Taylor sought to rely on Dr Horn’s description of the
swelling as a ‘bump’ as an indication of its
consistency,
he did not refer to any literature that supported that view. Prof
Taylor conceded that without the swelling’s
consistency as to
firmness or bogginess having been recorded by Dr Horn, he could
not say ‘with certainty’ that
it was or was not
fluctuant. The court a quo’s conclusion that J would have been
excluded from the findings of the Burns
articles on account of his
age was clearly incorrect. For reasons I will mention presently, its
finding that J would have been
excluded from the findings mentioned
in the Burns article on account of not having shown the symptoms
mentioned in the cohort study
is misplaced.
[116]
It is axiomatic that g
ood
medical records are a vital component of providing good quality
health care
.
The obligation
to
record in the clinical notes every action taken by the attending
doctor in respect of a patient,
is
a basic requirement that is generally known in the medical field
.
[43]
As correctly stated in the first
judgment, Dr Goosen testified that it is something that is taught at
undergraduate level and Dr
Horn said she was aware of it.
[44]
According to Dr Goosen, the
undergraduates are taught that ‘if it is not there it was not
done’ – in other words,
what was not mentioned in the
attending doctor’s notes was not done by the doctor during the
medical examination. The exchange
between the counsel for the
appellant (Mr van der Merwe) and Dr Horn on this aspect was as
follows:
‘
. . . In the light of what we
have examined and the absence of some significant findings in the
notes would you not agree that the
notes are scanty and in fact less
than scanty, that they are deficient in some respects? -- I cannot
contest that fact.
Court: I beg your pardon, what was the answer?
Mr van der Merwe: Cannot contest.
Dr Horn: I said yes I agree that they are deficient in
some aspects.’
[117]
What is of crucial importance, is
that it is the duty of the attending doctor to elicit information
from the patient. What Dr Horn
did and did not do, remains of crucial
importance. In
Topham
v MEC for the Department of Health, Mpumalanga (Topham)
,
[45]
this Court held that a patient is
entitled to a thorough and careful medical examination, such as his
or her conditions and attending
circumstances permit, with such
diligence and methods as are usually practiced under similar
circumstances, by members of the branch
of the profession to which
the attending doctor belongs.
[46]
This Court did not accept the
evidence of the attending doctor relating to his ‘usual
practice’ as proof of how he examined
the patient where
important clinical observations made during the examination were not
recorded. A reliance on a medical practitioner’s
‘usual
practice’ should not come to the aid of a medical practitioner
who has failed to record important observations.
‘Usual
practice’ should not be regarded as a substitute for what was
not recorded, or a supplement to an inadequate
medical record.
[118]
On Dr Horn’s own account of
events, the recording of J’s history was inadequate. The short
duration of the examination
of J by Dr Horn and the scanty notes she
made speak volumes. Her note taking fell short in various respects.
She failed to record
the time of the incident despite the fact that
the pro-forma trauma unit record form has a block in which the time
that has elapsed
since the fall must be recorded. The Guidelines for
Integrated Management of Head Injury at Red Cross Children’s
Hospital,
which Dr Horn was familiar with, also identified the ‘time
elapsed since injury’ as a factor to be considered during
the
examination of the child patient.
[47]
Because Dr Horn did not record this
important factor, she had no idea how much time had elapsed between
the time of the incident
and her examination of J. She admitted that
she made an assumption on that aspect. The court a quo’s remark
that this omission
was unsatisfactory is justified by the following
exchange between the counsel for the appellant and Dr Horn:
‘
Let me explore that, if I may.
You didn’t note the time of the incident? -- No I did not.
And you didn’t know how long prior to you
observing J the incident had occurred? -- I did not note it.
But you didn’t know it either?
Court: Sorry. So you did not note it? -- I did not note
it but I made an assumption.
Mr van der Merwe: What was that assumption? -- The
assumption was that approximately two hours have passed since the
incident, and
that would be based on the fact that the incident
occurred, then a period of time elapsed until the parent got back. In
that time
J was bathed and then brought to hospital. So . . .
Where do you get those facts?
Well I know that there was some time – ja so that
is a little bit difficult because it does get . . . (intervention)
Dr Horn, you didn’t note any of that on your
record? -- I did not.
Where do you get . . . (intervention)
Court: No but you haven’t given the witness the
opportunity to say – to answer your earlier question was how
did you
know that? -- No I did answer it . . .
Court: Well just – Mr van der Merwe might have
heard something I did not hear. On what basis did you make this
assumption
about two hours? -- It is definitely rough – a rough
assumption but it was based on the fact that the incident occurred,
some time elapsed before the parent brought the child to the hospital
and – but no it is a very rough assumption and I cannot
scientifically found it but there was an assumption that this was not
an incident, immediately get into the care, come to the hospital
then
minutes later case. But I did not document that.
Mr van der Merwe: No. Dr Horn, I know sometimes it is
difficult that when you stand – and you have obviously
consulted for
purpose of this trial – when you stand here to
try and distil what you gathered along the way from what you knew
then is
a difficult process and I accept that but there is nothing in
your notes indicating that you had any idea of the time of the
incident.
--- I agree
And there is nothing in your notes that you had any idea
of a delay even between the time of the incident and J arriving at
the
hospital. --- I agree.
For all intents and purposes the incident could have
happened 15 minutes earlier or prior to the time that you saw him.
According
to the notes. -- Yes’
[119]
As regards J’s bump, it is clear that the
nature, location and characteristics thereof were important signs and
symptoms that
ought to have been assessed and recorded. The following
exchange between counsel for the appellant and Dr Horn pertaining to
the
consistency of J’s bump is of importance:
‘
You had fairly conceded
yesterday, and I think this morning in your evidence, that you did
not in fact or you cannot remember feeling
the consistency of the
bump? -- I cannot remember what the bump felt like, no.
. . .
I am suggesting to you, Dr Horn, that you probably
missed it, you did not feel it. You did not feel for consistency and
therefore
did not note it. Do you accept that? -- I cannot refute it.
Court: Sorry your question was I put it to you that it
is?
Mr van der Merwe: What I suggest is that it is likely
that you in fact did not feel the bump for consistency and therefore
did not
record it. -- It is possible but that would not have been my
normal practice.’
[120]
Considering the foregoing concessions and the
evidence of Dr Goosen and Dr Edeling pertaining to the purpose
of a full clinical
examination and a comprehensive medical history, I
am inclined to agree that, on probabilities, the reason why Dr Horn
did not
record the consistency of J’s bump is because she did
not palpate it, which amounted to negligence.
[121]
With regard to Dr Horn’s
history taking during J’s examination, it is common cause that
she failed to record the nature
of the consistency of the large bump,
which according to her notes was ‘above and behind [J’s]
ear’. Dr Horn
used three words to describe J’s mood
during the medical examination: ‘tearful’, followed by
‘mopey’
and then ‘miserable’. It can hardly
be denied that any of these words is compatible with a description of
someone who
was in pain. Mr M’s evidence that J complained
of a headache just before he took him to the hospital and that he
informed
Dr Horn about it was not disputed.
[48]
Here, I accept that a reference to a
“sore head” by a six year old child who had fallen and
sustained a large swelling
above and behind the ear area could only
have meant a headache (pain in the head). It was for Dr Horn to
establish the exact nature
and extent of the soreness and to
investigate the extent of the trauma. The fact remains that Dr Horn
neither recorded a headache
nor a sore head in her notes. On
probabilities, it can safely be accepted that Dr Horn was indeed
informed about this symptom,
otherwise there would have been no
reason for her to prescribe or administer Panado syrup to J and to
book him off for two days.
Moreover, Dr Horn stated that the presence
of any injury to the head, which causes a swelling, involves pain.
She conceded that,
where there was a skull fracture as well as a
swelling, the pain would be more compounded. In the light of that
concession, the
attempt to distinguish a sore head from a headache
appears to be a distinction without a difference, in my respectful
view.
[122]
Despite the fact that a worsening headache is one
of the symptoms to watch out for, in the context of the management of
paediatric
patients who present at hospital with head trauma, Dr Horn
failed to record the headache as one of the symptoms. She also failed
to assess whether the headache was abating or deteriorating. Although
Dr Horn conceded that this is a feature that needs to be
explored,
she did not do so. The exchange between the appellant’s counsel
and Dr Horn relating to the importance of observing
and recording a
change in a patient’s condition was as follows:
‘
Mr van der Merwe: Now, Doctor,
tragically we know the outcome in this case and it stands to reason
that if an extradural haematoma
develops the outcome can be
catastrophic. Again, I say there is a risk, it doesn’t have to
be but it can? ---- Yes it can.
And in this case the steps that might have prevented it
are actually simple. Would you agree with that? ---- I do agree with
that.
Now I know it is complex in a situation where you are
confronted with a presentation as you were, but the steps that –
there
are essentially in plaintiff’s estimation three steps
that could have been taken or ought to have been taken that would
have
prevented the outcome - and the first of course is [to] send
[the patient] for some kind of examination, albeit it X-ray or CAT
scan, but some kind of examination if you are unsure whether there is
an underlying facture or not. --- Yes.
And you probably will concede that in the interest of
patients’ safety if you are unsure then good practice or
reasonable
practice would be to rather get the scan or get the X-ray
and exclude. --- If you are unsure, yes.
Are you suggesting then that in the circumstances you
were not unsure? --- That is what I am suggesting, yes.
Now the second aspect even if you do not send the
patient for an X-ray or CAT scan is to wait for a while to
re-examine. --- Yes.
Now I have heard your evidence this morning that that is
not the practice at Red Cross but I am going to test whether that
practice
is frankly reasonable or not. When you are dealing with a
head-injured patient the big problem leading to potentially
catastrophic
outcomes is the development of a condition that would
affect the neurological functioning of the individual. --- That is
correct.
And so it is the change that is important isn’t
it? --- That is correct.
And we see in the literature, and I am not going to take
you to any of it in any detail. I think it is common cause, that
change
in neurological status is one of the things that the clinician
should look out for. --- Yes.
To decide on management. On further management of the
patient. Now there seems to be a dispute between the plaintiffs and
defendant
in this case of precisely what that means and how that
should be evaluated. I want to put it to you in these terms. Dr
Edeling
says, and so does Dr Goosen for that matter, that if you –
you can only detect a change in neurological condition –
you
the clinician, the doctor – if you do at least two
examinations, not one. --- Yes I agree.
You agree with that. And there must at least be the
passing of a little bit of time for you to be able to detect that.
--- That
is true.
Precisely how much time is open to debate but without
doing a re-examination you cannot detect whether there is a change in
condition.
--- No.
. . .
Now again my instructions are that it is not only the
pain and degree or level of pain but also whether the pain is getting
any
worse is a feature that needs to be explored? -- Yes I agree with
you.’
[123]
Prof Taylor’s testimony that
‘there’s no evidence that any particular frequency of
observation is of benefit’
is at variance with Dr Horn’s
own evidence, as set out in the last paragraph of the passage above.
That assertion is
also not borne out by various provisions of the
Western Cape Head Injury Guidelines Handbook,
[49]
as they stipulate that a
re-examination should be performed within one hour of the first
assessment, an aspect I will revert to
presently. At a logical level,
it is mindboggling how else one can possibly observe a change or
deterioration in a patient’s
condition without doing a
re-examination. This brings to mind the warning sounded by the court
in
Bolitho v City
and Hackney Health Authority
.
[50]
Lord Browne-Wilkinson aptly stated
that a court is not bound to absolve a defendant from liability for
allegedly negligent medical
treatment or diagnosis just because
evidence of expert opinion is that the treatment or diagnosis in
issue accorded with sound
medical practice. He emphasised that 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. He cautioned that
i
f
a body of professional opinion overlooks an obvious risk which could
have been guarded against it will not be reasonable, even
if almost
universally held
.
I am in full agreement with those remarks.
[124]
In an article authored by Osmond and
Others,
[51]
the authors refer to a cohort study
(referred to as the CATCH study) of 3866 patients with a mean age of
9.2 years. They identified
four high risk factors which were pointers
for a CT scan in children. The finding was that a CT scan of the head
was ‘required’
for children falling in the ‘high
risk’ category. Children falling in the ‘high risk’
category included
those who had a history of a ‘worsening
headache’. There is much to be made of the undisputed evidence
that J complained
of a headache before being taken to the hospital,
an aspect Dr Horn was informed about. Despite having taken an
analgesic, he was
still complaining about the headache soon after
leaving the hospital, which was slightly more than two and a half
hours after the
fall. Clearly, the headache was persistent. It is
evident that Dr Horn failed to assess the extent and severity of the
headache.
She also inexplicably failed to allow herself an
opportunity to assess whether there would be any deterioration in J’s
condition.
[125]
Both Dr Goosen and Dr Edeling are specialists in
their own right and were entitled to base their professional opinion
on medical
literature. Their evidence regarding the current state of
knowledge and generally accepted practice in the medical field in
relation
to head injuries in children was relevant and helpful. I
disagree with the view that ‘medical literature was used
selectively
to bolster arguments and not for the purpose of informing
the court of the current approach to the clinical assessment of head
injuries in children and the accepted medical views’. On the
basis of Dr Goosen and Dr Edeling’s evidence, as well as
the
medical views expressed in the Burns article, I am inclined to agree
with the contention that on Prof Taylor’s theory,
there is no
reason in logic why the bogginess of the swelling containing less
blood would be a significant marker for an underlying
skull fracture,
but a swelling containing more blood would not be a significant
marker.
[126]
I am unable to agree with the court a quo’s
finding that Dr Horn’s evidence was cogent.
The
difficulty for Dr Horn was that she could not remember what she did
not note down, but expected the court to accept what she
would have
done ‘in her normal practice’, which is unknown. That she
could not remember what she knew back then, or
came to know in the
course of her preparation of the trial, is clear from her own
admission, under cross-examination; she remarkably
described her
difficulty as follows: ‘I might be mixing up current thoughts
with thoughts back then’.
[127]
This
Court in
Meyers
v MEC, Department of Health, Eastern Cape
,
[52]
made the following observation:
'A court is not called upon to decide
the issue of negligence until all of the evidence is concluded. When
an inference of negligence
would be justified, and to what extent
expert evidence is necessary, no doubt depends on the facts of the
particular case. Any
explanation as may be advanced by or on behalf
of a defendant forms part of the evidential material to be considered
in deciding
whether a plaintiff has proved the allegation that the
damage was caused by the negligence of the defendant. . . .'
[53]
[128]
The paragraphs that follow will show that the
court a quo’s evaluation of evidence was at odds with the
approach set out in
the preceding paragraph. In my view, the court a
quo failed to pay due regard to the fact that Dr Horn had conceded
that, when
she testified about her ‘usual practice’, she
had no recollection of the events that she was testifying about.
[129]
The provisions of the Western Cape
Head Injury Guidelines Handbook, which applied to all hospitals in
the Western Cape, including
the Red Cross Children’s Hospital
at the time, warrant consideration.
[54]
Although Dr Horn testified that she
had not seen them before, she later confirmed that, having read them
subsequently (in preparation
for the trial), she realised that they
were not dissimilar to the guidelines applicable at the Red Cross
Children’s Hospital.
[130]
It is prudent to first consider a few
provisions of the NICE guidelines, as Prof Taylor stated that the
Western Cape Guidelines
are based thereon. At the outset, the NICE
Guidelines, which are undoubtedly based on best practices in the
medical field, stipulate
that all emergency department clinicians
involved in the assessment of patients with a head injury should be
capable of assessing
the presence or absence of the risk factors for
CT imaging listed in the recommendations, which include the
determination of a
GCS score. In this matter, the GCS score was
determined by Dr Horn. This means that Dr Horn’s examination
fell within the
stipulations of clause 1.3.6. Accordingly, a further
examination had to be done within an hour of the first assessment, as
contemplated
in clause 1.3.8. That this is indeed what was intended
is evident from the Guidelines Summary, which stipulates that
‘patients
who, on initial assessment, are considered to be at
low risk . . . should be re-examined within
a
further
hour by an
emergency department clinician.’
[55]
[131]
Even if it were to be accepted that J’s
interaction with the triage nurse constituted the first examination
contemplated in
the guidelines, the fact remains that the examination
performed by Dr Horn did not meet the requirements of clause 1.3.8
which
stipulates that ‘part of this assessment should
fully
establish the need to request CT imaging of the
head . . .’. In terms of those guidelines, the presence of
amnesia alone would
have necessitated that J be observed for a
minimum of 4 hours. Insofar as Dr Horn did not assess amnesia, she
cannot be regarded
as having fully established the need to request CT
imaging as contemplated in clause 1.3.8. Her standard clearly fell
below the
NICE guidelines.
[132]
The Western Cape Guidelines Handbook stipulates
that all patients presenting themselves at a secondary/tertiary level
facility (Red
Cross Children’s Hospital fell under this
category) had to be assessed within 15 minutes of their arrival at
that facility.
The next step was to ‘assess and stabilise ABC’s
before attending to other injuries’ and to establish the GCS’.
Those with a GCS score of 15/15 (like J) were to be assessed within
15 minutes and an assessment of the risk of brain injury had
to be
done. If the patient was considered a high risk, a full clinical
examination had to be done with a view of establishing the
need for
imaging. If the patient was considered a low risk (Dr Horn said she
considered J to be one), the patient had to be re-examined
within an
hour and a need for imaging had to be established. It is common cause
that Dr Horn examined J only once.
[133]
The court a quo disregarded
[56]
the plain stipulations of the Western
Cape Head Injury Guidelines Handbook despite the fact that the
requirement to assess and re-assess
is stipulated twice in the
guidelines.
[57]
The court a quo’s
interpretation, which was based on Prof Taylor’s evidence, is
not in line with the plain meaning of
the provisions of the Western
Cape Guidelines, nor is it consonant with the NICE guidelines on
which reliance was purportedly placed.
Clearly, the recommended
treatment in the Western Cape Injury Guidelines Handbook does not say
what Prof Taylor intended it to
mean.
[134]
It is clear from the discussion in
the foregoing paragraphs that Dr Horn’s assessment of J
was glaringly not in conformity
with the provisions of the Western
Cape and NICE guidelines. I am therefore unable to agree with the
first judgment’s conclusion
that the process of assessment and
examination followed by Dr Horn complied with accepted clinical
practice here and internationally.
[58]
Notably, the court a quo accepted
that Dr Horn ‘had extensive exposure to head injury cases in
earlier stages of her career
while working in Mthatha and at Victoria
hospital in Wynberg. Dr Goosen’s uncontested evidence was that
a Registrar (Dr Horn
held the position of a Registrar) was ‘a
doctor in training to be a specialist, it is usually a minimum of
four years postgraduate
training, usually after completing an
entrance exam called a primary examination’. Dr Horn was aware
that the presence of
a subgaleal haemorrhage or haematoma is a
recognised warning sign of the possible presence of a fracture.
[59]
These are relevant factors in the
consideration of how a reasonable medical practitioner in the
position of Dr Horn would have acted
in the particular circumstances.
[135]
It is abundantly clear from the applicable
guidelines and the evidence of Dr Edeling and Dr Goosen that Dr
Horn’s assessment
of J departed from the standard of care that
a reasonable and respected body of medical opinion would regard as
acceptable treatment
by a Registrar in her position. The entire
medical examination relating to J lasted 15 minutes, which is clearly
an insufficient
time to detect neurological changes in a head injured
patient who was still in the compensation phase of the injury. It is
difficult
to conceive of a Children’s Hospital anywhere in the
world discharging a six year old patient presenting with a large
temporo-parietal
swelling and a headache pursuant to a fall, within
15 minutes of his or her arrival at a trauma unit.
[136]
The first judgment alluded to the fact that Mr M
did not mention the triage nurse in his evidence. This, in my view,
is of no consequence.
It must be borne in mind that Mr M’s
uncontested evidence was that upon arrival at the trauma unit, he
carried J directly
to a bed as there were no other patients in the
trauma unit at that stage. Dr Horn immediately started attending to
him. At that
very stage, a nurse who was in the company of Dr Horn
told him to fetch J’s file from the records department. On his
return,
15 minutes later, Dr Horn had already finished examining J
and decided to discharge J. Mr M would therefore not have known
that a triage nurse attended to J at some stage.
[137]
It is clear from Table 9 of the Western Cape Head
Injury Guidelines Handbook that the first examination includes the
assessment
of the GCS score. The undisputed evidence is that Dr Horn
is the one that assessed J’s GCS score. Undoubtedly, there
ought
to have been another examination after the noting of the GCS
score. This did not happen. Instead, what transpired is that J was
discharged, apparently on the basis of the 15/15 GCS score, despite
the fact that some of the vital symptoms had not been investigated
or
recorded. A proper examination would probably have alerted Dr Horn to
the possibility of a linear skull fracture and this in
turn would
have prompted her to do further investigations.
[138]
The court a quo criticised Mr M’s evidence
and stated that he had a hazy recollection of his exchanges with Dr
Horn, particularly
whether she had asked him questions about loss of
consciousness, vomiting, seizures or amnesia. It failed to take into
account
that Mr M explained that the reason why he did not try
to establish the symptoms exhibited by J after the fall from those
who had witnessed it, was that his priority was to get J to the
hospital expeditiously. That evidence was not disputed.
[139]
On Dr Horn’s own version, she did not assess
J for the presence of amnesia despite the fact that the presence
thereof would,
in terms of the Western Cape Guidelines, have been one
of the indicators for a CT scan. Dr Horn conceded that because Mr M
did
not witness the fall, he would not have had any first-hand
knowledge of the circumstances and would have been unreliable as a
source
of information pertaining to J’s symptoms. It is in any
event clear from Mr M’s account of what J told him that
he
did not gain much information from him regarding the symptoms he had
experienced, save for the complaint about the headache.
Since Mr M
bore no first-hand knowledge about the symptoms exhibited by J after
the fall, it would have served no purpose to ask
him about loss of
consciousness, seizures, amnesia or vomiting. This, too, was conceded
by Dr Horn. The following exchange is apposite:
'. . . When you receive a history from the parent it may
be unreliable? -- It can be, yes.
You might not know whether the parent or the person
bringing the child observed everything that would make you satisfied
about the
child’s condition? -- This is true.
Well I am putting it to you as a proposition in this
case – that is in fact what the problem was in this case too
insofar
as Mr M did not observe the incident himself. Are you aware
of that? -- Yes I am aware of that.
Did you only become aware of that during the course of
this trial or . . .? -- Yes I only became aware of that during the
course
of this trial.
So you didn’t elicit that information from Mr M
either in your questioning did you? -- No I did not.
And is that not an important part of the information
that you should elicit from – to as part of your
history-taking? -- I
was satisfied with the information that was
given to me.'
[140]
It is common cause that Dr Horn did
not assess J for amnesia, which is one of the variables that form
part of the equation when
it comes to predictors that can point to an
intracranial injury. Since amnesia was not assessed, it is not open
to the respondent
to contend that there was no complaint of amnesia.
By Dr Horn’s own admission, her usual practice did not include
exploring
[60]
amnesia, despite the fact that (1)
the Western Cape Head Injury Guidelines Handbook specifically
stipulated that the attending doctor
should ‘ask about and
record’ amnesia for events as part of the initial assessment
and (2) that she had admitted that
J’s age was not a bar to a
reliable assessment of amnesia. Dr Horn also admitted that she did
not assess for a deterioration
in J’s headache because it was
not her usual practice to do so. Dr Horn’s evidence under
cross-examination is quite
telling. I can do no better than to quote
her verbatim:
‘
Another aspect that I
understand is relevant in the examination of a head – a
potential head-injured patient because J was
a head-injured patient,
is the question of amnesia. – Yes.
You did not enquire about amnesia? -- I did not enquire
about amnesia.
And if I can just test this proposition the Glasgow Coma
Scale test is done to evaluate the patient’s condition at the
time
you examine him? -- That is correct.
But the history taking of course is also important
because you [are] meant to know whether there was any prior loss of
consciousness
or aspects of amnesia relating to the incident? -- Yes.
I did establish the presence of loss of consciousness. However, I did
not
– and usually don’t – pursue the possibility of
amnesia. Reasons for that are potentially the lack of reliability
of
such a young child’s recollection and then also – and
this is going to probably just add fuel to your fire but generally
when patients present with loss of consciousness or something that is
the first thing they tell you. So if this is not elicited
in the
history I do admit that . . .
You don’t ask. -- . . . particularly seeking out
amnesia is not something I ask for.
. . .
But amnesia is relatively simple to establish, I
understand, by a few simple questions? It could be yes.
And J – the suggestion isn’t that J was not
a child who could at least give an account of himself. -- No.’
[141]
In my view, it seems incongruous to
suggest that what was not assessed did not exist. It seems obvious
that one can only conclusively
decide that the criteria have been met
or not if a comprehensive medical history of the patient has been
taken and a full clinical
examination has been performed. It is for
that reason that I am unable to agree with the first judgment’s
conclusion that
J displayed none of the signs identified as risk
factors in the PECARN study.
[61]
The court a quo’s conclusion
that J’s traumatic brain injury was not defined by a history of
amnesia, despite this not
having been assessed, was clearly wrong.
[142]
I consider next the circumstances
relating to J’s discharge. The court a quo erred in approaching
the question regarding the
evidence concerning the instructions that
were given to Mr M upon discharge as constituting two mutually
destructive factual versions.
[62]
It failed to take into account that
Mr M put up a positive version that Dr Horn did not warn him to
regard drowsiness as a concerning
factor. Dr Horn, on the other hand,
was unable to recall the instructions that she gave. There was
therefore only one positive
factual version of what was said before
the court a quo. Moreover, Dr Horn admitted that reading the whole
head injury form to
the parents was not in her usual practice and
that she would, instead, ‘highlight the things that are most
common and most
concerning and then ask them to read the form’.
There is therefore no room for assuming that Dr Horn read out the
contents
of the form to Mr M.
[143]
Prof Taylor stated that emergency units in South
Africa do not consider it good practice to keep a child patient with
symptoms similar
to those of J for observation at a hospital. This
assertion sounds inherently improbable. If that were the case,
observation and
re-examination of patients presenting with a head
injury would not have been included in the Western Cape Guidelines.
It seems
to me that Prof Taylor conflated keeping a patient for
observation at a trauma unit with admission.
[144]
A factor which bears consideration is
that there were beds available in the trauma unit and Dr Horn
admitted that keeping J at the
unit for another hour for
re-examination purposes would not have inconvenienced any other
patient. Resources were therefore not
a concern.
[63]
The court a quo, however, chose to
prefer Prof Taylor’s evidence that ‘practical
considerations militate against keeping
patients with a low risk of
complications in for observation’ over Dr Goosen’s
unchallenged evidence that keeping J
for observations would not have
had an adverse impact on resources. Despite the clear provisions of
the Western Cape Guidelines
on re-examination, Dr Horn stated that
keeping a patient for re-examination was not the practice.
[145]
Dr Horn conceded that it would have been
reasonable for her to give more detailed and specific instructions to
Mr M of what to look
out for. This concession was properly made,
given that the Red Cross Children’s Hospital Guidelines
stipulate that ‘parents
of children who are fit for discharge
home should understand the contents and importance of the head injury
form’. In any
event, on any of the experts’ versions of
reasonable practice, Dr Horn’s instructions to Mr M fell
short of that
standard. Despite this, the court a quo found that Dr
Horn was not negligent when she decided that it was not necessary to
keep
J in the emergency ward for further observations.
[146]
There is also much to be said about
the inadequacies of the Red Cross Children’s Hospital Head
Injury form especially
relating to the English version, which
differed from the Afrikaans version, insofar as it did not
specifically mention drowsiness
as one of the alarm symptoms to look
out for. This inconsistency with the Afrikaans version is a
disconcerting aspect that was
unfortunately not sufficiently taken
into account by the court a quo.
[64]
[147]
Mr M testified that although he was bilingual,
English was his home language. Upon arrival at home, he read the
English version
of the form. It is common cause that the English
version of the head injury form does not include drowsiness among the
symptoms
that should cause alarm and instead only alerts the reader
to the patient becoming ‘increasingly difficult to wake’.
Considering all these circumstances, I am of the view that there was
no basis for the court a quo’s conclusion that J’s
drowsiness in the car should have alerted his parents to return him
to hospital without delay. That finding evidences a failure
to pay
regard to Mr Mc Gregor’s testimony that if Dr Horn had warned
him about drowsiness, he would have returned to the
hospital as soon
as J fell asleep in the car, which happened within 10 minutes of his
departure from the hospital.
[148]
Mr M explained that the reason why he
was not alarmed by J’s drowsiness is because he attributed it
to the fact that Dr Horn
had given him Panado syrup.
[65]
The experts in this case agreed that
Panado can have a sedative effect in a small percentage of users.
[66]
In this regard, it is worth
mentioning that the NICE guidelines stipulate that patients with a
head injury ‘should not receive
systemic analgesia until fully
assessed so that an accurate measure of consciousness and other
neurological signs can be made’.
On this same aspect, the
Guidelines of the Red Cross Children’s Hospital warn that
‘sedation can contribute to secondary
injury and should be
avoided if at all possible’.
[149]
I am of the view that a reliance on
Schutzman’s article
[67]
in relation to the conclusion that
J’s discharge was not negligent, is misplaced, as the
evaluation that precedes a discharge,
and on which the decision to
discharge depends, was not included in the article.
[68]
Moreover, given the size and location
of J’s closed head injury, his mood two hours after his fall
(described as ‘tearful’
‘mopey’ and
‘miserable’) and the headache that he complained about, a
reasonable medical practitioner in
Dr Horn’s position would
have referred J for a CT scan so as to exclude the possibility of a
skull fracture. Furthermore,
to my mind, a ‘return to baseline
functioning’ implicitly entails a comparison of analyses, in
other words, the functioning
‘before and after’
[69]
Dr Horn could not have done any
comparison because she had insufficient history pertaining to J and
had assessed him only once.
A reasonable medical practitioner in
Dr Horn’s position would not have discharged J before a
further observation of
his condition and a re-assessment.
[150]
The court a quo downplayed a number of significant
concessions made by Dr Horn, and therefore failed to consider the
totality of
evidence. This is evident from the following findings:
‘
Nothing that [Dr Horn] said by
way of apparent concessions under cross-examination detracted from
the essence of her evidence, which
was “I am unable to remember
what I said, but I believe that it would have been along the lines of
what I habitually say
in circumstances, which is to tell the
caregiver to watch out for the tell-tale warning signs: drowsiness,
loss of consciousness,
vomiting or fitting . . . .”’
[70]
[151]
Despite Dr Horn’s concession that she did
not remember the consistency of the swelling, the court a quo
accepted that it was
firm and stated as follows in the judgment:
‘
I accept, however – and
[Dr Horn] professed to have been astute to this at the time –
that the consistency and location
of a swelling were something to
which a treating doctor should have had regard at the relevant time
in the making of the required
clinical judgment in respect of the
diagnosis and treatment of a head injury patient because it could be
indicative of an underlying
skull fracture. In [Dr Horn’s]
judgment nothing about the size or consistency of the lump on J’s
head gave her cause
for concern. On the documented learning, she
cannot be held negligent in those circumstances for not having
regarded the presence
of a firm feeling haematoma as sufficient
reason – in the absence of other symptoms such as loss of
consciousness, amnesia,
vomiting or fitting, and subject to what I
shall deal with presently in respect of “mechanism of injury”
– to
have referred J for a CT scan.’
[71]
[152]
Although the court a quo accepted,
correctly in my view, that location and consistency were important
indicators of a skull fracture,
[72]
it glossed over Dr Horn’s
failure to record the consistency of J’s large bump and his
complaint about a headache. Similarly,
her admitted departure from
the standard practice of eliciting information pertaining to possible
amnesia was downplayed. Despite
Dr Horn’s speculative
reconstruction of what she would have done, her evidence was
described as cogent.
[153]
The court a quo regarded Dr Goosen’s
responses as concessions in favour of Dr Horn. It failed to take into
account that under
cross-examination, Dr Goosen was asked to assume
that the records were an accurate reflection of what had transpired
during J’s
medical examination.
[73]
Furthermore, the court a quo failed
to pay sufficient regard to the fact that vital symptoms were not
recorded in Dr Horn’s
notes, namely the consistency of the
large bump, his headache and that J was mopey during the examination.
Furthermore, it failed
to take into account Dr Horn’s
concession that as a matter of practice, she did not test patients to
rule out amnesia.
[154]
The court a quo hypothetically asked what would
have happened if J had been kept at the hospital longer. The answer
lies in the
provisions of the guidelines alluded to, above, which
specifically stipulate that patients who are considered to be a ‘low
risk’ should be assessed within 15 minutes of attaining a GSC
score of 15 and be re-examined within one hour. Furthermore,
the
Western Cape Head Injury Guidelines Handbook stipulate that a patient
be admitted under the care of a specialist if they have
a severe
headache.
[155]
As stated before, the undisputed evidence is that
J still had a headache when he left the hospital and fell asleep soon
thereafter.
Based on the conspectus of all the evidence, the
ineluctable conclusion is that if J had been re-assessed within an
hour of Dr
Horn’s examination, his drowsiness or his persistent
headache would have set off alarm bells and this, in turn, would have
triggered a referral for a CT scan.
[156]
It is thus evident from the Red Cross
Children’s Hospital Guidelines and the Western Cape Guidelines
that the course of events
that would have followed would have been
different from the one followed by Dr Horn. Had Dr Horn followed the
guidelines, she would
have referred J for a CT scan much earlier. The
CT scan would undoubtedly have revealed the extent of the injury at a
time when
there was still a scope for successful intervention, as
correctly pointed out by Dr Goosen.
[74]
That J’s prognosis would have
been substantially different had the scan been performed earlier, is
an aspect that was confirmed
by all the experts.
[157]
Mr M’s uncontested evidence and
Dr Horn’s concessions, viewed against the backdrop of expert
evidence, the guidelines
for the Red Cross War Memorial Children’s
Hospital and the Western Cape Head Injury Guidelines Handbook, were
sufficient
to support the appellant’s delictual claim. In
conclusion, the evidence adduced by the appellant showed on a balance
of probabilities
that Dr Horn failed to apply the degree of
professional skill and diligence expected of members of her
profession when examining
a child patient presenting at the emergency
unit of a Children’s Hospital with a head injury. As stated in
Van Wyk v Lewis
[75]
many decades ago, ‘the failure
of a professional person to adhere to the general level of skill and
diligence possessed and
exercised at the time by the members of the
branch of the profession to which he or she belongs constitutes
negligence’.
Had Dr Horn properly assessed J and elicited and
recorded the symptoms, she would probably have changed the management
of J.
[158]
A reasonable medical practitioner in
Dr Horn’s position would have been alerted to the risk. It is
clear from the entire discussion
in this part of the judgment, that
the factual findings made by the court a quo against the appellant
are not supported by an objective
analysis of all the evidence. In
Minister of Safety
and Security and others v Craig and others NNO,
[76]
this Court held that even though
courts
of appeal are slow to disturb findings of credibility made by trial
courts, courts of appeal generally have greater liberty
to do so
where a finding of fact does not essentially depend on the personal
impression made by a witness’ demeanour, but
predominantly upon
inferences and other facts and upon probabilities. Insofar as the
factual findings made by the court a quo depended
predominantly on
inferences and probabilities, this Court, on appeal, has the benefit
of the full record and is in as good a position
to draw
inferences.
[77]
This court is therefore at
large to interfere on appeal.
[78]
[159]
As an aside, I agree that during the
trial, Dr Horn showed empathy for J’s situation and therefore
commend her for her honesty.
While she obviously did not intend for
this unfortunate eventuality to materialise, it was her negligence in
the treatment of J
that led to the harm that ultimately befell him.
But for that negligence
[79]
,
the linear skull fracture would have been detected by a CT scan and
timeous intervention would most probably have prevented the
harm that
eventuated, namely cerebral palsy and quadriplegia. I am therefore
satisfied that the evidence adduced by and on behalf
of the appellant
satisfied all the elements of a delictual claim.
[160]
As I conclude, I echo the sentiments expressed
previously expressed by this court in
Topham
:
‘it could hardly be contended that considerations of
reasonableness, justice and fairness dictate that the respondent
should
not be held liable’ for the harm suffered by J. The
respondent, as Dr Horn’s employer, must be held vicariously
liable
for the harm suffered by J because of Dr Horn’s
negligence. I would therefore uphold the appeal with costs.
________________
for
M B MOLEMELA
JUDGE OF APPEAL
Appearances
For
appellant: W Duminy SC (with him
J A van der Merwe SC)
Instructed
by: Malcolm Lyons & Brivik, Cape
Town,
Matsepes,
Bloemfontein
For
respondent: B D J Gassner SC
Instructed
by: State Attorney, Cape Town and
Bloemfontein.
[1]
The haemorrhage occurs between the
dura mata that surrounds the brain and the periosteum that covers
the internal surface of the
skull. An extradural (or epidural)
haemorrhage is to be distinguished from a subdural haemorrhage
(commonly referred to as a
brain haemorrhage), which is the rupture
of an artery causing bleeding in the brain, as opposed to a bleed
between the dura surrounding
the brain and the skull covering.
[2]
A
subgaleal
haematoma occurs between the skull and the scalp. In technical
language it occurs, between the periosteum that covers
the skull and
the galeal aponeurotica, which is a firm, thick fascial layer
between the scalp and the periosteum of the skull,
but is not firmly
adherent to the skull.
[2]
Bleeding can take place between the galeal aponeurotica
and the periosteum. Where this occurs it is called a subgaleal
haematoma.
[3]
Goosen, said so expressly. The judge
understood Dr Edeling to have conceded that J would not have
qualified for a CT scan and
this was not challenged either by
counsel or Dr Edeling.
[4]
R v Dhlumayo
1948
(2) SA 677
9A) at 705-706;
S
v Francis
1991 (1)
SACR 198
(A) at 204C-E.
[5]
ST v CT
[2018]
ZASCA 73
;
2018 (5) SA 479
(SCA) para 26.
[6]
Motor Vehicle Assurance Fund v
Kenny
1984 (4) SA
432
€ at 436H-I;
Stacey
v Kent
1995 (3) SA
344
(E) at 348-349;
Biddlecombe
v Road Accident Fund
[2011]
ZASCA 225
para 10;
Roux
v Hattingh
[2012]
ZASCA 57
;
2012 (4) SA 300
(SCA) paras 50-53.
[7]
The applicable principles were
summarised with reference to the leading cases in
Goliath
v MEC for Health, Eastern Cape
[2014]
ZASCA 182
;
2015 (2) SA 97
(SCA) para 8.
[8]
Michael and Another v Linksfield
Park Clinic (Pty) Ltd and Another
[2001]
ZASCA 12
;
2001 (3) SA 188
(SCA) paras 34-40. These principles were
approved by the Constitutional Court in
Oppelt
v Head, Department of Health Provincial Administration, Western Cape
[2015] ZACC 33
;
2016 (1) SA 325
(CC) para 36.
[9]
Medi-Clinic Ltd v Vermeulen
[2014] ZASCA 150
;
2015 (1) SA 241
(SCA) paras 4-8.
[10]
Stellenbosch Farmers’
Winery Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) para 5.
[11]
This analysis is not novel. See the
1933 lecture delivered to the Medico-Legal Society of Melbourne by
Justice Owen Dixon (as
he then was), reprinted in
Jesting
Pilate
18.
[12]
As was the evidence of an
experienced pilot concerning the effect of wind and waves on a ship
entering Cape Town harbour in
The
Owners of the MV ‘Banglar Mookh’ v Transnet Ltd
[2012]
ZASCA 57
;
2012 (4) SA 300
(SCA) para 51.
[13]
Coopers (South Africa) (Pty) Ltd
v Deutsche Gesellschaft für Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 371 A-H.
[14]
At 371F-H.
[15]
PriceWaterhouseCoopers Inc and
Others v National Potato Co-operative Ltd and Another
[2015]
ZASCA 2
;
[2015] 2 All SA 403
(SCA) para 99.
[16]
Widdrington
(Estate of) c. Wightman
,
2011 QCCS 1788
(CanLII) paras 326-328.
[17]
Filippo
Lembo, MV; MV Pasquale della Gatta: Imperial Marine Co v Deiulemar
Compagnia di Navigazione Spa
[2011]
ZASCA 131
;
2012 (1) SA 58
(SCA) para 24.
[18]
[1939] 3 All ER 722
(HL) at
733E-F, cited in
Motor
Vehicle Assurance Fund v Dubuzane
1984
(1) SA 700
(A) at 706B-D. See also
Great
River Shipping Inc v Sunnyface Marine Limited
1994
(1) SA 65
(C) at 75I-76C and particularly the statement that
‘evidence does not include contention, submission or
conjecture.’
[19]
This is required in the United
Kingdom and by Rule 26(2) of the Federal Rules of Civil Procedure.
[20]
Dr Goosen put it at 4 percent.
[21]
Burns and Others
‘
Scalp
Hematoma Characteristics Associated with Intracranial Injury in
Pediatric Minor Head Injury’
Society
Academic Emergency Medicine (2016). See para 6 of the second
judgment.
[22]
The passage was typed in the record
without any punctuation so punctuation has been inserted to assist
the reader. This highlights
a further difficulty faced by an
appellate court faced with the cold words of a record, namely that
the punctuation is that of
the typist who prepared the record and
experience of reading the words aloud demonstrates that this is
frequently inapt to convey
the cadence or nuance of the spoken word.
The trial judge is under no such disadvantage.
[23]
Shorter Oxford English Dictionary (6
ed, 2007) sv ‘refute’ meanings 2 and 3.
[24]
Topham v MEC for the Department
of Health, Mpumalanga
[2012]
ZASCA 65
, para 15.
[25]
This last answer is typed in the
record entirely without punctuation other than a solitary dash. One
merely has to try reading
it aloud to conclude that it cannot
properly represent the witness’s speech. The punctuation in
the text is consistent
with the spoken word. The passage could also
be punctuated in the following way without altering the meaning.
‘
The
reason, in my reasoning, is that if you have a force that is
sufficient to fracture a skull, then that same force is imparted
to
the scalp is it not? And in the same way as you would have a bump
where there is no underlying fracture, but swelling of the
scalp and
the structures therein, that could also cause a swelling. And I know
that – I was here yesterday and heard the
experts refute that
point. But, if you are asking me whether I will concede the fact
that there must have been a subgaleal haematoma,
at that time,
according to my notes there was not.’
[26]
In context this can only be the word
‘refute’.
[27]
Second judgment paras 127 and 128.
[28]
Meyers v MEC, Department of
Health, Eastern Cape
[2020]
ZASCA 3
;
2020 (3) SA 337
(SCA) para 69.
[29]
Meyers, ibid
para
67.
[30]
This submission is adopted in para
10 of the second judgment.
[31]
Charles Dickens
David
Copperfield
.
[32]
Dr Goosen said that he would
probably have scanned J, but that under the guidelines CT scanning
was not indicated. Dr Edeling
said that he would not have called for
a CT scan. He also said that a failure to call for an X-ray would
not have been a failure
of reasonable practice. In both instances
this was an abandonment of the opinions expressed in their expert
summaries.
[33]
PECARN is an acronym for the
Pediatric Emergency Care Applied Research Network. The relevant
article was published in 2009.
[34]
NICE is an acronym for the National
Institute for Health and Care Excellence in the United Kingdom. The
guidelines in the record
were the 2014 version, but it was accepted
that nothing material turned on this.
[35]
This is a manual issued by the
American College of Surgeons Committee on Trauma and its procedures
are taught to doctors, nurses
and emergency services personnel
internationally.
[36]
Goosen, Vol 3, p 490, line 13- 491,
line 23; Edeling p 946, lines 14-20.
[37]
Sara Schutzman MD, Richard G Bachur
MD, James F Willey II MD, MPH ‘
Minor
head trauma in infants and children: management
’
(2017).
[38]
Buthelezi v Ndaba
[2013]
ZASCA 72
;
2013 (5) SA 437
(SCA) para 15.
[39]
See
Oppelt
v Head, Department of Health Provincial Administration, Western Cape
[2015] ZACC 33;
2016 (1) SA 325 (CC).
[40]
S A Schutzman and D S. Greenes,
‘Pediatric Minor Head Trauma’ (2001)
Annals
of Emergency Medicine
.
[41]
E. C.M. Burns and Others ‘
Scalp
Hematoma Characteristics Associated with Intracranial Injury in
Pediatric Minor Head Injury’
Society
Academic Emergency Medicine (2016).
[42]
See para 30 of the first judgment.
She said: ‘I do believe that in order for me to have written
“bump” it may
have been solid.’
[43]
Compare
K
v MEC for the Department of Health,
Eastern
Cape
[2018]
ZAECGHC 21 para 54.
[44]
This puts paid to the speculation
expressed in para 50 of the first judgment, that if Dr Horn had been
aware at the time that
in 2018 she would have to give evidence about
these events, her note would have been fuller and included the
dimensions of the
bump, its consistency and details.
[45]
Topham v MEC for the Department
of Health, Mpumalanga
[2013]
ZASCA 65
para 23.
[46]
Topham v MEC for the Department
of Health, Mpumalanga
[2013]
ZASCA 65
para 20;
Oppelt
v Head, Department of Health Provincial Administration, Western Cape
[2015] ZACC 33;
2016 (1) SA 325 (CC).
[47]
Page 3 of the Guidelines for
Integrated Management of Head Injury at Red Cross Children’s
Hospital.
[48]
Under cross-examination, Mr M was
asked whether he had told Dr Horn about any symptoms that J had
complained about. His response
was as follows: ‘No, I told –
all I told her was, I took him in because his head was sore, I took
him in, and told
her that – what happened, what had happened,
and he knocked his head against the ground with the fall. And, ja,
that was
about it.’ In her evidence Dr Horn stated that pain
was not mentioned as a complaint but said she ‘could be wrong
in her memory’.
[49]
Western Cape Head Injury Guidelines
Handbook Tab 9 at 26.
[50]
Bolitho v City and Hackney Health
Authority
[1997]
UKHL 46
;
[1998] AC 232
at 241-242H.
[51]
M H. Osmond and Others ‘CATCH:
a clinical decision rule for the use of computed tomography in
children with minor head injury’
(2010)
Canadian
Medical Association Journal.
[52]
Meyers v MEC, Department of
Health, Eastern Cape
[2020]
ZASCA 3
;
2020 (3) SA 337
(SCA) para 69.
[53]
Meyers
v MEC, Department of Health, Eastern Cape
[2020]
ZASCA 3
;
2020 (3) SA 337
(SCA) at para 69.
[54]
Dr Goosen’s uncontested
evidence was that the Western Cape Guidelines Handbook took
precedence over the Red Cross Children’s
Hospital Guidelines
and that in the event of a contradiction, the Western Cape
Guidelines Handbook applied.
[55]
Para 29 of the Guideline Summary –
Head Injury – NCBI Bookshelf.
[56]
The court a quo stated as follows:
‘
The
Western Cape Head Injury Guidelines Handbook indicates that “low
risk” patients presenting in the emergency centre
with a GCS
score of 15/15 should be re-examined within an hour to establish the
need for imaging. Professor Taylor, as one of
the authors of the
handbook, explained that this provision, which he conceded might
perhaps have been better worded, was intended
to replicate the
content of paras 1.4.1.6 – 8 of the 2003 NICE Head Injury
guidelines. Those paragraphs provided that head
injury patients
found on initial triage to be at low risk for clinically important
brain injury should be re-assessed “within
a further hour by
an A&E clinician”. At the Red Cross Children’s
Hospital patients arriving in the trauma unit
are assessed for
triage purposes by experienced nursing staff. It follows, as Prof
Taylor confirmed, that J’s subsequent
assessment by the duty
registrar would have been the reassessment by an A&E clinician
within a further hour contemplated
in terms of para 1.4.1.8 of the
NICE guidelines. In any event, on a purely linguistic construction,
the mention of the period
“within a further hour” does
not imply that a further examination should take place after an
interval of an hour,
it connotes that an examination by a clinician
should happen within no more than one hour after the triage
assessment. . . .’
[57]
Tab 9 p 21 and Tab 9 p 32.
[58]
Para 82 of the first judgment.
[59]
See para 27 of the first judgment.
[60]
See para 61 of the first judgment.
[61]
See para 74 of the first judgment.
[62]
Meyers v MEC, Department of
Health, Eastern Cape
footnote
52 above.
[63]
The trauma unit was not at full
capacity and J could be kept there for observation.
[64]
Para 54 of the judgment of the court
a quo concludes as follows:
‘
.
. . These were signs that in my view should have concerned the
plaintiffs had they been advised to look out for drowsiness,
or
when they read the head injury form
.’
(Own emphasis.)
[65]
Under the heading ‘treatment’
the trauma register reflects an entry confirming that Panado was
prescribed for J. Dr
Horn’s signature appears at the end of
that entry.
[66]
Para 23 of the judgment of the court
a quo.
[67]
Footnote 37 above.
[68]
In the Schutzman article, under the
heading ‘Low risk’, reference is made to children with
minor head trauma ‘who
have undergone a complete evaluation
and are found to be low risk’. At the end of the paragraph the
reader is referred
to the ‘Evaluation’ section before
being referred to ‘Discharge’ criteria. On the next
page, under the
heading ‘Evaluation’, it is stated that
‘the evaluation of patients and children with minor head
trauma and
an approach to neuroimaging in these patients is provided
separately and the reader is referred to the ‘Evaluation
Section’.
However, the evaluation section was not attached to
the article.
[69]
The head injury glossary defines
‘baseline’ as ‘the initial set of measurements at
the beginning . . . with
which subsequent results are compared’.
[70]
Para 49 of the judgment of the court
a quo.
[71]
Para 88 of the judgment of the court
a quo.
[72]
See para 78 of the judgment of the
court a quo.
[73]
The cross-examination of Dr Goosen
by counsel for the respondent on this aspect went like this:
‘
Ms
Gassner: If we accept that he did not have amnesia, just make that
assumption at the moment, I would like you to make that
assumption
that he did not have amnesia . . . (intervention) . . .
Dr
Goosen: Yes, for the sake of argument.
Ms
Gassner: For the sake of argument, then in terms of the ATLS he
would not have been observed for several hours, is that correct?
Dr
Goosen: Exactly, but we have to assume, we have to assume that he
did not but we have to assume, we may assume that he did.
I don’t
know, it is not documented.
.
. .
Ms
Gassner: And J would not have fallen in the [PECARN] sample, is that
correct, if we accept that – if we accept that –
assume
that he did not have amnesia, he did [not] have a loss of
consciousness, he did not have disorientation. If we assume
that –
and I would like you to make that assumption – it’s for
the court to find whether that was so or not
– then he would
have not fallen within that sample?
Dr
Goosen: M’Lord, if we assume – and I previously stated
that I differ from that.’
[74]
See para 92 of the judgment of the
court a quo.
[75]
Van Wyk v Lewis
1924 AD 438
at 444.
[76]
Minister of Safety and Security
and others v Craig and others NNO
[2009]
ZASCA 97; 2011 (1) SACR 469 (SCA).
[77]
Minister of Safety and Security
and others v Craig and others NNO
[2009]
ZASCA 97; 2011 (1) SACR 469 (SCA).
[78]
R v Dhlumayo
1948
(2) SA 677
(A);
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd & another
2002 (4) SA 408
(SCA) para 24;
Louwrens
v Oldwage
2006 (2)
SA 161
(SCA);
[2006] 1 All SA 197
(SCA) para 14;
Minister
of Safety and Security and others v Craig and others NNO
[2009] ZASCA 97
;
2011 (1) SACR 469
(SCA) para 58. Compare
Topham
v MEC for the Department of Health, Mpumalanga
[2013] ZASCA 65
para 23.
[79]
See
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
[2001]
ZASCA 12
;
2001 (3) SA 188
(SCA);
Premier
of the Western Cape and Another v Loots NO
[2011]
ZASCA 32
; 2011 (2) SA (SCA) para 16-17;
Minister
of Finance and Others v Gore NO
[2006]
ZASCA 98
;
2007 (1) SA 111
(SCA) at para 33.