IN THE HIGH COURT OF SOUTH AFR ICA
[EASTERN CIRCUIT LOCAL DIVISON, WESTERN CAPE, GEORGE ]
Case no: 5560/2019
(H 82/2018)
In the matter between:
M… L…… Plaintiff
and
DR FRANCOIS VILJOEN VAN DER MERWE Defendant
JUDGMENT DELIVERED (VIA EMAIL) ON 7 MARCH 2025
___________________________________________________________________
SHER J:
1. The plaintiff claims damages from the defendant, a specialist gynaecologist and
obstetrician, following a surgical procedure which was performed
laparoscopically on 19 April 2016, during which cystic masses around her
ovaries were removed together with her right ovary. It is common cause that as
a consequence of the procedure she sustained a perforation in the dome of her
bladder, which was repaired surgically on 4 May 2016. How the perforation was
caused and whether it was ascribable to any negligence on the part of the
defendant are the issues that require determination. By agreement between the
parties the quantum of the claim stand s over for later determination.
The background
(i) The pleadings
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2. In her original particulars of claim the plaintiff alleged that the defendant had
breached an express alternatively implied , alternatively ‘incorporated’ (sic) term
of the agreement which the parties had entered into, in terms of which he
undertook to treat, advise and attend to her health care needs with that
standard of care and professional proficiency as would be expected of a
surgeon in his position.
3. In the alternative the plaintiff sued on the basis of a delictual claim founded on
an alleged ‘duty of care’ which the defendant had, in similar terms, which he
allegedly breached in that he had been negligent in one or more diverse ways,
in his use of a surgical instrument known as a Liga Sure Atlas, when separat ing
and diss ecting adhesions between loops of bowel and the plaintiff’s anterior
abdominal wall. In this regard it was alleged that the defendant failed to realise
that the instrument should not hav e been used in the ‘prevailing circumstances ’
and in the proximity of ‘structures’ that could be damaged by the heat generated
by it, and failed to foresee that its use could damage the plaintiff’s bladder. It
was further alleged that the defendant had been negligent in failing to remove
a loop of bowel which he had separated , and in failing to subsequently assess
the plaintiff and to act promptly , after she complained of severe pain on 3 May
2016 , and wrongly accept ed the diagnosis (made by a casualty officer on her
return admission to hospital ), that she was suffering from a spastic colon or
constipation. Consequently, due to the aforesaid negligent and wrongful
conduct of the defendant , the plaintiff had sustained a perforation of her bladder
which resulted in the leakage of urine into her abdominal cavity, which had to
be repaired surgically.
4. As a result of these facts and circumstances the plaintiff suffered pain and
discomfort and was unable to work for a period of 5 weeks and would be unable
to work for a further period of 3 months following fu ture treatment which she
require d; and therefore ha d a claim for general damages, past and future loss
of earnings , and past and future medical expenses.
5. Some 3 years after the issue of summons the plaintiff amended her particulars
of claim to allege that instead of a LigaSure Atlas the defendant had made use
of a LigaSure Maryland during the operation . In addition , the plaintiff amplified
the grounds of negligence she relied upon inter alia by averring that the
defendant had failed to identify or to ‘correctly’ identify the various
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structures/organs from which he attempted to separate the loop of bowel, had
failed to ensure that damage or injury was not caused to her bladder in the
‘vicinity ’ of where he used the LigaSure , and had failed to appreciate that using
it might cause an injury that would not be apparent or detectable and which
could result in avascular necrosis to the bladde r and a leak into the peritoneal
cavity.
6. The plaintiff further alleged that, given the presence of several adhesions in her
peritoneal cavity involving her bowel, bladder , vaginal vault and anterior
abdominal wall , the defendant had been negligent in failing to convert the
laparoscopy to a laparotomy (an open surgical procedure performed by way of
an incision into the abdomen ). Lastly , in her amended particulars of claim the
plaintiff delet ed her previous allegations that the defendant had acted
negligently by failing to remove the loop of bowel which he had separated ,
accepting the diagnosis which was made by the casualty officer on her
emergency admission on 3 May 2016, an d failing to act ‘promptly’ in respect
thereof.
(ii) The expert reports
7. The plaintiff engaged t wo experts to assist her: Dr Hendrik Cronje, a specialist
gynaecologist and obstetrician and retired professor and head of the
Department of Obstetrics and Gynaecology at the University of the Free State,
and Dr Bastia an Pienaar, a retired former senior lecturer and head of the
Colorectal, HP B and Laparoscopic Surgery Unit at the University of Pretoria.
The defendant in turn made use of the services of Dr Daniel F ölscher, a
practising specialist general surgeon with a particular interest in laparoscopic,
thoracic and hernia surgery , and Dr Peter De Jong , a practising specialist
obstetrician and uro -gynaecologist.
8. The plaintiff’s experts each filed 2 sets of expert reports: Dr Pienaar in March
2019 and July 2021 , and Prof Cronje in August 2019 and May 2022. In his first
report Prof Cronje pointed out that the laparoscopic removal of an ovary in a
patient who has had a previous hysterectomy is a high -risk operation for
complications because, due to the previous surgery the re are often adhesions
present in the pelvis , which are formed during the healing process and the
formation of scar tissue, as a result of which organs such as the bowel may
become stuck to other organs such as the bladder, vagina and /or the ovaries ,
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which are often tightly adherent to the pelvic sidewalls , and in separating these
adhesions an injury or damage to the organs involved is more likely during
laparoscopic surgery than during ‘open ’ surgery i.e. during a laparotomy.
9. Prof Cronje and Dr Pienaar were agreed that the removal of the plaintiff’s right
ovary was indicated , given the large cystic mass around it. In this regard it was
evident from the medical records which were introduced into evidence that in
April 2016 the plaintiff attended on a surgeon , Dr M Nel , with complaints of
chronic epigastric i.e. abdominal pain. An ultrasound scan which was performed
on 13 April 2016 reflected the presence of a large, complex cystic mass
measuring some 36 mm in diameter , and a smaller simple cyst of 15 mm,
around the right ovary , as well as a thin-walled , single cyst of 1 7 mm around
her left ovary , which required histological analysis, to rule out the presence of
cancer. The plaintiff was referred by Dr Nel to the defendant and he saw her on
the same day that the ultrasoun d was performed . In his report of his
consultation he noted that she was 52 years old at the time , had given birth
twice via c aesarean section and once by way of normal delivery , and some 10
years earlier had undergone a hysterectomy, at which time her uterus had been
removed but not her ovaries. The defendant advised that both ovaries and the
cysts surrounding them should be removed and sent for histological analysis ,
which advice the plaintiff accepted , and she was admitted by the defendant to
the Geneva Clinic in George , on 19 April 2016.
10. In their first reports Prof Cronje and Dr Pienaar noted that , from the file note
which the defendant made on the day of the operation it was apparent that he
had used a LigaSure device to dissect adhesions , and to separate organs which
were adhered to one another and the abdominal wall. Although he had not
specif ied the mode l he had used , from the photos which he produced (which
were taken during the procedure ) it seemed to them that it was a LigaSure
Atlas , a bipolar cautery instrument which they both considered to be wholly
inappropriate for the purpose .
11. Dr Pienaar was highly critical of the defendant’s use of such a device, which
has jaws which are 10 mm i.e. 1 cm wide, and which is used during laparoscopic
and abdominal surgery to cauterize and seal blood vessels of up to 7 mm in
diameter. Sealing occurs through thermal energy i.e. heat which is generated
in the jaws, which causes retrograde clotting and bonding of the tissue layers
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which have been gripped. Although the LigaSure Atlas does have a cutting
function as well, it is not designed for use as a general dissection device.
12. Thus, i n Dr Pienaar’s view , to dissect the adhesions which the defendant
encountered, particularly the one involving a loop of bowel that was adhered to
the abdominal wall, the defendant should have made use of ordinary scissors
or a cautery hook. Failing this, the use of a LigaSure Maryland, which ha d a
smaller, 7 mm curved jaw and built -in scissors and could be used for sharp
dissection in laparoscop ies or open surgery , would have been ‘more
appropriate’ , although extreme care should have been exercised when using it
to dissect ‘thin-walled structures ’. In such instances only its scissor function
should have been activated and not its cautery function .
13. Consequently, in his view the use of a LigaSure Atlas to dissect adhered small
bowel loops from the plaintiff’s anterior abdominal wall or bladder dome was
wrong . In addition, it was the view of Dr Pienaar that the defendant should not
have left the loop of bowel which he separated, in the abdominal cavity, as it
put the plaintiff at risk for an internal hernia in the future .
14. According to Prof Cronje, whilst the use of a LigaSure Atlas was ‘fine’ for
laparoscopic surgical procedures involving the removal of organs such as the
uterus and ‘uncomplicated’ ovaries, unlike the smaller LigaSure Maryland
(which is used both to dissect adhesions and seal blood vessels) it was not the
‘ideal ’ instrument to use in the case of the plaintiff, where the adhesions in her
abdominal cavity were close and tight , and there was minimal space between
them and the organs they were stuck to. Using a LigaSure Atlas in such
circumstances would result in thermal damage to adjacent organs, such as the
bladder.
15. In his second report Dr Pienaar noted that after they had receiv ed a set of
further photographs from the defendant it appeared that he had in fact made
use of a LigaSure Maryland and not a LigaSure Atlas. However, this did not
cause Dr Pienaar to alter his original opinion that the use of a heat -generating
sealing device such as a LigaSure , to dissect adhesions of loops of small bowel
from the plaintiff’s anterior abdominal wall, was inappropriate .
16. In his second report Prof Cronje pointed out that, unlike the LigaSure Atlas , the
LigaSure Maryland cauterise s small blood vessels within an adhesion whilst
simultaneously dissecting it. Contrary to Dr Pienaar, he was of the view that the
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defendant could use a LigaSure Maryland to separate the adhesion s between
the plaintiff’s bowel and bladder and was correct in making sure that, when
doing so he stayed away from the bowel. However, unless he was sure that in
doing so the bladder wall would not be damaged by the cauterisation process,
he should not have activated it.
17. In his view, f rom the defendant ’s operation note of 19 April 2016 it seemed that
in trying to avoid damaging the bowel , which was on one side of an adhesion
(a bowel perforation is a serious, potentially mortal complication as it results in
faecal contamination of the abdominal cavity), when dissecting it the defendant
had moved the LigaSure ‘too close ’ to the other side of it and, in doing so, had
‘pulled ’ the bladder wall into its jaws. As a result, the cauterisation which was
applied extended into the bladder wall. The resultant damage caused reduced
vascular perfusion in the blood supply to the area which, in turn, led to a
breakdown of tissue in the bladder wall , which resulted in avascular necrosis,
and a perforation in the bladder.
18. In addition, t he fact that according to the operati on note of Dr Nel , who repaired
the bladder, the perforation was 3 cm long , indicated that the defendant had
probably clamped and burnt the area concerned more than once. In this regard
it seems , as was later confirmed in his evidence, that he based this assumption
on the fact that the LigaSure Maryland has a thermal spread of about 4.5 -5mm
across its jaws and an additional lateral thermal spread of 1 -2 mm on either
side of them i.e. a thermal footprint of approximately 8 mm, in total .
19. As for the defendants ’ experts, in his first report of April 2019 Dr De Jong also
assumed that a LigaSure Atlas had been used, but in his view, its use was
‘entirely appropriate” for the type and scale of the operation , as its lateral
thermal spread was less than 1 mm . There was th erefore no reason why it could
not be used in bowel and bladder adhesion dissection. In his view, the use of
other bipolar cautery devices instead of a LigaSure would probably have
hastened the necrosis which occurred. In this regard he agreed that the injury
which plaintiff sustained to her bladder was caused by avascular necrosis ,
following a reduction in vascular perfusion (blood supply) to an adjacent area
on the bladder wall, after cautery was applied during an adhesiolysis.
20. In his second report , which was filed in November 2021 , Dr De Jong confirmed
(after consider ing the additional documentation which had been discovered by
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the defendant, including further photographic images taken during the
laparoscopy ), that the defendant had used a LigaSure Maryland and not a
LigaSure Atlas. He was nonetheless of the view that the surgical technique
which the defendant employed in using the LigaSure Maryland to dissect and
separate the adhesions which he encountered , had been appropriate and
reasonable. The adhesion between the small bowel and the bladder which he
dissected was clearly identifiable and visible , and i t contained a blood vessel
which required sealing to avoid bleeding after it was dissected . The safest
instrument to use for this purpose was the LigaSure Maryland, as it ha d less
thermal spread compared to most other cautery devices and was an instrument
that was designed , and which was widely used , laparoscopically , in abdominal
and pelvic procedures , for dissecti ng adhesions and sealing blood vessels. A
bipolar cautery device was not appropriate for such purposes as it ha d a larger
thermal footprint and would likely have caused greater thermal damage had it
been used. Likewise, mono - or unipolar device s also had a significant lateral
thermal spread and should consequently not be used to dissect adhesions
adherent to bowel. In fact, according to Dr De Jong such devices have not been
used in pelvic surgery for many years. Finally, Dr De Jong point ed out that
avascular necrosis was a complication that c ould occur in the best of hands,
notwithstanding the employment of the best possible surgical techniques.
21. In his report Dr Fölscher pointed out that, as a general surgeon with a special
interest in laparoscopic surgery, and as past President of the SA Society for
Endoscopic Surgery , he had been involved in the development of training
courses in advanced laparoscopic surgery for the SA Society of Obstetricians
and Gynaecologists , and had presented such courses for the Royal College of
Surgeons in the UK . He had performed many laparoscopic surgeries which
required adhesiolysis in the pelvis and the abdomen.
22. Dr Fölscher endorsed the views expressed by Dr De Jong and agreed with his
opinion that the techniques which the defendant employed whilst using the
LigaSure Maryland were appropriate and reasonable. He also agreed with Dr
De Jong’s view that though there were several adhesions in the plaintiff’s
abdominal cavity, there was no need to convert the laparoscopy to a n open
procedure i.e. a laparotomy . He also supported the view expressed by Dr D e
Jong that adhesiolysis in the abdominal cavity during a laparotom y can be more
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difficult due to decreased vis ibility (when compared with the detailed, close -up
visibility a surgeon has via a laparoscope during a laproscopy ) and is more risky
for the patient as it can result in increased blood loss and a higher incidence of
repeat adhesions , wound infection s and incisional hernias. Dr Fölscher also
endorsed Dr De Jong’s opinion in relation to the use of other cautery devices,
all of which in his view involved a greater risk of thermal damage.
(iii) The joint minutes
23. Three sets of joint minutes of the experts were filed : the first, dated 23 October
2019, was a minute of a teleconference which was held between Prof Cronje
and Dr De Jong, the second was a minute of the meeting which was held on 19
March 2020 between both of the plaintiff’s experts and Dr De Jong, and the
third, which was styled a ‘consensus document’ , dated 28 July 2022, was a
minute of the discussions which w ere held by all 4 experts , between 25 and 27
July 2022.
24. The first minute recorded that the only point of dissent between Prof Cronje and
Dr De Jong (and Prof Cronje ’s ‘chief point of concern’ ) was the use of a 10 mm
LigaSure (i.e. a LigaSure Atlas ), during the operation, which Prof Cronje felt
was not appropriate as, according to the literature it had a total thermal ‘spread ’
of 11.35 mm , and he was of the view that the use of a ‘5 mm LigaSure ’ (i.e. a
LigaSure Maryland ) would have been safer , as its thermal damage footprint
was approximately 5.85 mm.
25. The second minute contained a more extensive and detailed note of various
points which were covered by the plaintiff’s experts and Dr De Jong , who were
all agreed that, given that the leakage of urine from the bladder into the
abdominal cavity most likely started a day or two before the plaintiff’s re-
admission on 3 May 2016 , the perforation of her bladder must have occurred
approximately 11 days after the laparoscopy , as a result of avascular necrosis
in an area on the dome of the bladder. However, n otwith standing that the
experts were agreed that the perforation occurred because of avascular
necrosis (and presumably because of the ir continued assumption that a
LigaSure Atlas was used ), the plaintiff’s experts expressed the view that it would
have been ‘relatively easy’ for the defendant to pull part of the bladder into its
jaws, thereby causing the damage which occurred, whilst Dr De Jong
disagreed, pointing out that this was inconsistent with the conclusion t hat the
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bladder damage occurred 11 days post-surgery , due to avascular necrosis. Dr
De Jong pointed out that if the bladder wall been pulled into the jaws of the
LigaSure bladder damage and leakage would have been ‘immediate’.
26. The third joint minute was compiled by the 4 experts to address , in point form,
each of the grounds of negligence set out in the plaintiff’s amended particulars
of claim. The experts were by then all in agreement that a LigaSure Maryland
could be used to separate and dissect the adhesions in the abdominal cavity .
However, t he plaintiff’s experts still maintained that it was not used
appropriately and, according to Prof Cronje, since the perforation in the bladder
was 3 cm i.e. ‘ quite large ’, a piece of the bladder must have been pulled into
the LigaSure ’s jaws, whilst Dr Pienaar was of the view that , given the size of
the perforation the defendant must have applied the device more than once
against the bladder, or the bladder was ‘partially pulled’ into its jaws.
The evidence
27. A total of 7 witnesses testified: 4 for the plaintiff and 3 for the defendant . Prior
to the commencement of evidence the plaintiff handed in 2 trial bundles that
were to be referred to by the parties. Bundle 1 (exhibit A) contained copies of
the curricula vitae and reports of the experts and the joint minutes which they
compiled, together with various documents that were drafted by the defendant.
These include d 1) the letter he sent to the referring doctor (Dr Nel ) on 13 April
2016 , in which he set out a note of his consultation with the plaintiff and his
advices to her 2) his file note dated 19 April 2016 which set out his report of
what transpired during the operation which he performed on the plaintiff (a copy
which was also bound in the second bundle as exhibit F), and 3) a second file
note dated 5 May 2016 in which he set out a further report of the operation and
of the events which transpired thereafter, including the plaintiff’s admission on
3 May 2016 and the laparoscopic procedure which was performed on her by Dr
Nel, which he attended.
28. The second bundle (which was marked exhibit B) contained copies of a series
of 31 photographs which were discovered by the defendant , in batches, in
November 2018 and October -November 2020 , to which w ere added a series of
sketches which Prof Cronje prepared for use in evidence. These included 1)
sketches of transverse views of a ‘normal ’ i.e. un-operated anatomy of a female
pelvis and the ‘distorted’ anatomy of one after abdominal and pelvic surgery
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involving so -called caesarean sections (or, as it is more properly known ,
Pfannenstiel incisions ), and a hysterectomy in which the uterus has been
removed (exhibits C1 -C2, a further marked set of which was also bound into
bundle 2 as exhibits H1 -H2); and 2) sketches depicting the position of the
adhesion between a loop of small bowel and the a nterior abdominal
wall/peritoneum, which the defendant separated and dissected (exhibits D1, D2
and E2 ) and 3) a sketch depicting the position of the incisions which were made
in the plaintiff’s abdomen for the placement of ports for the laparoscope and
working instruments (exhibit E 1). Finally, a separate copy of the photograph
exhibit B14, as marked during evidence to show the presence of the blood
vessel which the defendant l igated when performing the adhesiolysis to
separate the loop of small bowel from the anterior abdominal wall, was also
bound into the bundle (as exhibit G).
(i) The plaintiff and her husband
29. In her evidence the plaintiff confirmed the details of her medical history as
recorded by the defendant . At the time she consulted him she was working as
a teacher at a school in George. The defendant informed her that she had cysts
on both ovaries which would have to be removed and sent for histological
analysis. As she only had a limited amount of leave, she elected to have the
procedure done on 19 April 2016 so that she could recuperate during the school
holiday. After the operation the defendant did not come to examine or speak to
her while she was in the ward , and did not inform her what he had ‘found out’
during the operation. He als o did not phone her to find out how she was doing
while she was recuperating at home .
30. At the outset of her evidence in chief she said that she did not start to ‘feel bad ’
immediately after the operation and was only troubled by pain she had in her
left shoulder, which went away after a day or so. When she got home from the
hospital she took to her bed to recuperate . But, c ontrary to her earlier evidence,
she then said that she did not feel at all well after she got home : she had ‘severe’
abdominal pain and ‘battled ’ to urinate, and she started to vomit.
31. Her symptoms ‘increased’ , and f rom the Saturday (30 April) she was in severe
pain. She returned to work on the Tuesday (3 May). While she was in her
classroom teaching, she collapsed and was taken to hospital by ambulance. Dr
Nel later came to inform her that an ultrasound had revealed the presence of
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fluid in her abdomen, and he needed to assess what was causing it. She was
booked in for a laparoscopy the following morning , 4 May 2016 . While she was
lying on the trolley outside the theatre the defendant arrived. She told him that
she did not want him there, and he left. While she was recuperating in the ward ,
after the operation , the defendant came to her and told that he was sorry, as he
might have injured her bladder during the operation he performed on her.
32. In cross -examination it was pointed out to the plaintiff that, contrary to her
evidence on this aspect, according to the hospital ’s records she had
complained of experiencing acute and severe pain on the morning she was
admitted, which she had said had started the previous night. In response s he
maintained that from the time she had been discharged from the hospital she
had not felt well and had experienced pain, which had increased,
33. It was also put to her that, contrary to her evidence the defendant had seen her
while she was still in hospital, prior to her discharge , and had spoken to her. He
had noted from the medical records that she had passed urine and had
consequently directed that she be discharged. Contrary to her earlier evidence,
she then conceded that this may have happened but still denied that the
defendant had also phoned her a few days later, while she was convalescing
at home.
34. In his evidence the plaintiff’s husband said that whilst he was waiting outside
theatre on 4 May 2016 the defendant emerged and took him to his consulting
room, where he told him that the operation which he had performed on the
plaintiff had been ‘very difficult’ as she had a lot of adhesions, and he might
have damaged her bl adder, and he apologised for this.
(ii) The defendant’s file notes
35. Before setting out a synopsis of the evidence which was tendered by the
experts and the defendant, it will be useful to set out what the defendant said
in his file notes of 19 April and 5 May 2016, which were accepted into evidence,
insofar as this pertains to his conduct during the operation , and formed the
context and basis against which the expert s expressed their respective
opinions. In doing so I have translated excerpts of his original (typed) notes,
which were written in Afrikaans , into English .
36. In his principal file note of the operation, dated 19 April 2016 (exhibit F) , the
defendant recorded that after the plaintiff was sedated and her bladder emptied
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she was placed in a semi -lithotomic position (which was also referred to by the
experts as the Trendelenb urg position), a position in which the operating table
is inclined downwards so that the patient ’s legs and bent knees are raised up,
higher than her head . The defendant then proceeded to make a sub -umbilical
incision into her abdomen, into which a 10 mm wide trocar ( a sharp -pointed
cannula or tube) was inserted, into which the laparoscope was placed. The
plaintiff’s abdomen was then inflated with gas , to improve visibility. (As I
understand the evidence he gave on this , when performing the laparoscopy the
defendant took up a position where his view was at a downward angle of
approximately 30°, towards the plaintiff’s feet ).
37. From his position he was able to see a large cystic structure around the right
ovary , which was tightly adhered to the right pelvic wall. There was a loop of
small bowel which was stuck to the anterior abdominal wall, because of the
previous Pfannenstiel incisions. The defendant was unable to insert a second
trocar supra -pubically, because of the adhesions present in the abdominal
cavity , which were in the way, so he first inserted a 5 mm trocar into the plaintiff’s
right flank , to serve as a port for the working instruments. He then proceeded
to use a LigaSure Maryland and scissors to dislodge the loop of small bowel
which was adhered to the plaintiff’s anterior abdominal wall. With a combination
of dissection (cutting ) and cauterizing he was able to dissect the adhesion and
to mobilise i.e. free the loop of bowel , from the anterior abdominal wall. In doing
so he was satisfied that he had not injured the bowel. He was then able to insert
a 10 mm trocar sup ra-pubic ally, into which he could insert a grasper (an
instrument used to grasp and pull), and was able to inspect the left ovary . There
was a cystic structure attached to the fallopian tube and the left ovary was
adhered to the pelvic wall, but it had a normal appearance.
38. He then returned to the right ovary. Using the LigaSure he was able to open the
‘broad ’ (sic) ligament and to cauterise and dissect another pelvic ligament. He
opened the peritoneum (a thin lining or membrane in the abdomen which covers
many internal organs ) to check that the ureter (the tube through which urine is
conveyed from the kidney to the bladder) was mobile i.e. not adhered, before
proceeding to free the right ovary. As he was doing so the cyst round it ruptured.
He was able to remove the right ovary. T he raw area where it was removed was
rinsed out. There was no bleeding from the site wher e the ovary was removed .
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39. He then moved across to the left ovary . There was a nother loop of small bowel
which was adhered to the anterior abdominal wall, just under the umbilicus ,
which he left , as it was not in his way. The descending colon/caecum was
adhered to the left ovary and the cystic structure around it. With a combination
of sharp dissection and the LigaSure he was able to free the colon. In doing so
he was likewise satisfied that it was not injured. There was no bleeding in the
area where the colon had been mobilised. He then proceeded to free and
remove the cystic structure around the left ovary. After considering its position
and normal appearance he decided that the ovary should be left in place .
40. After checking the raw areas again for bleeding (there was none) he powdered
them to achieve h aemostasis i.e. to arrest any possible bleeding. The plaintiff’s
bowel was then deflated, and the trocar s were removed from her abdomen . Her
bladder was emptied of urine, which was ‘clear ’ (i.e. there were no traces of
blood in it). The ports in the plaintiff’s flanks were then sutured , and after she
regained consciousness, she was returned to the ward and discharged the
following day.
41. In his supplementary report of the operation (in his file note of 5 May 2016) the
defendant said that the re were adhesions of the small bowel and the anterior
abdominal wall a s well as on the vaginal vault, at the bladder (‘by die blaas’).
He was able to remove the loop of small bowel from the vagina l vault by a
combination of dissection (‘knip’) and the LigaSure. In doing so he was
concerned about a possible injury to the bowel as well as to the bladder, as they
were tightly adhered to one another (‘heg aan m ekaar verkleef’). After he
removed the loop of small bowel he was satisfied that it had not been injured
and that the bladder was still ‘intact ’, and then proceeded to remove the (right)
ovary.
42. He saw the plaintiff the morning after the operation . As she was doing well and
had passed urine she was discharged. He phoned her 2 days later while she
was at home, and she informed him that that she was doing well and was
mobile , and her bladder and bowel were functioning well. On 3 May 2016 he
was contacted by Dr Isabel Van der Merwe from the Emergency Unit who
informed him that the plaintiff had been re-admitted with symptoms of
abdominal pain , which were ascribed to a spastic colon and constipation. Blood
tests were normal, and her urine was clear. When the defendant later enquired,
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he was informed by the Emergency Unit that the plaintiff had been discharged.
The following morning however he was contacted by Dr Nel who informed him
that after seeing her the previous day he had directed that the plaintiff should
be kept overnight and an ultrasound scan be done, which revealed the
presence of a large volume of clear fluid in her abdomen. The defendant
discuss ed the ultrasound report with the radiologist. Although t he scan showed
the presence of a large volume of fluid in the abdominal ca vity, the kidneys
appear ed to be normal and there was urine in the bladder. The defendant was
consequently concerned that there was possibly an injury to the ureter. After
discussing the matter with Dr Nel they decided that a diagnostic laparoscopy
should be performed that afternoon.
43. After the plaintiff was taken to theatre and sedated, a catheter was inserted into
her bladder and urine drained from it. On insertion of the laparoscope i t was
evident that there was a large quantity of fluid in her abdominal cavity and there
was a ‘defect’ (‘defe k’) in the dome of the bladder, which was not ‘completely
perforated ’ (‘heeltemaal geperforeer ’), from which it was apparent , after
mobilization, that urine had leaked into the abdominal cavity . According to the
defendant the perforation was at ‘exactly the same place’ where he had freed
the loop of small bowel. He concluded that it was likely that a superficial injury
had occurred during the procedure, which had deteriorated with the filling of the
bladder and had eventually ruptured.
44. Dr Nel then proceeded to suture the bladder perforation. A suction drain was
placed in the abdominal cavity and a catheter was inserted into the bladder ,
which was to remain in situ for 10 days post -op. Upon completion of the
procedure the defendant found the plaintiff’s husband outside the theatre and
took him to his consulting room where he explained what had happened. The
following day the defendant also discussed the matter with the plaintiff.
45. What happened was an ‘unfortunate ’ complication , which occurred because the
defendant was ‘scared ’ he would damage the bowel and thus most likely did
the opposite , by causing a superficial injury to the bladder which, with filling,
eventually ruptured.
46. I now turn to the evidence of the experts and the defendant.
(iii) Professor Cronje
15
47. It was evident, from Prof Cronje ’s impressive curriculum vitae , that he was a
highly accomplished academic , specialist gynaecologist and obstetrician. He
was the single, principal or co -author of some 48 articles in the field of obstetrics
and gynaecology, published between 1977 and 2011 , and co-author of several
textbooks. He was the first author of some 116 scientific presentations which
were delivered between 1971 and 2016. He performed the first vaginal
hysteroscopy in SA in 1977 and thousands of gynaecological surgical
procedures . It was put to him that the diagnostic laparoscopic procedures which
he performed in the 1970s -1980s were very different from those which are
performed today, which are primarily used for surgical p urposes . Although he
conceded this and indicated that he had not do ne much laparoscopic work
since 2012 , he said that he still regarded himself as experienced and
knowledgeable in the field. He pointed out that although he had retired as an
academic in 2011, he had continued to work thereafter in the gynaecological
field, doing extensive prolapse surgery which was frequently performed in
conjunction with laparoscopi c procedures . Over his lifetime h e had participated
in and witnessed many laparoscopi es. He had personally used LigaSure
devices on numerous occasions during la paroscopies and open surgical
procedures and was very familiar with the m.
48. In commenting on the defendant’s conduct Prof Cronje pointed out that when
the defendant perform ed the first adhesiolysis (which was necessary for him to
remove the plaintiff’s right ovary ), he had only been able to use a LigaSure and
scissors to free the loop of small bowel , and could not use a grasp er, as there
were only two ports in place, a 10 mm one just below the plaintiff’s umbilicus,
through which the laparoscope was inserted and a second, 5 mm one in her
right flank, through which the LigaSure was inserted. Because of the congestion
in the abdominal cavity due to the adhesions around the right ovary the
defendant was unable to insert a second, 10 mm trocar supra-pubically , through
which a grasper could be used , before he separated the adhered loop of bowel.
Prof Cronje said that i f the loop could have been pulled away with a grasper it
would have been much easier for the LigaSure to have been applied in such a
manner that it was not ‘tightly’ up against the peritoneum , the thin (less than 1
mm) membrane which lines the inner wall of the abdominal and pelvic cavities.
16
49. It was his view that, when trying to stay away from the bowel while carrying out
this adhesiolysis , and in attempting to avoid damaging it, the defendant must
have applied the LigaSure against the peritoneum . If the adhesion was short
‘one could imagine’ that , when dissecting it, it ‘might almost have been
necessary ’ for the defendant to push the LigaSure against the peritoneum. If he
had then closed its jaws, a small part of the bladder which was behind it, could
have been pulled into them , and it would thereby have been subject ed to
thermal damage when the cauter y function was a ctivated , which would have
extended ‘far enough’ that it result ed in a perforation at a later stage. This was
because the tissue damage would have cut off or diminish ed the blood supply
to the area and it would gradually have died i.e. it would have suffer ed avascular
necrosis. In this regard Prof Cronje referred to a medical study which found that
thermal damage c an be sustained even beyond the 2 mm lateral thermal
spread on either side of a LigaSure Maryland’s jaws, up to a distance as far as
9 mm away from it . In his view this is what transpired in this matter. He said that
if one were to have regard for photograph B23 it was evident that the LigaSure
must have been applied tightly against the peritoneum during the performance
of th e adhesiolysis depicted on the photograph , as there was a grey ish-
coloured , blanched area visible, which indicate d that there was thermal damage
to the tissue .
50. As the defendant had made no mention of the bladder in his first (principal )
operation report of 19 April 2016 and only spoke of the bowel, he had not
considered the possibility of the bladder being on the other side of the
abdominal wall, behind the peritoneum. Had the defendant thought about the
possibility of the bladder being in that position, when performing the
adhesiolysis depicted on photo B23, he would have taken measures to prevent
damage to it. According to the defendant ’s second, supplementary operation
note of 5 May 2016, the perforation which later manifested itself was exactly
behind the area of thermal d amage which was visible on photo B23.
51. Several difficulties arise from this evidence. If one considers what the defendant
said in his supplementary operation note, it is evident ( from the second
paragraph thereof) that it dealt with a single adhesiolysis only i.e. the first one
which he performed to free the right ovary , just before he removed it. And this
is inconsistent with Prof Cronje’s evidence, which became common cause, that
17
the ovary which is visible on the adhesiolysis which is depicted on photograph
B23, is the left one, not the right one. It also was common cause that the bundle
of photographs (exhibits B1 -B31) show that 2 adhesiolyses must have been
performed: the first one at ph otograph B14 and the second at B23. It was further
common cause that the adhesiolysis which the defendant performed at
photograph B23 followed the earlier one which he performed at photograph
B14. Thus, the adhesiolysis which the defendant referred to in his
supplementary operation note must have been the earlier one, at B14, not the
one at B23.
52. Prof Cronje confirmed that the sketches which he had prepared (exhibits D1 -
D2 and E2) were aimed at depict ing the adhesiolysis which the defendant
performed at photo B23 , because, in his opinion, it was the one which resulted
in the damage to the plaintiff ’s bladder . In his view, given the number of
photographs that were taken in respect of this adhesiolysis, the defendant
‘obviously’ wanted to show the ‘safety’ of the separation he performed during it,
and this was the ‘important ’ adhesiolysis he dealt with , and not the one that took
place at photo graph B14. According to Prof Cronje , ‘everything’ in the
defendant’s operation report of 19 April 2016 ‘fitted in’ with what was shown on
photograph B 23, and he accordingly disputed the defendant’s contention that,
as it was put to him, the damage must have been caused while the adhesiolysis
which is depicted at photograph B14 was being performed , and not during the
adhesiolysis at B23 , and that it was ‘anatomically impossible’ for the damage to
the dome of the bladder to have occurred during the adhesiolysis at B23 . In
answering questions on this aspect during cross -examination Prof Cronje
became agitated and said that we were ‘wasting time ’ as the ‘essence ’ of the
case perta ined to the adhesiolysis which was shown at photograph B23 .
53. In substantiating this he claimed that there were certain aspects of the
defendant’s case that were not ‘logical ’. Thus, whereas the principal operation
report spoke of a second adhesion , between the large bowel/colon and the left
ovary , which the defendant had l igated, on photograph B23 it seemed as if the
ovary was still attached to what appear ed to be the small bowel, not the large
one, and the pelvic sidewall. Of course, the photograph depicts but one moment
in time in the process pertaining to this adhesiolysis. However, c ontrary to this
evidence, when considering photograph B25 a short while later (which was part
18
of the sequence of photographs depicting the adhesiolysis which is shown at
photograph B23) , Prof Cronje said that the yellowish structure which was visible
on the right -hand side of the photograph look ed like the large , and not the small ,
bowel .
54. During his cross -examination it was pointed out that in his evidence in chief he
had seemed to suggest that the damage to the plaintiff’s bladder had been
occasioned at the outset of the procedure, when the defendant had first
obtained access to the perito neal cavity, and had to free a loop of small bowel
using the LigaSure and scissors only, as he did not have a suprapubic port in
place through which he could insert a grasper, in order that he could get to the
right ovary ; whereas he now seemed to contend that the damage occurred
when the adhesiolysis in respect of the left ovary was performed . In response
he conceded that whereas the previous day he had thought that the place
where the bladder was injured was on the right -hand side, he now thought that
it was ‘more to the left side ’, in the vicinity of the left ovary. Howev er,
notwithstanding his repeated assertion that the damage must have been
sustained during the adhesiolysis depicted on B23, he then conceded it was
possible that the damage could have occurred during the adhesiolysis shown
on photograph B14. He said that, e ither way , he was of the view that the
LigaSure was applied to o closely or tightly to the peritoneum, and this had
resulted in the bladder damage.
55. He was asked why he was of the view that the bladder was behind the
grey/blanched area which is visible on photograph B23. In response he said
this was because photograph B23 was the only photo which showed the
presence of thermal damage i.e. a ‘burning effect ’ on the pelvic wall , and that
was why he concluded that the bladder must have been behind it , as it
sustained a perforation. It was put to him that, according to the defendant , it
was not the bladder but the vagina l vault which lay behind the visible cautery
marks. He responded that the contention did not make sense to him as it was
common cause that damage was sustained to the dome of the bladder, which
was ‘some distance away’ (sic) from the vagina , and there was no evidence of
any thermal damage having been done to the vagina.
56. It was further put to Prof Cronje that, in performing the ligation during the
adhesiolysis at B14 , the defendant had not placed the LigaSure up against the
19
peritoneum and the bladder wall behind it, nor had he pulled part of the bladder
into its jaws. To avoid damaging the bowel he had placed the LigaSure closer
to the bladder side than towards the bowel side of the adhesion, when he
dissected it.
57. As for whether the defendant should have converted the laparoscopy to a
laparotomy Prof Cronje conceded that, although in his view the plaintiff
presented with a ‘difficult’ pelvis as there were a number of adhesions in it which
involved several structures/organs including the bowel, bladder and ovaries,
this was a decision which the defendant was required to make at the time , which
depended not only on the number and extent of the adhesions present in the
abdominal cavity, but also the visibility which the defendant had
intraperitoneally, and his ability and experience . Consequently Prof Cronje
conceded that it could not be said that the defendant was obliged to convert the
procedure to a laparotomy, a nd it depended on the circumstances which he
faced at the time.
58. As far as the use of alternative cautery and dissecting devices was concerned
Prof Cronje agreed with the view expressed by Dr Fölscher that a LigaSure
Maryland is often the preferred option , as its use results in less blood loss and
a more controlled application of thermal energy and (save for bipolar scissors
which Prof Cronje thought had a lateral thermal spread of only 1mm) its lateral
spread is the lowest of the various alternative power ed cautery devices
available.
59. In his view the adhesion visible on photograph B14 could have been dissected
with ordinary scissors instead of a LigaSure, as the re would have been little
bleeding, and it could have been cauterised with bipolar scissors .
60. Finally, insofar as his opinion was based on the perforation being a large one
of 3cm, it was put to him that the defendant, who was present when Dr Nel
performed the bladder repair, would testify that this was the size of the ‘defect’
or perforation after Dr Nel had pushed against it with cap of the suction and it
had opened up, and was then debrided and cleaned for suturing. When it was
first observed via the laparoscope it presented as a tiny , discoloured scab -like
spot through which urine was seeping into the abdomen. In response Prof
Cronje said that surgeons usually note d the size of a defect before they repair ed
20
it, but he conceded that he could not say that this is what Dr Nel did in his note
of the operation .
(iv) Dr Pienaar
61. Dr Pienaar was formerly a senior lecturer and principal specialist at , and Head
of, the Colorectal, HPB and Laparoscopic surgical unit of the University of
Pretoria, from 2010 to 2017, when he retired. He has extensive experience in
laparoscopic procedures, initially and primarily pertaining to the liver, gall
bladder , hernia and related surgery. He has worked with a LigaSure device on
numerous occasions. He confirmed the contents of his reports. In his first report
he thought that the defendant had used a LigaSure Atlas. After further photos
were produced by the defendant, he corrected this in his second report to reflect
that use had been made of a LigaSure Maryland.
62. In his view a surgeon using a LigaSure Maryland should not activate the
coagulant/c auterising function thereof when operating in the abdominal cavity
and dissecting adhesions unless he/she knows what structures or organs may
be impacted by it. The adhesion at photograph B14 was flimsy and very thin
and there was no blood vessel in it of significance. The defendant could
accordingly have cut it with a scissors or torn it off with a grasper. Two types of
scissors would be available: standard laparoscopic scis sors or monopolar
cautery scissors. If a grasper had been used to dissect the adhesion any
bleeding which followed would have been insignificant. If it was a n issue a
monopolar cautery instrument could have been used to seal the area. It was
not necessary for the defendant to use a LigaSure on that adhesion, or if he did
so, to use its cautery function. The LigaSure could simply have been used to
crush or cut the adhesion, without activating its cautery function, in which case
there would not have been a th ermal injury.
63. According to him the defendant had put up conflicting versions. In his first report
of 19 April 2016 he made no mention of the bladder, only stating that he was
satisfied that there was no injury to the bowel , and he simply said that the
adhesion was attached to the abdominal wall. In contrast to this in his second
report of 5 May 2016 he referred to an adhesion to the anterior abdominal wall
and the vaginal vault, at the bladder. He also said he was concerned about both
a possible bowel and a bladder injur y, as they were ‘closely ’ adhered to one
another. However, from a cons ideration of the adhesion on photograph B14 it
21
was evident that they were not closely adhered to one another. He was unable
to say how long the adhesion at photograph B14 was without an instrument in
the photograph which could serve as a reference.
64. It could not be said that a complication had occurred when an instrument such
as a LigaSure was used ‘off -spec’. In his view, the only possible way the injury
would have been caused was if the LigaSure was applied to, or against , the
plaintiff ’s bladder. He did not think that thermal energy could travel into the
plaintiff’s bladder wall without visible thermal damage being present to the outer
overlying layer of tissue i.e. the peritoneum, which covered it. Thus, i f thermal
injury had been caused during the dissection at B14 one would have expect ed
to see some visible thermal damage, such as that which is visible on the
dissection on photograph B23. Given that the perforation which Dr Nel repaired
was 3cm long one would expect there to have been visible damage to the
anterior abdominal wall. As the view one obtains from the laparoscope can be
turned around, and it was not evident what the orientation of photograph B23
was, the ovary that is visible in the photograph could be the right one. In the
circumstances the bladder dome could have been behind the area of visible
thermal damage which can be seen in the photograph, and he could not agree
that it was anatomicall y impossible for the injury to have been sustained when
the adhesiolysis at B23 was performed. According to him it was not possible to
say what organ was where, on the photograph.
65. During cross -examination he conceded that the ‘cookie cut’ which is visible on
the right -hand side of the image in photograph B23 show ed its orientation and
it was accordingly not upside down , and thus the ovary which is visible in it was
the left one. Consequently, h e agreed that the adhesiolysis on photograph B23
was deep down in the abdominal cavity in the area of the vaginal vault and the
bottom of the bladder , and not where the dome or top of the bladder was.
However, w hen it was again put to him that it was therefore anatomically
impossible for the injury to have been sustained during the adhesiolysis on B23
he did not answer the question and deflected it, asking whether the injury was
‘really’ at the top of the bladder or was not ‘somewhere in th e middle’ of the
bladder wall ‘towards ’ the top.
66. Contrary to his report , he said that it was not unreasonable for the defendant to
have used a LigaSure Maryland as it was one of the options that were available
22
to him, and he also had no difficulty with the defendant’s decision to proceed
laparoscopically and not to convert the procedure to a laparotomy. He only took
issue with how the LIga Sure was used. He said he would have dissected the
adhesion at B14 by placing the LigaSure in the middle of it, rather than at a
point closer to the b ladder side of it.
67. In response to the contention that the injury was caused when the thermal
energy which was transferred into the bladder wall resulted in its
devascularization and avascular necrosis setting in, he said he was of the view
that it was extremely unlikely that necrosis would have occurred if the LigaSure,
which only had a 2mm lateral thermal spread , was applied only to the adhesion ,
and consequently he and Prof Cronje were of the view that the bladder wall
must have been involved.
68. He disputed that if the LigaSure was placed against the bladder wall the
perforation and leakage would have manifested almost immediately, as the
plaintiff was catheterized. He conceded however that once the catheter was
removed and she was discharged, the pressure in her bladder would have built
up. When asked if he therefore contended that there must have been an
immediate perforation during the procedure he said he did not know. In his view
the initial damage may have only been to the outer lining of the bladder wall.
69. That then as far as the evidence which was tendered by the plaintiff.
(v) The defendant
70. The defendant obtained his MBChB degree from the University of Stellenbosch
in 1985. In 1993 he obtained his master’s in medicine and was admitted to the
SA College of Obstetricians & Gynaecologists. In 1995 he went to work as a
private gynaecologist in Fort St Johns in British Columbia, Canada , for 2 years .
71. He first perform ed laparoscopic surgery for diagnostic purposes, whilst he was
a registrar in SA . The hospital he worked at in British Columbia had just
acquired a set of laparoscopic facilities , including a camera with monitors. By
today’s standards these facilities were basic . He was not well versed in the use
of laparoscop ic procedures at the time but receiv ed training . On his return to
South Africa in 1997 he started practising in George where he has been working
for the last 2 7 years. He continued doing laparoscopic surgery in George and
was performing an average of 2 to 4 laparoscopic procedures per week.
23
Approximately 25 -30% of the total surgery he perform ed was done
laparoscopically.
72. Initially, cautery devices were mo nopolar. This was followed by the
development of bipolar devices and approximately 12 -15 years ago , the
LigaSure Atlas. The LigaSure Maryland became available approximately 5
years ago . He was one of the first surgeons in George to use it. He use d it
regularly for his laparoscopic procedures.
73. He confirmed the contents of his various file notes . He saw the plaintiff on 13
April 2016 after she had been referred to him by Dr Nel . She presented with
chronic, long -standing epigastric pain. A scan revealed the presence of an
ovoid -shape d cyst on the left ovary and a large, complex cystic structure on the
right ovary as well as a smaller one. Given the plaintiff’s age and previous
history it was necessary for the cysts to be removed and investigated to exclude
ovarian cancer, which is a rapid -growing cancer. The plaintiff agreed that the
procedure should be done a s soon as possible, and she was admi tted on 19
April 2016.
74. After she had been sedated and placed in a lithotomic position the defendant
emptied her bladder and made an incision in her abdomen just below the
umbilicus , into which a trocar was inserted for the laparoscope, which has a
camera which affords a live view which is displayed on a monitor. The
laparoscope allows for photographs and videos to be taken during the
procedure. The defendant was assisted by Dr E Mull er, a general practitioner
who he had worked with for about 15 years . She was responsible for taki ng
photographs during the procedure . He asked her to take photos of moments
that he thought were worthwhile recording, but as an experienced assistan t she
also used her own discretion as to when to photograph anything she thought
was important.
75. Upon inspecting the inside of the plaintiff’s abdominal/peritoneal cavity the
defendant noted that there were adhesions present, but he was satisfied that
he was able to proceed laparoscop ically, as he did not consider her to have a
‘frozen ’ or ‘difficult ’ pelvis , such that the procedure should be converted to a
laparotomy. Laparotom ies have certain disadvantages when compared to
laparoscopic (so-called ‘keyhole ’) surgical procedures . They can be
accompanied by post-operative bleeding with a result ant drop in blood pressure
24
and hypovolemic shock , as well as bowel injuries , which are particularly
dangerous , as faeces can contaminate the peritoneal cavity and cause severe
pain and infection , and a surgical repair may require the patient to wear a
colostomy bag for several months before the wound site is closed. A laparotomy
can also result in possible injury to the ureter or bladder.
76. During the laparoscopic procedures which the defendant performed he would
usually have 3 to 4 trocars in place in the patient’s abdomen: two larger (10
mm) ones and two smaller (5 mm ) ones.
77. After he was satisfied that he could continue with the procedure
laparoscopically he asked his assistan t to make available a bipolar scissors,
suction and tubing , and a LigaSure Maryland. The Maryland automatically
determines the amount of thermal energy which is to be administered and the
duration thereof, by evaluating the thickness of the tissues and the blood
vessels that must be dissected and cauterised , and it has the least thermal
spread. Thus, there is no danger of an over-application of thermal energy, as
might occur if one were to use other bipolar cautery devices such as bipolar
scissors, or monopolar devices, which require the operator to apply the energy
manually, in short bursts.
78. He noted there was an adhesion between a loop of small bowel and the anterior
abdominal wall, and it was evident that the right ovary needed to be removed.
To make space in the abdominal cavity for the insertion of a 10 mm trocar
suprapubically, through which th is could be done , it was necessary to first
remove the adhesion, as it was in the way. Having regard for the thickness and
length of the adhesion and the blood vessel in it he elected to use the LigaSure
Maryland to dissect it. He accordingly made an incision in the plaintiff’s right
flank into which a 5 mm trocar was placed for the insertion of the LigaSure .
Whilst there were other options available to him, in his assessment it was the
appropriate instrument to use at the time.
79. The adhesion which he d issected was the one shown on photograph B14. It
was attached to the peritoneum anteriorly. It was difficult for him, from looking
at the photograph , to discern exactly what structure it was attached to, as it was
behind the peritoneum, a nd thus not visible. However, g iven the previous
surgical incisions which had been made to the plaintiff’s abdomen , as a surgeon
he was aware of what the possible structures were which could lie behind the
25
peritoneum , particularly the bowel and bladder . In this regard he said one would
obviously always consider that the bladder might possibly lie behind the
peritoneal wa ll. During his evidence he identified where , on photograph B14 ,
these organs would have been , behind the peritoneum. Regarding the sketch
exhibit D 1 he pointed out that the Pfannenstiel scar which was depicted on it
was probably more extensive and extended further downwards , towards where
the bladder was depicted .
80. He inserted the LigaSure Maryland through the working port and used it to
dissect the adhesion to free the loop of bowel . As he had only one workable
port through which the LigaSure was inserted he was unable to simultaneously
use another instrument to assist in freeing the loop of bowel. It was not
necessary to use a grasper as gravity would ensure that once the loop of small
bowel was dislodged it would fall downwards , towards the plaintiff’s head. Using
a grasper c ould cause damage to a hollow organ if i t was applied to it. As the
bowel is relatively soft, if a grasper is placed on or against it, or if an adhesion
that is stuck to it is pulled from it using a grasper, it can be damaged.
81. When asked where he applied the LigaSure on the adhesion which is visible on
photograph B14, he responded that as the procedure took place 7 ½ years ago
and he had operated on thousands of patients since then, there was no way
that he could honestly make a mark on the photograph indicating precisely
where th e adhesion was dissected . To spare the bowel from any possible injury
he routinely applied a ‘one-third/two -thirds’ rule in such situations i.e. he would
place the LigaSure at a point on the adhesion whi ch was approximately two-
thirds of the distance away from the bowel side and approximately one -third of
the distance away from the bladder side thereof. This is what he would have
done in this case.
82. After he had dissected the adhesion, he saw the loop of bowel fall away ,
towards the plaintiff’s head. There was no bleeding and from what he could see
no damage had been caused to the peritoneum , in the area where the bladder
lay behind it. After then inserting a third trocar, supra -pubically, into which he
inserted a grasper , he proceeded to remove the cystic structures around the
right ovary and the ovary , part of which process can be seen on photographs
B15-B20. During this process he used the LigaSure again.
26
83. He then turned to the left ovary, which , as he pointed out on photograph B22 ,
was also adhered to the bowel and a cystic structure . The separation of the left
ovary from the adherent structures was much easier that that of the right ovary.
The process can be seen on photographs B22 -B26. Once again, he used the
LigaSure to do the separation and dissection, this time with the assistance of
the grasper. As can be seen on photograph B23 , in the process thermal damage
was sustained by the surrounding tissues .
84. After the left ovary was freed and its cystic structures removed, he decided that
it was not necessary to remove it, and he accordingly left it in situ. After washing
out the areas where the dissections had taken place , he was satisfied that there
was no bleeding and he lined the abdominal cavity with coagulant powder, as
can be seen on photographs B27-B28. He then switched off the machine that
was responsible for inflating the peritoneum and , once the gas in the abdominal
cavity had escaped , the trocars were removed and the entrance wounds
sutured and the bladder emptied , and the plaintiff was returned to a horizontal
position. After she had recovered from the anaesthetic, he emptied her bladder
again and check ed that there was no blood in her urine , and she was then taken
back to the ward.
85. On returning to his rooms he prepared his file note on the operation. The
following morning he visited the plaintiff during his ward round. After considering
her clinical records he was satisfied that she could be discharged. A few days
later he telephoned her to enquire how she was doing. She said that she was
still sore but was getting better. She confirmed that her bladder was functioning
and that she had normal bowel movements.
86. On 3 May 2016 he was phoned by Dr I Van der Merwe , the head of the Medi -
Clinic emergency unit who informed him that the plaintiff had been admitted ,
complaining of severe abdominal pain. Her blood counts were normal, and her
urine was clear. An x -ray which was taken showed there was faecal loading. He
advised Dr van Der Merwe to admit the plaintiff as he was concerned about her.
She informed him she would let him know whether she was admitted to Medi -
Clinic or to the Geneva clinic, where the laparoscopy had been performed. As
he did not hear from her again , he went to the emergency unit later in the day
where he was informed that the plaintiff had been discharged. However, t he
following morning he received a call from Dr Nel who informed him that he had
27
admitted the plaintiff and an ultrasound which had been done revealed the
presence of clear fluid in her abdomen. He understood this to mean that there
was a leakage of urine into the abdominal cavity. He went to the radiology
section to discuss the scan and report with the radiolog ist and then went to see
the plaintiff. He was not well received by her.
87. Dr Nel indicated that he was going to perform a laparoscopy on her and he said
he would attend. By the time he got to theatre the plaintiff was already sedated
and in a lithotomic position. When the laparoscope was inserted into her
abdominal cavity, they could see there was a large volume of urine in it and a
small area of brownish discolouration on the dome of her bladder , through
which urine was seeping into the cavity. The defect or perforation was a small
hole and was not 3 cm long. When Dr Nel prodded it with the suction it gave
way. He then debrided and cleaned the area around the perforation to ensure
that the tissue around it was live and whole before suturing it closed .
88. The defendant then left the theatre. As he did so he came across the plaintiff’s
husband , who was waiting outside , and asked him to accompany him to his
rooms where he explained to him that what had happened was a complication,
for which he took responsibility.
89. He confirmed that in his 2nd file note of 5 May 2016 he had said that, in his
assessment, the perforation or defect he saw in the bladder dome was ‘in the
same place ’ (‘op dieselfde plek’) where the loop of small bowel had been freed
during the dissection of the first adhesion i.e. the one on photograph B14 . There
must therefore have been a superficial injury to the bladder which deteriorated
and eventually ruptured. In the final paragraph of his file note he recorded that
what had happened was a complicati on which occurred, when, in avoiding
injuring the bowel he had inadvertently injured the bladder. He said, with
reference to Prof Cronje ’s sketches (exhibit s C and D) , that the injury could not
have been sustained during the second adhesiolysis ( at photograph B23) as
the injured spot on the bladder dome would have been about 6-8 cm away from
that area, if not further. If an injury had occurred at the time of that dissection, it
would have been lower down the bladder, near to the ureter, and not on the
dome.
90. When asked to explain how, in his view, the perforation occurred , he said it was
caused by the lateral spread of thermal energy which penetrated into the
28
bladder wall, which over the course of time resulted in avascular necrosis to an
area on the dome, which gave way. The injury would not have been visible at
the time when the adhesiolysis at B14 was done as it would have been
occasioned by microscopic changes to tissues in the bladder wall.
91. He denied that he had failed to consider that the plaintiff’s bladder might be
behind the peritoneum when he performed the adhesiolysis at B14 or that he
had left an insufficient margin between the spot w here he applied the LigaSure
and the peritoneum, behind which the bladder lay.
92. He conceded that there were discrepancies between his file notes of 19 April
and 5 May 2016 in relation to his description of the adhesions. In the first report
he described the adhesion of the loop of small bowel as adherent to the anterior
abdominal wall. If one had regard for Prof Cronje’s sketches the adhesion was
more retro -pubic and extended towards the vaginal vault, as he said in his file
note of 5 May. His assess ment of where the adhesions were adhered to in the
abdominal cavity was not performed using a measuring device and was not
exact. As he explained in his earlier evidence his view inside the
peritoneal/abdominal cavity was like being inside a balloon.
93. Before he prepared his second report of 5 May 2016, he had not read the first
one again and recorded the events as he recalled them . He pointed out that in
any event the bladder s at above the vaginal vault, and they were close to one
another.
94. During cross -examination he agreed that in certain respects he may have
conflated aspects of the two adhesiolys es in his second report which, in its
description in paragraph 2 seemed to deal with only one adhesion i.e. the one
that was dissected before the right ovary was removed. He persisted with his
contention that if damage was sustained during the second adhesiolysis (at
photograph B23) it would not have been to the dome of the bladder , but lower
down and to the back of it. As for the size of the brownish -coloured defect or
perforation in the dome he said that after the suction , which was about 5 mm
wide, was pushed through it , it may have been about 1½ cm wide but was not
3 cm wide. It could have been about that size after it was debrided and cleaned
i.e. after the necrotic area around it had been removed , before it was sutured.
95. When performing the adhesiolysis at B14 he did not foresee that a bladder
dome injury might occur as he did not anticipate that the bladder would ha ve
29
been pulled up that high , and he was accordingly not expecting it to be behind
the peritoneum . It was pointed out that this appeared to be contrary to
paragraph 2 of his file note of 5 May 2016 where he said that he had been
worried about a possible injury to the bowel a nd to the bladder, as they were
closely attached to one another.
96. He agreed that, although he had felt safe when placing the LigaSure on a spot
one-third of the length of the adhesion away from the bladder side of it, in
retrospect he had made a ‘mistake’. He also conceded that he had other options
available to him when dealing with the adhesion at B14 , such as cutting it with
scissors and tying off its ends to staunch any bleeding , and that if he had done
so it would not have resulted in an injury to the bladder dome. Equally, he
conceded that if he had converted the laparoscopy to a laparotomy before doing
the first adhesio lysis the injury would not have occurred. He s aid that,
nonetheless, he was comfortable using the LigaSure and app lying it to the
adhesions. Finally, when asked why , if he thought that the procedure had been
untoward and had unfolded normally and there was no cause for concern i.e.
no reason to suspect that he had caused an injury either to the bowel or the
bladder he considered it necessary to say this in his file note. He responded
that he always said this in his report s of the laparoscopies he performed.
(vi) Dr Fölscher
97. After setting out his medical qualifications Dr Fölscher noted that laparoscopic
surgery was first performed in 1901 for diagnostic assessments. In 1987 the
modern laparoscope was introduced . It was first used in SA for surgical
purposes from about 1991 onwards . By 1997 laparoscopic procedures were
being performed worldwide. He had extensive knowledge of such procedures
and had presented courses in them in SA in 2006 -2007. In 1999 -2000 he had
a fellowship with the Royal College of Surgeons in the UK and did work in
Strasbourg. He knows the defendant for many years, and they are colleagues,
as they both practise in George and have rooms at the Geneva clinic.
98. The LigaSure Atlas was introduced before the LigaSure Maryland. Its jaws are
approximately 10 mm (i.e. 1 cm ) wide, and end in a blunt tip . It is used as a
haemostatic instrument to coagulate large blood vessels. In contrast to it the
Maryland is a smaller, finer instrument with jaws which are about 5 mm in
diameter, in a curved tip . It is used both for cauterisation i.e. coagulation of
30
blood vessels and for dissection. It is a bipolar device which is automatically
controlled to generate the precise amount of thermal energy required to
cauterise blood vessels. The device determines the duration of the pulse of
thermal energy which is to be administered by measuring the thickness of the
tissue which is gripped in its jaws, and then applies it . It has a visible, lateral
thermal spread of approximately 2 mm on either side of its jaws. As a LigaSure
Maryland goes through a 5 mm port its jaws are about 3½ -4 mm wide.
According to the literature it has a thermal spread of 2 mm on either side of its
jaws. Thus its total thermal footprint is in the order of 7½ -8 mm.
99. The peritoneum covers a large part of the bladder, including its dome or top,
which is shaped almost like a ‘beanie ’, and which extends over about 3 -4 cm .
Pfannenstiel incisions (which are made for so -called Caesarean sections ) will
usually be very near to the bladder dome. When they are sutured, and the
wounds heal, the tissue underneath is pulled up. With each successive such
incision the underlying tissue and organs that may have become adherent to it ,
such as the bladder and its dome, will be pulled up higher.
100. In his view, given th ese ci rcumstances, it was anatomically impossible for the
bladder dome to have been in close proximity to the vaginal vault , as it would
have been pulled up, as depicted in Prof Cronje ’s sketch exhibit C 2.
Consequently, if thermal damage had been done to the bladder during the
adhesiolysis at photograph B23 it would have been to that part of the bladder
lower down, which lay next to the vagina l vault , and not to the dome, which was
some distance away , and higher up . The thermal damage which is visible on
the cauterized area on photograph B23 would have been in the area where the
vaginal vault lay, as marked on the sketch exhibit D1. Whilst much was said
about the greyish -coloured area of thermal damage on B23 it was not unusual
to see this during laparoscopic procedures. He would have up to 30 such
discoloured areas of damage when he did a low anterior resection of the
rectum.
101. By his estimation, the adhesion on photograph B14 was approximately 2 -3 cm
long and it would accordingly have been safe for the defendant to have applied
the LigaSure on it , at a point which was one third of the distance away from the
bladder side of the adhesion, to avoid causing damage to the bowel, which lay
on the other side of it, behind the peritoneum.
31
102. He agreed with the view expressed by the other experts that , given that the
injury was to the bladder dome and manifested as a tiny, discoloured hole or
perforation, it was likely to have been caused by avascular necrosis as a result
of the penetration of thermal energy into the bladder wall, some distance away.
If the bladder had been scarred during previous surgery (the plaintiff had two
Caeserean sections and a hysterectomy), the blood supply to that section of it
may have been diminished or compromised.
103. He did not agree with Prof Cronje ’s contention that, because there was a 3 cm
perforation in the bladder dome the injury must have been caused when the
LigaSure was grabbed by, or pulled into , its jaws. If this had happened the
abdominal cavity would have filled up with urine within 3 days and because of
the pressure the perforation would have manifested itself within that time (as
the bladder would have held for a day or two only, as it is a cavity that is subject
to high pressure) , and not some 11 days af ter the laparoscopy. As the
abdominal cavity was found to have only 1-1 ½ litres of urine in it when Dr Nel
performed the laparoscopy , and the onset of acute pain occurred some 2 -3
days before the plaintiff’s admission, the perforation must have been a small
one, which allowed for slow seepage into the abdominal cavity. He said that he
was ‘as sure as could be’ that the perforation and resultant leak could not have
been present for more than 2 -3 days, as the leak was a ‘minor’ one. If the
plaintiff had urine in her abdominal cavity for a lengthy period, o r for a short
period at a high leakage rate, her urea count would have shot up. From his
assessment her urea count before the second laparoscopy was only slightly
elevated , at a level that one normally would see in a person who was ill and
had not been drinking and eating properly for a day or so.
104. He agreed with the defendant that the plaintiff did not present with a difficult or
frozen pelvis. There were only two adhesions present which needed to be
dissected . The one shown on photograph B14 was an ‘easy’ one to remove.
Although far and away the best manner of dividing an adhesion was to use
scissors this was not so when there was a danger of bleeding. In such a case
the safest device to use was a LigaSure Maryland or the ‘harmonic scalpel ’,
which was quite expensive. Monopolar scissors cautery devi ces should not be
used as the amount of thermal energy they deliver cannot be controlled. In his
travels throughout the world he has never seen monopolar scissors being used
32
for this purpose during laparoscopic procedures and ha s never seen anyone
cut and tie up an adhesion.
(vii) Dr De Jong
105. Dr De Jong is a specialist obstetrician and gynaecologist with a certificate in
uro-gynaecology. He specialises in female gynaecological disorders affecting
the bladder. Although b ladder injuries have a complication occurrence rate of
1% during gynaecological surgery involving the removal of ovaries , they can
occur no matter how meticulous the surgeon may be , and there is always a risk
of a bladder injury being sustained during such procedures .
106. In the plaintiff’s case both her ovaries were adhered to the pelvic wall. She had
two previous Caesarean sections and a hysterectomy , which distorted the
anatomy in her pelvic cavity and made adhesions inevitable. With each
successive surgical event the bladder would have been pulled up higher , during
the surgical and healing process, and the concomitant formation of adhesions.
107. The adhesion shown on photograph B23 was one involving the small bowel
and the left ovary, not the bladder. The bladder was involved in the adhesion at
photograph B14.
108. The thermal damage which is caused by a LigaSure extends beyond the 2 mm
visible lateral spread on the sides of its jaws, to microscopic, invisible further
damage to adjacent tissue, resulting in a loss of its integrity and diminishment
of the blood supply downstream, to capillaries and blood vessels supplying the
organ concerned with oxygenated blood. Thus, over time the integrity and
strength of a bladder wall which is subjected to such damage may be
compromised and at a later stage, typically 2 weeks, th e tissue will give way
and leakage will occur. This is the result of avascular necrosis which has
occurred because of the reduction in the supply of oxygenated blood, which
causes ischaemic damage to the tissue . Where an area is well -vascular ized i.e.
well-supplied with blood , avascular necrosis will probably not occur as any
damage will be compensated for by other, collateral blood vessels in the area.
In the case of fibrous, scar tissue or adhesions , vascular ization will not be
present or if it is, will not be good , and a diminishment or loss of blood supply
cannot be compensated for by other vessels.
109. Avascular necrosis typically occurs in Caesarean sections or at hysterectomy.
His own experience and that of colleagues is that some 2 weeks after such
33
surgical procedures patients may present with a fistula between the bladder
and vagina l wall, due to avascular necrosis . This is often also seen in cases of
surgery to remove cancer of the uterus and cervix , and in his experience
avascular necrosis is the most common cause of bladder leakage.
110. Having regard to the evidence th e most likely cause of the perforation in the
dome of the plaintiff’s bladder was avascular necrosis. As was evident from the
evidence of the defendant , and the contents of Dr Nel’s report , the perforation
manifested as a discoloured area of tissue -like consistency. The discolouration
suggest s there was a lack of blood supply to the spot.
111. All the experts were agreed that the leakage of urine into the plaintiff’s
abdominal cavity must have started a day or 2 prior to the onset of acute
symptoms. She presented to the emergency unit on 3 May 2016 with a 3-day
history of worsening abdominal pain.
112. Had the bladder wall been pulled into the jaws of the LigaSure during the
performance of the adhesiolysis in photograph B23, bladder damage and the
resultant leakage would have been immediate, or the defect would have given
way within a matter of days, if not hours, after the operative procedure. Had this
been the cause of the injury it would have manifested as an open 8 -9 mm
cut/injury in the wall of the bladder, lower down, or in the bottom of it , and not
in the dome, which sits at the top.
An assessment
(i) The legal principles applicable
113. The principles in terms of which the issues which require determination must
be decided are trite and well -established , and a summary thereof will suffice. In
the first place, in accordance with the general principle that she who asserts
must prove, it is for the plaintiff to prove that the injury she sustained was
caused by the defendant’s negligence.1 To succeed in this regard the plaintiff
needed to prove that , in his performance of the laparoscopy and his use of the
LigaSure the defendant failed, as a medical practitioner, to adhere to that level
of skill and ‘diligence ’ i.e. care which was possessed and exercised at the time
1 Goliath v MEC for Health, Eastern Cape [2014] ZASCA; 2015 (2) SA 97 (SCA) paras 8 and 12.
34
by members of that branch of the profession to which he belonged i.e. specialist
gynaecologists.2
114. The defendant is not required to have exercised the highest possible degree of
professional skill and care, but merely to have employed reasonable skill and
care.3 In determining whether he did so the benchmark essentially is whether
his conduct fell below the standard of a ‘reasonably competent ’ practitioner in
his field.4
115. Determining whether the plaintiff has discharged the onus which rests upon her
requires the court to decide whether, on a careful evaluation of all the evidence
which is before it, she has succeeded in proving the negligence averred against
the defendant, on a balance of probabilities.5
116. The SCA has cautioned that a medical practitioner should not be held to have
been negligent simply because ‘something went wrong’,6 for to do so would be
to ‘impermissibly reason backwards from cause to effect ’.7 As is so often evident
‘even with the best will in the world things sometimes go amiss’ in surgical
operations or medical treatment.8
117. As was noted in Goliath , 9 a case such as this involve s questions of factual
complexity and difficulty which require an evaluation of technical, and at times
conflicting, expert evidence. In this regard it is worthwhile reminding oneself of
what the proper approach to dealing with such evidence should be.
118. Expert witnesses in medical negligence cases provide the court with evidence
of the current state of knowledge and generally accepted practices in their
particular discipline, and of the inferences which they have drawn and the
resultant opinions they have arrived at, and the grounds upon which they have
done so, in order to assist the court to understand the factual and medical
issues and to arrive at a proper determination of them.10
2 Van Wyk v Lewis 1924 AD 438 at 444; Goliath id.
3 Mitchell v Dixon 1914 A.D. 419 at 525; Goliath id.
4 Castel v De Greeff 1993 (3) SA 501 (C) at 512A -B, Buthelezi v Ndaba 2013 (5) SA 437 (SCA) para 15.
5 Goliath n 1 para 11.
6 Id para 9.
7 Id para 13.
8 Hucks v Cole [1968] 118 New LJ 469, cited in Buthelez i n 4 para 15.
9 Note 1.
10 AM & Ano v MEC for Health, Western Cape [2020] ZASCA 89; 2021 (3) SA 337 (SCA) para 17.
35
119. As regards the opinions they express , for them to be worth anything they should
represent reason ed conclusion s which have been arrived at on the basis of
facts or data which are either common cause, or which are otherwise
established in evidence .11 Thus, an expert’s b ald statement of opinion
unaccompanied by a proper factual foundation is not of any ‘real assistance’
and a proper evaluation thereof can only be undertaken if the process of
reasoning which led to it, including the basis o r premises from which it
proceed ed, is disclosed.12
120. Consequently , before any weight can be given to an expert opinion the facts
upon which it is based must be found to exist,13 and the more an expert relies
on facts not established in evidence the more the weight given to their evidence
will diminish.14 An opinion which is not based on facts in evidence has no value
for the court .15
121. Equally, a s far as inferences are concerned the y must be ‘reasonably capable’
of being drawn from the admitted facts or those established in evidence , and if
they are tenuous or far -fetched they cannot form the basis on which the court
can make a finding.16 Unless the re are objective, admitted or proven facts f rom
which an inference can be drawn , the method of arriving at it will fail, and one
will be left with mere speculation or conjecture.17
122. Whilst it is so that the determination of whether negligence was shown to have
been present is a matter for determination by the court and not the expert
witnesses, it is bound to be informed by their opinions. Thus, where there are
conflicting or opposing views in the experts’ respective opinions the court’s
determination depends on an analysis of the cogency of the underlying
reasoning which led thereto.18 To this end , the court must determine whether
the opinions have a ‘logical ’ basis, in other words whether the expert s
considered the comparative risks and benefits of the relevant actions or conduct
11 Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft MBH 1976 (3) SA 352 (A) at 371A -H.
12 Id.
13 PriceWaterhouseCoopers Inc v National Potato Co -Op Ltd & Ano [2015] ZASCA 2; [2015] 2 All SA 403
(SCA) para 99; AM n 10 para 20 ; HAL obo MML v MEC for Health, Free State [2021] ZASCA 149; 2022 (3) SA
571 (SCA)
14 AM id.
15 HAL n 13 para 208.
16 AM n 10 para 21 .
17 id.
18 Buthelezi n 4 para 14.
36
concerned, including those in issue , and ha ve arrived at ‘defensible’
conclusion s.19
123. Given that expert witnesses in medical negligence matters are commonly
recognized, independent professionals who hold a certain status and measure
of respect in their community, and their testimony is usually based on peer -
reviewed medical knowledge and sc ientifically established facts, the issue of
reasonableness (which pertains to the defendant’s discharge of their legal duty
towards the patient) and that of negligence (which pertains to whether they
discharged their duties with that level of skill and ca re as could reasonably be
expected of them), will not usually depend on an assessment of the credibility
of such witnesses, as opposed to the reliability of the evidence which they have
tendered .20
124. Where the experts are in agreement with one another on issues of fact, which
agreement is embodied in a joint minute, the litigants are bound thereto, unless
they have given notice that they have resiled from it or repudiated it. In the
absence of such repudiation or withdrawal the court is equally bound to accept
the agreed facts.21 Where the experts ’ agreement pertains to issues of opinion
the matter stands on a different footing : The agreement is considered to be
merely a part of the total body of evidence and the court must still decide
whether it will accept it. Thus, the existence of such an agreement will not
preclude the admission of evidence which qualifies or contradicts the agreed
opinion (s), unless the case has been conducted on the basis there of, and the
admission of qualifying or contradictory evidence will prejudice a party in a
manner which cannot be cured.22
125. Where experts express diametrically opposed opinions which they are able to
support by logical reasoning it is not open to a court to simply express a
preference for one rather than the other , and on that basis to hold the medical
practitioner to have been negligent.23 Provided he/she has acted in accordance
19 Michael & Ano v Linksfield Park Clinic & Ano 2001 (3) SA 1188 (SCA) paras 36 -37; HAL n 13 para 53.
20 Id, para 34.
21 Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA). HAL n 13 para 229.
22 Id. Thus, where parties place an agreed minute before the court which reflects both shared opinions
and areas of disagreement, and do not call witnesses to deal with the areas of disagreement, the minute
will do no more than to reflect that there is disagreem ent on the point.
23 Linksfield Park Clinic n 19 para 39.
37
with a reasonable and respected body of medical opinion their conduct cannot
be ‘condemned’ as negligen t, simply because another equally reasonable and
respectable body of medical opinion would have acted differently.24
(ii) The findings
126. It is time to arrive at the findings that are to be made , in the light of the evidence
which was tendered and the opinions that were expressed .
127. Pursuant to, and as a result of, the laparoscopic procedure which the defendant
performed on the plaintiff on 19 April 2016 she sustained an injury to the dome
of her bladder. At the time of its repair some 2 weeks later, on 4 May 2016, the
injury presented as a small, discoloured area of perforation, from which urine
was seeping from the bladder into the abdominal cavity. When the perforation
was prodded with a suction it gave way and opened up. After it was debrided
and made ready for suturing it was abou t 3 cm in length.
128. Save for Dr Pienaar (who, in his evidence, went against his concurrence on this
aspect in the joint minute of 19 March 2020 ), the experts were agreed that the
perforation must have manifested itself a day or two prior to the onset of the
acute symptoms with which the plaintiff was admitted on 3 May 2016 i.e. some
11 days after the laparoscopy .
129. The size (small/ ’tiny’), appearance (a brownish discolouration), place where it
was located (the bladder dome) and the date when it manifested , substantiate
the opinion of the experts that the injury was occasioned by avascular necrosis ,
due to inadequate blood flow and circulation in the bladder structure .
130. The devascularisation was caused by thermal energy i.e. heat that was
transferred into the bladder wall when a LigaSure Maryland, a surgical
instrument used to dissect and cauterise, was used by the defendant on an
adhesion in the plaintiff’s abdominal cavity, which was present due to previous
surger ies she had undergone.
131. It is common cause that the defendant performed two adhesiolyses: the first
one (shown on photograph B14) upon entering the abdominal cavity, in order
that he could remove the right ovary and the cysts around it, and the second
one (shown at photograph B23) in order that he could get to the left ovary and
remove the cysts that were around it. The plaintiff’s experts contended that the
24 Medi-Clinic Ltd v Vermeulen [2014] ZASCA 15; 2015 (1) SA 241 (SCA) at 243G-H.
38
transfer of thermal energy which resulted in the avascular necrosis occurred at
the time of the performance of the second adhesiolysis, the defendant and his
experts contended that it occurred at the time of the first.
132. Although the plaintiff’s experts initially took issue with the use of a LigaSure to
perform the adhesiolyses, by the end of the trial they agreed with the
defendant’s experts that it was not per se inappropriate for the defendant to
have done so . The ir issue was whether it was used in an appropriate manner ,
with due regard for its dangers . Although the plaintiff’s experts initially
contende d that the defendant should have made use of alternative , bipolar or
monopolar cautery devices, by the end of the trial they agreed with the
defendant’s experts that the use of such devices would not have been
appropriate, as their thermal footprints exceed those of the LigaSure and the
amount of thermal energy they discharge can be excessive, as it depends on
the operator and is not automatic ally regulated , as in the case of the LigaSure.
133. Whilst it is so that , if the defendant had made use of an ordinary scissors there
would have been no thermal damage and resultant necrosis, this could only
have been done in respect of the adhesion at B14, and not the one at B23,
which was complex and involved several large ar eas which had to be dissected
from the surrounding structures. There was a divergence of opinion in relation
to the adhesion at B14: the plaintiff’s experts were of the view that the blood
vessel in it was not substantial and the bleeding which would have been
occasioned by a scissor or grasper dissection would have been minimal and
could have been avoided , or at least staunched , by tying off the severed ends.
The defendant’s experts were of the view that the blood vessel was no t
insignificant, and bleeding was an issue, and using a LigaSure was
consequently the proper way to deal with the adhesion. In my view the evidence
was not such that it can be found that, in not using ordinary scissors or a grasper
to deal with the adhesion at B14 the defendant failed to measure up to that
standard of skill and care required of a reasonably competent practitioner, in
his position.
134. In addition, whilst the plaintiff’s experts initially postulated that the defendant
should have converted the laparoscopy to open surgery i.e. a laparotomy, by
the end of the trial they were in agreement with the defendant’s experts that his
decision not to do so in the circumstances which he found himself, given the
39
number, location and nature of the adhesions that were present in the
abdominal cavity and his experience, was not inappropriate.
135. Ultimately therefore , the issue which requires determination pertains to the
manner in which the LigaSure was used. Prof Cronje was of the view that , when
performing the second adhesiolysis (at B23) the defendant must have gone t oo
close to the bladder side of it and must have pulled the bladder wall into the
LigaSure’s jaws and burnt it . In his view this was where the thermal damage
which resulted in the necrosis occurred. Dr Pienaar shared this opinion and
expressed the view that the defendant must have a pplied the LigaSure against
the bladder, more than once.
136. There are several reasons why these opinions cannot prevail . In the first place,
the evidence of the defendant and his experts was that it was anatomically
impossible for the plaintiff to have sustained the injury to the dome of her
bladder as a result of the second adhesiolysis , as it was too far away at the
time. In this regard the evidence which was tendered on behalf of the defendant
was that it was about 6 -8 cm away , and in his evidence, Prof Cronje conceded
that the bladder dome was ‘some distance awa y’ from the area of thermal
damage which was visible on photograph B23. None of the plaintiff’s experts
suggested that thermal energy from the LigaSure could have been transferred
or extended for such a distance. Prof Cronje referred to a study in which it was
found that thermal energy from a LigaSure can be transferred in surrounding or
adjacent tissue, up to 9 mm away from it. Consequently, as the defendant’s
experts opined, in the event of thermal damage being caused to the bladder
during the performance of the second adhesiolysis, it would have been towards
the bottom, lowe r part of the bladder and the vaginal vault and not in the dome,
and if avascular necrosis had set in it would most likely not have been in the
dome. If this was possible nonetheless, given the distance involved , it was for
the plaintiff to have put up such evidence.
137. In the second place, the evidence of the defendant and his experts, which was
not controverted, was that, had the defendant caused the peritoneum and
bladder to be pulled into the jaws of the LigaSure during the second
adhesiolysis the re would have been a large cut or perforation to the lower,
bottom part of the bladder wall with an almost immediate failure of the bladder,
within no more than a few hours. Such a perforation would not have been the
40
result of a process of avascular necrosis but the result of a direct insult to the
bladder. In such an event the plaintiff would have been admitted to hospital
within a day or so of the procedure and not 11 -12 days post -operatively.
138. In the circumstances, one must rule out the adhesiolysis at B23 and one must
also exclude the thesis that the bladder was pulled into , and gripped in , the jaws
of the LigaSure and burnt , during either adhesiolysis .
139. That leaves the adhesiolysis at B14 , which is not well depicted on the
photographs, of which, compared to the one at B 23 there are only a few. None
of the available photographs that deal with this adhesiolysis show that there
was any thermal damage caused during the dissection /ligation . As the
defendant’s assistant took photographs of thermal damage which was
sustained during the second adhesiolysis, there is no cause or reason to
believe that, had such damage also been sustained during the first, she woul d
not equally have taken photos of it.
140. The defendant’s evidence was that after he had dissected and ligated th is
adhesion there was no visible thermal damage to the adjacent tissue. This
tallies with his evidence that the re was a sufficient margin of safety on either
side of the LigaSure for him to place it at a point ‘one -third/two -thirds’ along the
adhesion, closer to the bladder side thereof than the bowel, to avoid injuring the
latter. None of the witnesses gave evidence as to the precise size, or rather the
length, of this adhesion. Dr Pienaar was unable even to provide an estimation
as there was not an instrument or device visible in the photograph at B14 which
could serve as a reference. In this regard it was common cause that the images
in the photographs were magnified views and n ot actual ones. Dr Fölscher
thought the adhesion was somewhere between 2 and 3 cm long. If one were to
assume, using this rough estimation, that it was about 2.5 cm long, and the
LigaSure had a thermal footprint of 7½-8 cm, then the defendant would not have
been within the lateral spread margin of 2 mm if he placed it at a spot one -third
along the adhesion, closest to the bladder side of it .
141. This raises the pertinent question of what the safety margin was within which
the defendant was required to operate. The plaintiff’s experts failed to establish
this in their evidence , which came down to the simple contention that the
defendant had either adopted no safety margin at all, by pressing the LigaSure
up against the peritoneum, and thus against the bladder wall behind it (which
41
as I have found was not proven in evidence), or came ‘too close’ to these
structures . But what is ‘too close’? It seem s, from their evidence , that they were
contending that the safety margin was in the order of about 2 mm, to allow for
the lateral thermal spread which extends on the side of the LigaSure’s jaws.
The difficulty with this is that, on Prof Cronje’s understanding of the literature,
thermal damage can extend up to 9 mm away from the source. Thus, to rule
out the possibility of any thermal damage and resultant avascular necrosis ever
being sustained , a surgeon would have to operate with a safety margin of about
12 mm when performing an adhesiolysis in the abdominal cavity.
142. However, n one of the experts said that they applied such a margin when they
used the LigaSure, in the many laparoscopies which they performed, over many
years. It seems to me that without the necessary standard or benchmark at
least being established in evidence, it cannot be said that the defendant was
negligent in that he failed to measure up to that standard of care that would
have been exhibited by a reasonable gynaecologist in his position. Whether it
would even have been possible to set such a margin in evidence seems to be
doubtful, given that there was no evidence as to the (likely or approximate)
distance between the perforation on the dome and the spot where the LigaSure
was applied on the adhesion at B14. Once again, this is an aspect which the
plaintiff’s experts should have dealt with.
Conclusion
143. In the circumstances , in my view the plaintiff failed to show that , in his use and
application of the LigaSure during the performance of a laparoscopic procedure
on her on 19 April 2016, the defendant was negligent, and that such negligence
resulted in her sustaining a perforation in the dome of her bladder. In my view
the perforation to the bladder was an unfortunate complication, of the kind
which, as the defendant’s experts explained, can occur in the best of hands.
144. As far as costs are concerned these should follow the event. The bulk of these
were incurred before 12 April 2024, on which date the amendments to rule 67
(in the form of rule 67A) read with rule 69, were gazetted, which require the
court to stipulate in i ts order for costs, on what scale they should be. The
amendment is only applicable to costs that were incurred from 12 April 2024
onwards. Costs incurred prior to that date fall to be dealt with by the taxing
master in accordance with the previous dispensa tion which applied.
42
145. As the amendment is applicable to attendances and services rendered in the
High Court by advocates and attorneys with a right of appearance , and the
defendan t was represented by a senior attorney with such a right, it is
necessary to make a directive in this regard.
146. To determine what the scale should be the rule provides that the court should
have regard for the complexity , value and importance of the matter. The plaintiff
was represented by an advocate of many years standing, who submitted that,
in the event of success costs should be awarded on the highest scale, scale C.
In his submissions the defendant's attorney did not contend for the award of
costs on a particular scale and left the matter in the hands of the court.
14 7. Having regard for all the applicable factors, I make the following order:
147.1 The action is dismissed.
147.2 The plaintiff shall be liable for the costs of suit, which, in respect of
attendances after 12 April 2024 shall be on scale C, and which shall include
the qualifying fees and costs of the attendance at the hearing of the
defendan t's expert witnesses, Ors Folscher and De Jong.
Appearances:
Plaintiff's counsel: CH Botha
Plaintiff's attorneys: Sleet & Burger Inc (George) MSHER
Judge of the High Court
(Signature appended digitally)
Defendant's attorney: GP Van der Merwe (MacRobert Attorneys, Cape Town)