About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 48
|
|
R B v Smith (211/2018) [2019] ZASCA 48; 2020 (4) SA 51 (SCA) (1 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 211/2018
In
the matter between:
R
B APPELLANT
and
DR
SAMUEL JOHANNES
SMITH RESPONDENT
Neutral
citation:
R
B
v Smith
(211/2018)
[2019] ZASCA 48
(01 April 2019)
Coram:
Navsa
AP, Zondi, Dambuza and Mocumie JJA and Mokgohloa AJA
Heard:
22
February 2019
Delivered:
01
April 2019
Summary:
Delict
– claim for damages based on failure to obtain informed consent
to medical procedure for hernia repair – factual
finding of
trial court on whether the patient was informed, confirmed – no
dispute on material risks inherent in competing
surgical procedures –
information given to patient met the required standard – common
cause that there was no negligence
in the performance of elected
surgery – appeal dismissed
ORDER
On
appeal from
:
Gauteng
Division, Pretoria (Tuchten J sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Dambuza
JA (Navsa AP, Zondi, Dambuza and Mocumie JJA and Mokgohloa AJA
concurring):
Introduction
[1]
This appeal is about whether the respondent, Dr Samuel Smith (Dr
Smith), a surgeon who performed a laparoscopic
[1]
hernia repair on
the appellant, Mrs R B (Mrs B) is liable for damages for the alleged
failure to provide the appellant with sufficient
information so as to
enable her to give informed consent for that surgery. Mrs B
instituted a claim for damages against Dr Smith,
alleging that the
doctor negligently omitted to inform her that the hernia repair could
be done by way of a laparotomy
[2]
procedure. Such
failure, so she contended, caused her to give uninformed consent to
the laparoscopy, and resulted in her suffering
damages as a result of
colon perforation during that procedure, which, it was asserted, was
less risky. Mrs B’s claim was
dismissed by Tuchten J in the
Gauteng Division of the High Court, Pretoria (high court). This
appeal is with leave of the high
court.
Background
[2]
The following events preceded the high court proceedings. During
November 2011 Mrs B was admitted to Victoria Hospital in Mahikeng,
complaining of abdominal pain and distention. She was treated
conservatively and Computer Tomography (CT) scans were taken. From
the images, Dr Kibowa, the treating doctor at Victoria Hospital,
identified a cystic mass lesion in the right iliac fossa (pelvic
groove), an ovarian cyst or abscess and a femoral hernia in the right
inguinal (groin) region. Dr Kibowa referred Mrs B to Dr Smith,
a
general surgeon practising from the Life Anncron Hospital in
Klerksdorp, as there were no specialist surgeons in Mahikeng.
[3]
Mrs B attended Dr Smith’s consulting rooms on 21 February 2012.
She informed Dr Smith that she had experienced the abdominal
pain for
about a week, but that it had worsened in the three day period since
she had been seen by Dr Kibowa. Having considered
the referral letter
from Dr Kibowa, together with Mrs B’s medical history, which
included three previous operations, and
the report from the
radiologists on the Axial and CECT
[3]
scans of Mrs B’s
abdomen and pelvis, Dr Smith made a differential (provisional)
diagnosis of ‘sub-total bowel obstruction
secondary to previous
surgery, an ovarian cystic mass, and an inguinal hernia’. Mrs B
had had two previous appendectomies,
a hysterectomy and a
cholecystectomy. The CT scan showed two hernias, at one of the old
appendix scars, and a left femoral hernia.
Mrs B had, however, not
brought all the images of the CT scans done on her to Dr Smith.
[4]
Having consulted Mrs B on 21 February 2012, Dr Smith caused her to be
admitted to Life Anncron Hospital. He would have preferred
to view
all the CT scan images, presumably, to be more certain about the
diagnosis. Hence, the following day, 22 February 2012,
he consulted
local radiologists on the radiologist report attached to the referral
letter. The local radiologists could not be
of much assistance as
they also required all the scans in order to interpret and assist in
the further diagnosis. It appears that
it would have been preferable
to have the scans re-done. Mrs B’s medical aid was however not
likely to approve that expense,
since scans in relation to the same
complaint had already been done at Victoria Hospital. On the same
day, 22 February 2012, Dr
Smith wrote to Mrs B’s medical aid
scheme, motivating for the approval of a laparoscopic hernia repair,
as follows:
‘
I
would like to motivate for a laparoscopic incisional hernia repair on
above patient.
The
patient is quite obese and laparoscopic repair is considered the gold
standard repair for incisional hernia, especially in obese
patients
for the following reasons:
GENERAL
ADVANTAGES OF LAPAROSCOPIC SURGERY
-
faster operation time
-
less pain for patient
-
shorter ileus period
-
faster recovery
-
faster discharge from hospital
-
quicker return to work for
patient
SPECIFIC
ADVANTAGES OF LAPAROSCOPIC HERNIA REPAIR
-
Much lower incidence of wound
complications, superficial wound infection and wound dehiscence.
-
Smaller wound has much quicker
healing time even if wound infection does occur.
-
If wound infection does occur,
the wound is far away from the hernia site and mesh, thus mesh
infection with subsequent mesh sepsis,
chronic wound drainage and re
operations to remove septic mesh, and redo of hernia repair is much
lower with laparoscopic surgery.
-
To manage an infected open
hernia repair with mesh sepsis is massively unsatisfying, costly,
time consuming.
-
The cost of the mesh for open or
laparoscopic hernia repair remains the same, as intra peritoneal mesh
placement is used for both
techniques. With open hernia repair, the
wound is directly over and above the mesh, making it susceptible for
infection, but with
laparoscopic repair the wound is about 5cm away
from the lateral edge of the mesh.
-
Patients that undergo an open
hernia repair often needs ICU management for 24-72h post op for pain
control and observation, and
another 3-5 days in the ward before
discharge, where laparoscopic repair patients routinely returns to
the ward and can be discharged
within 24-72h.’
On
23 February 2012 Dr Smith, assisted by Dr Dries,
[4]
proceeded to do the
laparoscopic hernia repair on Mrs B.
[5]
During the intricate laparoscopy Dr Smith found a Spigelian hernia
with the bowel attached to it at the location of the old
appendix
scar. He repaired the hernia by reducing it and placing mesh over it.
He also did an oophorectomy (removal of an ovarian
cystic mass) - the
mass aspirated from the right ovary was sent for histology. However,
despite complicated and extensive adhesiolysis
(dissection of a
number of adhesions) during the two and a half hour operation, and
the deep exploration of the abdomen, Dr Smith
could not find the
reported femoral hernia. Mrs B was discharged from hospital on 28
February 2012.
[6]
Three days after her discharge from hospital, on 1 March 2012, Mrs B
was readmitted to the hospital, presenting with acute abdominal
pain
and rectal bleeding. In theatre Dr Smith performed an emergency
‘re-look procedure’. He found a colon perforation
from
which emanated a trickle of septic fluid. It was on the rectum, about
15cm from the anal verge. Dr Smith thought that it had
been caused by
traction on the rectum during the adhesiolysis, as he was looking for
the femoral hernia. He performed a Hartmann’s
operation
[5]
and washed out the
peritoneal cavity with saline. He removed the mesh and did an end
colostomy, leaving drains in place. Mrs B was
admitted to Intensive
Care Unit (ICU) and put on a ventilator.
[7]
Three further surgical procedures were performed to clean out Mrs B’s
peritoneal cavity. A foley catheter was inserted
in her rectum to
control possible fistula. She received wound care and remained in
hospital with an open abdomen covered with a
split skin graft until
19 April 2012 when she was discharged. Her incisional hernia was
subsequently repaired and her colon anastomosed
by another surgeon.
[8]
On 4 April 2014 Mrs B instituted proceedings for damages against Dr
Smith and the Life Anncron Hospital. Having set out the
sequelae
resulting from the operations performed
by Dr Smith, which included a further hernia at the site of the
surgery, disfigurement to
her abdomen, and chronic lower back pain,
Mrs B alleged in the particulars of claim that these resulted from
the negligence of
Dr Smith and the medical staff at the hospital in
breach of their legal duty to exercise reasonable skill, care and
diligence.
She also alleged that they failed to obtain informed
consent from her before performing the hernia repair surgery.
[9]
Specifically, as against Dr Smith, the allegation was that he
negligently elected to perform laparoscopic surgery instead of
a
laparotomy, despite the higher risk of bowel and vascular injury
posed by the former to obese patients. It was also alleged that
the
removal of the ovarian cyst had been unindicated and unnecessary. Mrs
B later withdrew her claim against the Life Anncron Hospital.
[10]
In his plea Dr Smith contended that Mrs B gave him informed consent
orally on 22 February 2012, following an explanation by
him of the
contemplated laparoscopic surgery and the laparotomy option, together
with the attendant material risks. He contended
further that the
written consent signed by Mrs B shortly before the operation on 23
February 2012, which formed part of the record,
was confirmation of
the oral consent given the previous day, following his explanation of
both procedures.
[11]
In her evidence Mrs B denied that Dr Smith explained both procedures
to her. She also denied that the doctor had made a provisional
diagnosis. She insisted that, in her first consultation with Dr Smith
on 21 February 2012, the latter told her that he would first
consult
with the radiologists on her scans and thereafter perform a ‘quick
. . .15 to 20 minute operation’ to repair
her hernia with a
mesh, and, in ‘two or three days’ she would be home. On
her version, Dr Smith made the decision to
do the laparoscopic hernia
repair on her during the first consultation, on 21 February 2012,
even before consulting the local radiologists.
She suggested that the
reason for admitting her on that day was to perform the laparoscopy.
In her words ‘If the defendant
did not want to operate on me,
why did he admit me?’. According to her, Dr Smith instructed
his secretary to book a bed for
her; and said that he would ‘prep’
her for an operation on 23 February 2012.
[12]
In her evidence, Mrs B denied having signed the written confirmation
of informed consent form and also denied that she was
at the theatre
at 05h00 on 23 February 2012 when the consent form was signed. She
also sought to suggest that it was only shortly
before the trial that
she became aware that Dr Smith had removed her ovarian cyst, although
in the summons she alleged that Dr
Smith unnecessarily removed the
ovarian cyst.
[13]
Mrs B testified that if she had been informed that the hernia could
also be repaired through a laparotomy she would have discussed
her
options with her family and would have opted for the less risky of
the two procedures. But she trusted Dr Smith and believed
him when he
told her that the laparoscopy was a simple procedure that would take
15 to 20 minutes and that she would be discharged
from hospital in
three days.
[14]
Dr Smith testified that during the consultation on 21 February 2012
he considered that surgery might be required if Mrs B’s
condition did not improve through conservative treatment. On the
morning of 22 February 2012 he had a consultation with Mrs B,
during
which he informed her of the nature of each of the two medical
procedures open to her and the attendant material risks and
benefits.
He told Mrs B that his opinion was that the laparoscopic procedure
would be better. Thereafter, Mrs B gave oral informed
consent to the
proposed laparoscopic procedure. The oral consent was confirmed in
writing in the early morning of the following
day, the day of the
operation.
[15]
Dr Smith explained the benefits of a laparoscopy as – smaller
wounds, quicker healing, less scarring, less pain, a lower
wound
infection rate, a shorter hospital stay, and a shorter recovery
period. This is in line with his motivation to her medical
aid
scheme. The significant risks were bowel perforation and the
possibility that the procedure could have to be converted to
laparotomy. As to open surgery the risks were bowel injury (although
lower than in laparoscopy), long incision, hernias, wound dehiscence
and increased risk of infection, particularly for obese people and
smokers. This explanation is consistent with that given by Dr
Bizos
in his evidence regarding the risk and benefits of each of the
procedures.
[16]
Mrs B was high risk for wound infection because of her morbid
obesity. At 41 years old at the time she weighed 125.9kg, was
1,65m
tall and therefore had a body mass index (BMI) of 46. She was a
smoker. Further, having had three previous operations meant
that she
would have adhesions in the peritoneal cavity, she was therefore a
high risk case for bowel injury during laparoscopic
surgery or even
for laparotomy. Dr Smith was of the opinion that performing the
hernia repair laparoscopically was the better option
for Mrs B,
because of her excessive weight, the likelihood of adhesions due to
her previous operations and because she was a smoker.
[17]
Professors Desmond Pantanowitz and Damon Bizos, both specialist
surgeons, gave evidence on behalf of Mrs B and Dr Smith,
respectively.
Importantly, they agreed that a laparoscopy was
indicated; that there was no negligence in the performance thereof;
in particular,
that the bowel perforation was not caused by
negligence on the part of Dr Smith; and that Dr Smith’s
post-operation management
of the appellant was acceptable. The
experts were also in agreement that because of Mrs B’s weight,
the three previous abdominal
operations which were likely to have
caused adhesions in the peritoneal cavity, she was high risk for
bowel injury. The evidence
of both experts was that the incidence of
bowel perforation was higher in laparoscopic surgery than in
laparotomy, and that the
risk of post-operative wound infection was
higher in laparotomy for obese patients and smokers. Even Prof
Pantanowitz, Mrs B’s
expert, did not dispute the opinion that
laparoscopy was the safer option for Mrs B. His only concern was
whether informed consent
had been obtained beforehand.
The
High Court
[18]
At the start of the trial the high court granted an order in terms of
Rule 33(4) of the Uniform Rules of Court ‘deferring
the
determination of quantum of the plaintiff’s claim and directing
that the trial proceed on all other issues raised in
the pleadings.’
The high court considered the claim to have been founded on contract.
It must be said though that in the
particulars of claim Mrs B had
alleged that the hospital and Dr Smith were ‘under a legal duty
of care to ensure that the
rendering of medical care, treatment and
advice to [her] with such skill, care and diligence as could
reasonably be expected of
medical practitioners and nursing personnel
in similar circumstances, obliging [them] to ensure that proper,
sufficient and reasonable
health services were provided to members of
the public’
.
She also pleaded that her injury
resulted from the
negligence
of the medical staff at the hospital who, together
with Dr Smith in, amongst other things, failing to obtain informed
consent from
her before performing the laparoscopic procedure. Mrs
B’s claim therefore was founded on delict.
[19]
In dismissing the claim, the high court found, in favour of Dr Smith,
on the conflicting versions of what had been communicated.
It found
that Mrs B was not a reliable witness. This, the court attributed to
her physical and emotional state shortly before the
operation. It
found that she had been passive and trusting of the doctor and was
not likely to recall the discussion regarding
the risks and benefits
of the two procedures. Although there was no evidence to this effect,
the high court was of the view that
Mrs B would have taken pain
control medicine and would therefore not have been quite attentive
during the days preceding the operation.
She was therefore unlikely
to recall the conversation that she had with the doctor on 22
February 2012. The court rejected Ms B’s
version that on 21
February 2012, during the first consultation, Dr Smith had already
made the decision to operate on her. It accepted
the doctor’s
version that he had explained the different surgical procedures to
her. It also found, as Mrs B testified, that
Dr Smith had
considerable patience – this was further demonstrated during
rigorous cross-examination. He was, by all accounts,
a caring and
diligent doctor. The informed consent issue was therefore decided on
the version tendered by Dr Smith. I interpose
to state that it was
never Mrs B case that she was unable, because of medication or
otherwise, to appreciate what was being communicated
to her by Dr
Smith. Her case was that she was never fully informed of her options
and the risks and benefits.
Submissions
on appeal
[20]
We are called upon to determine what Dr Smith imparted to Mrs B and
whether that constituted sufficient information to the
appellant to
enable her to give informed consent to the laparoscopy.
[21]
Mrs B, in seeking reconsideration of the high court’s factual
finding that Dr Smith did provide her with the necessary
information,
insisted that the hospital records did not support Dr Smith’s
version. Chief amongst her contentions were that
although the
hospital records show that the doctor had a consultation with her at
08h00 on the 22 February 2012, during which,
according to Dr Smith,
the information was given, there is no recordal of the details of the
purported informed consent discussion.
The fact that Dr Smith was
unable to recall the identity of the staff member at the hospital who
made the relevant entry was criticized.
The submission was that, in
the absence of evidence on the details of such consultation and on
the identity of the author of the
recordal, a conclusion should be
drawn that Dr Smith never gave Mrs B the necessary information on
that day as he alleged. Further,
even, if Dr Smith gave her some
information, it was not sufficient to enable her to make an informed
decision. In this regard Dr
Smith was cross-examined at length
regarding his failure to inform Mrs B that the consequences of wound
sepsis (which was high
risk in laparotomy) would be ameliorated by
the specialist wound care health facility at Wilmed Park, in close
vicinity to the
hospital. The suggestion was that this was a material
benefit which should have been communicated to Mrs B.
Discussion
[22]
It is trite that the powers of an appeal court to overturn factual
findings by a trial court are restricted.
[6]
But where the
findings of a trial court are based on false premises or where
relevant facts have been ignored, or where the factual
findings are
clearly wrong, the appeal court is bound to reverse them.
[23]
Indeed, the doctor’s evidence was entirely reliant on his
memory regarding what transpired over the relevant period.
But
several aspects supported his version. As the high court reasoned, Dr
Smith’s demeanour and diligence, which Mrs B also
confirmed,
was more consistent with the version that he would have explained the
contemplated treating methods than not. The judgment
of the high
court was based on the available evidence. The medical records
supported the doctor’s version rather than the
version tendered
by Mrs B. For example, a note made on the first day of consultation
in Dr Smith’s case book showed that
surgical intervention was
not uppermost in his mind. The note read ‘treat conservatively
as obstruction if not responding,
theatre.’ Against this record
the allegation by Mrs B that, from the onset, Dr Smith had firmly
decided, early on, to perform
a laparoscopy, was improbable. Her
attempt to distance herself from her written consent, and her
evidence that Dr Smith made light
of the laparoscopy as a 15 to 20
minute procedure, impugned her credibility. It was also inconsistent
with the doctor’s undisputed
caring and diligent nature.
[24]
An entry made in Mrs B’s hospital records at 20h30 on 22
February 2012 shows that she was ‘aware of the diagnostic
procedure’ that was to be performed on her the following
morning. This suggests that there had been a more substantive
discussion
between her and Dr Smith than she was willing to admit.
The written representations made to Mrs B’s medical aid after
the
consultation during the morning on 22 February 2012 reveal that
the material risks and benefits attendant in the medical procedures
occupied the doctor’s mind. Nothing in the medical records
contradicted Dr Smith’s evidence. On the other hand, a response
by Mrs B during cross-examination, that she had lost a lot of memory,
is indicative of her poor recollective faculties. Consequently,
there
is no basis to overturn the factual finding by the trial court that
Dr Smith’s version was probable and that of Mrs
B was not.
[25]
In claims for damages based on negligence for failure to warn a
patient of material risks or complications attendant in a treatment
or surgical procedure, courts employ a patient based approach. The
reasoning is that a patient’s freedom to self-determination
includes the right to decide whether she wants to undergo surgery. A
patient is entitled to refuse medical treatment. If she consents
to
surgery or medical treatment she accepts responsibility for
unintended harm in the medical treatment, in the sense envisaged
in
the principle
volenti
non fit injuria.
[7]
However, a patient
must have had knowledge and must have appreciated the nature and
extent of such harm or material risk. Therefore,
for a patient’s
consent to constitute justification that excludes wrongfulness, a
doctor is obliged to warn a patient of
the attendant material risks
in such procedure. A risk is regarded as material when a reasonable
person in the patient’s
position, if warned of the risk, would
likely attach significance to it; or where the medical practitioner
is aware that the patient,
if warned, would likely attach
significance to it.
[8]
[26]
It was not in dispute that bowel perforation and wound infection were
the relevant material risks in relation to the two medical
procedures
under consideration, it is reasonable that Mrs B, as a reasonable
patient, would attach significance thereto and Dr
Smith would have
been aware of that. The evaluation above shows that Dr Smith did
inform Mrs B of these risks. The high court’s
rejection of the
arguments that Dr Smith was obliged to inform Mrs B of the presence
of a renowned wound clinic was correct. If
that were required it
would be too high a standard. Hospitals are in any event expected to
have in place measures to deal with
potential negative consequences
following surgical procedures.
[27]
The consent that Mrs B gave for the laparoscopy is consistent with
what a reasonable person would have opted for immediately
prior to
the surgery. The evidence of Prof Pantanowitz was that the decision
of a patient such as Mrs B was a 50/50 decision. With
the level of
trust that Mrs B had in Dr Smith, her election to consent to the
laparoscopy was consistent with the balance of the
evidence.
[28]
Dr Smith testified that on 22 Feburary 2012 he went to the Radiology
Department of the hospital. Thereafter he went to the
ward in which
Mrs B was and examined her. It is at that stage that he made the
decision that she needed to have surgery. He then
explained the two
options available – the laparoscopic and open surgery. He
explained that laparoscopic surgery entailed
small incisions, using
the Afrkaans word ‘gaatjies’, whilst the laparotomy would
be a big cut. He told Mrs B of the
‘pros’ and ‘cons’
of each. His evidence was:
‘
the
risks and benefits are explained to her M’Lord and it generally
comes down to two that I told her. The one is with laparoscopy,
the
disadvantages you can have a bowel injury but it [is] also possible
with open surgery. So it is not necessarily zero when you
open
someone up and I mean laparotomy. And the other one is conversion to
open laparotomy. By that I mean even if you make gaatjies
you can
still end up opening the patient.
.
. .
So
with all those information at hand M’Lord I decided to give her
the option of laparoscopic or open and I gave her advice
and I would
[have chosen] the laparoscopic if it was my [choice].’
He
could not recall the exact words that he used. Neither could he
recall if he used the word ‘adhesions’. But he was
certain that in the consultation on 22 February 2012 the risk of
bowel injury did ‘come up’. He also recalled that
he told
Mrs B about her high risk status. He emphasised that he considered
her to be a high risk patient in respect of both surgical
procedures.
[29]
Prof Pantanowitz described the information necessary for a patient to
give informed consent as follows:
‘
.
. . if you are going to undertake this type of surgery, and in a
patient who has had previous abdominal surgery, you need to say
to
the patient there is a risk of bowel injury, there is a risk of
vascular injury and if we use the open technique there is more
of a
risk of sepsis. And eventually you can say I advise you to do this,
but the patient has to make the final decision, because
it is almost
a 50/50 problem.’
[30]
He explained that his personal preference was the ‘open
method’. However, according to him, many surgeons preferred
the
laparoscopic technique in relation to obese patients, because of the
danger of wound infection. His evidence was ‘it
is
controversial about whether you should prefer one to the other in an
obese patient but I my personal view is that I myself would
advise my
patient to have it open, but there are many surgeons who would advise
them to have closed technique’.
[31]
Dr Bizos’ evidence was that he would have explained thus:
‘
.
. . there are two ways of dealing with this. The one is to do a
minimally invasive or minimal access surgery where we put a
laparoscope
in and we take a look and the other is that, we do an
incision to try and find out where the problem is and I would –
it
is difficult for me to say precisely how big where this incision
is going to be. If we do it open and then I would say to them,
“Look,
you need this operation and there are certain risks of any operation
in the abdomen and they include risks of bowel
perforation, leaking
bowel, bleeding and then if we do the big operation, wound, wound
infection, as well as general problems with
an operation.” . .
.if we had to list every and all complications, we would be there for
half a day, and I don’t’
think a patient would ever have
an operation, because there are very real problems that can occur
with any form of surgery.’
[32]
Viewed in light of the expert evidence the information imparted by Dr
Smith to Mrs B, which the high court rightly accepted,
meets the
standard of a reasonable expert.
[9]
It covered the
range of surgical procedures and treatment options available to Mrs B
and the associated benefits and risks. It could
therefore not be said
that there was negligence in relation to obtaining the informed
consent from Mrs B. A further difficulty
faced by Mrs B is that it is
unclear that perforation and consequent sepsis would, in any event,
not have ensued, even if a laparotomy
had been performed.
Costs
[33]
There is no reason why the costs should not follow the cause.
However, counsel for Dr Smith graciously indicated, taking into
account the difficulties experienced by Mrs B and her personal
circumstances, that Dr Smith would not pursue costs.
[34]
In the result the following order is made:.
The
appeal is dismissed with costs.
_________________
N Dambuza
Judge of Appeal
APPEARANCES
For
Appellant: D D Swart
Instructed
by:
Motshabi
& Modiboa Attorneys, Mafikeng
McIntyre
van der Post, Bloemfontein
For
Respondent: A Gautschi SC
Instructed
by:
Macrobert
Attorneys, Cape Town
Neuhoff
Attorneys, Bloemfontein
[1]
Laparoscopy is a medical procedure in
which examination of the interior of the abdomen is done my means of
a laparoscope. See Dorland’s
Illustrated
Medical
Dictionary
25 ed. Small
incisions are made to introduce a camera which allows the surgeon to
see where to introduce the necessary instrumentation.
[2]
According to
Dorland’s Medical Dictionary,
Laparotomy
is “surgical incision through the flank” or “abdominal
section at any point.” It may be a long
incision from the
sternum to the pubic area. It is generally accepted that Laparoscopy
is less intrusive than open surgery. Compare
with fn 1.
[3]
Contrast Enhanced Computer
Topography.
[4]
[5]
Resection of the
rectosigmoid colon with creation of colostomy.
[6]
D T
Zeffert
and A P Paizes
The South
African Law of Evidence
(2
ed) at 942;
Rex v Dhlumayo
and Another
1948 (2) SA
677
(AD) at 705.
[7]
Castell v De Greef
1994
(4) SA 408 (C).
[8]
Ibid at 426F-H. See also,
Sibisi
NO v Maitin
2014(6) SA 533
(SCA).
[9]
See
Van
Wyk v Lewis
1924 AD 438.