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Broude v McIntosh and Another (290/95) [1998] ZASCA 28; 1998 (3) SA 60 (SCA); [1998] 2 All SA 555 (A) (27 March 1998)

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Medical Law
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Brief Summary

Medical Negligence — Surgical procedure — Claim for damages arising from alleged negligence during ear surgery — Appellant, a medical doctor, underwent a cochlear vestibular neurectomy performed by the first respondent, resulting in facial paralysis — Appellant claimed damages for negligence, asserting that the surgeon failed to properly manage the procedure — Trial court found that the appellant did not prove negligence on a balance of probabilities and granted absolution from the instance — Appeal dismissed, confirming that the evidence did not establish the requisite standard of care was breached.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter was an appeal to the Supreme Court of Appeal against the dismissal (by way of absolution from the instance) of a delictual claim for damages arising from a serious post-operative complication, namely left facial paralysis (facial palsy) following ear surgery.


The appellant, Abraham Mendel Broude, was the plaintiff at trial and a medical practitioner who underwent the operation. The first respondent, William Andrew McIntosh, was the ear, nose and throat surgeon who performed the operation at a provincial hospital. The second respondent, the Administrator of the Transvaal, was cited on the basis that the surgeon was employed by the provincial administration, so that the Province was alleged to be vicariously liable if negligence were proved.


At first instance, the action was heard by Botha J, who granted absolution from the instance with costs after concluding that the appellant had not proved, on a balance of probabilities, that the surgeon’s negligence caused the paralysis. The appellant then appealed to the SCA, which considered whether the trial court erred in finding that negligence (whether pre-operative, intra-operative, or post-operative) had not been established.


The general subject-matter of the dispute was medical negligence (including a pleaded alternative of lack of informed consent framed as assault), focusing on whether the surgeon negligently injured the facial nerve during a cochlear vestibular neurectomy and whether the surgeon’s post-operative management was negligent and causally connected to the enduring palsy.


2. Material Facts


The appellant had a long history of left-ear problems. After earlier surgery in Germany in 1969 that left him permanently deaf in the left ear but relieved vertigo and tinnitus for many years, symptoms recurred in 1989. He was referred to the first respondent in 1990 and, after conservative treatment brought little relief, a decision was made in March 1991 to operate.


On 4 September 1991, the first respondent performed a cochlear vestibular neurectomy at Johannesburg General Hospital. The operation’s object was the destructive severance of the vestibular nerve (and excision of segments) to address vertigo, and the severance of the cochlear nerve to address tinnitus. The procedure required exposure of the internal auditory canal and work in close proximity to the facial nerve, which lies near the vestibular and cochlear nerves.


It was common cause that, by 5 September 1991, clinical signs of a left facial palsy were apparent. On that day an electroneuronography (ENOG) test showed 60% degeneration of the facial nerve. The number of ENOG tests done during the first admission was disputed, but it was common cause that on 19 September 1991 an ENOG showed 100% degeneration.


A post-operative cerebrospinal fluid leak occurred through the wound and the nose. The court treated it as not uncommon and not, in itself, indicative of negligence. The appellant was discharged on 9 September 1991 with an “occasional” leak noted. After an episode on 11 September 1991 (an excruciating headache after blowing his nose), the appellant was re-admitted and remained in hospital until 20 September 1991, with ongoing leakage that later resolved spontaneously by 23 October 1991.


In the months following, the appellant continued to experience significant facial dysfunction, including inability to properly close the left eye. On 5 March 1992, an ophthalmologist performed a tarsorrhaphy to protect the eye. The appellant sought opinions from several specialists. A neurologist, Dr Levy, tested him on 30 January 1992 with an EMG and noted mild volitional activity in certain facial muscles, concluding this was inconsistent with total severance and suggested continuity of the facial nerve, even if clinical recovery might be delayed. The record of a later EMG was not available, and the neurologist could not recall it.


In May 1992, the appellant consulted Dr le Roux, who arranged a nerve excitability test (NET) through a physiotherapy practice. The factual circumstances of the test were disputed, but the trial court accepted that the NET result indicated nerve activity/regeneration and was inconsistent with severance; on the evidence, Dr le Roux ultimately conceded it pointed to non-severance.


On 19 September 1992, the appellant underwent further surgery in Zurich by Dr Fisch, who did not testify. By consent, a translated operative note was placed before the trial court. It recorded extensive scar tissue in the internal auditory canal, tracing of the facial nerve into scar tissue, inability to identify a proximal stump with certainty, and a view that compression by scar tissue might have contributed to the lesion. A mass thought intra-operatively to be a neuroma was later shown histologically to be scar tissue with parts of a peripheral nerve. Dr Fisch proceeded with a hypoglossal-facial anastomosis, which was described as successful in restoring certain functions but not emotional facial expression.


Crucially, there were major disputes about whether the facial palsy was immediate and complete within hours after the operation and about certain alleged post-operative statements by the surgeon. The trial court, while accepting the honesty of family witnesses regarding their impressions, did not accept that the evidence proved a sudden complete palsy on the day of the operation.


3. Legal Issues


The central legal questions were whether the appellant proved, on a balance of probabilities, that the first respondent was wrongful and negligent in any of three phases of care and that such negligence caused the appellant’s damages.


First, the court had to determine whether liability was established on a pre-operative informed consent basis. This required assessing whether the surgeon failed to inform the appellant of material risks (including risk to the facial nerve) and alternatives (including labyrinthectomy) such that the appellant’s consent was not “real or informed,” pleaded both as assault and, in the alternative, as negligence.


Second, the court had to decide whether the surgeon negligently injured the facial nerve during the operation, initially pleaded as severance, later amended to include other forms of intra-operative damage (such as bruising, stretching, compressing, tearing, cauterising, or interference with blood supply). This involved disputes of fact and the evaluation of expert medical evidence, including whether res ipsa loquitur could support an inference of negligence.


Third, the court had to determine whether any post-operative management (including discharge decisions, handling of the CSF leak, monitoring, eye care, or failure to diagnose and repair the nerve) constituted negligence causally linked to the ultimate harm.


The dispute was primarily one of fact and the application of legal standards of negligence and causation to contested facts, including credibility and probability assessments. It also involved a limited value judgment in evaluating whether an inference of negligence was justified in circumstances where medical complications may occur without negligence.


4. Court’s Reasoning


On the informed consent allegations, the SCA agreed with the trial judge’s rejection of the appellant’s version. The omission to warn about CSF leakage was treated as irrelevant to liability because the leak was not proved to have caused the facial palsy, and the appellant did not claim he would have refused surgery had the leak risk been disclosed. As to failure to warn about facial nerve risk and failure to explain alternatives, the court endorsed the trial judge’s reliance on documentary consent, the appellant’s own prior reference to “labyrinthectomy,” the probabilities flowing from the appellant’s medical background, and the fact that the appellant did not say he would have refused consent if informed (at most he said he “might not” have consented). The court also noted that the letter of demand did not initially raise the informed consent complaint.


The SCA briefly raised (but expressly did not decide) a conceptual concern about pleading inadequate disclosure as assault where the patient consented to the procedure described but was not informed of a material risk. The court stated that reconsideration might be warranted in an appropriate case, but held it was unnecessary in this appeal because, even assuming the assault-based formulation was legally sound, the evidence did not establish the alleged failure of disclosure.


On the central intra-operative allegation—whether the facial nerve was severed—the SCA found no basis to interfere with the trial court’s conclusion that severance was not proved on a balance of probabilities. The court accepted that the facial nerve must have sustained some injury during the surgery, but held that severance could not be inferred merely because paralysis occurred; there were other possible causes of nerve injury not involving severance. The court endorsed the trial judge’s reliance on evidence that immediate complete palsy was not proved; on direct testimony by the surgeon and an observer (Dr Vasek) that the nerve was not severed or observably damaged; and on neurological and electrophysiological evidence suggesting nerve continuity (especially Dr Levy’s EMG findings and the NET evidence).


The court treated the later Zurich surgery as not decisively supporting severance. Dr Fisch did not testify, and his report did not explicitly attribute the lesion to severance during the earlier operation. The report’s own “review” recorded uncertainty as to cause and raised the possibility of later compression by scar tissue. The histology undermined the assumption that a neuroma (associated with severance) had been present. The inability to identify a proximal stump was treated as capable of supporting non-severance as much as severance, particularly in a scarred canal.


The appellant’s alternative intra-operative case was that, even if not severed, the nerve must have been damaged by some negligent act closely akin to severance, and that the palsy was immediate and complete. The SCA held that this depended on proving an immediate complete palsy on the day of surgery. It accepted the trial court’s cautious approach to the family’s descriptive evidence, including concerns about retrospective reconstruction (“telescoping”), the absence of contemporaneous photographs, differences in detail among family witnesses, and the point that lay observers may struggle to diagnose and grade facial paralysis. The court also accepted evidence that, if a sudden complete palsy had been observed in the recovery room, prompt action would likely have followed, supporting the conclusion that such a presentation was not proved.


The court considered the role of expert witness credibility, particularly the evidence of Dr Hamersma, who was the principal professional supporter of the appellant. The SCA upheld the trial judge’s adverse assessment of Dr Hamersma’s objectivity, referring to indicators of pre-existing hostility to the surgeon, his dogmatic treatment of contrary evidence, and aspects of his conduct that the trial court regarded as troubling. While acknowledging that Dr Hamersma was knowledgeable, the court accepted that his lack of objectivity diminished the weight of his evidence on contested issues, especially where it depended on disputed factual premises.


The SCA further reasoned that, even if rapid onset had been proved, medical evidence showed that unwitting nerve damage sufficient to cause swift paralysis may occur without negligence, and that post-operative developments (including scar tissue and other possible causes not attributable to the surgeon) could aggravate an initial injury. In this context, the court emphasised the need to guard against allowing sympathy for an injured patient to erode the established incidence of the onus of proof in negligence claims.


Regarding arguments that the surgeon’s allegedly false denials of certain post-operative remarks and his euphemistic description of early facial appearance indicated a guilty conscience and thus negligence, the SCA endorsed the trial judge’s view that such factors were of limited probative value. The “America/lawyers” remark was treated as consistent with confidence that any palsy was transient, and the “longer than expected” remark as not objectively indicative of guilt. Difficulties in contacting the surgeon after discharge were treated as inconclusive and not sinister. The trial judge’s view that the euphemistic description may have reflected reconstruction from incomplete records rather than deliberate deceit was not regarded as undermining the negligence finding.


On the appellant’s contention that an adverse inference should be drawn because respondents did not call other hospital staff who might have observed early post-operative signs, the SCA declined to do so. It held that the onus rested on the appellant; the respondents had called the surgeon and an independent observer to the operation; the uncalled professionals were available to the appellant; and, in the circumstances, the non-calling was treated as a neutral factor.


Finally, the SCA dealt briefly with alleged post-operative negligence, holding that none of the pleaded post-operative complaints were proved on the evidence relied upon. Several allegations fell away on the appellant’s own concessions or were contradicted by contemporaneous hospital records; the CSF leak resolved spontaneously as predicted; and the evidence did not establish negligent failure to monitor or intervene, particularly as later consulted specialists also advised waiting before considering surgical intervention. A negligent failure to disclose and immediately repair a severed nerve was not established because severance itself was not proved.


5. Outcome and Relief


The Supreme Court of Appeal held that the appellant had not shown the trial judge to be wrong in granting absolution from the instance. The appeal was therefore dismissed.


The appellant was ordered to pay the respondents’ costs of appeal, including the costs of two counsel.


Cases Cited


Castell v De Greef 1994 (4) SA 409 (C)


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the appellant failed to prove, on a balance of probabilities, that the first respondent negligently caused the appellant’s left facial palsy, whether by severing the facial nerve, by otherwise negligently damaging it during surgery, or by negligent post-operative management.


The court further held that the appellant failed to establish the pleaded informed-consent-based causes of action (both as assault and as negligence), because the evidence did not support the allegation that the surgeon failed to warn of material risks or alternatives in a way that vitiated consent or constituted negligence.


Accordingly, absolution from the instance granted at trial was upheld, and the appeal was dismissed with costs.


LEGAL PRINCIPLES


The judgment applied the principle that, in a delictual medical negligence claim, the onus rests on the plaintiff to prove negligence and causation on a balance of probabilities; courts must not infer negligence merely from a bad outcome, particularly where medical complications can occur without fault.


The court reaffirmed that res ipsa loquitur does not automatically justify an inference of negligence where there are plausible non-negligent explanations for the injury and where the evidence does not establish the factual predicates necessary for such an inference.


In assessing medical negligence, the court emphasised the importance of careful evaluation of credibility, reliability, and probabilities, including the limits of lay observation of clinical conditions and the need to treat expert evidence with caution where objectivity is compromised.


On informed consent, the court proceeded on the basis (without deciding broader conceptual questions) that liability requires proof of the alleged failure to disclose and, in substance, proof that the non-disclosure was material to the consent and relevant to causation; on the facts, the appellant did not establish that the alleged failures occurred or that he would have refused the procedure if properly informed.


The court applied the appellate restraint principle that factual findings and credibility assessments by a trial court will not be interfered with absent a proper basis, and it upheld the trial court’s conclusion that negligence was not proven, warranting absolution from the instance.

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[1998] ZASCA 28
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Broude v McIntosh and Another (290/95) [1998] ZASCA 28; 1998 (3) SA 60 (SCA); [1998] 2 All SA 555 (A) (27 March 1998)

REPUBLIC OF SOUTH AFRICA
Case No: 290/95
In the matter between
ABRAHAM MENDEL BROUDE
Appellant
and
WILLIAM ANDREW McINTOSH
First Respondent
THE ADMINISTRATOR OF THE TRANSVAAL Second Respondent
CORAM: HEFER, EKSTEEN, NIENABER, HOWIE et MARAIS JJA
DATE HEARD
: 9 and 10 March 1998
DELIVERED: 27 March 1998
JUDGMENT
MARAIS JA
2
MARAIS JA:
In coldly clinical terms this is an appeal against the dismissal
of an action for damages suffered as a consequence of a paralysis of the left side
of the face caused by the allegedly negligent conduct of a surgeon employed by
the Transvaal province who performed an operation upon appellant's left ear in
September 1991. In human terms it is a sad tale of high hopes, good intentions,
dashed expectations, much anguish, and ensuing recriminations culminating in
lengthy, stressful, and expensive litigation. The resolution of the litigation was
more than ordinarily difficult. There were conflicts of fact on both major and
minor issues. Some of the evidence given in support of appellant's case was
manifestly or demonstrably unreliable. So too was some of the evidence given in
support of the case for respondents. A pre-existing undercurrent of professional
and personal hostility towards the respondent surgeon on the part of his
counterpart, who was the principal professional champion of appellant's cause,
3 was plainly evident. Subsequent surgical intervention many months later by a
Swiss surgeon not called to testify, far from providing clear answers to what had
caused the paralysis, raised yet more conundrums. The learned trial judge (Botha
J) did his best to arrive at firm conclusions and in many respects was able to do so.
However, in the final analysis he found himself unable to conclude that it had been
established by appellant on a balance of probability that negligence on the
surgeon's part had been proved and he granted absolution from the instance with
costs.
Summarising the history of the matter as neutrally as I can, it
amounted to the following. Appellant is a medical doctor who has spent most of
his professional life practising medicine either privately or as an employee of a
hospital. He was bom on 30 March 1931 and was 60 years of age at the time of
the operation. In 1969 his left ear began to trouble him. He experienced deafness
and tinnitus (noises in the ear) and protracted bouts of giddiness. In the same year
4
he underwent an operation in Germany. It left him permanently deaf in the left ear
but alleviated the tinnitus and the vertigo to such an extent that for 20 years he had
no need of further intervention.
In 1989 there was a recurrence of vertigo and tinnitus with accompanying nausea. He was referred in 1990 to first respondent, Professor
Mcintosh, who is an ear, nose and throat surgeon. He is head of the relevant department at the Johannesburg hospital and a professor
in the faculty of medicine of the University of the Witwatersrand. Conservative treatment followed but brought little relief. In
March 1991 a decision was made to operate. The operation was performed by first respondent at the Johannesburg General Hospital on
4 September 1991.
The operation which first respondent set out to perform was a cochlear vestibular neurectomy. It is a designedly destructive operation
and has as its object the severance of both the cochlear and the vestibular nerves. The
5 vestibular nerve is severed and excised to counteract vertigo. The cochlear nerve
is severed but not necessarily removed to counteract tinnitus. Inasmuch as the
cochlear nerve plays a role in the hearing function its severance would not have
been appropriate if plaintiff had still been able to hear in his left ear. I interpose
here that no criticism was made of first respondent's decision to recommend and
perform this particular operation rather than a less invasive operation known as a
labyrinthectomy.
The operation entails gaining access to the inner ear structures by
making appropriate incisions, sculpting away with a rotary burr part of the mastoid
bone behind the ear, passing through the labyrinth and part of the cochlea (and en
passant destroying them pro tanto) and arriving at the internal auditory canal.
This is a bony structure with an internal lining of dura which is a very thick tough
tissue. The bone of the canal is shaped down until it is so translucent that one can
see through it to the structures behind it. The underlying dura is exposed by lifting
6 the remaining film of bone. The dura is then opened and the nerves which are to
be severed are exposed to view. They are visualised microscopically at a very
large magnification by the surgeon. Absent any anatomical abnormalities the
nerves are easily seen and distinguished from one another both by reason of their
colouration and by reason of their physical location and the courses which they
take. In close proximity to the vestibular and cochlear nerves is the facial nerve -
indeed these three nerves make contact with one another for some of their
respective lengths. The vestibular nerve has two branches both of which are
severed and a segment of each removed. The cochlear nerve is incised and may
or may not be removed. To close the opening through which entry was gained, a
sheet of fascia (fibrous tissue which holds structures together and envelopes
muscles) taken from the patient's body is placed in such a way as to cover the
opening in the internal auditory canal. To hold it in place and provide a soft tissue
seal so that cerebrospinal fluid which fills the canal does not exude or leak out, an
7 appropriate quantity of body fat harvested from the patient is eased into the cavity
before the incision in the patient's skin is sutured. That at any rate is how first
respondent said the operation should be done and there is no disagreement
amongst the medical witnesses about that.
The operation was over by 10.25 on 4 September and after spending some time in the recovery room appellant was taken to the ward in
the latter part of the morning. His wife was waiting to see him. The appearance of his face at this juncture and when he was visited
again towards evening, and whether there were indications of facial palsy (paralysis) visible, were major issues at the trial. What
passed between first respondent and appellant and his wife on the latter occasion was also in dispute.
According to first respondent the appearance and function of appellant's face after he awoke from the anaesthetic in the recovery
room was normal. Later that day when he saw appellant in the ward there were no clear
8 signs of even a partial palsy. All that he observed was "a possible sluggishness
of movement in places". According to appellant's wife, Mrs Broude, she noticed
when appellant was wheeled into the ward that "his face looked strange" in that
his mouth looked "skew". She said that appellant passed his hand across his face
and asked her whether his face was skew and she replied in the affirmative. Later
on in the afternoon she met first respondent in the ward which was a general ward.
Appellant asked first respondent whether his face was skew and first respondent
affirmed that it was. First respondent allegedly patted her on the shoulder and
laughingly said: "Mrs Broude, if you were in America you would already be at the
lawyer's offices". According to first respondent he said no such thing. Appellant
and his wife also said that first respondent told them that appellant's face would
return to normality within three to four weeks. First respondent's version was that
when he did discuss the palsy (and it was not on that occasion) he said it would
resolve itself in three to four months but that he could have said that it might
9
resolve itself earlier within a matter of weeks.
First respondent did not dispute that by the next day (5 September) some clinical signs of a left facial palsy were visible. On that
day appellant was tested by means of electroneuronography to establish the status of his facial nerve. The test (referred to as an
ENOG) showed a 60% degeneration of the nerve. Just how many such tests were carried out between then and appellant's discharge from
the hospital on 9 September was disputed but it is at least common cause that on 19 September (by which time appellant had been re-admitted
to hospital in circumstances to be related) another ENOG was carried out and that it showed a 100% degeneration of the nerve.
During appellant's first stay in hospital there was a leakage of cerebrospinal fluid through the surgical wound and through the nose.
The occurrence of such a leak is not uncommon and is not necessarily or even probably indicative of negligence. Appellant was anxious
to go home and after discussion
10 with first respondent during which appellant was told to stay in bed and to do
whatever had to be done "to look after" himself as appellant put it, he was
discharged on 9 September. The contemporaneous clinical note made at the time
reflects that there was still an "occasional" leak. First respondent observed with
some justification that this was an indication that it was a resolving leak and that
further surgical intervention was both unnecessary and unwise. While at home
appellant suffered from a stuffy and irritating nose. On 11 September he blew his
nose and experienced an excruciating headache. He claimed he had not been told
not to do so. That was disputed. He rushed back to hospital and remained there
until 20 September. Again, so appellant said, his discharge was "by negotiation
and discussion". He was to be strictly confined to his bed, take antibiotic cover,
and report back regularly to the department. The leakage of cerebrospinal fluid
continued. First respondent's attitude was that it would stop of its own accord.
Appellant decided, so he said, to take a second opinion and consulted Dr Davidge-
11
Pitts on 7 October. Appellant was advised to wait for a few more weeks. He also communicated with Dr Hamersma during October. He was
reluctant to be involved but advised him to keep in contact with first respondent, to be conservative and to follow first respondent's
advice. By 23 October the leak had stopped and appellant returned to work on 28 October.
On 29 October appellant consulted an ophthalmologist, Dr Kuming, about problems he was experiencing as a consequence of not being
able to open and close his left eye because of the palsy. As time went by and no improvement in his facial condition appeared to
be taking place, appellant's anxiety increased. He experienced difficulty in making contact with first respondent (the reasons why
are in dispute). On 28 November 1991 appellant wrote to first respondent. The letter was mainly reproachful. It was said that the
facial palsy was still present and the question was posed whether the facial nerve had been either partially or completely severed.
Surprise and disappointment was expressed that neither first
12 respondent nor his department had made contact with appellant. However, first
respondent was thanked for everything and the operation was said to be "in a final
analysis" a "success" and "the nursing, medical and hospital" were said to have
been "superb".
First respondent claimed not to have received this letter until long after it was written, citing his lengthy absence from South Africa
as one of the reasons why he did not receive it sooner. He admitted that he did not reply to it but said that he was due to see appellant
soon after he had seen the letter and intended to discuss it with him then. As a fact they did not see one another again.
On 30 January 1992 appellant consulted a neurologist, Dr Levy, who was well known to him. Clinical examination failed to disclose
any observable functioning of the left facial nerve. An electromyographical test (known as an EMG test) was performed to assess whether
any function was present. According to Dr Levy mild volitional activity in certain of the facial muscles was noted. No
13 stimulation of the facial nerve was possible. Dr Levy concluded that there did
appear to be some return of function and suggested that a further EMG test in six
weeks time might be of some value. He said in evidence that the volitional
activity reflected when the EMG test was done was inconsistent with total
severance of the nerve and that for the message to have reached the muscle from
the brain stem via the facial nerve meant "that there must have been some
continuity" and that whatever lesion there might be was a "partial" one. He said
that clinical recovery of a facial nerve can be very delayed and that electrical
recovery often precedes clinical recovery. However, there is sometimes no
functional recovery. A further test was carried out on 1 July 1992 but the findings
were not recorded and Dr Levy was quite unable to recall what they showed.
Appellant claimed that he had been told by Dr Levy that the result of the first test
was equivocal and that nothing could be deduced from it. Dr Levy's response to
that was that the result of the test may have been equivocal as an indicator of
14 returning function but that it was not equivocal as an indicator of continuity of the
nerve.
Before returning to Dr Levy on 1 July 1992 appellant consulted Dr Hamersma during February 1992 after an arranged meeting with first
respondent did not take place on 4 February. Dr Hamersma examined appellant and subjected him to electrical testing. He told appellant
that the facial nerve was dead and that there was no response. He questioned appellant about his interaction with first respondent
and having learnt that first respondent had told appellant to await developments, he advised him to "err on the conservative
(side) and give it its best shot seeing that (first respondent) had never ever indicated any kind of concern" and that "we
should wait up till nine months". He also told him that he might need an operation and that he should consult another ear, nose
and throat surgeon, Dr le Roux, and a neurologist, Dr de Klerk.
On 5 March 1992 Dr Kuming performed a tarsorrhaphy operation on
15
appellant. It entails suturing the comers of the eye lids together in order to protect
the eye without depriving the patient of the use of the eye. Had appellant been able to open and close his left eye this operation
would not have been required. On 19 May 1992 appellant consulted Dr le Roux who sent him to a physiotherapy practice conducted by
Ms Melanie Jacobs in the same building in order to undergo a nerve excitability test (known as a NET). The test was conducted by
one of her assistants, Ms van der Merwe. According to Ms van der Merwe, she had no difficulty in performing the test. The apparatus
was not out of order and appellant was not told to come back on another day. According to Dr le Roux, the result indicated that the
nerve was alive and had a chance of recovery and that it had not been severed. A strange feature is that Dr le Roux testified initially
that he had not asked for the test to be done but conceded when confronted with a note written to Ms Jacobs that he had done so.
However, he said he had received no report on the result of the test. When asked why he had
16 not asked for the report when it was not forthcoming, he was quite unable to
explain why he had not done so. He claimed to have seen it for the first time in
court. Equally strange was appellant's evidence that the apparatus was not
functioning, that he returned on another day to be tested, and that the person
conducting the test was still "not very impressed with their apparatus" but said
"they have got some result and that they would report to Dr le Roux".
Dr le Roux advised appellant that he should consider going to see Dr
Fisch, a renowned surgeon in Zurich, with a view to surgical exploration of the
nerve and a primary nerve repair. Dr de Klerk shared that view. In the result
appellant was operated upon by Dr Fisch in Zurich on 19 September 1992. Dr
Fisch was unable to repair the nerve and instead performed a facial nerve
hypoglossal anastomosis. The operation entails severing the nerve to the tongue
in the neck and then connecting it to the facial nerve where it exits from the brain
stem at the base of the skull. The muscles of the face are thereby enervated and
17
the patient is trained to use the tongue to create facial movement. However, it will not restore emotional expression and while it
will be possible to close the eye, secretion of the eye does not return and the eye remains dry. The operation was successful.
Appellant underwent yet further operations in South Africa in 1993 to improve his facial appearance but it is unnecessary to describe
them. What was found during the operation in Zurich and what inferences could be drawn from what was found was the subject of much
debate. Dr Hamersma was present at the operation and described what was found. Dr Fisch did not testify but his note of the operation
was translated from German into English and placed before the trial judge by consent of all the parties as being a correct exposition
of what he did and what he found. The parts of it around which debate centred were these: "5. Behind the foramen meatal, a huge
neuroma bulged out of the opened
18
internal auditory canal. This neuroma was removed by tympaniplasty scissors, without escaping of fluid.
6.
Removal of bone over jugular bulbus in the area of porus acusticus internus. This had not been reached by previous operation. Exposure
of back, upper and lower surfaces of the internal auditory canal. The facial nerve was traced inside the scarred auditory canal.
A few millimetres before the foramen meatal, the nerve loses itself inside scar tissue. The scar extends over the entire internal
auditory canal.
7.
Opening of the meatal dura in the area of porus acusticus internus. Here too an atrophied facial nerve was to be found. Even after
removal of dense scar tissue from the internal auditory canal, it was still impossible to identify a proximal stump of the facial
nerve, with any certainty. It would appear that, after the previous operation, dense scar tissue in the internal auditory canal compressed
the facial nerve and led to development of a scar-neuroma.
8.
In view of the fact that facial paralysis had persisted for one year and the patient's facial muscles had a very flaccid appearance,
we decided to proceed with a hypoglosso-facial-anastomosis.
9
Review: The cause of the facial-nerve-lesion during the previous operation remains unclear. It is possible that the internal auditory
canal was, to a large extent closed by tissue which, as a result of post-operative swelling of facial nerve graft within the inner
auditory canal was compressed and, as a result, regenerated nerve-fibres were unable to establish contact with the meatal foramen.
Whether the 6 weeks of liquorrhea also were (also) responsible, remains an open question."
I mention that the facial nerve graft referred in the passage sub-headed "Review"
19 appears in the German as "des Transplantates der N. facialis" and that was
rendered as "the transplanted tissue" in Dr Hamersma's translation of the report.
What was thought to be a neuroma was shown on histological examination to be "scar tissue with parts of a peripheral nerve".
(A neuroma is the new growth of tissue which usually follows upon the severance of a nerve and it is something quite distinct from
scar tissue.) The reference to "liquorrhea" is a reference to the leakage of cerebrospinal fluid which occurred in September
1991.
The claim for damages was founded upon first respondent's conduct before, during, and after the operation. I shall deal with each
in turn. The claim based upon first respondent's conduct prior to the operation rested upon his alleged failure to apprise appellant
of the risks attending the operation and of the existence of an alternative operation. The claim was advanced in two ways in the
pleadings. First it was alleged that first respondent had "wrongfully failed to obtain the (appellant's) real or informed consent
to the operation and the first
20 (respondent) accordingly committed an assault on (appellant) in operating on him
on the 4
th
of September 1991". Secondly, and in the alternative, it was alleged that
in "treating the (appellant) and in carrying out the operation
(first
respondent) acted in a negligent and unskilful manner" in that he "failed to inform
the (appellant) prior to carrying out the operation of the risks and hazards involved
and he failed to inform the (appellant) of alternative operative treatment
available".
Pleading a cause of action such as this as an assault to which the
patient did not give informed consent is of course a familiar and time-honoured
method of doing so. However I venture to suggest with respect that its conceptual
soundness is open to serious question and merits reconsideration by this court
when an appropriate case arises. To the average person, and I suspect to many a
lawyer, it is a strange notion that the surgical intervention of a medical practitioner
whose sole object is to alleviate the pain or discomfort of the patient, and who has
21
explained to the patient what is intended to be done and obtained the patient's
consent to it being done, should be pejoratively described and juristically characterised as an assault simply because the practitioner
omitted to mention the existence of a risk considered to be material enough to have warranted disclosure and which, if disclosed,
might have resulted in the patient withholding consent. It seems to me to be inherent in the notion that even if the risk does not
eventuate and the surgical intervention is successful, the practitioner's conduct would nonetheless have constituted an assault.
That strikes me as a bizarre result which suggests that there is something about the approach which is unsound. There is no principle
of law of which I am aware by which the characterisation as lawful or unlawful of an intentional act objectively involving the doing
of bodily harm to another can be postponed until its consequences are known. Either it was an assault at the time of its commission
or it was not. Events occurring ex post facto can logically have no bearing on the question. It is no answer to say that if the
22 undisclosed risk does not eventuate no damage will have been caused. That has
nothing to do with the characterisation of the medical practitioner's act in
intervening surgically as lawful or unlawful. I mention this merely by way of
example to explain why I consider that the validity of causes of action framed in
this manner in circumstances similar to those which are said to exit in this case
requires re-examination. (I emphasise the latter qualification; I leave aside cases
in which mala fides is involved such as cases of deliberate fraud and deliberate
misrepresentation of what is entailed in order to obtain consent which would
otherwise not be forthcoming.) However, re-examination would be inappropriate
in the present case. The matter was not argued and even if it be assumed in favour
of appellant that the cause of action based upon an allegation of assault is
conceptually sound in law, I agree with the trial judge's conclusion that the
evidence does not bear it out.
The omission to inform appellant of the risk of leakage of
23
cerebrospinal fluid was of no significance. The leakage was not proved to be
causally related to the onset of the facial palsy and appellant did not claim that if the risk of leakage had been mentioned to him,
he would have refused to consent to the operation. Appellant's evidence as to the alleged failure of first respondent to inform him
of the risk to the facial nerve and of the availability of the alternative operation (labyrinthectomy) was rejected by the trial
judge. He pointed out that appellant had signed a document in which he consented specifically to a translabyrinthine vestibular neurectomy
and in which he acknowledged that the nature and possible effects of the operation had been explained to him. He referred to appellant's
own use of the expression "labyrinthectomy" in a letter which he wrote on 5 April 1991, which was of course prior to the
operation, and to appellant's concession that he may have been told that the translabyrinthine vestibular neurectomy would provide
a "one stop" solution to both his vertigo and his tinnitus. The learned judge considered that the reference to the latter
operation
24
providing a "one stop" solution to both problems suggested that a comparison was
made with another operation which would not achieve both objects. He noted that appellant had sought to explain his use of the word
"labyrinthectomy" by claiming that he thought it was a synonym for a translabyrinthine vestibular neurectomy but observed
that appellant must have heard the word "labyrinthectomy" from first respondent. He found that appellant was at the end
of his tether, was looking to first defendant to do whatever he could to eliminate or alleviate his problems, and was amenable to
whatever surgical intervention first respondent recommended. He added that appellant had never said that if he had been informed
of the risk to the facial nerve and of the alternative operation, he would not have consented to the operation which was performed.
The highest that appellant had put it was that he might not have consented. He drew attention to the fact that when appellant's letter
of demand was sent it made no mention of any failure by first respondent to inform appellant of the risk to the facial nerve and
the availability of an alternative
25 operation. He also considered it to be improbable that first respondent would have
failed to inform appellant of these matters. One might add that it is also somewhat
improbable that appellant would have been disinterested in such matters given the
fact that he was a medical practitioner with some knowledge of the anatomy of the
area in which the operation would be performed. No good reason exists to differ
from the trial judge's view that this cause of action was not made out. The same
applies to the alternative cause of action based upon an alleged negligent failure
to inform appellant of these matters. This conclusion makes it unnecessary to
decide upon the correctness of the approach to questions of this kind taken by the
full bench of the Cape Provincial Division in
Castell v De Greef
1994 (4) SA
409(C).
The remaining allegations of negligence levelled at first respondent
relate to both the manner in which first respondent performed the operation and
the manner in which he dealt with appellant after the operation. The negligent
26 conduct during the operation was pleaded originally as consisting of, firstly, the
severance of the facial nerve and, secondly, the failure properly to close the
operation site and the aditus (entrance) to the antrum (cavity). The latter allegation
was not persisted in at the trial and no more need be said about it. During the trial
appellant amended his pleadings to include an allegation that, if the facial nerve
was not severed, it was negligently damaged in some other unspecified way. A
request for particulars elicited the reply that "the nature of the damage was -
bruising, stretching, tearing, crushing, cauterising, compressing or interference
with the nerve's blood supply resulting in an alteration to the anatomical structure
of the nerve and interference of (sic) the electrical conduction of impulses through
the nerve", and that appellant was unable to be more specific. In response to the
question when and how the damage should have been diagnosed, appellant replied
that the "damage should have been diagnosed and recognised when the damage
arose at the operation, but certainly when the (appellant's) face exhibited signs of
27 paralysis". As to how and when the damage should have been repaired, appellant
replied: "Either by nerve suturing or grafting and if that was not possible, by
hypoglossal facial anastomosis, as soon as possible."
The trial judge concluded that the evidence did not establish on a
balance of probabilities that the facial nerve was severed during the operation.
That conclusion rested upon a number of subsidiary findings and considerations
which, if correct, amply justify it. Those findings and considerations were these.
The facial nerve must have sustained some injury during the operation. Severance
could not be deduced solely by invoking the res ipsa loquitur doctrine because
there were other potential causes of damage to the nerve which did not entail
severance. An immediate and complete post-operative palsy (which would have
been a concomitant of a severance) had not been established by the evidence. The
direct evidence of first respondent that the facial nerve was not severed or
otherwise observably damaged, corroborated as it was by the evidence of Dr
28 Vasek, who was present as an observer but bore no responsibility for the
operation, could not be justifiably rejected. Dr Levy's evidence that the facial
nerve showed signs of life when tested electrically on 30 January 1992 was
incompatible with severance. That evidence was acceptable evidence and Dr
Hamersma's attempt to pass the result of the EMG test off as equivocal, or as what
a "dumb neurologist" found, was impliedly rejected. The result of the NET test
performed at the rooms of Ms Melanie Jacobs at Dr le Roux's request showed that
there was regeneration of the nerve taking place and, when confronted with it, Dr
le Roux was constrained to concede that it pointed to non-severance. The Swiss
surgeon, Dr Fisch, was not called by appellant to give evidence and his report of
the operation which he performed contained no explicit statement that the facial
nerve had indeed been severed at the previous operation. That Dr Fisch may have
assumed at the time that severance had occurred was possible because he searched
for nerve ends to unite or join by way of a graft and found a mass of scar tissue
29
which he mistakenly thought was a neuroma. The fact that the tissue was found
on histological examination to be scar tissue and not a neuroma, made severance improbable. The very existence of the scar tissue,
which would have taken time to form post-operatively, and which could have put additional pressure on the nerve, was an indication
that the nerve might not have been cut initially. It could not simply be assumed, in the absence of evidence by Dr Fisch, that he
tested the nerve for viability before performing the operation which he did, when so many unanswered questions attended what he found.
His inability to identify a proximal nerve stump could also be interpreted as supporting the notion that there was in fact no severance.
The report was consistent with Dr Kassner's interpretation of it as indicating that the facial nerve was found embedded in the scar
tissue. (Dr Kassner is an ear, nose and throat surgeon who was called to testify by respondents.) At best for appellant, Dr Fisch's
report was to the effect that the cause of injury to the nerve was not clear and that the nerve may later have been
30 compressed by developing scar tissue. The learned judge rejected the evidence of
Dr Hamersma that the cochlear nerve had not been severed by first respondent
(and by implication the insinuation that the facial nerve had been mistakenly
severed instead). Finally, the learned judge considered that the result (60%
degeneration) of the ENOG test done on 5 September 1991, while not conclusive,
also tended to show there had been no severance.
While some of these considerations are of questionable probative
value, in the main the findings are justified by the evidence. There are yet further
considerations pointing away from the nerve having been severed during the
operation. Appellant's case was predicated upon the proposition (for which there
was a good deal of support in the evidence) that if the facial nerve had been
severed during the operation, first respondent would have been aware of it. If that
is so and if the facial nerve had indeed been severed, it is in the highest degree
unlikely that first appellant would have ignored it and simply continued with the
31
operation as if nothing untoward had happened. The swift onset of total palsy
would have been the inevitable consequence and he would have had to deal with
it. The injury to the nerve would not have been something which would go away
if left unrepaired and undisclosed. Moreover, it would have been extremely
difficult to conceal successfully such a mishap from the other medical personnel
participating in the performance of the operation. Once the cumulative impact of
these findings and considerations is measured, I am left in no doubt that there is
no preponderance of probability that the facial nerve was severed during the
operation. It is worthy of mention that Dr le Roux, appellant's own witness, said
that he did not think that one could really prove that it was severed.
Counsel for appellant's alternative contention was that whatever the
precise cause of the palsy was, the onset of the palsy was so immediate and
complete that it had to be inferred, as a matter of probability, that it could only
have been caused by some unspecified negligent act on the part of the surgeon
32 which caused damage so severe that the act must have been closely akin to
severance in its traumatic impact. To that contention I now turn.
Foundational to the argument was the premise that the onset of the
palsy was immediate and its extent complete in the sense that all the muscular
functions of the left side of the face controlled by the facial nerve came to an end
within hours of the completion of the operation. That is not what the trial judge
found. It is so that he rejected first respondent's euphemistic evidence as to the
appearance of appellant's face when he saw him in the ward later on the day of the
operation. It is also so that he accepted the honesty of the evidence given by
appellant's wife and members of her family regarding the appearance of
appellant's face. However, he did not regard their evidence as sufficiently reliable
to warrant concluding that there was indeed a "sudden complete" palsy on 4
September 1991. After referring to their evidence as to the "skewness" of
appellant's face and the details allegedly observed, he stated that allowance had
33 to be made "for the telescoping of impressions that stretch over a period". He
plainly had in mind the fact that appellant's face looked progressively worse as the
months went by and that the only photographs of his face which were available at
the trial were those taken when its appearance was at its worst. No photographs
taken very shortly or even relatively shortly after the operation were produced.
The members of the family differed to some extent from one another in describing
the details of what was observed. Appellant's wife, when asked to compare the
appearance of appellant's face then with its appearance in the photographs, was
unable to do so. All she could say was that it was not as bad as was depicted in
the photographs. When asked whether his appearance improved or deteriorated
after his discharge from hospital in September 1991, she replied: "I do not know.
Maybe I was just too emotionally involved, I do not know." She added that she
saw it "on and on and on and it always seemed grotesque to me". The trial judge
referred to the fact that the members of the family had no previous experience of
34
diagnosing a paralysis and that Dr Kassner had testified that it requires some
experience to do so and particularly to assess the degree of a paralysis - a proposition for which there was support in the medical
literature. He opined that the worst appearance of appellant's face would be the one most likely to be imprinted on their memories.
He referred to the evidence of both first respondent and Dr Vasek (which he felt unable to reject) that when appellant was clinically
examined in the recovery room after the operation for signs of facial weakness, there were none. He considered that their evidence
that if appellant had displayed a virtually immediate complete facial paralysis, prompt action would have been taken to deal with
it, was in accord with probability. He thought that first respondent's remark about recourse to law in the United States of America
in such circumstances and a remark overheard by appellant's daughter-in-law to the effect that the palsy would take longer to resolve
than appellant had initially been led to believe, was inconsistent with any belief on first respondent's part that appellant
35 had sustained a severe surgical injury to his facial nerve and had experienced an
immediate and total paralysis. He attached some significance to the fact that in
February 1992 appellant himself described the condition as a partial (meaning
transient) facial palsy and that when he solicited a letter from first respondent
describing his condition and it was described as such, he accepted it without
demur. He recalled (wrongly) that Dr Kassner had testified that a paralysis
manifesting itself within 4 hours of an operation "could still be consistent with a
delayed onset". (As a fact Dr Kassner gave no such evidence; it was the evidence
of Dr Vasek which could be interpreted as supporting such a proposition.) In the
result he concluded that what the evidence of appellant and his family did show
was that when he was first seen in the ward on 4 September 1991, there was a
"visible deformity that made an abrupt and unpleasant impression", "something
which disturbed them", and which was "a far cry from the hardly discernible
sluggishness to which first (respondent) testified". The overall conclusion was
36
that "(o)n all this evidence it cannot be accepted as proven on a balance of
probabilities that clinically a sudden complete palsy was present when Mrs Broude saw her husband in the ward". Again, some of
these factors are not particularly cogent when viewed in isolation but in their totality they provide sufficient justification for
the conclusion reached.
The evidence of Dr Hamersma is of pivotal importance in appellant's case. The trial judge's mainly unfavourable assessment of him
as a witness is fully borne out by the evidence. He was found to be deserving of credit for his readiness to champion the cause of
the appellant but lacking in objectivity because of his professional animosity towards first respondent which pre-dated the operation
which first respondent performed upon appellant. A disturbing aspect of his evidence was the zeal with which he sought to persuade
Dr Fisch to include in his report an unequivocal statement to the effect that the cochlear nerve had not been cut despite the fact
that the factual foundation for such a statement was
37 slender. His motive for doing so was to enable it to be argued that the facial nerve
had been mistaken by first respondent for the cochlear nerve and mistakenly
severed. A perusal of his evidence shows him to be a forceful and at times
excitable personality who was intent upon dredging up anything he could think of
which might reflect adversely upon first respondent's performance of the
operation, his conduct after the operation, and his credibility. Anything which
appeared to militate against his own thesis of severance of the facial nerve or
damage so serious as to be akin to severance was dogmatically derided as being
of no consequence. The neurologist who conducted an electromyography (EMG)
test and found signs of life in the nerve inconsistent with its severance was
"dumb". Aspersions were cast upon the competence of the physiotherapist who
performed the electrical nerve excitability (NET) test upon appellant and found
activity in the nerve. It will be recalled that the latter was a person in the practice
to which appellant had been referred for testing by one of his own witnesses, Dr
38 le Roux, and that the former was Dr Levy, whom appellant chose to consult.
Groundless allegations of a lack of provision of aftercare by first respondent, the
validity of which could easily have been proved or disproved by reference to
hospital records, were eagerly espoused by him and repeated in a letter sent to Dr
Fisch. A reckless allegation was made in a letter to Dr Fisch to the effect that the
appearance of appellant's face was the cause of appellant's son's suicide.
Appellant had said no such thing. His attempt to pass off as simply an example
of voluntary and informal peer review a letter written to Dr Fisch in which he
solicited his help in bringing pressure to bear upon respondents to compensate
appellant and in which he referred to first respondent as a surgeon who commonly
avoided his complications, who frequently had facial palsies, who was a show-off
and a liar, who touted for work at the medical aid societies and underbid his
colleagues, plainly lacked candour. While Dr Hamersma was a very
knowledgeable and experienced surgeon and there was much in his evidence
39
which made good sense and accorded with the evidence of other medical
witnesses and medical literature, there were too many manifestations of a lack of objectivity to enable one to repose any real confidence
in him as a witness. His dogged persistence in advancing the contention that first respondent had negligently severed the facial
nerve during the operation, knew that he had done so, yet failed to lift a finger to make amends, was, in the face of the countervailing
indicia and the inherent improbability of such behaviour, illustrative of unjustifiable obstinacy and cast a pall of doubt over the
value of his evidence on other contested issues.
Counsel for appellant contended that Dr Hamersma's evidence, namely, that the appearance of appellant's face as testified to by members
of appellant's family, was consistent only with an immediate and total facial palsy, had not been challenged in cross-examination
and that therefore all subsequent reasoning should proceed from that premise. The fact of the matter is that Dr
40 Hamersma's opinion is dependent upon the accuracy of the descriptions of
appellant's facial appearance on the day of the operation. The trial judge, for good
and sufficient reasons, was not prepared to find that their descriptions were
accurate in every respect and I am unable to justify declining to accept his finding
on that issue.
Counsel for appellant frankly conceded that if that finding
could not be successfully assailed (that it had not been proved that an immediate
and total left facial palsy had set in after the operation), he would find it very
difficult, if not impossible, to convince the court that it was more probable than
not that first respondent must have been negligent in some or other respect in
performing the operation. I think that the concession was correctly made. Indeed,
even if the immediate onset in of a total (complete) facial palsy had been proved,
it would have been questionable whether the inference that first respondent had
negligently seriously traumatised the facial nerve during the carrying out of the
41 operation would have been justified. The medical evidence shows that there are
ways in which a facial nerve may be unwittingly damaged, without any want of
care on the surgeon's part, to an extent sufficient to cause a paralysis which sets
in relatively swiftly but which will pass given time, provided that nothing
occurring post-operatively aggravates the damage or frustrates the healing process.
The finding of scar tissue in the internal auditory canal when Dr Fisch operated
is a complicating factor. The developing scar tissue could on the medical
evidence have compressed the facial nerve to such an extent as to seriously
aggravate whatever damage might have been done to the nerve during the
operation performed by first respondent. The reason for the presence of the scar
tissue could not be ascertained but a number of possible causes for which first
respondent could not be held responsible were identified. It may therefore well
have been the case that initial damage was unwittingly done to the facial nerve by
first respondent notwithstanding the exercise of due care and that, but for the
42 subsequent development of scar tissue which exacerbated the damage, the palsy
might have passed. A speculative suggestion by Dr Hamersma that first
respondent may have negligently thrust the fascia with which he covered the
opening in the dura into the canal and that it was the origin of the scar tissue found
by Dr Fisch, was rightly rejected by the trial judge as highly improbable.
Then there is the inability of any of the medical witnesses who testified (other than Dr Hamersma) to single out any particular potential
cause of damage as the most probable cause of such damage as occurred during the operation. When the water is muddied yet more by
the further uncertainties surrounding what was found and what was done when the subsequent operation in Switzerland was performed,
it becomes increasingly difficult to justify the proposition that it is more probable than not that the initial damage to the nerve
was negligently caused.
It is of course so, as counsel for appellant submitted, that what is
43 probable and what is not, can only be properly assessed by examining the
respective cases of appellant and respondents in their totality. It is also so that
undue concentration upon what may appear to be weaknesses in the case of each
should not be allowed to obscure the probative weight and impact of other
evidence which is not open to question. I do not think the trial judge was unaware
of those considerations. His judgment provides no indication that he was unaware
of them and it cannot be assumed that he was not aware of them.
There is of course another consideration to be borne in mind in cases
of this kind. When a patient has suffered greatly because of something that has
occurred during an operation a court must guard against its understandable
sympathy for the blameless patient tempting it to infer negligence more readily
than the evidence objectively justifies, and more readily than it would have done
in a case not involving personal injury. Any such approach to the matter would
be subversive of the undoubted incidence of the onus of proof of negligence in our
44
law in an action such as this.
When reviewing the total picture emerging from the evidence, counsel for appellant sought to invest with some significance what the
trial judge found to be untrue denials by first respondent of what at first blush might seem to be compromising statements made by
him after the operation (the reference to medical malpractice litigation in the United States of America and the long wait for recovery
of facial function which would be appellant's lot). It was argued that, when read with the difficulty which appellant said he experienced
in getting to see or elicit any response from first respondent after his discharge from hospital, it was indicative of a guilty conscience
and a realisation that the operation had not been performed with the necessary care. Some significance was also sought to be attached
to the finding that first respondent's description of the appearance of appellant's face soon after the operation was unjustifiably
euphemistic.
The trial judge weighed these contentions and discounted the
45 probative value of the findings on which they were based. He pointed out that the
remark about lawyers and the United States of America was equally consistent
with a genuine sense of confidence that at worst a transient facial palsy which
would soon resolve itself was present. The overheard remark, made on a later
occasion, that it would take longer to recover than appellant had initially been led
to believe, when objectively regarded, is not indicative of any sense of personal
guilt. The difficulties experienced by appellant in making contact with first
respondent were not regarded as sinister. The evidence on that issue was rightly
held to be inconclusive. The euphemistic description by first respondent of
appellant's face was not attributed by the trial judge to a wilful perversion of the
truth; instead he attributed it to reconstruction based upon available but
incomplete hospital records and assumptions about what would have been done.
He pointed to the inherent improbability of first respondent having known all
along that he had severely damaged the facial nerve but having refrained from
46
informing appellant and, more importantly, from having taken any remedial
operative action. Recriminations and unpleasant repercussions would be inevitable. Although he did not explicitly say so, I think
it is implicit in the trial judge's judgment that whatever reason first respondent may have had for denying making the remarks which
he did, the inference that it was because he had a guilty conscience was not justified. It was argued that the learned trial judge's
assessment of first respondent's credibility was unduly charitable and that reconstruction and inadequate hospital records could
not satisfactorily explain his excessively euphemistic description of appellants's facial appearance soon after the operation. Nor,
so it was submitted, could a subconscious repression of any recollection of the statements which he made after the operation satisfactorily
account for his denial that he made them. That may well be so, but I do not think that that contributes greatly to the resolution
of the question whether first respondent was indeed negligent in his performance of the operation. I find
47 myself unable to say that the trial judge was wrong in his overall assessment of
this aspect of the case.
Something was sought to be made by appellant's counsel of the fact
that some of the other members of staff who participated in the operation and who
would have seen appellant in the recovery room and later in the ward were not
called by respondents. It was argued that an inference adverse to respondents
should be drawn. I cannot agree. While those witnesses may perhaps be regarded
as falling within respondents' "camp" rather than appellant's, the onus of proof
lay upon appellant and not upon respondents. The latter had placed before the
court the evidence of first respondent and Dr Vasek both of whom could testify
as to what actually happened during the operation and in the recovery room. The
persons not called by respondents were available to appellant as witnesses and
consultations were held with some of them. They were professional people and
in all the circumstances I regard their non-appearance in the witness-box as a
48
neutral factor.
The post-operative negligence alleged can be disposed of shortly. An allegation that appellant was prematurely discharged from hospital
on the fifth day after the operation "in a debilitated and ill condition" was said by appellant himself to be incorrect.
An alleged negligent failure to institute any or proper treatment for a "dry eye" condition which often accompanies facial
palsy had to be jettisoned when it became quite obvious from contemporaneous hospital records, the authenticity of which was undisputed,
that appellant's evidence in support of that allegation was quite wrong. An allegation that there was a negligent failure to close
the cerebrospinal fluid leak was simply not shown by the evidence. It stopped of its own accord as both first respondent and Dr Davidge-Pitts
had predicted it would. An allegedly negligent failure to properly monitor appellant's condition by regular check-ups or examinations
was not established. As the trial judge correctly observed, the preponderance of evidence was that it
49
was expected of a public hospital patient to report back after his discharge. A
report back date had been mentioned upon appellant's first discharge. It was anticipated by his second re-admission to hospital when
the cerebrospinal leak worsened. Upon appellant's second discharge there was nothing to be done except to wait. Indeed one may add
that despite appellant's later resort to other medical practitioners for advice (including Drs le Roux and Hamersma), no immediate
surgical intervention was advised and they too advised appellant to wait and see what developed. By the time surgical intervention
was recommended appellant had long since ceased to look to first respondent for treatment and advice. An allegedly negligent failure
to inform appellant that he had severed the facial nerve and to determine the site of the damage to the nerve and repair it was not
proved because, for the reasons given earlier, a severance of the facial nerve during the operation was not proved.
All things considered, I am unable to conclude that the trial judge has
50 been shown to have been wrong in granting absolution from the instance. The
appeal is dismissed with costs including the costs of two counsel.
R M MARAIS
HEFER JA) EKSTEEN JA) NIENABER JA) HOWIE JA) CONCUR

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