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[2013] ZAWCHC 82
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Somke v Ostrofsky (9924/2008) [2013] ZAWCHC 82 (4 June 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
Case no: 9924/2008
In the matter between:
RONALD
MABOY SOMKE
.............................................................................
Plaintiff
and
M K
OSTROFSKY
......................................................................................
Defendant
Court
: Judge J I
Cloete
Heard
: 4, 5, 6, 7, 13
February 2013 and 30 May 2013
Delivered
: 4 June 2013
JUDGMENT
CLOETE J
:
The plaintiff claims damages arising out of allegedly negligent
treatment administered to him by the defendant, a maxilla-facial
and
oral surgeon, during June 2005. The plaintiff initially claimed the
amount of R280 000 comprised of past medical and
hospital
expenses of R40 000; future medical and hospital expenses in the
amount of R20 000; past loss of earnings of R20 000;
and
general damages for pain, suffering, discomfort, disability,
permanent loss of amenities of life and disfigurement of R200 000.
By notice dated 16 January 2013 the plaintiff withdrew the
claims for past medical and hospital expenses; future medical
and
hospital expenses; and past loss of earnings. The only issues for
determination are thus: (a) the merits; and (b) if the
plaintiff
succeeds on the merits, his claim for general damages.
On 12 July 2004 the defendant performed surgery on the plaintiff for
the intermaxillary fixation of fractures of the left mandible
due to
an injury that the plaintiff had suffered during an assault and
attempted hijacking. Because of malunion of the fractures,
the
plaintiff underwent further surgery on 9 September 2004 in the
form of an open reduction and internal fixation of the
left
mandible. On 27 June 2005 the plaintiff underwent a third
surgical procedure, namely a bilateral surgical split osteotomy.
The
claim only relates to the osteotomy procedure carried out on 27 June
2005.
It is alleged by the plaintiff that during February 2005 the
defendant advised him to undergo a bilateral surgical split
osteotomy
in order to obtain better occlusion and function. The
plaintiff accepted the defendant’s advice and the operation
was carried
out on 27 June 2005.
It is further alleged that subsequent to the operation the plaintiff
suffered an infection in the upper of the two plates in
his mouth;
the plaintiff’s bite opened progressively in the front and on
the sides; and the plaintiff experienced numbness
and a loss of
sensation along the left side of his lower lip. The infection was
first detected in the mandible on 9 September
2005 and had
settled by 22 November 2005. The post-operative relapse
indicated by progressive opening of the bite became
evident and
progressed gradually after the release of the inter-maxillary
fixation on 11 July 2005. The anterior open bite
was clinically
detected on 29 July 2005, and treated successfully by means of
dental extractions. Clinical evaluation of
the right alveolar nerve
revealed neuropraxia (i.e. temporary loss of nerve function
resulting in tingling, numbing and weakness,
usually caused by
compression of the nerve although there is no structural damage
involved, resulting in complete recovery).
Clinical evaluation of
the left inferior alveolar nerve revealed a complete neurotmesis
(i.e. complete severance), although there
was subsequent recovery
with normal sensation. In addition the left nerve displayed
causalgia (i.e. pain due to nerve damage)
indicated by a 20mm area
of hyperalgesia (i.e. increased sensitivity) in the chin area.
The grounds of negligence alleged by the plaintiff are that the
defendant in circumstances in which a reasonable specialist
maxilla-facial and oral surgeon would have done so: (a) failed to
consider orthodontic correction in order to obviate the need
for
surgical intervention; (b) decided to utilize an intra-oral
procedure and failed to consider and/or utilize an extra-oral
procedure, i.e. a bilateral extra-oral ramus osteotomy (reverse-L);
(c) failed to employ pre-surgical orthodontics in order to
provide
immediate post-operative stabilization of the dental occlusion; (d)
failed to remove all plates and screws from the plaintiff’s
mouth and jaw pre-operatively before embarking on the procedure; (e)
decided to extract the plaintiff’s lower teeth when
such
extraction was unwarranted in the circumstances; (f) failed to
assess and diagnose the post-operative complications properly,
timeously or appropriately and failed to take proper and/or timeous
steps to treat such complications; and (g) failed to inform
and
advise the plaintiff of (i) the risks attendant on the procedure
recommended by him and (ii) the alternatives to the procedure
recommended by him, including orthodontic treatment and extra-oral
surgical intervention.
All of the grounds of negligence are denied by the defendant.
THE APPLICABLE LEGAL STANDARD REQUIRED OF A MEDICAL
PRACTITIONER
Both in performing surgery and in his post-operative treatment a
surgeon is obliged to exercise no more than reasonable diligence,
skill and care. In other words, he is not expected to exercise the
highest possible degree of professional skill. What is expected
of
him is the general level of skill and diligence possessed and
exercised at the time by members of the branch of the profession
to
which he belongs: per Scott J in
Castell v De Greef
1993 (3)
SA 501
(CPD) at 509F-H and the authorities cited therein.
Further:-
‘
It
must also be borne in mind that the mere fact that an operation was
unsuccessful or was not as successful as it might have been
or that
the treatment administered did not have the desired effect does not,
on its own, necessarily justify the inference of lack
of diligence,
skill or care on the part of the practitioner. (Compare
Van
Wyk v Lewis
(
supra
at
462).) No surgeon can guard against every eventuality, although
readily foreseeable. Most, if not all, surgical operations involve
to
a greater or lesser extent an element of risk, and from time to time
mishaps do occur, and no doubt will continue to occur in
the future,
despite the exercise of proper care and skill by the surgeon. As
observed by Lord Denning MR in
Hucks
v Cole
(1968)
118 New LJ 469:
“
With
the best will in the world things sometimes went amiss in surgical
operations or medical treatment. A doctor was not to be
held
negligent simply because something went wrong.”
’
[Castell (
supra
) at 509H-510A]
In order to establish negligence it must be shown that a reasonable
practitioner in the particular circumstances would have foreseen
the
likelihood of harm and would have taken steps to guard against its
occurrence, but that the practitioner concerned failed
to take such
steps: see
Kruger v Coetzee
1966 (2) SA 428
(AD) at 430E-F.
The negligent conduct on the part of a medical practitioner must
have caused or contributed to the ultimate condition from which
the
patient suffers. In
Blythe v van den Heever
1980 (1) SA 191
(AD), the Court dealt with a claim where the plaintiff had sustained
fractures of his right radius and ulna. After a medical
practitioner
had operated to reduce the fractures, sepsis set in together with an
ischemic condition. As a result the plaintiff
suffered pain and
suffering and even after other operative procedures had nevertheless
been left with a “
claw-like
” right arm. The Court
of Appeal found that the medical practitioner had been negligent in
his post-operative treatment
of the plaintiff in that he had failed
to diagnose and take the necessary prompt action for the ischemia,
as a reasonably skilled
and careful medical practitioner would have
done, and that had he done so the fractures would probably have
healed satisfactorily
and full use of the arm regained; his
negligence had caused or contributed to the permanent disability.
The court set out the questions that need to be addressed as
follows: (at 220H-221C);
‘
Applying
the basic principles relating to delictual negligence which is
causally linked to the damage suffered to the situation
in the
present case, it seems to me that this enquiry resolves itself into
the following questions:
(i) Whether the reasonably
skilled and careful medical practitioner in the position of the
respondent would have realised that a
serious ischemic condition was
developing or threatening to develop in appellant's forearm; and, if
so, when he would reasonably
have come to realise this.
(ii) Whether there was
remedial action which could reasonably have been taken.
(iii) Whether the same
notional practitioner would have known of this remedial action and
would have realised that it had to be
taken.
(iv) Whether the remedial
action, if taken when the need for it ought reasonably to have been
realised, would have prevented the
damage suffered by appellant.
(v) Whether respondent
himself failed to take such remedial action....’
THE APPROACH OF OUR COURTS TO EXPERT EVIDENCE
The approach of our courts to the evaluation of expert evidence was
restated in the case of
Michael and Another v Linksfield Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at pages 1200 and
1201, paragraphs [34] to [40]:
‘
[34]
In the course of the evidence counsel often asked the experts whether
they thought this or that conduct was reasonable or unreasonable,
or
even negligent. The learned Judge was not misled by this into
abdicating his decision-making duty. Nor, we are sure, did counsel
intend that that should happen.
However,
it is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the Court itself to
determine on the basis of the various, and often conflicting, expert
opinions presented. As a rule that determination will not
involve
considerations of credibility but rather the examination of the
opinions and the analysis of their essential reasoning,
preparatory
to the Court's reaching its own conclusion on the issues raised…
[36] ….
(W)hat is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded
on logical
reasoning…
[40] ….(I)t must be
borne in mind that expert scientific witnesses do tend to assess
likelihood in terms of scientific certainty.
Some of the witnesses in
this case had to be diverted from doing so and were invited to
express the prospects of an event's occurrence,
as far as they
possibly could, in terms of more practical assistance to the forensic
assessment of probability, for example, as
a greater or lesser than
fifty per cent chance and so on. This essential difference between
the scientific and the judicial measure
of proof was aptly
highlighted by the House
of Lords in the Scottish case
of Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 77
and the warning given at 89D -
E that
“
One
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead
of assessing, as a Judge must do, where the balance of probabilities
lies on a review of the whole of the evidence
”
.
….’
”
[
emphasis
supplied]
In the matter of
Louwrens v Oldwage
2006 (2) SA 161
(SCA) at
paragraph [27] the Court stated:
‘
What
was required of the trial Judge was to determine to what extent the
opinions advanced by the experts were founded on logical
reasoning
and how the competing sets of evidence stood in relation to one
another, viewed in the light of the probabilities.’
(See also
Fulton v Road Accident Fund
Case No 2007/31280 SGHC
(1 February 2012) at paragraphs [22] – [23].)
As regards the duties of expert witnesses, it was stated in
National
Justice Cia Naciera SA v The Prudential Assurance Co Ltd, The
Ikranian Reefer
[1993] 2 Lloyds Report 68:
‘
1.
Expert evidence presented to the Court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation
.
2.
An expert witness
should provide independent assistance to the Court by way of
objective unbiased opinion in relation to matters
within his
expertise.
3. An expert witness should
state the facts or assumptions upon which his opinion is based. He
should not omit to consider material
facts which could detract from
his concluded opinion.
4. An expert witness should
make it clear when a particular question or issue falls outside his
expertise.
”
THE ISSUE OF INFORMED CONSENT
A practitioner generally has no right to treat a patient unless the
latter consents to such treatment. A patient has a common
law and
constitutional right to bodily integrity. A practitioner who treats
or performs an operation on a patient without consent
may be liable
in a civil action for any damages arising therefrom: see Joubert
The
Law of South Africa
(17) at p27 and the authorities cited at
footnotes 2 to 4 and 8.
A patient will be held to have consented where he
inter alia
(a)
has knowledge of the nature and extent of the harm or risk involved;
(b) appreciates and understands the nature of the
harm or risk;
(c) has consented to the harm or assumed the risk; and (d) the
consent is comprehensive, that is to say it extends
to the entire
transaction, inclusive of its consequences:
Castell v De Greef
(full bench)
1994 (4) SA 408
(C) at 425H-J. Whether or not there was
consent in a particular instance is a question of fact. The patient
can consent expressly
to treatment (meaning the consent may be
either orally or in writing), or the person may consent tacitly
(meaning by conduct).
Consent generally takes the form of a request
made by a patient for a specific treatment or operation. As a
general rule, where
a patient enters a hospital or undergoes
surgery, a written consent is required: see Lawsa (
supra
) at
p28.
For the purposes of a claim based upon lack of informed consent, it
is incumbent upon the plaintiff to prove that, had he been
informed
of the particular risk in question, he would have refused to consent
to the operation; i.e. that there was a causal
connection between
the failure of the defendant to obtain the plaintiff’s
informed consent to the operation and the injury
resulting from the
materialisation of the risk of which the plaintiff was not informed.
In
Broude
v Mackintosh and Others
1998 (3) SA 60
(SCA)
the appellant appealed against the finding by the trial court of
absolution from the instance. One of the grounds upon
which the
appellant relied was the alleged failure of the respondent to inform
him of the risk of damage to the facial nerve
and the availability
of an alternative operation. Marais JA held as follows at 68F-69E:
“
The
omission to inform appellant of the risk of leakage of 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 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
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.
”
THE LAY EVIDENCE
The plaintiff himself testified as did Dr Marlene Kotze, a dentist
based at 2 Military Hospital, Wynberg. The only lay witness
to
testify for the defendant was his personal assistant, Ms Curtis.
The plaintiff’s evidence was that he is employed by the South
African Navy. In July 2004 he sustained a broken jaw during
an
assault by a group of persons who attempted to hijack his vehicle.
He was taken to 2 Military Hospital. He was referred to
the
defendant who treated his fractured jaw by wiring it together.
The jaw did not mend properly and a second operation was performed
on 9 September 2004. Plates were put in so that the jaw
could
heal. His jaw was wired closed again. After the second operation,
the plaintiff felt some numbness on his lower lip.
Subsequently, and during one of his follow-up appointments, the
defendant informed the plaintiff that his lower jaw was ‘
prominent’
causing the teeth in the upper jaw to protrude over the teeth in the
lower jaw. The defendant suggested that he could correct
the problem
and the plaintiff agreed to this suggestion.
An operation was then performed on 27 June 2005. After the operation
wires and elastics were placed in his mouth. He attended
on the
defendant for follow-up appointments. At one of these appointments
the defendant removed some of the elastics and realized
that the
plaintiff had an open bite on the left side. The defendant ground
some of the teeth down and in the end referred the
plaintiff to Dr
Kotze to correct the open bite. Initially the open bite was not big
but it grew bigger as time went by.
The plaintiff was seen by Dr Kotze at 2 Military Hospital. She did
not want to grind down the teeth to correct the problem, and
referred him back to the defendant. He returned to the defendant who
advised him that the problem would resolve itself with the
passage
of time. He did not know what to do, and decided to return to Dr
Kotze for advice. The plaintiff again consulted Dr Kotze
who
referred him to Dr Rushdi Hendricks, a specialist in maxilla-facial
oral surgery, for a second opinion. Dr Hendricks examined
him and
found infection. He consulted Dr Hendricks two or three times
thereafter before the latter carried out surgery to
his mouth and
jaw.
The surgery performed by Dr Hendricks related to the removal of the
plates and screws. Dr Hendricks also extracted some teeth
at the
back of his mouth to try to reduce the open bite. The surgery was
effective as the open bite was improved. At a later
date Dr
Hendricks carried out a further operation to ‘
shape’
the plaintiff’s jaw.
On the day of the first operation by Dr Hendricks, the defendant saw
the plaintiff in hospital and asked him what he was doing
there,
given that he was the defendant’s patient. The plaintiff
advised him that the hospital had arranged for another
doctor to see
to him. Before his initial consultation with Dr Hendricks, the
plaintiff had telephoned the defendant’s
rooms to arrange
another consultation but was told that the defendant was in London
on vacation. Thereafter and on the advice
of colleagues and members
of the community, he laid a complaint against the defendant with the
Health Professions Council of
South Africa, but the defendant was
subsequently exonerated of any professional misconduct.
The plaintiff’s evidence was further that as a result of the
third operation carried out by the defendant, he experienced
an open
bite, numbness in the lower lip, loss of weight, pain and infection.
He first testified that he had started to feel numbness
in his lower
lip after the second operation carried out by the defendant. His
evidence was then that he was not sure whether
it was numb after the
first operation but accepted that he must have felt numbness of the
left lower lip after the first operation
because this had been
recorded by the defendant in his notes. At present his only
complaint is that there is still a little numbness
in the same area,
but it is better now than it was. The numbness does not affect the
plaintiff’s speech and only bothers
him when eating hot or
cold foodstuffs. He also testified that he had no complaints about
the first or second operations carried
out by the defendant. He was
not asked whether he had suffered a knock or other injury to his jaw
after the third operation.
As regards his consent to the third operation, the plaintiff’s
evidence was that he did not recall signing any formal document
before that operation was carried out, nor did he remember
discussions with the defendant about possible complications of the
third operation.
The evidence of Dr Marlene Kotze, the principal dentist at the Oral
Health Department of the 2 Military Hospital, may be summarised
as
follows.
On 12 July 2004 the plaintiff was assessed at the Emergency Unit by
Dr Groenewald after he suffered an assault during an
attempted
hijacking. At the time Dr Kotze was the acting Head of Department.
The plaintiff was referred to the defendant as maxilla-facial
treatment was necessary. A Dr Serfontein had assisted the
defendant in theatre.
Dr Kotze had assisted the defendant in theatre during the second
operation on 9 September 2004 when the inter-maxillary
fixation
was carried out. She saw the plaintiff again on 10 September 2004
and he was given instructions to schedule appointments
for the
defendant for follow-up treatment. Subsequently, Dr Kotze received a
telefax from the defendant dated 8 February
2005 in which the
defendant advised her
inter alia
that:
‘
We
now have a problem with asymmetry of the occlusion with a severe
traumatic bite involving the lower left anterior teeth which
has led
to a fair amount of mobility of the teeth in this area.
The treatment which needs to
be carried out in order to obtain a better occlusion and function and
in order to avoid further trauma
to the anterior teeth would be for a
mandibular saggital split osteotomy to be carried out on both sides.
…’
The saggital split operation was carried out on 27 June 2005. The
defendant was assisted by a Dr Cawood. No notes were made during
the
operation and Dr Kotze has no personal knowledge of what
occurred.
On 29 July 2005 Dr Kotze saw the plaintiff who had been referred to
her by the defendant for minor selective grinding of the
surface of
certain teeth to eliminate some premature contacts. Dr Kotze found
the plaintiff to have an open bite. The open bite
was more or less
8mm in extent. She telephoned the defendant and informed him that
she could not do any selective grinding as
the plaintiff had an open
bite. The defendant requested Dr Kotze to send the plaintiff back to
him for a consultation.
On 5 August 2005 Dr Kotze received a telefax from the defendant in
which he reported,
inter alia,
that:
‘
I
have taken all the arch bars off the above patient and I am quite
happy that if one places his mandible in centric relation that
there
is no anterior open bite. He sometimes habitually places his jaw
forward and I think that this is to avoid the premature
contacts
which are present in the new bite.
’
On 9 September 2005 Dr Kotze saw the plaintiff again. The open bite
was still present with definite premature contacts which
prevented
the plaintiff from closing his mouth. At the consultation Dr Kotze
took photographs of the plaintiff’s mouth
when he closed his
mouth on his own and when she placed his jaw in centric relation;
i.e. to obtain as full a contact as possible.
In centric relation
the bite was still open.
The plaintiff was very
despondent, as he could not chew properly, given that he only had
contact on the right hand side of his
mouth. Ordinary occlusal
equilibration was not possible due to the extent of the open bite.
Dr Kotze was not comfortable
performing major occlusal
equilibration, and suggested that a second opinion be obtained.
X-rays were also taken which showed
that there were fractures
involved, rather than premature contacts only.
Dr Kotze referred the plaintiff to Dr Hendricks and in her referral
letter, dated 9 September 2005, she stated that:
‘
[The
plaintiff]
was
referred back to me to do occlusal adjustments to remove premature
contact areas. I however think the problem is much bigger
and that
the
[plaintiff]
will
have to go back to theatre.
’
Dr Kotze’s evidence was further that it is the norm that the
military does not pay for pre-operative orthodontics to be
carried
out on adult patients. In two cases in which Dr Kotze was involved
special motivations had been sent to military headquarters
for
orthodontic treatment for adult patients. Both were denied. Dr Kotze
has never been successful in obtaining such approval.
Finally, Dr Kotze accepted that during his examination of the
plaintiff the defendant may not have observed the anterior open
bite, since, when placed in centric relation, the open bite was
significantly reduced.
Ms Colleen Curtis, the defendant’s personal assistant,
testified
inter alia
as follows. Her duties entailed
maintaining the defendant’s diary on a daily basis,
interacting with patients, ensuring
that accounts were paid,
attending to the defendant’s theatre listing and making sure
that all bookings were correct.
The plaintiff attended an appointment with the defendant on 12
August 2005 when the inter-maxillary fixation was removed by the
defendant. The defendant recommended that the plaintiff return for
further occlusal equilibration.
The plaintiff was unable to attend a post-operative appointment
scheduled for ten days later on 22 August 2005 as he was
going
to be away on a course in Saldanha Bay. The plaintiff left the
defendant’s rooms on the understanding that he would
check his
schedule and that after consulting with Dr Kotze for the occlusal
equilibration he would contact Ms Curtis to arrange
a further
appointment with the defendant.
During September 2005 the plaintiff telephoned the defendant’s
rooms whilst the latter was overseas. This must have been
about two
days after the defendant left for overseas on 2 September 2005.
The plaintiff informed Ms Curtis that he
needed an urgent
appointment with the defendant. She advised him that the defendant
was overseas and that he would be accommodated
as soon as the
defendant returned some eight days later. None of the dates offered
to the plaintiff fitted in with his commitments.
Ms Curtis
suggested that the plaintiff obtain leave of absence and requested
him to let her know when he would be able to
attend an appointment.
The plaintiff agreed. Ms Curtis did not hear from the plaintiff
again, and neither did the defendant prior
to this litigation.
THE EXPERT EVIDENCE
The expert evidence was that of Dr Hendricks, who testified for the
plaintiff, and Professor Morkel, who testified for the defendant,
both of whom are maxilla-facial and oral surgeons. At the outset it
is necessary to comment on how these witnesses gave their
evidence.
I was impressed by the level of expertise and degree of impartiality
displayed by Professor Morkel throughout his testimony.
Unfortunately the same cannot be said of Dr Hendricks, who
exhibited an alarming degree of personal antagonism towards the
defendant.
By way of example: (a) in his evidence in chief he accused the
defendant of ‘
ridiculing’
parts of an earlier
report that Dr Hendricks had furnished ‘
when he attempted
to dishonour me in front of the Health Professions Council’
;
(b) when this was taken up with him in cross-examination Dr
Hendricks confirmed his view in strong terms and referred me
to a
memorandum written by the defendant to the Health Professions
Council ‘
whereby he misled the Council with incorrect facts
so that they could make a finding in his favour’
; (c) he
also accused the defendant of luring away one of his patients,
allowing complications to develop in the defendant’s
treatment
of that patient, and thereafter attempting to discredit Dr Hendricks
before the Health Professions Council; and
(d) he claimed that the
defendant had previously left a health facility at which Dr
Hendricks had been a registrar under ‘
a cloud of suspicion
relating to his activities’
at that establishment. It must
also be borne in mind that it was Dr Hendricks who had subsequently
treated the plaintiff after
he was referred to him by Dr Kotze.
Although Dr Hendricks attempted to nonetheless portray himself as
impartial I was left with the disturbing impression that
he had
a large axe to grind with the defendant, and he did not hesitate,
when the opportunity presented itself, to take both
personal and
professional swipes at the defendant during the course of his
testimony.
Shortly before the matter was argued I was provided by the
plaintiff’s attorneys with a copy of a letter addressed to the
plaintiff by them confirming a discussion relating to outstanding
fees due to counsel who appeared on the plaintiff’s behalf.
The relevant portion of that letter is as follows:
‘
We
refer to the meeting at our offices dated the 15 May 2013 wherein we
advised you of the circumstances regarding your case against
Dr
Ostrofsky and wherein you advised us that Dr Rushdi Hendricks was to
have assisted you with the payment of counsels fees.
Counsel has called on us for
payment of her fees and unfortunately on contacting Dr Rushdi
Hendricks to discuss the payment he seems
to have capitulated on his
earlier decision to assist you.
As we have been unable to
secure proper financial instructions from Dr Rushdi Hendricks
regarding counsel’s fees in this
matter and since we now as
attorneys of record are responsible to pay counsel.
[sic]
We have made several attempts
to make contact with you since then, in order to take further
instructions, and you do not seem to
answer your telephone or respond
to the numerous messages left for you to make contact with us.
In the circumstances we have
no alternative but to withdraw as your attorneys of record and advise
you that the matter is set down
for closing argument on 30 May
2013 at the High Court, Western Cape High Court. The Sheriff of the
Court has been instructed
to deliver the Notice of Withdrawal to you
today.
The Court usually commences
at 10h00 and we suggest that you obtain the services of other
attorneys to represent you or you may
attend court personally.’
Dr Hendricks was also somewhat bombastic in his attitude and was
prone to lengthy and unstructured answers to simple questions,
apparently in an attempt to demonstrate his superior knowledge and
expertise to that of the defendant, and to some extent, Professor
Morkel.
As was stated by Davis J in
Schneider NO and Others v AA and
Another
2010 (5) SA 203
(WCC) at 211J-212B:
‘
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor give evidence which goes
beyond the logic which is dictated by the
scientific knowledge which
that expert claims to possess.’
It is therefore my view that I must, of necessity, treat the
evidence of Dr Hendricks with the utmost caution. I am however
assisted in making findings in light of the crucial concessions
which Dr Hendricks ultimately made as well as the testimony of
Professor Morkel who, as submitted by Mr Corbett who appeared
on behalf of the defendant, gave his testimony in a measured,
structured and objective fashion; and who led me to conclude that
his opinions were founded on logical reason when viewed against
the
probabilities.
Professor Morkel testified that as Head of the Department of
Maxilla-Facial Surgery at Tygerberg Hospital, he encounters a number
of trauma patients and complications such as that of the
plaintiff’s. He had examined the plaintiff, the records of the
treatment received by the plaintiff, the x-rays which were available
and the models of the plaintiff’s teeth prior to surgery.
He highlighted the importance of bearing in mind that prior to the
carrying out of the bilateral saggital split osteotomy the
plaintiff
had suffered two fractures of the jaw, namely to the body and the
condyle of the jaw.
It is against this background that the expert evidence will be
considered by reference to each individual ground of negligence
alleged by the plaintiff.
FAILURE TO CONSIDER ORTHODONTIC CORRECTION
Professor Morkel testified that until the 1960s orthognathic surgery
was performed without any pre-surgical orthodontic treatment.
(Orthognathic surgery is the surgical correction of severe
malocclusion to improve facial appearance).
More recently, as a general rule, orthodontic treatment is
administered before surgery. However, this practice has been
criticized
on the basis that it is a very time consuming stage of
treatment.
Currently orthodontic treatment can take up to two years, is
extremely expensive and waiting lists for orthodontic cases at
public hospitals are lengthy and limited to severe cases such as
cleft pallets or patients with other deformities.
In many cases where the bite has shifted and the bony fractures have
united in the incorrect position due to trauma, orthognathic
surgery
is carried out without pre-orthodontic treatment given the practical
and logistical challenges attendant upon orthodontic
treatment.
If a patient’s teeth are completely out of position
orthodontics would be carried out and it would take up to two years
to attempt to secure a stable occlusion prior to surgery.
The maxilla-facial surgeon concerned will use his clinical judgment
with reference to the models of the patient’s teeth
to see if
there are sufficient contacts between the teeth and adequate
occlusion before making a decision as to whether or not
pre-surgical
orthodontics are necessary. Where, however, the malocclusion is due
to trauma it is usually treated as an orthognathic
case without
orthodontic treatment.
After examining the pre-surgical models of the plaintiff’s
teeth, Professor Morkel found that there were seven points of
contact between the upper and lower teeth, whereas only three points
of contact are required for a sufficiently stable occlusion
to
dispense with pre-surgical orthodontic treatment.
The plaintiff also presented with relative contra-indications for
pre-surgical orthodontic treatment given that he had loose
and
peridontically compromised teeth as well as crown and bridgework.
In Professor Morkel’s opinion the defendant did not act
improperly in failing to refer the plaintiff for orthodontic
treatment prior to surgery:
‘
I
do not think that it was an incorrect treatment option. A surgeon
will have to take multi-factorial matters in consideration and
if
this case presented in the academics we will most probably also have
treated it with our logistical conditions as a surgical
case without
orthodontics.
’
In cross-examination, and although loathe to accept that
pre-surgical orthodontic treatment was not indicated, Dr Hendricks
testified that he could not fault the defendant for carrying out the
saggital split osteotomy; and that orthognathic surgery had
indeed
been necessary to correct the asymmetry of the plaintiff’s
jaw, irrespective of whether orthodontics had been employed
or not.
FAILURE TO UTILIZE AN EXTRA-ORAL PROCEDURE
In Professor Morkel’s experience the older approach adopted by
maxilla-facial and oral surgeons was to utilize the extra-oral
procedure. However, and at least since before 2005, the procedure of
choice is the intra-oral procedure carried out by the defendant.
This was conceded by Dr Hendricks.
FAILURE TO REMOVE THE PLATES AND SCREWS
.
Professor Morkel testified that as a general principle plates and
screws surgically inserted after trauma should not be removed
prior
to surgery of this nature.
In his opinion there was no clinical, radiological or
intra-operative evidence of infection in the area of the screws and
plates
prior to the surgery being carried out by the defendant.
Professor Morkel testified that having viewed the x-ray taken
directly after the surgery there was also no evidence of infection
associated with the plates or screws.
Dr Hendricks conceded that plates and screws are not routinely
removed. They are only removed when there are specific indications
such as infection associated with the plates or they are in the way
of the surgery to be carried out, which was not the case
here. He
also conceded that there was no radiological evidence of infection
prior to surgery, but claimed that radiological evidence
alone was
not a sufficient indicator of the absence of infection. It was put
to him that there had been no clinical signs of
infection either,
which he was unable to dispute given that he had not examined the
plaintiff prior to the surgery having been
carried out by the
defendant.
Dr Hendricks conceded that during his first examination of the
plaintiff on 9 September 2005 (i.e. two months after the
defendant had carried out the surgery) he did not observe any
infection associated with the plates. He only observed the infection
during his second clinical examination a further three weeks later
on 29 September 2005. In his opinion, the infection probably
developed a good while after the carrying out of the saggital split
procedure: ‘
in my opinion that infection may have come in a
lot later; more towards the time that
[the plaintiff]
came to
see me … I cannot comment on when the infection actually
started’.
He then also conceded that ‘
no, I’m
not
[blaming the defendant].
It could well have been
undetectable…’.
and that, in the circumstances, it
could not have been expected of the defendant to have noted and
treated the infection.
In addition the infection was not severe when first noted by Dr
Hendricks on 29 September 2005 and it was only dealt with
during the surgery carried out five weeks later on 7 November 2005:
‘
And
it couldn’t have been that serious because you only operated on
him on the 7
th
of November which was more than a month, probably after six weeks
after you observed it. --- I would agree with that. That’s
not
an issue.’
EXTRACTION OF TEETH
It became common cause during the trial that no teeth had been
extracted by the defendant after all and this ground of negligence
alleged by the plaintiff requires no further comment.
FAILURE TO ASSESS AND DIAGNOSE THE POST-OPERATIVE COMPLICATIONS
PROPERLY
Professor Morkel testified that having viewed the x-ray taken
directly after surgery on 27 June 2005 there was good alignment
of
the lower jaw. The subsequent x-ray taken when the plaintiff saw Dr
Kotze on 9 September 2005 demonstrated that the lower
jaw had moved
and the osteotomy site had become displaced with the result that the
mandible had what is known as a “
bucket handle
”
deformity. The surgical fracture site had become dramatically
displaced resulting in the anterior open bite.
Professor Morkel testified that according to the defendant’s
notes, the plaintiff was fine after surgery and the x-rays
showed
that there was good alignment of the fracture sites. In his evidence
the plaintiff also testified that he was fine directly
after surgery
but that over time his bite had changed.
Dr Kotze had conceded that it was possible that when the defendant
examined the plaintiff the open bite was not apparent to him;
in
particular if the jaw had been placed in centric relation. When Dr
Kotze saw the plaintiff on 29 July 2005, i.e. 32 days after
surgery,
she observed the anterior open bite.
In Professor Morkel’s opinion, there must have been an event
which disrupted the fracture site after the osteotomy was
carried
out, such as a knock to the chin. Because the patient would have
experienced numbness post-operatively he might well
have been
unaware of the event given that major force is not required to cause
a disruption of this nature. Professor Morkel
has personally
experienced such cases during the course of his professional career.
His evidence was as follows:
‘
Mr
Somke said that he was fine directly after surgery and then his bite
changed. So he was fine. Dr Ostrofsky felt that he was fine
after
surgery if we look at his notes and if we look at those X-rays there
were alignment of the fracture sites. Then if we move
to Dr Kotze’s
evidence, and that’s on day 32, post surgery she saw an
anterior open bite of 8mm and that coincides
to the clinical
photographs that Dr Hendricks showed. So we have to have a look at –
we only have an X-ray at two and a half
months where it shows that
clinically coincides we would now assume with the same clinical
picture that Dr Kotze saw. So now we
have to move back and try and
theorise what happened. So there must have been some event that
caused disruption of these fixation
sites. The fixation sites as
we’ve explained before are osteotomies and one must see them as
controlled fractures of the
jaw that were not fixed. We don’t
routinely use as I said before in our unit and myself we don’t
use bicortical screws.
People that use bicortical screws feel that
there is even more stability with bicortical screws than with plates
and that plates
sometimes allow you a little bit of movement. So
looking at those X-rays and the amount that’s these fracture
sites displaced
was astounding. So I – one has to speculate
that something happened that displaced that fracture. Now Dr
Ostrofsky he has
never seen something like that. Dr Hendricks
said he has seen that once in a surgical case and in my experience
and the academics,
I’ve been fortunate to see it a few times.
The thing that masks such an event is the fact that the patient is
numb. So the
patient feels as if they’ve had a local or a
dental injection in their lower jaw. So all the lower teeth, the bone
and the
lips all feel numb. So they can hardly feel or have any
sensation inside their mouth and outside their mouth.’
After displacement of the fracture site muscle action in the area
would further displace the fragments and that is what results
in the
“
bucket handle
” effect since the lower muscles
tend to pull the jaw downwards. Further, when the operation site
becomes displaced, this
is a recipe for infection.
In Professor Morkel’s opinion the use of a bite splint by the
defendant did not play a role in the development of the
post-operative complication. In any event, the defendant could not
be faulted for having used a splint.
In the view of Professor Morkel, regarding the difference between
the defendant and Dr Kotze’s observations, the open bite
could
be due to the fact that there was movement in the fracture site and
that the plaintiff presented with different clinical
pictures when
he was first examined by the defendant and later by Dr Kotze.
Professor Morkel’s evidence was also that relapse after a
saggital split osteotomy can occur for a number of reasons such
as
condylar sag, condylar compression, infection or unstable occlusion.
Although the risk of relapse is minimal (roughly 3%)
and subsequent
disruption of the fracture site even less (roughly 1%) the fact of
the matter is that these are nonetheless recognised
complications.
Dr Hendricks too conceded that relapse and displacement of the
fracture site is a recognized complication
after a saggital split
osteotomy.
Dr Hendricks also conceded that damage to the nerves, in particular
the left inferior alveolar nerve, would have been caused
by the
relapse or displacement of the osteotomy and not by the procedure
itself; and that nerve damage is also a recognized complication
of a
saggital split osteotomy.
THE FAILURE TO INFORM AND ADVISE PLAINTIFF OF THE RISKS
The plaintiff’s evidence in chief was that the only
information provided to him by the defendant before the surgery was
that he would be admitted to the intensive care unit and that ‘
wires
and elastics’
would be placed in his mouth. He denied that
any other discussions between the defendant and himself had taken
place. During
cross-examination the plaintiff conceded that he was
made aware by the defendant of the purpose and nature of the
surgery; but
testified that he could not recall whether he had
signed a document concerning the surgery before it was carried out.
A document
was then presented to the plaintiff, bearing the heading
‘
SA Military Health Service Informed Consent’
. It
is dated 20 May 2005; reflects the surgical procedure to be
carried out; and bears the plaintiff’s signature adjacent
to
the end of the following words:
‘
I,
the undersigned, hereby consent to the performance of, and understand
the nature, risk and possible consequences of the procedure(s),
anaesthesis and treatment in the ICU, high care and/or wards. The
doctors who perform the procedure(s) may increase the reasonable
scope thereof to carry out additional or alternative measures
(including general anaesthesia) if considered necessary.’
The document also records that the ‘
means used’
to explain the surgical procedure to the plaintiff was ‘
personally’
;
and that the plaintiff had personally furnished his consent thereto.
It also bears the defendant’s signature next to the
words ‘
I
have explained the nature, risks and possible consequences of the
medical / surgical procedure(s), as well as the risks of
anaesthesia, to the above-signed patient / person legally competent
to give consent’
as well as the names and signatures of
two witnesses, namely Ms Curtis and a Ms Cindy Giffard.
The plaintiff did not dispute the veracity of this document; nor did
he take issue with what was recorded therein. He was also
referred
to the defendant’s note of 26 May 2005 which set out
certain points of discussion between himself and the
defendant.
These points were not disputed by the plaintiff, save that he
claimed that he did not remember any discussion about
possible
complications which was one of the points reflected.
Significantly however there was no evidence that the plaintiff would
not have undergone the procedure if he had been informed
of the risk
of the complications that subsequently developed. On the contrary,
his evidence was that prior to the surgery he
had full confidence in
the defendant who on the plaintiff’s own version had treated
him successfully in the past. There
is also no evidence that the
plaintiff had not been fully informed by the defendant prior to
undergoing the two previous operations.
Against this background the
probabilities are overwhelming that the plaintiff was indeed
properly informed by the defendant before
the surgery was carried
out. In addition the possibility exists that the plaintiff confused
the pre-operative discussions held
with the defendant and those with
Dr Hendricks, since the latter conceded during
cross-examination that he himself had not
obtained a written consent
from the plaintiff prior to the surgical treatment administered by
him. There is thus no basis upon
which I can conclude that the
defendant failed to inform the plaintiff of the risks attendant upon
the surgery.
EVALUATION OF THE REMAINING GROUNDS OF NEGLIGENCE ALLEGED
Even on the evidence of Dr Hendricks the plaintiff has failed to
make out a case relating to the alleged failure to utilize an
extra-oral procedure and the extraction of lower teeth. Insofar as
the failure to remove the plates and screw is concerned, Dr
Hendricks conceded that there was no evidence of infection
associated with the plates at the time the saggital split osteotomy
was carried out; that the defendant could not be faulted for failing
to detect the infection; and that the infection most probably
developed quite some time later. In the circumstances, nothing more
need be said on this issue.
As to the allegation that the defendant was negligent in failing to
refer the plaintiff for orthodontic treatment prior to carrying
out
the osteotomy procedure, the plaintiff has also failed to make out a
case for the following reasons. First, although it is
the norm that
orthodontic treatment is administered prior to orthognathic surgery,
this depends on each individual case, and
the evidence of Dr Kotze
shows that military personnel rarely if ever receive authorisation
for orthodontic treatment to be carried
out. Second, it was the
evidence of Professor Morkel, who examined the models made of the
plaintiff’s teeth prior to surgery,
that there were seven
points of contact between the upper and lower teeth (three points of
contact being sufficient) which was
indicative of sufficiently
stable occlusion for orthognathic surgery. Third, the plaintiff
presented with relative contra-indications
for orthodontic
treatment; in that he had loose and periodontically compromised
teeth, and he also had crown and bridgework.
Fourth, in the trauma
cases with which Professor Morkel has regularly been involved
orthognathic surgery is routinely carried
out without pre-surgical
orthodontic treatment, which is both logical and understandable
bearing in mind the relative urgency
of the treatment required.
Fifth, and in any event, even if the defendant was remiss in failing
to refer the plaintiff for pre-surgical
orthodontic treatment, there
was no evidence to suggest that the outcome of the osteotomy would
have been any different and that
the relapse would have been
prevented.
The plaintiff has also failed to make out a case based on the
defendant’s alleged failure to assess and diagnose the
post-operative complications adequately for the following reasons.
First, Professor Morkel testified that post- surgical x-rays
showed
that there was good alignment of the lower jaw. Second, Dr Hendricks
conceded that the defendant could not be faulted
on how the
osteotomy procedure was carried out. Third, it was common cause that
the relapse and/or disruption of the fracture
site of the osteotomy
occurred progressively over a period of time; and the fact that the
plaintiff was placed in elastic traction
would have camouflaged the
developing open bite. Fourth, the plaintiff was examined by Dr Kotze
32 days after surgery on 29 July
2005. The open bite was
significantly reduced when the jaw was placed in centric relation;
and Dr Kotze conceded that when the
defendant examined the plaintiff
he could have failed to observe the open bite and reached a
different clinical finding in that
regard. Fifth, Professor Morkel’s
evidence was that it is quite possible that because of the mobility
in the fracture site
the plaintiff could have presented a different
clinical picture when examined by Dr Kotze, on the one hand, and by
the defendant
on the other. Sixth, it must also be borne in mind
that it was the plaintiff himself who failed to attend scheduled
post-operative
appointments with the defendant after 12 August
2005, thereafter demanding an urgent appointment on 4 September
2005
when the defendant was overseas; and that all of the
appointments offered to the plaintiff immediately after the
defendant’s
scheduled return eight days later were not
suitable to the plaintiff.
Applying the principles set out in
Blythe
(
supra
),
there is simply insufficient evidence as to: (a) when the defendant
should reasonably have observed the open bite; (b) what
remedial
action could have been taken at that stage; (c) whether such
remedial action, if taken when the defendant ought
reasonably to
have observed the open bite, would have prevented the relapse of the
osteotomy suffered by the plaintiff; and (d)
in any event, how the
defendant was expected to have taken any remedial action when the
plaintiff made himself unavailable for
consultation.
On the contrary, all the indications are that by the time the open
bite had developed, the relapse had already occurred. The
relapse,
in itself, was a complication of the
procedure
and is not
indicative on its own of any negligence on the part of the
defendant.
CONCLUSION
The plaintiff has thus failed to make out a case on any of the
grounds alleged and it follows that his claim must fail. There
is no
reason why, in these circumstances, costs should not follow the
result.
I accordingly make the following order:
The plaintiff’s claim is dismissed with costs.
The plaintiff shall pay the defendant’s costs on the scale
as between party and party as taxed or agreed, such costs to include
the qualifying expenses of the defendant’s expert witness,
Professor J Morkel.
_________________
J I CLOETE