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[2018] ZASCA 118
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Life Healthcare Group (Pty) Ltd v Suliman (529/17) [2018] ZASCA 118; 2019 (2) SA 185 (SCA) (20 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 529/17
In
the matter between:
LIFE
HEALTHCARE GROUP (PTY)
LTD
APPELLANT
and
DR
ABDOOL SAMAD
SULIMAN
RESPONDENT
Neutral
citation:
Life
Healthcare Group (Pty)
Ltd
v Dr Suliman
(529/17)
[2018] ZASCA 118
(20 September 2018)
Coram:
Shongwe
ADP and Majiedt, Seriti, Wallis and Saldulker JJA
Heard:
20
August 2018
Delivered:
20
September 2018
Summary:
Medical
negligence – factual causation – ‘but for’
test – correct question to be asked whether it
is more probable
than not that the outcome would have followed – elements of
liability – wrongfulness – breach
of legal duty and
negligence – expert evidence – evaluation of medical
expert opinion – to what extent opinion
founded on logical
reasoning and not scientific validity thereof.
ORDER
On appeal from:
KwaZulu-Natal Local
Division, Durban (Ploos van Amstel J sitting as court of first
instance): judgment reported
sub
nom
TS
& another v Life Healthcare Group (Pty) Ltd & another
2017
(4) SA 580
(KZD).
1 The appeal is
upheld with costs including the cost of two counsel where employed.
2 The order of the
court a quo is set aside and substituted with the following:
‘
(a) The
damages agreed as payable to the plaintiff is apportioned in terms of
s 2 of the Apportionment of Damages Act, 34 of 1956
as between the
first defendant and the second defendant as follows:
(i) the first
defendant: 40 per cent and
(ii) the second
defendant: 60 per cent
(b) It is declared,
in terms of s 2(7) of the Apportionment of Damages Act, 34 of 1956,
the first defendant is entitled to recover
from the second defendant
60 per cent of the R20 million and of the recoverable costs of the
plaintiff paid by the first defendant
to the plaintiff.
(c) The second
defendant is directed to pay the first defendant’s costs of the
third party proceeding, such costs to include
the costs consequent
upon the employment of senior counsel.’
JUDGMENT
Shongwe
ADP (Majiedt, Seriti, Wallis and Saldulker JJA concurring)
[1] Medical
negligence claims have escalated substantially in our country in
recent times. This has caused insurance premiums for
medical doctors
to sky rocket and has proved to be a disincentive for the
specialisation in certain medical fields, of which obstetrics
and
gynaecology appears to be one. This appeal is against the order and
judgment of the court a quo (Ploos van Amstel J) dismissing
with
costs the claim of the appellant against the respondent. Initially
this case started when the plaintiffs, Mr and Mrs S, the
parents of
N, their son, who was delivered on 12 July 2008 and shortly
thereafter diagnosed with cerebral palsy, sued Life Healthcare
Group
(Pty) Ltd, as the first defendant and Dr Abdool Samad Suliman, a
specialist obstetrician and gynaecologist, as the second
defendant,
jointly and severally, for the damages resulting from the birth
injuries sustained by their child. The appellant issued,
simultaneously with its plea, a third party notice against the
respondent (in terms of rule 13 of the Uniform Rules of Court) in
which it alleged in terms of s 2(1) of the Apportionment of Damages
Act 34 of 1956 (the Act) that the respondent (third party)
negligently contributed to, or was the cause of any damages which
either of the plaintiffs might prove they had suffered. It sought
a
contribution in the event the court a quo found that the appellant
was negligent.
[2] Subsequently the
parties settled the dispute with Mr and Mrs S on the basis that the
appellant and the respondent would pay
to the plaintiff a sum of R20
million without admission of negligence or breach of contract or
liability on their part. Thus the
hearing in the court a quo
proceeded without the participation of the plaintiffs. The lis was
between the appellant and the respondent.
(I shall henceforth refer
to the parties as the hospital and Dr Suliman for ease of reference.)
[3]
The hospital admitted, during the hearing, that their nursing staff
were negligent. However Dr Suliman denied negligence and
averred
that, in the event he was found to have been negligent,
such
negligence was not causally linked with the resultant injury. The
court a quo found that Dr Suliman was also negligent but
was unable
to find that his negligence was causally linked with the harm
suffered by the plaintiffs and the child. It accordingly
dismissed
the hospital’s claim against Dr Suliman. This appeal is with
the leave of the court a quo.
[4] The facts of
this case are largely common cause. Mrs S (the patient), fell
pregnant sometime in 2007. On 12 July 2008 at about
10h00 she was
admitted at the Crompton Hospital, which is a part of the Life
Healthcare Group. Prior to her admission date she
had contracted with
Dr Maise, an obstetrician and gynaecologist, to attend to her during
her labour and subsequent delivery of
the baby. On the day of her
admission, however, Dr Maise was unavailable, but had made
arrangements with Dr Suliman to ‘cover’
for him. The
understanding was that Dr Suliman would attend to Mrs S in the
absence of Dr Maise. The hospital staff was made aware
of this
arrangement. Apparently it is a well-known practice in the medical
fraternity. At about 10h30 Dr Suliman was telephoned
by Sister Savage
informing him of Mrs S’s admission. Dr Suliman instructed her
to allow labour to proceed and to sedate the
patient, if necessary.
He also prescribed Pethidine and Aterax, for managing pain and nausea
respectively.
[5] The nursing
staff’s duties, inter alia, were to monitor, observe and record
the developments, progress or lack thereof
of the patient. A
cardiotocography (CTG) was used to record the foetal heart rate.
Sister Savage telephoned Dr Suliman again at
18h35 and advised him
that the patient was 4 cm dilated with the head of the baby 3/5 above
the pelvic brim. She reported a deceleration
of the foetal heart
rate, but added that it recovered quickly. Dr Suliman instructed her
to transfer the patient to the labour
ward, that her membranes be
ruptured and that an epidural be arranged. (This is a form of
anaesthesia administered by an anaesthetist.)
[6] Up to this point
Dr Suliman had not been to see nor visit the patient. The records at
18h40 showed that the heart rate decreased
to 90 beats per minute,
but this record was not brought to the attention of Dr Suliman, as
the nursing staff should have done (the
normal foetal heart rate is
in between 110 – 160 beats per minute). The recording showed
that the contractions became strong
at three per minute, Dr Suliman
was informed about this development at approximately 19h30. Another
deceleration occurred at around
19h40, but was not reported to Dr
Suliman. At 21h00 Dr Suliman was informed that the patient was fully
dilated. He arrived at the
hospital at 21h20 for the first time since
the patient was admitted at 10h00.
[7] On his arrival,
Dr Suliman looked at the CTG and realised that the foetus had been in
distress for some time and that delivery
was a matter of urgency.
Time was now of the essence. He needed a vacuum extractor which is
used to assist in the delivery. Sister
Khumalo, who was on duty then,
could not find it, and when she did eventually find it, it became
clear that she could not use it.
Dr Suliman, asked for forceps but,
once again the nurse was unable to find them. The birth of the baby
was delayed by another 20
to 25 minutes. The baby was born at 22h10
after an episiotomy was performed. On delivery the baby was born
‘flat’,
in the language of the medical community, meaning
that he was not breathing and barely had a heartbeat. Clearly he had
suffered
birth hypoxia, the deprivation of oxygen. He was
resuscitated and oxygen was administered, but a little later it was
discovered
that he had developed cerebral palsy.
[8] The hospital
contended that in the event Dr Suliman was found to be liable to
compensate either of the plaintiffs in damages,
then there should be
an apportionment of such damages as between itself and Dr Suliman in
such proportions as the court might deem
just and equitable, having
regard to the degree in which each was at fault. The basis of the
hospital’s claim was that Dr
Suliman owed a legal duty to the
patient and because he was negligent he was liable for a contribution
in terms of s 2(1) read
with s (6) of the Act.
[9] Dr Suliman, on
the other hand contended that Mrs S was not his patient, but that she
was Dr Maise’s patient. He contended
further that he was simply
covering for Dr Maise and did so at Dr Maise’s request,
conveyed to him between 09h00 to 10h00
on 12 July 2008. He contended
that it was common practice in the medical profession for one doctor
to cover for another when the
latter was unavailable. Therefore, he
was merely on standby for any emergency that could arise during the
absence of Dr Maise and
he (Dr Suliman) therefore did not assume
normal responsibility for the patient. Thus, so he contended there
was never a doctor-patient
relationship between him and Mrs S until
he arrived at the hospital at 21h20. The only reasonable and logical
inference from Dr
Suliman’s contention was that during Dr
Maise’s temporary period of absence, the patient was
practically without a
doctor or specialist taking care of her. For
the reasons that follow I disagree with these contentions.
[10]
It is settled law that the hospital bore the onus to prove on a
balance of probabilities that Dr Suliman owed a legal duty
to the
patient, that the duty was breached, and that as a direct result of
the breach the patient suffered harm. In dealing with
the question
whether Dr Suliman owed a legal duty to the patient, it is clear that
the legal duty arose immediately when Dr Suliman
acceded to the
request to cover for Dr Maise and when he positively responded to a
call from Sister Savage that the patient had
been admitted to
hospital. Dr Suliman manifested his responsibility by giving
instructions to the nurse to allow the labour to
proceed and to
sedate the patient, if necessary, and prescribed medication as
mentioned earlier. His conduct of getting involved
in the treatment
of the patient placed him in a position of being responsible for her
and the baby. In our law a negligent omission
is only unlawful if it
occurs in circumstances that the law regards as sufficient to give
rise to a legal duty to avoid negligently
causing harm (
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 25, cited with approval in
Oppelt
v Head: Health, Department of Health, Provincial Administration:
Western Cape
[2015]
ZACC 33
;
2015 (12) BCLR 1471
(CC).) I therefore agree with the
finding of the court a quo that the legal duty arose at 10h30 at the
latest when he was informed
of the patient’s admission and
provided telephonic instructions to the nursing staff with regard to
her care. This was confirmed
at 18h35 when Sister Savage telephoned
him and he again without demur, gave further instructions for Mrs S’s
care.
[11] I now turn to
deal with whether the legal duty was breached, in other words whether
Dr Suliman did or did not do something
which the law expected of him.
Did he act like a reasonable obstetrician in the circumstances? Dr
van Helsdingen an expert obstetrician,
who testified for the
hospital, confirmed that his conduct in not visiting the patient
‘would be contrary to anything that
one expects of the average
obstetrician standing in for somebody else’. Dr Suliman himself
testified that if the patient
were his, he would normally have gone
to see her within three or four hours of her admission. However, he
explained that he did
not visit her because he did not want to
interfere with the personal relationship which she had with her
doctor (Dr Maise), as
it could cause anxiety on her part. On the
contrary a reasonable obstetrician would have visited the patient
shortly after her
admission to create that doctor-patient
relationship and to assure her that, in the absence of her own
doctor, he was standing-in
and would take good care of her. Dr
Suliman was, at all material times aware that Dr Maise had not
returned to see the patient.
He did not even phone Dr Maise to
establish whether he was available in the late afternoon of 12 July
2008. The sum effect was
that the patient had been admitted at 10h00,
but the first and only time she was seen by a doctor was after more
than 11 hours
at 21h20. The explanation given by Dr Suliman was that
he did not regard her as his patient, but Dr Maise’s. If this
is not
gross negligence, then it is difficult to imagine what would
be.
[12]
I now turn to deal with the causal link between the negligent action
of Dr Suliman and the resultant harm. Establishing factual
causation
can be a difficult exercise as it must be demonstrated that ‘but
for’ the doctor’s action or inaction
harm would not have
occurred. (See
Lee
v Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 144
(CC) para 38 and
Mashongwa
v Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 65 as authority.) In view of the
findings and the order of the court a quo, the main thrust of this
appeal was that the
court a quo was unable to find that ‘had he
acted as it is said he should have, the tragic outcome would have
been avoided’.
It appears that when considering the question of
factual causation the court a quo relied on Dr van Helsdingen’s
evidence
when he said that ‘he could not say that the baby
would have been saved [if the baby was] delivered by caesarean
section
at some time between 17h30 and 20h00’. In response to a
question from the bench he also said ‘I cannot even begin to
answer the question whether that would have salvaged the baby and I
don’t think anybody can tell you that, M’Lord’.
[13] These passages
in Dr van Helsdingen’s evidence were contradicted by the
following very clear statement of his views:
‘
Ploos
van Amstel J
:
Well let’s assume for the moment at 7.50 a decision is made to
do a caesarean section and let us say 40 minutes later the
baby is
delivered at about 8:20, 8:30 thereabouts, is there reason to believe
that, that would probably have prevented or avoided
the cerebral
palsy? --- Yes, I think there is a strong reason to believe that,
that would have, because cerebral palsy or brain
damage does not
occur to that extent that rapidly. If you left it you’re
talking about more than an hour and a half, so I
think there is every
probability that had it been done then this very unfortunately
outcome would have been prevented.’
Dr Suliman himself
confirmed Dr van Helsdingen’s view. Counsel for Dr Suliman
asked his client at the beginning of his evidence:
‘
Now,
everyone, well, whoever was giving evidence said that if you got
there earlier you would have picked up the distress and the
baby
would have been saved, do you have any dispute with that, as a matter
of fact, had you got there earlier, is there any doubt
there would
have [intervention] --- No, dispute, M’Lord.
So the question is
whether you should have got there, that’s the question?
Yes.’
[14] The joint
report by Dr van Helsdingen and Professor H S Cronje, confirmed that:
‘
In
general, it means the covering doctor has to see the patient
personally during labour in order to establish a doctor-patient
relationship and to verify him/herself of the patient’s
condition, including that of the baby (foetus).’
In the joint report
it was also said:
‘
Based
on a high degree of probability, the tragedy of cerebral palsy could
have been prevented. If Dr Suliman saw the patient at
19:00, he would
have noticed an abnormal foetal heart pattern, which gradually became
worse. Between 20:00 and 21:00, he would
have made the diagnosis of
possible foetal distress and he would have performed a caesarean
section. In our view, the brain damage
probably occurred after 20:00,
especially after 21:00.’
[15]
Judges
must be careful not to accept too readily isolated statements by
experts, especially when dealing with a field where medical
certainty
is virtually impossible. Their evidence must be weighed as a whole
and it is the exclusive
duty
of the court to make the final decision on the evaluation of expert
opinion. In
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
[2002]
1 All SA 384
(A);
2001 (3) SA 1188
(SCA) paras 36-37, the court said:
‘That being so, what is required in the
evaluation of such evidence is to determine whether and to what
extent their opinions
advanced are founded on logical reasoning. That
is the thrust of the decision of the House of Lords in the medical
negligence case
of
Bolitho v City and Hackney Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL(E)). With the relevant dicta in
the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following
effect.
The court is not bound to absolve a defendant
from liability for allegedly negligent medical treatment or diagnosis
just because
evidence of expert opinion, albeit genuinely held, is
that the treatment or diagnosis in issue accorded with sound medical
practice.
The court must be satisfied that such opinion has a logical
basis, in other words that the expert has considered comparative
risks
and benefits and has reached “a defensible conclusion”
(at 241G–242B).’
[16]
In my considered view the court a quo, with due respect, asked the
wrong question in respect of factual causation. The correct
question
should have been: Was it more probable than not that the birth
injuries suffered by the baby could have been avoided,
if Dr Suliman
had attended the hospital earlier, after the 18h35 phone call? Had he
done so after 18h35 or after 19h00, for that
matter, he would have
noticed the non-reassuring tracings on the CTG personally, even those
readings not reported to him by the
nursing staff. The nursing staff
is there to observe, but the doctor is responsible for the diagnosis
and for ordering the appropriate
treatment.
Had
he done that then, he would have seen the early signs of foetal
distress and, according to his own evidence, would have performed
an
emergency caesarean section, that would have avoided the birth injury
to baby N. This view accorded with that of the other medical
experts.
[17] The real issue
between Dr Suliman and the hospital was not whether his earlier
attendance upon Mrs S would have prevented the
harm to N, but whether
he was under an obligation to attend earlier. That was the dispute as
elicited from him by his own counsel
in his evidence-in-chief. In my
view he was clearly obliged to attend upon Mrs S at least after the
telephone call from Sister
Savage at 18h35. All the evidence shows
that it is more probable than not that had Dr Suliman attended the
hospital earlier the
injuries would have been avoided. For that
reason the hospital succeeded in proving factual causation on a
balance of probabilities.
In my view the attitude of Dr Suliman that
he had no doctor-patient relationship with the patient was too
lackadaisical and, as
indicated earlier, legally and morally
indefensible.
[18]
The next question to consider is the degree of contributory
negligence. Because of the conclusion of the court a quo, this
question was not considered, hence it is difficult, on appeal, to
determine it without sufficient evidence. This court would have
referred the matter back to the court a quo, but this exercise would
not have been the best solution, as the court a quo would
also not be
in possession of the evidence. Both parties had closed their case. It
is clear that the damages are not divisible.
In my view, it remains
in the discretion of the court, based on the evidence before it to
assess the relative degree of fault of
the hospital and Dr Suliman
and to apportion the damages accordingly. Section 2(1) of the Act
provides that ‘where it is
alleged that two or more persons are
jointly or severally liable in delict to a third person (hereinafter
referred to as plaintiff)
for the same damage, such persons
(hereinafter referred to as joint wrongdoers) may be sued in the same
action.’ Therefore
in this case the hospital and Dr Suliman are
joint wrongdoers as their negligence caused the injury to the child.
(See
Minister
of Safety and Security & another v Rudman
2005
(2) SA 16
(SCA) para 79). There is a paucity of evidence before this
court to indicate when the baby suffered the injuries. The evidence
of the experts is of limited assistance, but on the probabilities it
could have been after 20h00 or likely after 21h00. In his own
evidence Dr Suliman said that had Mrs S been his patient he would
have attended her upon being informed of the deceleration in
the
foetal heart rate identified on the CTG tracing – but because
he was covering for Dr Maise he found it unnecessary to
visit her.
[19]
It is clear that Sister Khumalo was negligent in failing to identify
possible foetal distress from about 19h50 to 20h20 and
in her
subsequent failure to inform Dr Suliman of the non-assuring tracing.
On the
probabilities
had Sister Khumalo called Dr Suliman around 20h00 after the evidence
of deceleration, clearly Dr Suliman would have
responded and an
emergency caesarean section could have been performed to save the
child. The hospital readily admitted negligence
by its nursing staff.
I am in agreement with the hospital’s contention that Dr
Suliman’s negligence is greater than
that of the nursing staff
and that this should be reflected in the apportionment. He was the
specialist who abdicated his duties
especially after receiving the
call at 18h35. The nursing staff only makes observations. Dr Suliman
adopted a hands-off approach.
[20]
In the circumstances, an apportionment of 60 per cent – 40 per
cent in favour of the hospital is reasonable and appropriate.
[21] In the result
the following order is made:
1 The appeal is
upheld with costs including the costs of two counsel where employed.
2 The order of the
court a quo is set aside and substituted with the following:
‘
(a)
The damages agreed as payable to the plaintiff is apportioned in
terms of s 2 of the Apportionment of Damages Act 34 of 1956
as
between the first defendant and the second defendant as follows:
(i) the first
defendant: 40 per cent and
(ii) the second
defendant: 60 per cent
(b) It is declared,
in terms of s 2(7) of the Apportionment of Damages Act 34 of 1956,
the first defendant is entitled to recover
from the second defendant
60 per cent of the R20 million and of the recoverable costs of the
plaintiff paid by the first defendant
to the plaintiff.
(c) The second
defendant is directed to pay the first defendant’s costs of the
third party proceeding, such costs to include
the costs consequent
upon the employment of senior counsel.’
_______________________
J B Z Shongwe
Acting Deputy
President Supreme Court of Appeal
Appearances
For
the Appellant: S R Mullins SC
Instructed
by:
Norton
Rose Fulbright Incorporated, Durban;
Webbers
Attorneys, Bloemfontein
For
the Respondent: O A Moosa SC
Instructed
by:
Pather
& Pather Attorneys, Durban;
Claude
Reid Incorporated, Bloemfontein