IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 9528/2022
In the matter between:
TASNEEM HASSIEM Plaintiff
and
THE MEC FOR HEALTH, WESTERN CAPE
PROVINCIAL HEALTH DEPARTMENT Defendant
Coram: Van Zyl, AJ
Heard on: 18-19 March 2025, 6 May 2025; 24-25 June 2025; 5 and
23 September 2025; 27 January 2026
Judgment: : 28 August 2026
Summary: Medical negligence – issues of liability and quantum separated –
determination of liability – total hip replacement – partial sciatic nerve injury post -
surgery - cause of injury and causation in issue - conflicting expert evidence – not
possible to determine cause of injury – unable to determine whether revision surgery
of further investigation would have yielded any result – factual causastion not proved
– action dismissed
___________________________________________________________________
ORDER
The plaintiff’s claim is dismissed, with costs, including counsel’s fees taxed on Scale
B. All costs that stood over for later determination are costs in the cause.
JUDGMENT
VAN ZYL, J:
Introduction
1. Sometimes one suffers injury, and has to bear it. 1 No-one is at fault. This is
the case in the present matter.
2. The plaintiff claims damages from the defendant on the basis of the alleged
negligence of the staff at Tygerberg Hospital 2 in the treatment she received
after she had undergone a total hip replacement (“THR”) of her left hip in
October 2019. 3 She alleges that the defendant, through its orthopaedic
surgeon, Dr Jordaan, could have prevented permanent damage to the
plaintiff’s sciatic nerve 4 if he had further investigated (shortly after the THR
surgery) the cause for an injury to the nerve, and had he performed revision
surgery.
3. The defen ce, in summary, is that there was improvement in and no
worsening of the plaintiff’s condition after the surgery. She did not
experience extra-ordinary pain that could not be medicated with analgesics.
Dr Jordaan’s approach in treating her conservatively was appropriate prior
to her discharge from hospital on 23 October 2019 , and thereafter. This is
1 Res perit domino, or casum sentit dominus.
2 A provincial academic hospital falling under the defendant’s management.
3 Merits and quantum were separated in the course of pre -trial management, and this court is
therefore to determine the merits only.
4 In layman’s terms, the sciatic nerve is the longest and widest single nerve in the human
body, running alongside the hip joint to wards the back of the foot. It provides the connection
to the nervous system for the skin of the lateral leg and the whole foot, the muscles of the
back of the thigh, and those of the leg and foot.
especially the case given the pitfalls of revision surgery after the THR, and
the absence of any guarantee that the plaintiff’s condition would improve. In
fact, more harm could have been done to the nerve in the revision surgery
process.5
4. I refer to the relevant principles underlying claims such as the plaintiff’s,
before turning to the fact of this matter.
The relevant legal principles
5. On the ordinary principles applicable to claims of this nature, and on the
framing of the plaint iff’s case as discussed below, the plaintiff must prove ,
firstly, that the employees at the hospital wrongfully and negligently breached
their legal duty , and, secondly, that there was a causal connection between
the negligent breach of those duties and the damage suffered by the plaintiff.6
6. As to the first requirement, t he question whether a legal duty exists in a
particular case is essentially a value judgment based on considerations of
public policy. It is a conclusion of law and depends on considering various
circumstances:7
“[9] Our common law employs the element of wrongfulness (in addition to the
requirements of fault, causation and harm) to determine liability for delictual
damages caused by an omission. … An omission is wrongful if the defendant is
under a legal duty to act positively to prevent the harm suffered by the plaintiff. The
test is one of reasonableness. A defendant is under a legal duty to act positively to
prevent harm to the plaintiff if it is reasonable to expect of the defendant to have
taken positive measures to prevent the harm. The court determines whether it is
reasonable to have expected of the defendant to have done so by making a value
judgment, based inter alia upon its perception of the legal convictions of the
community and on considerations of policy. The question whether a legal duty exists
5 The argument is thus that the conservative approach adopted by the defendant accorded
with the maxim of “first do no harm”.
with the maxim of “first do no harm”.
6 Carmichele v Minister of Safety and Security a nd another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) para 25.
7 See Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) para 9.
in a particular case is thus a conclusion of law depending on a consideration of all
the circumstances of the case and on the interplay of the many factors which have to
be considered. …”
7. In Minister of Safety and Security v Van Duivenboden8 the Supreme Court of
Appeal held that:
“… Where the law recognises the existence of a legal duty it does not follow that
an omission will necessarily attract liability – it will attract liability only if the
omission was also culpable as determined by the application of the separate test
that has consistently been applied by this court in Kruger v Coetzee, namely,
whether a reasonable person in the position of the defendant would not only have
foreseen the harm but would also have acted to avert it.”
8. Van Duivenboden confirms9 that:
“… recognition of a duty of care is the outcome of a value judgment, that the
plaintiff’s invaded interest is deemed worthy of legal protection against negligent
interference by conduct of the kind alleged against the defendant. In the decision
whether or not there is a duty, many factors interplay: the hand of history, our ideas
of morals and justice, the convenience of administering the rule and our social
ideas as to where the loss should fall. Hence, the incidence and extent of duties
are liable to adjustment in the light of the constant shifts and changes in community
attitudes.”
9. Negligent omissions will attract liability only if they are wrongful. The
question must always be whether the defendant ought reasonably and
practically to have prevented harm to the plaintiff.10
10. The failure of a professional person to adhere to the general level of skill
and diligence possessed and exercised at the time by the members of the
branch of the profession to which he or she belongs would normally
8 2002 (6) SA 431 (SCA) para 12.
9 At para 13.
10 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) para 34.
constitute negligence. 11 A medical practitioner is in no different position to
any other professional person, and is not expected to bring to bear upon the
case entrusted to him or her the highest possible degree of professional
skill. He or she must, however, employ reasonable skill and care. 12 Things
sometimes go wrong in surgical procedures and medical treatment even
where the greatest care had been taken . A medical practitioner cann ot be
held to be negligent simply because something was missed. The test
remains always whether the medical practitioner exercised reasonable skill
and care, that is whether or not his conduct fell below the standard of a
reasonably competent medical practitioner in his field.13
11. As to the second requirement for liability for the breach of a legal duty ,
causation involves two distinct enquiries , and must be established on a
balance of probabilities . The first enquiry is whether there is factual
causation (t he “but for” test) , and the second enquiry involves legal
causation, which relates to foreseeability.14
12. The court in NKM (obo BM) v Member of the Executive Council for Health:
Eastern Cape 15 stated the following in relation to factual causation , which is
relevant for present purposes:
“It is a trite principle that a successful delictual claim entails the proof of a causal
link between a defendant’s claimed culpable actions or omissions, on the one
hand, and the harm suffered by the plaintiff, on the other hand. This is in
accordance with the flexible “but -for” test. As is indicated by the authorities, in
order to apply this test one must make a hypothetical enquiry as to what probably
would have happened but for the alleged wrongful conduct of the defendant.
Sometimes however this enquiry involves the mental elimination of the claimed
wrongful conduct and the substitution of a hypothetical course of lawful conduct
and the posing of the question as to whether upon such hypothesis the plaintiff’s
and the posing of the question as to whether upon such hypothesis the plaintiff’s
loss would have ensued or not.”
11 Van Wyk v Lewis 1924 AD 438 at 444.
12 Mitchell v Dickson 1914 AD 519 at 525.
13 Buthelezi v Ndaba 2013 (5) SA 437 (SCA) para 15.
14 Lee v Minister of Correctional Services 2013 (4) SA 144 (CC) para 39.
15 [2024] ZAECBHC 10 (15 March 2024) para 134.
13. The court held further,16 in relation to negligence, as follows:
“[190] Concerning the approach to be adopted in determining the issue of
negligence the court in Goliath v MEC for Health noted with reference to Lord
Justice Hobhouse’s dictum in Ratcliffe that:
‘At the end of the trial, after all the evidence relied upon by either side has
been called and tested, the judge has simply to decide whether as a matter
of inference or otherwise he concludes on the balance or probabilities that
the defendant was negligent and that such negligence caused the plaintiff’s
injury. That is the long and short of it.’
[191] The court noted further in this connection that:
‘… it is important to bear in mind that in a civil case it is not necessary for a
plaintiff to prove that the inference that she asked the court to draw is the
only reasonable inference. It suffices for her to convince the court that the
inference that she advocates is the most readily apparent and acceptable
inference from a number of possible inferences …’”
14. The facts of the present matter will be assessed in this context.
The pleadings, and the issues that arise for determination
15. It is trite that a party is bound by their pleadings.17 I set out the content of the
pleadings in relation to merits of the action.
The plaintiff’s particulars of claim
16. The plaintiff pleads that on 9 October 2019 she was admitted to the hospital
for a left THR, which she underwent on 15 October 2019.
17. By 17 October 2019, the plaintiff was experiencing a lack of sensation in the
first and second toes of her left foot . S he was unable to dorsiflex , and she
had pins and needles in her left lower limb. The plaintiff received
16 At paras 190-191.
17 Minister of Police v Gqamane [2023] ZASCA 61 (3 May 2023) para 13.
physiotherapy inter alia to address these issues, and wore a splint. She was
discharged from the hospital on 23 October 2019.
18. The plaintiff contends that the defendant’s legal duty towards the plaintiff was
breached because the defendant’s employees wrongfully, unlawfully and
negligently:
18.1 performed surgery in such a way as to cause “over lengthening” of
the left limb;
18.2 failed to advise that further surgery was necessary to correct the
discrepancy in leg lengths after the THR;
18.3 failed to perform further surgery to correct the discrepancy in the leg
length;
18.4 caused permanent damage to the sciatic nerve in the lower left limb;
18.5 failed adequately to investigate the cause of the sciatic nerve fallout
in the left lower limb prior to the plaintiff being discharged on 23
October 2019;18
18.6 failed to consider the possibility that the leg lengthe ning had caused
the sciatic nerve fallout in the left lower limb;
18.7 failed to investigate the plaintiff’s condition and consider possible
alternative treatment options after six months had elapsed after the
operation;
18.8 failed to prevent permanent damage to the sciatic nerve in the left
lower limb by administering timeous corrective surgery or treatment;
18 Subparagraphs 5 to 7 were included by way of an amendment to the particulars of claim after
evidence had been led, and in preparation for argument. The amendment was not opposed,
and the defendant effected consequential amendments to the plea.
and
18.9 failed to act with due care.
19. For the plaintiff to be successful in her claim she must therefore prove, on an
assessment of the probabilities, that the “lengthening” of her left leg (by
correcting the centre of rotation of the hip from a pathological position to an
anatomically correct one) was the cause of the sciatic nerve injury and, had
revision surgery (or alternative treatment) taken place, she would not have
suffered any ongoing motor or sensory fallout.
The defendant’s plea
20. In her plea, the defendant admits that the THR took place on 15 October
2019, after which partial sciatic nerve fall -out was noted. She pleads that the
employees at the hospital did not act negligently, and that the plaintiff’s partial
nerve injury was treated correctly in the circumstances, in that, inter alia:
20.1 The plaintiff had been at high risk of sciatic nerve fallout, given that
she had suffered from bilateral developmental hip dysplasia
(“DDH”),19 upon which she received extensive counselling.
20.2 No problems were experienced during the surgery. The injury to the
nerve (which presented after the surgery) was partial, and there was
no indication that the defendant should further investigate the cause
of the injury, nor was there any indication that the surgery should be
revised.
20.3 The plaintiff remained in hospital until 23 October 2019 for
monitoring.
19 Hip dysplasia, as explained in the course of the evidence, means that a hip socket does not
fully cover the ball portion of the upper thighbone. This allows the hip joint to become partially
or completely dislocated, sometimes resulting in an “unevenness” in the level of the hips and
the perceived length of the person’s legs.
20.4 The plaintiff showed improvement before her discharge on 23
October 2019, and further improvement thereafter, which justified
adopting a conservative approach.
21. A replication was delivered, but it has no bearing on the issues to be
determined by this court.
22. The defendant contends that on a consideration of the evidence , inclu ding
expert evidence, the plaintiff has failed to prove her claim on a balance of
probabilities. To assess the legal questions posed, one has to focus on two
legal aspects, namely how the “ but for ” test is applied in delictual claim s
based on alleged medical negligence; and how to deal with conflicting expert
opinions.
The evidence presented
23. I refer to the central aspects of the evidence that was furnished , prior to
turning to the application of the relevant principles to the facts.
24. Three witnesses gave evidence at the trial. Dr Gerald Versfeld, orthopaedic
surgeon, was called as an expert witness on the plaintiff’s behalf. The
defendant called two witnesses, namely Dr Jordaan as a factual witness, and
Dr T hane Munting as an expert witness . These witnesses are both
orthopaedic surgeons.
25. The plaintiff did not testify. She relies on Dr Versfeld’s (and in part Dr
Munting’s) interpretation of the medical records as the factual basis for her
claim.
Factual evidence for the defendant: Dr Jordaan
26. Dr Jordaan is an orthopaedic surgeon specialising in arthroplasty. He is the
head of the Arthroplasty Unit at the Tygerberg Hospital, attached to the
University of Stellenbosch. He has worked in academic teaching and training
facilities throughout his career and has performed about 4000 joint
replacements, of which 3000 were hip replacements. He has been a
specialist orthopaedic surgeon for about 11 years.
27. Dr Jordaan performed the plaintiff’s THR surgery. As the plaintiff herself did
not testify, the relevant facts are mainly to be gleaned from the evidence that
he presented on the defendant’s behalf , in conjunction with the medical
records to which he referred .20 He was at the scene, so to speak. Dr
Jordaan’s evidence dealt in detail with how the plaintiff first presented to the
hospital, her treatment upon admission in October 2019, the surgery, the
treatment she received thereafter, and the interactions he had with her
throughout this period.
28. Dr Jordaan stated that he recalled the matter well. He had independen t
memory of his interactions with the plaintiff because he had a good
relationship with her. Her case was an interesting and complex one. The
plaintiff presented with severe bilateral DDH, and a complication post -
surgery – the sciatic nerve injury at the heart of this case.
29. The plaintiff’s planned second surgery for a THR for the right hip was
cancelled in December 2020 due to a breakdown in the air-conditioning in
the theatre at the time. Covid-19 caused a further delay in the surgery to the
right hip. In March 2021 the surgery was again deferred, as it clashed with
an Islamic religious event. Finally, in May 2021, after being notified of the
pending litigation, Dr Jordaan was told by the hospital authorities that he
should not perform the second surgery.
30. The plaintiff was unhappy about the fact that the litigation affected her
relationship with him, as she had been under the impression that the claim
against the hospital would not affect her second THR. On this note, the
medical records show that she requested a right THR, complaining of pain in
20 No express agreement was reached between the parties about the status of the discovered
20 No express agreement was reached between the parties about the status of the discovered
documentation. The defendant’s counsel prepared a useful timeline in relation to the
relevant documents , with which no issue was taken in the course of argument . A copy
thereof is attached to this judgment as “A”.
that hip, and consenting to the surgery despite the warning of the real
possibility that she would again experience nerve fall -out. The defendant
argues that the reasonable deduction to be made is that the plaintiff did not
have any complaint with the surgery which took place on her left hip.
Prior to the surgery
31. In any event, Dr Jordaan explained that the plaintiff was assessed at the
hospital in July 2018 , scoring a prioritisation rating of 55/100 . She had
severely dysplastic hips (denoted by what is known as a Crow e III rating),
and was morbidly obese (she had a high body -mass index (BMI)) . The
plaintiff presented will equal leg lengths (there was no significant difference
apparent radiologically), and there was also no significant differentiation in
the alignment of her hips. In May 2019 the plaintiff presented was scored
again, this time reaching a prioritisation score of 95/100. She was se riously
disabled, with a pain score of 8/10 at rest and 10/10 when active. She was
accordingly a candidate for surgery at the hospital.
32. Dr Jordaan warned the plaintiff of the risks involved with a THR, especially
considering her dysplastic hips. The various risks attached to, amongst other
factors, the implants to be used , the administration of general anaesthetic,
and the implications of the plaintiff being a smoker for the healing of the
wound.21 Dr Jordaan testified that the plaintiff would also have been handed
a physiotherapy booklet , which did (and still does) not include any warning
about sciatic nerve fallout, as this is not a common risk in standard hip
replacement surgeries . He did, however, warn the plaintiff about these
possibilities. Given the severity of her condition, there was extensive pre-
operative planning involved.
The surgery
33. The plaintiff’s surgery took place on 15 October 2019. It proceeded without
21 It was common cause that the plaintiff was a smoker.
problems, and in hindsight Dr Jordaan would not have changed anything
about the surgery if he had to redo it. Dr Jordaan explained that he
positioned the acetabulum 22 and femoral head to be as close as possible to
the normal anatomical position, but that it was slightly shorter (by about
13mm) when compared to normal anatomy ( that is, the placement of the hip
had the plaintiff developed normally , without DDH ). He estimated that he
brought the centre of rotation of the hip down by roughly 38 mm. In cross-
examination he stated that he used the shortest femoral prosthesis.
34. Dr Jordaan was concerned about the risk of sciatic nerve throughout the
surgery. He therefore palpated the nerve on three occasions , assessed that
there was normal tension once the implant had been inserted, and assessed
the amount of bleeding. He found that there was no need for a drain , which
would have been placed if there was a concern about the formation of a
haematoma.
Post-surgery, up to 23 October 2019
35. The plaintiff remained in hospital until 23 October 2019. On 16 October 2019
it was noted that she had a “flickering ” of the left foot. Dr Jordaan confirmed
that there was a discrepancy between the doctor’s and physiotherapist’s
notes on 16 October 2019, as far as the “flickering” is concerned. He
ascribed it to the physiotherapist being a student at the time, and not a
qualified physiotherapist.
36. On 17 October 2019 one of the doctors on duty, Dr Basson, recorded that the
plaintiff had a drop foot, that there was no sensation in the first and second
toe, that she had no power in the foot and could no t dorsiflex,23 and that she
was experiencing pins and needles.
37. The medical notes for 18 to 21 October 2019 continue to record the drop foot.
22 A concave (that is, curling inwards) surface of the pelvis. The head of the femur meets with
the pelvis at the acetabulum, forming the hip joint.
23 That is, she could not move her foot upwards towards her shin.
Dr Jordaan testified, however, that when he examined the plaintiff clinically
on 21 October 2019, he noted an improvement in her condition , specifically
in relation to the drop foot. He explain ed how he would have tested the
plaintiff’s motor function, which included considering the muscle strength in
her ankle. He stated that the injury was partial 24 (this was common cause at
the trial), and the implications of the sensory and motor fallout at the time
were that the plaintiff could flex her foot downwards . It was only the big toe
that could not extend upwards , and she could not pull her ankle upwards
from a 90-degree position.
38. According to Dr Jordaan, he considered various possibilities in relation to the
cause of the injury, amongst them whether there could have been a
haematoma. He therefore examined the dressing at the surgery site : there
was no indica tion of atypical swelling . The leg was soft, and there was no
hard swelling or masses in the leg . He also ensured that the knee was
moving well, with the normal range of motion, and no stiffness in the hip
joint. He discarded the possibility of injury to the sciatic nerve during surgery,
especially as cement was not used and there was no force on the sciatic
nerve during surgery (it is common cause that the surgery took place without
incident).
39. The plaintiff argues that the reason that Dr Jordaan did not investigate the
cause of plaintiff’s nerve injury was because he believed that the fallout was
caused by surgical swelling. This was his evidence: he testified that he
attributed the injury to surgical swelling and that he believed that once the
swelling went down there would be no further damage. There was thus no
reason to investigate further. On a consideration of his evidence as a whole,
however, it is clear that this view was formed on the basis of Dr Jordaan’s
observations in relation to a variety of relevant aspects. Dr Jordaan testified
observations in relation to a variety of relevant aspects. Dr Jordaan testified
that he discussed the plaintiff’s condition with colleagues and students in the
department, and given that the injury was partial with no clinical indication of
24 The deep peroneal nerve was affected.
atypical swelling, he decided that the plaintiff should be closely monitored. If
her condition worsened, the position would be reconsidered.
40. Dr Jordaan saw the plaintiff on various occasions post-operatively, prior to her
discharge. She seemed to be improving each day, and he therefore decided
upon a conservative management of the situation. Dr Jordaan added that he
had a lengthy discussion with the plaintiff prior to her discharge on 23
October 2019 about what had occurred, and what the plan for future
management was. He testified that it was natural that she was in pain post-
surgery. P rior to the surgery her pain was 10/10 when she was active, so
purely on that basis she had already improved. As she was actively “ getting
better” he thought that a possible reason for the initial fallout was surgical
swelling. In cross -examination he stated that surgical swelling (internal
swelling around the wound site) would generally go down after
approximately two weeks. In the plaintiff’s case, given her status as a
smoker and of more advanced age, the process could take longer.
41. He explained, however, that he remained unaware of the cause for the nerve
injury, and that the plaintiff therefore fell in the percentage of cases where
the aetiology of sciatic nerve injury remains unknown.
42. Dr Jordaan stated that there was no indication for further investigation as
suggested on behalf of the plaintiff during the trial . Even if there had been,
an ultrasound would not have been useful, given the plaintiff’s high body
mass index, and a CT scan is most helpful to assess bone (which had
already been considered by way of X-ray to assess the correct placement of
the prosthesis). There was no indication for an MRI . There was also no
reason for revision surgery, as there was no indication of a haematoma , and
the injury was partial.
43. In cross-examination Dr Jordaan was asked if he considered the injury to the
43. In cross-examination Dr Jordaan was asked if he considered the injury to the
sciatic nerve to have been caused by traction (or lengthening of the leg). He
answered that he had not. He added that there was never any concern
about traction, given the pre-operative planning, the measurements taken
intra-operatively, and the fact that there was no overlengthening of the leg,
since the hip was merely restored to approximately ( or slightly higher than )
the correct anatomical position from the pathological position. He explained
that a lengthening of less than 4c m is generally acceptable, and that the
pelvis can accommodate a 2 cm difference. He had calculated the
lengthening intra -operatively, and was at no time concerned that he had
lengthened the leg beyond what is acceptable. The plaintiff’s leg length
discrepancy (which was less than 4cm) was therefore not significant.
44. Dr Jordaan stated that he used his experience and clinical skills, and weighed
up what was the best course of action in the circumstances. He discussed
the case with other registrars, a fellow , and with students. The decision was
therefore made by drawing on a pool of knowledge and experience.
Post-discharge: 3 November 2019
45. According to the medical notes, the plaintiff came to the h ospital on 3
November 2019, complaining of increased pain in her foot . Dr Jordaan
testified that he did not see her on that occasion, and that he could not say
much about the visit or the notes taken the n. He was merely told , the next
day, that the plaintiff had been satisfied to take additional pain-killers prior to
returning home. On the notes, h e added that no evolving nerve lesion was
mentioned, and there was still no indication for further investigation. In
cross-examination, Dr Jordaan pointed out that upon the plaintiff’s arrival at
the hospital she was examined by an intern in the casualty unit , and triaged.
He added that an intern’s understanding of pathology will not be as good as
a specialist such as Dr Wiese, who was the orthopaedic registrar who later
attended upon the plaintiff.
46. Upon being asked why Dr Jordaan did not further investigate the cause of the
plaintiff’s pain at that stage, he testified that what needed to be considered
plaintiff’s pain at that stage, he testified that what needed to be considered
was if there was disproportionate pain. He added that the pain-killers
(paracetamol) given to the plaintiff seemed to have had the desired effect ,
and that there was nothing more that required investigation. In fact, the
prescribed medication (amitriptyline) also given to her was of a low dosage,
and was probably given because Dr Wiese wanted to give the plaintiff
something to stop “ nerve irritation”. He reiterated that, before the surgery ,
the plaintiff’s pain score was 10/10 when she was active . Her pain had been
managed well post -surgery. The only analgesic which she received on 3
November 2019 was paracetamol.
47. Dr Jordaan reiterated further that he considered that the injury was partial,
and that there was nothing that the MRI would have noted, as there was
clearly no haematoma. A nerve conduction test would only be of clinical
value after six months.
Follow-up consultation on 29 November 2019
48. A further note dated 29 November 2019 is contained in the medical records .
Dr Jordaan stated that there was no worsening of the plaintiff’s condition .
The fact that she experienced paraesthesia indicate d that there was some
sensation. By that time the plaintiff was on crutches. Her pain had improved
and that she was wearing an ankle-foot orthosis (AFO) to assist with her
drop foot.
49. In cross -examination, Dr Jordaan explained that e ven if her condition
remained static, there was not enough evidence to indicate further
investigation. It was put to him that the plaintiff was unable to dorsiflex
shortly after the surgery. She had reduced sensation, and could not extend
her big toe. By November 2019 (six weeks later), she still had limited motor
function, and her condition remained “unchanged”.
50. Dr Jordaan explained, however, that the limited motor function experienced in
November 2019 was not the same as no motor function, which was the case
on 17 October 2019. The medical note taken on 29 November 2019 stated
that there was “ nerve function recovery ”, and the doctor who assessed the
plaintiff must have found that the nerve was recovering clinically. It was put
to him that he should nevertheless have ordered a n MRI when she
presented at the hospital after six weeks. Dr Jordaan repeated that there
had been some recovery, and the injury was partial. One only investigates if
one is planning to perform further surgery, and there was no reason in the
circumstances to subject the plaintiff to further surgery.
Further assessment on 12 December 2019
51. Dr Jordaan testified that the medical record of 12 December 2019 showed
further improvement in the plaintiff’s condition, and in her activities of daily
living.
Preparing for the second THR: November 2020 to May 2021
52. Dr Jordaan saw the plaintiff again in November 2020 when she came to the
hospital in contemplation of a THR o n the right. He stated that despite
warning the plaintiff of the likelihood of nerve injury occurring again (as the
cause of the previous injury was unknown and , according to Dr Jordaan, he
could not have done anything differently), the plaintiff felt that regardless of
the limitation of her big toe and ankle flexion on the left, she was happy with
the functional outcome of the left THR, and she wanted to proceed with the
right hip surgery.
53. It was noted in cross-examination that the plaintiff could at that stage dorsiflex
to a neutral position, and Dr Jordaan therefore stated that that would be
characterised as motor power ranking at 3/5. Upon it being put to him that
she was walking with a crutch, he stated that the plaintiff was in pain from
the right hip, which was progressively getting worse . This was supported by
the relevant medical records.
54. It was again put to him that he should have further investigated the plaintiff’s
condition, as any residual swelling from the left THR would by that stage
have gone down. Dr Jordaan stated that nerve regeneration can be as slow
as 1mm per month, and take as long as two years for the end point of
recovery. Ther was thus still no need for further investigation.
55. In December 2020 the plaintiff was admitted to hospital to attend to the right
THR. She was admitted early (as had been the case prior to her left THR) to
ensure proper pre -operative planning. The medical notes record that the
plaintiff was at that stage pain free in the left hip , and that she was very
happy with the outcome of the left THR. At that stage the plaintiff was able
to walk unaided in sandals, and her motor function was therefore considered
normal.25
56. The surgery was unfortunately cancelled due to the failure of the air
conditioning in the theatre, when the plaintiff was already under anaesthetic.
57. On 22 April 2021 the plaintiff again came to hospital for the THR of the right
hip. She was able to walk unaided and in normal shoes, and had altered
sensation in the first web space of the foot. Her foot drop was said to be
more or less resolved, although she presented with pins and needles. He
added in cross -examination that there was clearly nerve regeneration, and
that her motor function would have been 3/5, and only if it were 0 or 1 out of
5 would that have warranted further investigation and potentially a tendon
transfer.
58. This time the s urgery did not proceed because of the intervention of E id-al-
Fitr.
59. In May 2021 Dr Jordaan had a meeting with the plaintiff. He explained that he
was compromised because of an internal investigation into the plaintiff’s
surgery, and the p ossibility of litigation (this action was instituted in June
2022). He therefore referred the plaintiff to the Groote Schuur Hospital. The
plaintiff was upset that Dr Jordaan could not perform the surgery. She told
him that she had lost her employment during Covid-19, and that the litigation
was nothing personal. In cross -examination, it was put to him that the
25 The plaintiff’s tibialis anterior muscle (at the front of the lower leg) had recovered completely,
and the condition of the extensor hallucis longus muscle (the main action of which is the
and the condition of the extensor hallucis longus muscle (the main action of which is the
extension of the big toe) was recorded as 4+/5.
plaintiff’s admission sheet in 2019 recorded that she was unemployed at that
stage already. Dr Jordaan responded that h e remembered was that she had
said that she had lost her employment as a seamstress due to Covid-19.
60. I have mentioned that the plaintiff did not give evidence. Her version of what
she told Dr Jordaan at the interaction in May 2021 is unknown, and his
evidence in this respect stands uncontested, for what it is worth.
61. Dr Jordaan’s conclusion, based on his experiences in relation to the plaintiff’s
case after her surgery, was tha t he could not find the cause for the sciatic
nerve injury . He could only postulate that it was possibly due to post -
operative swelling, but in about 50% of cases a cause is never found.
62. I shall return to the plaintiff’s criticism of Dr Jordaan’s evidence, which was
provided as factual, not expert, evidence. At this juncture, I set out the
expert evidence given on each party’s behalf, after a statement of the
principles underlying the evaluation of expert evidence.
The expert evidence
63. It is trite that an e xpert’s opinion is relevant and admissible when, by reason
of his or her special knowledge and skill, such expert is better qualified to
draw inference than the court and . The expert is, on account of his or her
attributes or qualities , able to provide significant benefits to the court in
determining legal disputes. 26 An expert’s opinion must be properly reasoned
in order for it to be of assistance:27
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or established by his own evidence or that
of some other competent witness. Except possibly where it is not controverted, an
26 SARS v Stepney Investments (Pty) Ltd 2016 (2) SA 608 (SCA) para 16;
PriceWaterhouseCoopers Inc and others v National Potato Co -operative Ltd and another
[2015] 2 All SA 403 (SCA) para 98.
[2015] 2 All SA 403 (SCA) para 98.
27 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH
1976 (3) SA 352 (A) at 371.
expert’s bald statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process of reasoning which
led to the conclusion, including the premises from which the reasoning proceeds,
are disclosed by the expert.”
64. In Den Hartog NO obo NAH v Road Accident Fund 28 the court held as that
“while experts are entitled t o make assumptions, they should avoid basing
their opinions on conjecture or speculation for once they do so they place
their evidence at risk of being disallowed. Expert witnesses ought to confine
their testimony to their respective disciplines but at times and under suitable
conditions may venture outside their area of expertise. If it becomes
necessary to step out, they should then and there declare.”
65. In Michael and another v Linksfield Park Clinic (Pty) Ltd and another29 the
Supreme Court of Appeal considered the evidence of five expert witnesses
concerning the conduct of anaesthetists. In relation to the preferred approach
to conflicting expert opinions, the court stated:
“… 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.
…
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.” 30
66. In Life Healthcare Group (Pty) Ltd v Suliman 31 the Supreme Court of Appeal
28 [2024] ZAGPJHC 1196 (18 November 2024) para 33.
29 2001 (3) SA 1188 (SCA) paras 34 and 36.
30 See also Van Wyk v Duze and another [2025] ZANCHC 2 (17 January 2025), which involved
30 See also Van Wyk v Duze and another [2025] ZANCHC 2 (17 January 2025), which involved
a THR. Incidentally, the court in Van Wyk accepted (at para 69) the view expressed by the
experts involved there (and as stated by Dr Jordaan in the present matter) that the cause in
50% of nerve injuries remains unknown.
31 2019 (2) SA 185 (SCA) para 15.
reiterated that, in assessing conflicting expert evidence, one must determine
whether the expert opinion is founded on logical reasoning. The co urt
warned against readily accepting isolated statements by experts, especially in
a field where there is no medical certainty. It is for the court to weigh the
evidence as a whole and make a finding based on what was presented.
67. A 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 sat isfied 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. If a
body of professional opinion overlooks an obvious risk which could have
been guarded against it will not be reasonable, even if almost universally
held. A defendant can properly be held liable, despite the support of a body of
professional opinion sanctioning the conduct in issue, if that body of opinion
is not capable of withstanding logic al analysis and is therefore not
reasonable.32
68. Expert evidence is only as sound as the factual evidence on which it is
based. The less fixed the assumption and the fewer hard facts available to
the expert, the greater the scope for alternative conclusions.33
69. I consider the expert evidence furnished in this matter against this
background. The experts were questioned at length, especially in cross -
examination, and the evidence is wide -ranging. I focus on what I regard as
the salient aspects.
70. A joint minute was prepared between Dr Versfeld and Dr Munting. They
agreed that the plaintiff had a diagnosis of osteoarthritis of the left hip,
secondary to developmental dysplasia of the hip. She also had
developmental dysplasia of the right hip. A left THR was done on 15 October
developmental dysplasia of the right hip. A left THR was done on 15 October
32 Michael and another v Linksfield Park Clinic (Pty) Ltd and another supra paras 37 to 39.
33 Harrington NO v Transnet Ltd t/a Metrorail 2010 (2) SA 90 (SCA) at 107 F-G.
2019. As a result of the hip replacement surgery, there was a lengthening of
the left leg at the hip joint. After the surgery, it was noted that the left leg had
altered sensation around the foot, and that there was an inability to dorsifle x
the foot. There was motor as well as sensory nerve fallout emanating from
the sciatic nerve following the injury.
71. The experts diverged on the cause of the injury, and on the reasonable
follow-up measures that could, or should have been undertaken.
Expert evidence on the plaintiff’s behalf: Dr Versfeld
72. Dr Versfeld is an orthopaedic surgeon of many years’ standing. He qualified
in 1968, and has been in private practice since 1977.
73. Dr Versfeld’s opinion is concise: where, after a hip replacement procedu re,
any overlengthening of the leg exceeds 2cm and there is evidence of sciatic
nerve damage, as in the present case, then the procedure that ought to
have been followed post-surgery was to perform revision surgery to rectify
the overlengthening as soon as possible . This is because failure to do th at
was likely to result in permanent disability. Dr Jordaan should thus have re-
operated on the femoral stem and corrected the overlengthening of the
plaintiff’s leg . Dr Versfeld does not mention, in his report, that further
investigation was necessary prior to the plaintiff’s discharge , although this
aspect came up during the course of his evidence.
74. Dr Versfeld’s opinion, as set out in his report, is that the THR was performed
negligently as there was overlengthening. Both expert witnesses agreed that
leg lengthening means the difference between the length of the leg before
and after the operation , although (as the experts agreed) this was in fact a
perceived lengthening because of the repositioning of femoral h ead during
the THR surgery.
75. If the leg measures longer after the operation, because the head of the femur
has been moved down from its previous raised position, the leg has been
lengthened. This lengthening is an inevitable consequence of surgery of this
nature. Dr Versfeld was of the view that s uch overlengthening caused
damage to the plaintiff’s sciatic nerve and “the surgeon failed to take Plaintiff
back to theatre as soon as possible in order to correct the deformity so as to
avoid permanent disabilit y”. Dr Versfeld does not venture a cut-off time by
when it would be too late for revision surgery to be effective , and he was
unable to state by when the damage would become permanent . He did
indicate that, unless he had no doubt that overlengthening had caused the
injury, he would not rush in without performing further investigations like an
MRI or ultrasound.
76. In Dr Versfeld ’s view, a THR was the most appropriate treatment int eh
plaintiff’s case. He accepted the opinions expressed in the academic
literature to which he was referred, 34 in relation to the applicability and risks
inherent in the procedure. T he THR in th e present case was difficult and
highly specialised, given the gravity of the plaintiff’s condition. N othing
untoward occurred during the surgery.
77. He was further of the view that one can only consider the extent of the
lengthening of the leg after the surgery. The centre of rotation and hip socket
was, post -operatively, in the correct anatomical position, with the correct
angle of the aceta bulum to the femoral stem . T he acetabulum was placed
slightly higher in the socket than what you would see in an anatomically
correct hip joint, and therefore the leg was slightly shorter than if the plaintiff
had grown up without DDH. Ideally, in his view, the leg should not be more
than 1 cm longer than its original length . In the present case, he calculated
that the lengthening was approximately 4.18 cm, and that the leg length
discrepancy was approximately 5 centimetres . He suggested that the
prosthesis used by Dr Jordaan may have been too long.
prosthesis used by Dr Jordaan may have been too long.
78. Dr Versfeld agreed with the relevant literature that the cause of sciatic nerve
injury remains unknown in about 50% of cases, but stated that in the plaintiff’s
34 Hasija et al “Nerve injuries associated with total hip replacement” Journal of Clinical
Orthopaedics and Trauma 9 (2018) at 81-86.
case the “significant overlengthening” was the “probable cause” of the injury
to the nerve. He said that he could not, however, with absolute certainty rule
out the possibility that the injury was caused by compression. He testified
that once the possibility of intra -operative damage to the nerve has bee n
excluded, one is left with two possible causes for the sciatic nerve damage,
namely compression of the nerve by a haematoma, or stretching of the nerve
as a result of overlengthening. This evidence was not contradicted by Dr
Munting, who testified that leg lengthening could have been a cause of the
nerve injury but that he could not definitively say that it was, and one would
need to investigate on the basis of the symptoms displayed as a result of the
injury.
79. Dr Versfeld agreed, in cross -examination, that performing revision surgery
could have damaged the nerve, further, and could have done more harm than
good. In any event, given the nature and extent of the THR surgery, one
would have expected the plaintiff to have experienced pain afterwards. He
conceded, further, that improvement was shown after the surgery, and by the
time of the plaintiff’s insistence of a THR of the right hip, there was marked
improvement of her functioning as well as her experience of pain . According
to the medical notes, by April 2021 the foot drop had more or less recovered .
She had good hip function and no hip pain, although still experiencing pins
and needles. As there was improvement , this could have indicated that the
nerve was starting to recover.
80. His opinion nevertheless remained that the defendant was remiss in failing to
investigate the cause of the injury by way of revision surgery.
81. Dr Versfeld testified that he has never performed a THR on a patient with
bilateral DDH, such as the plaintiff. He had also asked a col league “who did
hip replacements ”. Over his career, he performed thirty -five THRs, and he
hip replacements ”. Over his career, he performed thirty -five THRs, and he
acknowledged that a THR for a patient with DDH is complex . He has never
performed a revision surgery . In my view h e was therefore not confidently
able – as expert witness - to assist in explaining the method which should
have been adopted to address the plaintiff’s condition post -surgery. At best
he could suggest that t he plaintiff’s leg would need to be shortened by
shortening the femoral stem.
82. Given his relative ly limited (as opposed to Dr Munting’s) experience in the
context of the present case, Dr Versfeld’s inability to state what the outcome
of revision surgery or of further investigations would have been, creates
difficulties for the plaintiff in proving that, had further intervention taken place,
she would be entirely without complaint.
83. Dr Versfeld based his opinion that there was excessive overlengthening of
the plaintiff’s leg on the assumption that, if a leg is lengthened more than
2cm, it is overlengthe ned. A ccording to his measurement the leg was
lengthened by 4.18 centimetres. This is not supported by the medical
records which indicate the leg length discrepancy as 3cm and 2,9cm.
84. As will appear from the discussion below, Dr Munting explained that in
measuring the leg length according to the X-rays, Dr Versfeld must have
“upscaled” instead of “downscaled”, in other words, he confused the nature
of the measurements. This is borne out by the medical records which do not
support the notion that there was a leg length discrepancy of almost 5cm, as
estimated by Dr Versfeld. Dr Versfeld’s opinion is therefore based on the
incorrect presumption that there was an overlengthening of the plaintiff’s
leg.
85. When Dr Versfeld was asked what he based his opinion on whether, if a leg
is lengthened by more than 2cm and nerve injury presents, revision surgery
should take place, he stated that he read about the issue, and sought the
advice of a colleague who specialises in hip replacements . Upon being
asked where the f igure of 2cm came from, he stated that he remembered it
being taught to him. These are not reliable sources upon which to base an
expert opinion.
86. Dr Versfeld testified , in answering a question about the plaintiff’s condition
after her discharge from hospital, upon the medical note of an intern of one
isolated incident on 3 November 2019 when the plaintiff returned to hospital
with pain and loss of sensation in her whole foot , that the nerve injury was
progressing. This is doubtful - as stated below, Dr Mu nting explained that
the whole leg and not just the foot would be compromised in the event of
further injury to the nerve. It appears from the note that the plaintiff was
treated with paracetamol and a low dose of amitriptyline , and that she was
ready to return home in the morning. The medication accordingly had the
desired effect. She attended at the hospital again for her scheduled
appointment for 29 November 2019.
87. In evaluating the evidence given by both Dr Versfeld and Dr Munting (whose
evidence is set out below), I tend to agree with the submission by counsel
for the defendant that Dr Versfeld ’s opinion is , in the particular
circumstances of the present matter, not based on logical reasoning . He
came across as fixated on the notion that the plaintiff’s injury had been
caused by what he regarded as the over lengthening of her leg. He also
does not have as much practical experience as Dr Munting in the particular
field of surgery, and therefore unable to guide the court in deciding what the
reasonable follow-up steps would be in the plaintiff’s particular
circumstances, the probable cause of the plaintiff’s nerve injury, what
difference further investigations or scans would have made, and what the
probable outcome of such further investigations or revision surgery would
have been.
Expert evidence on the defendant’s behalf: Dr Munting
88. Dr Munting is a practising orthopaedic surgeon with extensive knowledge
and experience in the field of hip replacements, which includes performing
THRs to patients with D DH, and revision surgeries. Hip replacement is his
speciality. He remarked that very few people are trained and experienced in
the performance of these types of surgeries, which are complicated.
the performance of these types of surgeries, which are complicated.
89. In his opinion, a patient with a classification of Crow e III (such as the
plaintiff), would not require femoral shortening. He contrasted this with a
patient who presents with a Crowe IV rating, in whose case the migration of
the femoral head would be so high that the correction and placement in the
anatomically correct position would require femoral shortening.
90. The movement of the femur dictates how much stretching is involved during
a THR. Pre-operative planning is therefore imperative . With regard to the
medical notes in relation to the plaintiff’s THR, Dr Munting agreed that the
correct prosthesis was used for her . He added that the surgery seemed to
have taken place without any misadventure.
91. There is a material difference in opinion s of Dr Munting and Dr Versfeld in
respect of the lengthening of the plaintiff’s left leg. Dr Munting emphasised
that lengthening is to be understood as the perception of length. As pointed
out by Dr Jordaan, the femoral head had to be repositioned from a
pathological state to an anatomically correct position, and was about 13 mm
shorter than what it probably would have been had the plaintiff developed
normally.
92. Dr Munting measured that the lengthening in the present case was
approximately 2 cm, and he was thus in disagreement with Dr Versfeld’s
measurement. He thought that Dr Ve rsfeld must have upscaled the
measurement to have arrived at 4.18cm.
93. Dr Munting explained that there was , historically, a school of thought that
held that lengthening caused harm to the sciatic nerve. He stated that the
rule of thumb35 has always been 4cm, and as a registrar he had been taught
that more than 2.5cm attracted increased risk. There is, however, no direct
correlation between an amount of lengthening and sciatic nerve injury.
Some patients can have no nerve injury after a lengthening of 5 cm, an d
some can have nerve injury with a lengthening of only 1 cm . The variables
are endless.
35 As also testified to by Dr Jordaan.
94. Dr Munting testified that the usual course in the case of nerve injury is to
wait and see if there is a trend of improvement. If there is no improvement,
or if there is worsening (which could suggest ongoing trauma like a suture
through the sciatic nerve), then one would consider revision surgery. If there
is an improvement, there would be no need to investigate further.
95. In cross-examination, Dr Munting stated that p atients who have congenital
dysplasia (such as the plaintiff) are at higher risk, because of the complexity
of the surgery which is required, and the consequent lengthening of the leg.
In the case of the latter, he added that the risk is heightened because the
sciatic nerve had never fully grown. Given the variables, there can be many
reasons for a nerve fallout. In Dr Munting’s view, a lengthening 2cm or
2.5cm is not unreasonable. Even if the measurement of the lengthening
was 3cm, that would still be wit hin the acceptable norms, and would not be
considered overlengthening. In any event, clinical assessment of a patient
for leg lengths is the most inaccurate way of assessing. He said that the
only accurate way of measuring leg lengthening is by considering a
mechanical axis X-ray view.
96. The plaintiff argues that Dr Jordaan’s evidence in relation to what would
constitute overlengthening wa s inconsistent with Dr Munting’s evidence that
there is no fixed length at which overstretching can occur – each patient is
different and responds differently to trauma, with the result that an
overlengthening of 1cm could result in nerve injury in one patient whilst an
overlengthening of 5 cm in another patient could cause no damage at all.
97. Dr Jordaan failed to measure the plaintiff’s leg length post-operatively, which,
so the plaintiff argues, was a fundamental error. I f limb lengthening is an
inevitable consequence of this surgery and if there is a known risk of sciatic
nerve injury in patients with DDH arising from the limb lengthening, as
nerve injury in patients with DDH arising from the limb lengthening, as
Munting testified, then the first thing that Dr Jordaan should have done on
becoming aware of the nerve palsy w as t o measure plaintiff’s leg to
determine the degree of lengthening. This is what Dr Munting would have
done. Thus, h ad Dr Jordaan done this measurement immediately post -
operatively, he would have been aware that plaintiff’s leg had been
overlengthened. In the context of sciatic nerve palsy, which has been
positively linked to leg lengthening in the literature, this would hav e pointed to
the need for further investigation and possibly revision surgery, particularly
after the elimination of a haematoma as a potential cause of the injury.
However, this was not done because Dr Jordaan, who was aware of the risk
that the sciatic nerve could be stretched by overlengthening of the leg,
testified that he did not consider this possibility.
98. The argument does not take account, however, of Dr Munting’s evidence
that there are many variables in relation to the cause of a sciatic nerve
injury. This is coupled with what Dr Jordaan testified as to his observations
when the injury presented itself. Dr Munting stated that if there is any
improvement in a patient’s condition in the early post -surgery period , the
consensus amongst medical practitioners is that one does no more than
observe. One would expect changes over a six -month period post -surgery.
On the necessity for revision surgery, Dr Munting stated that factors which
would have been taken into consideration included that the plaintiff had a
high BMI, that the initial surgery was complex, that she was at high risk of
infection during revision surgery , and that there was a chance of further
injuries during such surgery . He added that the revision surgery usually
entails the freeing up of the nerve, if there is a constriction, alternatively a
shortening osteotomy. It is not an easy operation - there are substantial
risks and no guarantees.
99. Dr Munting pointed out that doctors should live by the standard of “ first do
no harm”. The proper reaction in the case of complications is case -specific.
One would reflect on the surgery, consider if the fallout was substantial, and
whether it was complete or partial. He added that Dr Jordaan is a senior
whether it was complete or partial. He added that Dr Jordaan is a senior
and experienced surgeon, and that it was his call to adopt a conservative
approach. He did not view such call as unreasonable in the circumstances.
100. As regards the plaintiff’s visit to the hospital with seemingly increased pain
on 3 Novemb er 2019 , Dr Munting explained the difference between
expected and unexpected pain. An altered sensation is not too important,
but one w ould concentrate on the pain. In cross -examination Dr Munting
stated that there could be increased pain two or three weeks after surgery
because of the increased blood flow to the area. He said that this could
include extreme pain. Swelling to the left foot would not be unexpected at
such time. He also said that if the nerve injury had progressed to include the
whole tibial nerve, then not just her foot would have been affected , but the
entire lower leg. He stated that pain must be “associated” pain. Therefore, if
the plaintiff had presented with motor and neurological fallout and excessive
pain directly after the surgery, then you would need to take active steps.
101. If, as in the present case, the plaintiff is discharged with some improvement
in her condition, and she presents with pain three weeks later , he would
expect that there had been some sort of trauma, and he could n ot comment
on where the pain might have come from.
102. Upon it being put to Dr Munting in cross-examination that on 3 November
2019, when she presented to the hospital in pain, further investigation
should have taken place, he stated that it was not necessarily the case, and
that such a decision relies heavily on the consultant in charge. If you were to
have a team of surgeons answer that question, half would agree and half
would disagree. It depended on the particular circumstances of the matter.
103. A variety of investigation options was put to him. He was of the view that
ultrasound would not be useful, given the plaintiff’s high BMI. MRI scans
were difficult to access in the public sector, and CT scans would not be of
much assistance as they show mostly bone. He added that if you require an
MRI you would need to schedule it immediately, and that you would need to
make a decision more quickly than in a week (which is when Dr Jordaan
make a decision more quickly than in a week (which is when Dr Jordaan
stated it would be available by). Whilst an MRI would be able indicate to a
blood clot, such a possibility was remote in the present case, because the
plaintiff did not show the relevant changes in her condition.
104. It was put to Dr Munting in cross-examination that the medical notes taken
on 28 November 2019 do not indicate any improvement in the plaintiff’s
condition. Dr Munting pointed out that there is reference to “ nerve function
recovery”. He said that he was unsure what the starting point was. He could
only presume that she must have been better than before, as the note
mentioned limited motor function, not no motor function. Therefore,
according to his interpretation of the note, there was some improvement. As
to the note taken on 12 December 2019, he observed that it state d that the
plaintiff appeared to be doing well, and there was no report of pain.
105. On 5 November 2020, a year after the surgery, he noted that there was no
worsening in her condition, and that she stated that she was pain free in the
left hip, that she had good range of motion, and that she was happy with the
outcome. In cross -examination it was put to him that she could dorsiflex to
neutral, and that there is a weak dorsiflexion in the big toe, in other words,
there had not been not much of an improvement. Dr Munting agreed that
the improvement was not much, but there was improvement nonetheless.
One expected s mall improvements over a n extended period, but a
deterioration would raise a red flag.
106. The note taken i n April 2021 specifies that the plaintiff had more or less
recovered from the foot drop, and that she had some pins and needles . It
was put to Dr Munting that this was almost twenty months after the surgery
(the defendant argued that the period was closer to eighteen months, or
nineteen at most). He replied that one usually considered a two-year period
as the end point of recovery. The progress over a six-month period would be
observed, and if one adopts a conservative approach, one would monitor
the improvement over the course of two years . M uscle function would be
assessed if it was dire.
107. He explained that one wanted to see a trend over six months to two years,
even if it was gradual . If there was no improvement, then one would
even if it was gradual . If there was no improvement, then one would
consider electromyographic studies. Dr Munting was of the view that to
ascertain whether the correct treatment was administered, he would need to
consult with her in her present condition. The plaintiff’s counsel stated that
she could not tell him what the plaintiff’s current condition was.
108. Dr Munting’s opinion in relation to the cause of the injury was that the sciatic
nerve fallout was due to the complexity of the surgery . Unlike Dr Versfeld,
he could not state that the leg lengthening was the cause. He could also
not state that plaintiff would have recovered if revision surgery had taken
place. He was of the view that the correct decision had been made given
how much the plaintiff had improved, and given the shortcomings and risks
involved in revision surgeries.
109. Given the extensive nature of the respective experts’ evidence, both in chi ef
and in cross -examination, it is important to remind oneself that w hat needs
to be assessed is whether, had the defendant done something differently
post-surgery (in other words, had Dr Jordaan taken a different approach) ,
the outcome would have been different for the plaintiff. This is to be decided
on a balance of probabilities.
110. As the plaintiff did not testify, it is not known what her current condition is, or
what her condition was two years after the THR. One is therefore reliant on
what Dr Jordaan testified in relation to his final interaction with her in May
2021, which was nineteen months after the surgery . What are the
inferences to be drawn from the evidence? The expert evidence is crucial.
111. The expert opinions of Drs Versfeld and Munting differ materially. I have
already indicated that I prefer the evidence of Dr Munting, who is up to date
with the current practical and academic views on the subject. The plaintiff
argued that Dr Munitng’s evidence is to be doubted because he knows Dr
Jordaan well, and thus have a benevolent attitude towards him. He also
made positive statements about Dr Jordaan’s character, such as that the
latter is a “straight arrow” and that he is not lazy. The plaintiff argued that It
is clear from these statements that Dr Munting is predisposed to believe that
is clear from these statements that Dr Munting is predisposed to believe that
Dr Jordaan’s treatment was adequate, and that this has skewed his
testimony in favour of defendant.
112. I could pick up no attempt in Dr Munitng’s evidence of a biased attempt to
influence the court in finding in Dr Jordaan’s favour. Viewed holistically, his
evidence remained focused on a consideration of the plaintiff’s history and
the circumstances prevailing when the injury presented itself (as well as it
could be considered without having consulted with the plaintiff), and a frank
explanation that the nerve injury could have been caused by a variety of
factors.
113. Dr Munting emphasised that this type of surgery is complex. The manner in
which it is dealt with should be determined on a case -by-case basis, and
depends very largely on the clinician who extensively consulted with the
patient, and who can therefore appreciate the progression (or regression) of
their condition. There is no absolute rule to follow. Given the plaintiff’s
gradual improvement, he thought that Dr Jordaan’s approach was
appropriate.
Discussion
114. The plaintiff argues that Dr Jordaan’s evidence must be discounted in its
totality, on the basis that there were various discrepancies in his version. Her
criticism of his evidence is trenchant. I agr ee with the defendant’s
submission, however, that despite the internal and external contradictions
identified by the plaintiff, the crux of his evidence remained steadfast . On
material aspects, for example the manner in which the surgery was
conducted, and whether there was a general albeit gradual improvement in
the plaintiff’s condition, Dr Jordaan’s version cannot be disputed. As
indicated, the plaintiff did not testify. There is thus no contradictory version as
regards her level of pain after the surgery, why she returned to the hospital on
3 November 2019, or how she steadily improved until being “ more or less ”
recovered eighteen months later. There is no evidence as to her current
condition.
115. One must remember, too, particularly in the context of what the plaintiff points
115. One must remember, too, particularly in the context of what the plaintiff points
out as contradictions between his evidence and that of Dr Munting, that Dr
Jordaan’s evidence was furnished as factual, not expert, evidence. Where Dr
Jordaan strayed into expert territory because of the nature of his involvement
in the matter, it is Dr Munting’s expert evidence that is to be considered in
relation to the fundamental questions that need to be addressed, namely the
likely cause of the injury, and whether Dr Jordaan should have approached
the situation differently in the circumstances.
116. The plaintiff criticises, too, what she regards as the inadequacy of the note -
keeping in relation to the plaintiff’s aftercare. She pointed out that the need to
keep and protect medical records is prescribed in the National Health Act,
2003. The Health Professions Council’s Guidelines (2008) on the keeping of
patient records, which applies to all health care practitioners stipulate that it is
compulsory to record, amongst other details, the time, date and place of
every consultation; the assessment of the patient’s condition and the
proposed clinical management of the patient. The courts have made adverse
findings against medical practitioners and hospitals in cases where medical
notes have disappeared or have been made available in a pie cemeal manner
or are inadequate.36
5. Dr Jordaan , an experienced medical practitioner , was aware of and
acknowledged the importance of taking notes. He was also aware of the legal
obligation on medical practitioners to keep notes , and agreed that one of the
reasons stated for the need to keep notes is in anticipation of potential
litigation. Although he personally does not keep notes, he testified that he
very rarely saw the plaintiff alone and further that the intern or registrar
accompanying him would keep n otes. In light of this acknowledged obligation
to keep adequate medical records, the plaintiff contended that the court
cannot accept Dr Jordaan’s evidence that a consultation was held prior to the
surgery, that the integrity of the sciatic nerve was checked intra-operatively, or
surgery, that the integrity of the sciatic nerve was checked intra-operatively, or
an assessment was done , if there is no recordal of this happening in the
medical notes.
36 See, for example, Khoza v MEC for Health and Social Development 2015 (3) SA 266 (GJ)
para 47.
117. The adequacy of the note -keeping is, however, not an issue which needs to
be considered because it was not pleaded as a ground of negligence. Dr
Jordaan’s alleged lack of properly recording his interactions with the plaintiff
takes the matter no further, because the plaintiff has not given evidence to the
effect that her version of the events differs from Dr Jordaan’s version as to his
communications with her. There was also no disagreement between the
parties that the integrity of the sciatic nerve was checked intra -operatively.
On the contrary, they were in agreement that the surgery took place without
misadventure.
118. I did not regard Dr Jor daan’s evidence as being undermined by the lack of
notes to such an extent that he was an unreliable witness whose evidence
had to be disregarded . He testified that he remembered the plaintiff’s case
well, because it was an interesting and complicated matter. He did not have
to rely on hearsay evidence in relation to the plaintiff’s condition, as he – as
he testified – himself observed an improvement as time went by. He
regarded the notes as a guideline.
119. It would in any event be illogical to disregard Dr Jordaan’s evidence or
discredit him on the basis that he gave evidence that went outside of the
available notes. He was the surgeon who performed the THR, and who
interacted with the plaintiff since 2018 and on regular occasions after the
surgery. Where he had lapses in mem ory, or was uncertain about certain
aspects posed to him, those were natural given the time that have since
elapsed.37 He nevertheless retained a good recall of the salient aspects. I
did not form the impression, as the plaintiff urg es me to do, that his evidence
amounted to a narrative was constructed after the event.
120. Dr Jordaan’s evidence, which is supported by the content of the available
medical notes over the months post-surgery (even if it is accepted that they
medical notes over the months post-surgery (even if it is accepted that they
do not contain all that he testified to) , is that although the plaintiff’s
improvement was slow , it was steady. She was able . within nineteen
37 Molala v Minister of Law and Order and another 1993 (1) SA 673 (W) at 677 H-I.
months after the THR, to regain almost full motor power in her left foot. The
sensory fallout was ultimately insignificant t o the extent t hat she looked
forward to a THR to the right hip, despite Dr Jordaan warning that a similar
nerve injury was a risk yet again. The plaintiff’s contention that there was
no improvement from the time of the surgery until more than one year later
in November 2020, is not what appears from the notes. They have to be
considered holistically – it is not helpful, as the plaintiff has done, to focus
on specific entries that might be ambivalent. When considered in context,
the notes indicate a steady nerve function improvement, with references to
the regaining of motor power and the presence of sensation in the foot.
121. In cross -examination, Dr Jordaan was asked whether the plaintiff’s
eagerness for the second THR could have been caused by her concerns
about the leg length discrepancy, or whether the pain in her right hip spurred
her on. This could have been resolved by evidence from the plaintiff directly.
It is not clear why she was not called. Dr Jordaan’s evidence to the effect
that the plaintiff was hap py with the left THR (and whatever her reason was
for instituting the action), therefore remains uncontested.
122. I accept, further, Dr Munting’s evidence that a partial sciatic nerve injury such
as the plaintiff’s could be caused by many variables. This is undisputed,
despite the plaintiff’s criticism of a shift in his evidence as opposed to what is
set out in his expert summary. The experts were in agreement that in 50% of
these types of cases the cause of the injury remains unknown. It is, in the
particular context of the plaintiff’s case not possible to pinpoint the origin of
the injury, and therefore the manner in which it could be dealt with depended
largely on what Dr Jordaan considered prudent in the circumstances. Dr
Jordaan observed a gradual improvement in the plaintiff’s condition, and he
Jordaan observed a gradual improvement in the plaintiff’s condition, and he
was satisfied with the adoption of a conservative approach, which accord Dr
Munting’s view that he would have dealt with the matter in a similar manner.
123. One cannot, from the available evidence, infer that furt her investigation as
suggested by the plaintiff, or revision surgery as recommended by Dr
Versfeld, would have revealed the cause of the injury, and would have
prevented further damage to the nerve. This was a nagging gap in the
evidence throughout the trial, and poses an insu rmountable hurdle in the
plaintiff’s ability to prove the required factual causation in this matter.
124. The matter of Van Wyk v Duze and another ,38 which involved a THR, is
instructive. In that case, the THR was an uncomplicated procedur e, other
than in the present plaintiff’s case. In relation to the cause of the injury in
that case it was fairly similar to the present one.
125. The plaintiff in Van Wyk suffered a permanent sciatic nerve injury during or
as a result of the surgery which took place in 2015. The injury resulted in,
amongst other issues, a permanent drop foot. The issue to be determined
was whether intra -operative damage done to the sciatic nerve was as a
result of the negligence of the defendant, and the nature of the neglige nce
alleged by the plaintiff was the incorrect and careless placement of a
retractor during the THR procedure.39 By 2017, the plaintiff still had to wear
the drop foot splint and had a limp on the left side. There was disagreement
between the parties’ respective experts about the cause of the injury, and
whether the defendant had been negligent.40
126. In discussing the evidence, the court pointed out that the plaintiff’s expert
agreed that the cause of 50 % of sciatic nerve injuries associated with hip
replacements is unknown. 41 The expert nevertheless maintained that a
retractor most likely caused the damage to the plaintiff’s sciatic nerve, as
retractor is always used during such an operation, close to the nerve. It has
sharp edges, is a dangerous instrument, and is the usual cause of such an
injury.42
127. The defendant’s expert witness was of the opinion that indirect compression
of the sciatic nerve was likely the cause of the complication. He was also of
38 [2025] ZANCHC 2 (17 January 2025).
39 See paras 1-4.
40 See paras 7-9.
41 At para 21.
42 At para 25.
the view that indirect compression of the sciatic nerve r epresents a true
surgical complication of a THR and does not constitute unreasonable or
unprofessional conduct by the surgeon. He could, however, not pinpoint the
cause of the compression injury.43
128. The court referred to relevant authorities 44 in relation to the approach to
expert evidence, and discussed each of the parties’ criticisms of the other
party’s expert witness. 45 The court remarked, in relation to the plaintiff’s
expert, that his attempts at explaining the cause of drop foot cases with
which he was familiar, despite him taking the utmost care in those
instances, did not assist the plaintiff. Neither did his proposition that
because the plaintiff presented with a drop foot after the operation, the
defendant must have been negligent in the manner identified by the expert
as the likely cause of the injury.46
129. As to the evidence of the defendant’s expert witness, the court commented
that the matter was not one where “ one would be tempted to assess the
evidence in terms of scientific certainty ”. An analysi s of the cogency and
underlying reasoning for the opinions of the experts sufficed:
“[69] … Dr Jordaan’s disregard of direct retractor compression as a cause for the
injury is not just on the say -so of the defendant but because the injury was atypical
of a retractor injury. This evidence was not contested by the plaintiff. The experts
were ad idem that in 50% of sciatic nerve injuries the cause thereof was unknown.
There is no factual evidence that the injury was caused by incorrect retractor
placement. The explanation by Dr Jordaan of the impact of anatomical variance
with regard to sciatic nerve injury is not only logical but is underpinned by the
medical literature. Dr Naudé acknowledged these variants but disregarded it as a
cause or a risk factor without giving any reasonable explanation for his dissent with
the results of medical research.
the results of medical research.
[70] Against the logical and well -reasoned testimony of Dr Jordaan, that the cause
of the plaintiff’s sciatic nerve injury falls within the 50% of cases which a re
43 See paras 39-47.
44 I have referred to some of these authorities earlier in this judgment.
45 See the discussion from para 51 and further.
46 At para 58.
unknown, Dr Naudé’s bald opinion that the injury was most likely caused by a
retractor because it is always used and is a dangerous instrument known to cause
damage, cannot prevail”.47
130. The plaintiff’s claim in Van Wyk was dismissed. Similar criticisms may be
levelled against Dr Versfeld;s evidence in the present matter, as opposed to
Dr Munting’s. I have already dealt with the bases for their respective
opinions.
131. The court in Van Wyk referred to the case of Van Vollenhoven v v Dr JCM
Venter,48 in which the plaintiff incurred an injury to the peroneal aspect of
the sciatic nerve during a THR, which left her with a drop foot. In that case
the court reiterated what was referred to as “the golden rule” which applies
to THR procedures, namely that at all stages care has to be used to protect
the sciatic nerve. The surgeon has to be aware of the location of the nerve,
if not visually, then by palpation. Especially great care should be taken to
position retractors to avoid injury to the sciatic nerve.
132. (I pause to point out th at, in the present case, there was no dispute that
there had been palpitation of the patient’s sciatic nerve in the course of the
surgery.)
133. As the court in Van Wyk explained, 49 in Van Vollenhoven the court held on
the probabilities that the placement of the retractor caused the injury to the
plaintiff’s sciatic nerve:
“[66] In that matter, as in casu, placement of the retractors was done by the
defendant alone. The court held that the resultant damage showed that the
defendant did not exerc ise proper skill and care in protecting the sciatic nerve.
The court rejected the evidence of the defendant’s expert that the defendant had
performed the procedure with proper skill and care because it was based solely on
the good reputation of the defendant and the fact that the defendant had
47 At paras 69-70. My emphasis.
48 [2015] ZAGPPHC 39 (2 February 2015).
49 Van Wyk supra paras 66-67. My emphasis.
demonstrated his excellent knowledge, skill and care in performing such an
operation during a consultation with Prof Weber (defendant’s expert) using a
plastic model. The defendant’s expert was found to be biased.
[67] Van Vollenhoven can however also be distinguished from the present case in
the following respects: (i) the mechanism of the injury was not in dispute – the
defendant from the outset expressed his view to the plaintiff that a retractor
pressed on the sciatic nerve during the operation. He confirmed during cross -
examination that the most probable cause of the injury was that the retractor
pushed too hard against the sciatic nerve; and (ii) there does not appear to have
been any scientific evidence as to other possible causes or risk factors involved in
such a procedure.”
134. As regards foreseeability of the harm, the plaintiff points out that it was
accepted by both expert witnesses and Dr Jordaan that patients with
congenital DDH have a much higher risk of sciatic nerve damage following a
hip replacement procedure and that extra care is required in these cases. It is
further common cause between these practitioners that leg lengthening is an
inevitable consequence of a moving the femoral head down from its
pathologically displaced position to the pathologically normal position and that
an overlengthening of the limb could, by stretching the sciatic nerve, cause
damage to it. In other words, the potential harm to plaintiff arising from the
lengthening of her leg was foreseeable.
135. It was clear from the literature and the evidence that there is no precise figure
at which lengthening will necessarily give rise to a stretching of the sciatic
nerve, as patients vary and respond differently to treatment. However, gi ven
the increased risk of sciatic nerve damage in congenital patients and the
evidence of the experts that one should not lengthen the limb in these
patients by more than 2cm or 2 .5cm, the plaintiff contends that Dr Jordaan,
patients by more than 2cm or 2 .5cm, the plaintiff contends that Dr Jordaan,
who was aware of the potential risk of nerve damage, acted unreasonably by
lengthening plaintiff’s leg by 3cm. The degree of lengthening was, according
to his evidence, in accordance with the pre -operative surgical plan which was
followed in surgery. The only conclusion that can be drawn from this evidence
is either that Dr Jordaan deliberately lengthened plaintiff's leg by 3cm, which
is longer than the conventional accepted safety norm , or that the planning for
this surgery was inadequate.
136. One must keep in mind, however, Dr Munting’s evidence that, even if the
measurement of the lengthening was 3cm, that would still be within the
acceptable norms, and would not be considered overlengthening. A number
of variables are at play and there is, as the plaintiff acknowledges, no precise
figure at which lengthening will necessarily give rise to a stretching of the
sciatic nerve.
137. The plaintiff also submits that, once the nerve damage was observed after the
surgery, Dr Jordaan could still have avoided the harm to plaintiff by
investigating the potential cause of the sciatic nerve injury by, inter alia ,
determining the degree to which plaintiff’s left leg had been lengthened and
ordering imaging of the leg; performing revision surgery if the investigations
supported it, investigating or reconsider ing plaintiff's condition when she
returned to the hospital in extreme pain three weeks after the surgery; or
investigating or reconsidering plaintiff's condition after the lapse of six months
without improvement, alternatively, after twelve months without normalisation
of the foot.
138. In the present matter (unlike in the case in Van Vollenhoven) there is no
agreement on the mechanism of the plaintiff’s injury, and there is expert
evidence to the effect that there may have been a variety of causes therefor.
It is by no means – and certainly not on a balance of probabilities – clear
that the injury was caused by overlengthening, and that revision surgery or
further investigation into the injury would have prevented such damages as
the plaintiff had suffered. It is any event not clear what such damages entail
at present.
139. I cannot, on these facts and on a balance of probabilities, find that the
conservative approach taken by Dr Jordaan was unreasonable.
Conclusion, and costs
140. I conclude that t he plaintiff has failed to prove on a balance of probabilities
that she has suffered harm because of the defendant’s decision not to
perform revision surgery on the left hip , or to undertake further
investigations into the cause of the sciatic nerve injury.
141. There is no reason why costs should not follow the result. The matter was
moderately complex, and counsel’s fees on Scale B are warranted.
Order
142. In the premises, the plaintiff’s claim is dismissed, with costs, including
counsel’s fees taxed on Scale B. All costs tha t stood over for later
determination are costs in the cause.
P. S. VAN ZYL
Judge of the High Court
Appearances:
For the plaintiff: Ms M. Ipser
Instructed by: Malcolm Lyons & Brivik Attorneys
For the defendant: Ms T. Steyn
Instructed by: The State Attorney