Before returning to Dr Levy on 1 July 1992 appellant consulted Dr Hamersma during February 1992 after an arranged meeting with first
respondent did not take place on 4 February. Dr Hamersma examined appellant and subjected him to electrical testing. He told appellant
that the facial nerve was dead and that there was no response. He questioned appellant about his interaction with first respondent
and having learnt that first respondent had told appellant to await developments, he advised him to "err on the conservative
(side) and give it its best shot seeing that (first respondent) had never ever indicated any kind of concern" and that "we
should wait up till nine months". He also told him that he might need an operation and that he should consult another ear, nose
and throat surgeon, Dr le Roux, and a neurologist, Dr de Klerk.
On 5 March 1992 Dr Kuming performed a tarsorrhaphy operation on
15
appellant. It entails suturing the comers of the eye lids together in order to protect
the eye without depriving the patient of the use of the eye. Had appellant been able to open and close his left eye this operation
would not have been required. On 19 May 1992 appellant consulted Dr le Roux who sent him to a physiotherapy practice conducted by
Ms Melanie Jacobs in the same building in order to undergo a nerve excitability test (known as a NET). The test was conducted by
one of her assistants, Ms van der Merwe. According to Ms van der Merwe, she had no difficulty in performing the test. The apparatus
was not out of order and appellant was not told to come back on another day. According to Dr le Roux, the result indicated that the
nerve was alive and had a chance of recovery and that it had not been severed. A strange feature is that Dr le Roux testified initially
that he had not asked for the test to be done but conceded when confronted with a note written to Ms Jacobs that he had done so.
However, he said he had received no report on the result of the test. When asked why he had
16 not asked for the report when it was not forthcoming, he was quite unable to
explain why he had not done so. He claimed to have seen it for the first time in
court. Equally strange was appellant's evidence that the apparatus was not
functioning, that he returned on another day to be tested, and that the person
conducting the test was still "not very impressed with their apparatus" but said
"they have got some result and that they would report to Dr le Roux".
Dr le Roux advised appellant that he should consider going to see Dr
Fisch, a renowned surgeon in Zurich, with a view to surgical exploration of the
nerve and a primary nerve repair. Dr de Klerk shared that view. In the result
appellant was operated upon by Dr Fisch in Zurich on 19 September 1992. Dr
Fisch was unable to repair the nerve and instead performed a facial nerve
hypoglossal anastomosis. The operation entails severing the nerve to the tongue
in the neck and then connecting it to the facial nerve where it exits from the brain
stem at the base of the skull. The muscles of the face are thereby enervated and
17
the patient is trained to use the tongue to create facial movement. However, it will not restore emotional expression and while it
will be possible to close the eye, secretion of the eye does not return and the eye remains dry. The operation was successful.
Appellant underwent yet further operations in South Africa in 1993 to improve his facial appearance but it is unnecessary to describe
them. What was found during the operation in Zurich and what inferences could be drawn from what was found was the subject of much
debate. Dr Hamersma was present at the operation and described what was found. Dr Fisch did not testify but his note of the operation
was translated from German into English and placed before the trial judge by consent of all the parties as being a correct exposition
of what he did and what he found. The parts of it around which debate centred were these: "5. Behind the foramen meatal, a huge
neuroma bulged out of the opened
18
internal auditory canal. This neuroma was removed by tympaniplasty scissors, without escaping of fluid.
6.
Removal of bone over jugular bulbus in the area of porus acusticus internus. This had not been reached by previous operation. Exposure
of back, upper and lower surfaces of the internal auditory canal. The facial nerve was traced inside the scarred auditory canal.
A few millimetres before the foramen meatal, the nerve loses itself inside scar tissue. The scar extends over the entire internal
auditory canal.
7.
Opening of the meatal dura in the area of porus acusticus internus. Here too an atrophied facial nerve was to be found. Even after
removal of dense scar tissue from the internal auditory canal, it was still impossible to identify a proximal stump of the facial
nerve, with any certainty. It would appear that, after the previous operation, dense scar tissue in the internal auditory canal compressed
the facial nerve and led to development of a scar-neuroma.
8.
In view of the fact that facial paralysis had persisted for one year and the patient's facial muscles had a very flaccid appearance,
we decided to proceed with a hypoglosso-facial-anastomosis.
9
Review: The cause of the facial-nerve-lesion during the previous operation remains unclear. It is possible that the internal auditory
canal was, to a large extent closed by tissue which, as a result of post-operative swelling of facial nerve graft within the inner
auditory canal was compressed and, as a result, regenerated nerve-fibres were unable to establish contact with the meatal foramen.
Whether the 6 weeks of liquorrhea also were (also) responsible, remains an open question."
I mention that the facial nerve graft referred in the passage sub-headed "Review"
19 appears in the German as "des Transplantates der N. facialis" and that was
rendered as "the transplanted tissue" in Dr Hamersma's translation of the report.
What was thought to be a neuroma was shown on histological examination to be "scar tissue with parts of a peripheral nerve".
(A neuroma is the new growth of tissue which usually follows upon the severance of a nerve and it is something quite distinct from
scar tissue.) The reference to "liquorrhea" is a reference to the leakage of cerebrospinal fluid which occurred in September
1991.
The claim for damages was founded upon first respondent's conduct before, during, and after the operation. I shall deal with each
in turn. The claim based upon first respondent's conduct prior to the operation rested upon his alleged failure to apprise appellant
of the risks attending the operation and of the existence of an alternative operation. The claim was advanced in two ways in the
pleadings. First it was alleged that first respondent had "wrongfully failed to obtain the (appellant's) real or informed consent
to the operation and the first
20 (respondent) accordingly committed an assault on (appellant) in operating on him
on the 4th of September 1991". Secondly, and in the alternative, it was alleged that
in "treating the (appellant) and in carrying out the operation
(first
respondent) acted in a negligent and unskilful manner" in that he "failed to inform
the (appellant) prior to carrying out the operation of the risks and hazards involved
and he failed to inform the (appellant) of alternative operative treatment
available".
Pleading a cause of action such as this as an assault to which the
patient did not give informed consent is of course a familiar and time-honoured
method of doing so. However I venture to suggest with respect that its conceptual
soundness is open to serious question and merits reconsideration by this court
when an appropriate case arises. To the average person, and I suspect to many a
lawyer, it is a strange notion that the surgical intervention of a medical practitioner
whose sole object is to alleviate the pain or discomfort of the patient, and who has
21
explained to the patient what is intended to be done and obtained the patient's
consent to it being done, should be pejoratively described and juristically characterised as an assault simply because the practitioner
omitted to mention the existence of a risk considered to be material enough to have warranted disclosure and which, if disclosed,
might have resulted in the patient withholding consent. It seems to me to be inherent in the notion that even if the risk does not
eventuate and the surgical intervention is successful, the practitioner's conduct would nonetheless have constituted an assault.
That strikes me as a bizarre result which suggests that there is something about the approach which is unsound. There is no principle
of law of which I am aware by which the characterisation as lawful or unlawful of an intentional act objectively involving the doing
of bodily harm to another can be postponed until its consequences are known. Either it was an assault at the time of its commission
or it was not. Events occurring ex post facto can logically have no bearing on the question. It is no answer to say that if the
22 undisclosed risk does not eventuate no damage will have been caused. That has
nothing to do with the characterisation of the medical practitioner's act in
intervening surgically as lawful or unlawful. I mention this merely by way of
example to explain why I consider that the validity of causes of action framed in
this manner in circumstances similar to those which are said to exit in this case
requires re-examination. (I emphasise the latter qualification; I leave aside cases
in which mala fides is involved such as cases of deliberate fraud and deliberate
misrepresentation of what is entailed in order to obtain consent which would
otherwise not be forthcoming.) However, re-examination would be inappropriate
in the present case. The matter was not argued and even if it be assumed in favour
of appellant that the cause of action based upon an allegation of assault is
conceptually sound in law, I agree with the trial judge's conclusion that the
evidence does not bear it out.
The omission to inform appellant of the risk of leakage of
23
cerebrospinal fluid was of no significance. The leakage was not proved to be
causally related to the onset of the facial palsy and appellant did not claim that if the risk of leakage had been mentioned to him,
he would have refused to consent to the operation. Appellant's evidence as to the alleged failure of first respondent to inform him
of the risk to the facial nerve and of the availability of the alternative operation (labyrinthectomy) was rejected by the trial
judge. He pointed out that appellant had signed a document in which he consented specifically to a translabyrinthine vestibular neurectomy
and in which he acknowledged that the nature and possible effects of the operation had been explained to him. He referred to appellant's
own use of the expression "labyrinthectomy" in a letter which he wrote on 5 April 1991, which was of course prior to the
operation, and to appellant's concession that he may have been told that the translabyrinthine vestibular neurectomy would provide
a "one stop" solution to both his vertigo and his tinnitus. The learned judge considered that the reference to the latter
operation
24
providing a "one stop" solution to both problems suggested that a comparison was
made with another operation which would not achieve both objects. He noted that appellant had sought to explain his use of the word
"labyrinthectomy" by claiming that he thought it was a synonym for a translabyrinthine vestibular neurectomy but observed
that appellant must have heard the word "labyrinthectomy" from first respondent. He found that appellant was at the end
of his tether, was looking to first defendant to do whatever he could to eliminate or alleviate his problems, and was amenable to
whatever surgical intervention first respondent recommended. He added that appellant had never said that if he had been informed
of the risk to the facial nerve and of the alternative operation, he would not have consented to the operation which was performed.
The highest that appellant had put it was that he might not have consented. He drew attention to the fact that when appellant's letter
of demand was sent it made no mention of any failure by first respondent to inform appellant of the risk to the facial nerve and
the availability of an alternative
25 operation. He also considered it to be improbable that first respondent would have
failed to inform appellant of these matters. One might add that it is also somewhat
improbable that appellant would have been disinterested in such matters given the
fact that he was a medical practitioner with some knowledge of the anatomy of the
area in which the operation would be performed. No good reason exists to differ
from the trial judge's view that this cause of action was not made out. The same
applies to the alternative cause of action based upon an alleged negligent failure
to inform appellant of these matters. This conclusion makes it unnecessary to
decide upon the correctness of the approach to questions of this kind taken by the
full bench of the Cape Provincial Division in Castell v De Greef 1994 (4) SA
409(C).
The remaining allegations of negligence levelled at first respondent
relate to both the manner in which first respondent performed the operation and
the manner in which he dealt with appellant after the operation. The negligent
26 conduct during the operation was pleaded originally as consisting of, firstly, the
severance of the facial nerve and, secondly, the failure properly to close the
operation site and the aditus (entrance) to the antrum (cavity). The latter allegation
was not persisted in at the trial and no more need be said about it. During the trial
appellant amended his pleadings to include an allegation that, if the facial nerve
was not severed, it was negligently damaged in some other unspecified way. A
request for particulars elicited the reply that "the nature of the damage was -
bruising, stretching, tearing, crushing, cauterising, compressing or interference
with the nerve's blood supply resulting in an alteration to the anatomical structure
of the nerve and interference of (sic) the electrical conduction of impulses through
the nerve", and that appellant was unable to be more specific. In response to the
question when and how the damage should have been diagnosed, appellant replied
that the "damage should have been diagnosed and recognised when the damage
arose at the operation, but certainly when the (appellant's) face exhibited signs of
27 paralysis". As to how and when the damage should have been repaired, appellant
replied: "Either by nerve suturing or grafting and if that was not possible, by
hypoglossal facial anastomosis, as soon as possible."
The trial judge concluded that the evidence did not establish on a
balance of probabilities that the facial nerve was severed during the operation.
That conclusion rested upon a number of subsidiary findings and considerations
which, if correct, amply justify it. Those findings and considerations were these.
The facial nerve must have sustained some injury during the operation. Severance
could not be deduced solely by invoking the res ipsa loquitur doctrine because
there were other potential causes of damage to the nerve which did not entail
severance. An immediate and complete post-operative palsy (which would have
been a concomitant of a severance) had not been established by the evidence. The
direct evidence of first respondent that the facial nerve was not severed or
otherwise observably damaged, corroborated as it was by the evidence of Dr
28 Vasek, who was present as an observer but bore no responsibility for the
operation, could not be justifiably rejected. Dr Levy's evidence that the facial
nerve showed signs of life when tested electrically on 30 January 1992 was
incompatible with severance. That evidence was acceptable evidence and Dr
Hamersma's attempt to pass the result of the EMG test off as equivocal, or as what
a "dumb neurologist" found, was impliedly rejected. The result of the NET test
performed at the rooms of Ms Melanie Jacobs at Dr le Roux's request showed that
there was regeneration of the nerve taking place and, when confronted with it, Dr
le Roux was constrained to concede that it pointed to non-severance. The Swiss
surgeon, Dr Fisch, was not called by appellant to give evidence and his report of
the operation which he performed contained no explicit statement that the facial
nerve had indeed been severed at the previous operation. That Dr Fisch may have
assumed at the time that severance had occurred was possible because he searched
for nerve ends to unite or join by way of a graft and found a mass of scar tissue
29
which he mistakenly thought was a neuroma. The fact that the tissue was found
on histological examination to be scar tissue and not a neuroma, made severance improbable. The very existence of the scar tissue,
which would have taken time to form post-operatively, and which could have put additional pressure on the nerve, was an indication
that the nerve might not have been cut initially. It could not simply be assumed, in the absence of evidence by Dr Fisch, that he
tested the nerve for viability before performing the operation which he did, when so many unanswered questions attended what he found.
His inability to identify a proximal nerve stump could also be interpreted as supporting the notion that there was in fact no severance.
The report was consistent with Dr Kassner's interpretation of it as indicating that the facial nerve was found embedded in the scar
tissue. (Dr Kassner is an ear, nose and throat surgeon who was called to testify by respondents.) At best for appellant, Dr Fisch's
report was to the effect that the cause of injury to the nerve was not clear and that the nerve may later have been
30 compressed by developing scar tissue. The learned judge rejected the evidence of
Dr Hamersma that the cochlear nerve had not been severed by first respondent
(and by implication the insinuation that the facial nerve had been mistakenly
severed instead). Finally, the learned judge considered that the result (60%
degeneration) of the ENOG test done on 5 September 1991, while not conclusive,
also tended to show there had been no severance.
While some of these considerations are of questionable probative
value, in the main the findings are justified by the evidence. There are yet further
considerations pointing away from the nerve having been severed during the
operation. Appellant's case was predicated upon the proposition (for which there
was a good deal of support in the evidence) that if the facial nerve had been
severed during the operation, first respondent would have been aware of it. If that
is so and if the facial nerve had indeed been severed, it is in the highest degree
unlikely that first appellant would have ignored it and simply continued with the
31 operation as if nothing untoward had happened. The swift onset of total palsy
would have been the inevitable consequence and he would have had to deal with
it. The injury to the nerve would not have been something which would go away
if left unrepaired and undisclosed. Moreover, it would have been extremely
difficult to conceal successfully such a mishap from the other medical personnel
participating in the performance of the operation. Once the cumulative impact of
these findings and considerations is measured, I am left in no doubt that there is
no preponderance of probability that the facial nerve was severed during the
operation. It is worthy of mention that Dr le Roux, appellant's own witness, said
that he did not think that one could really prove that it was severed.
Counsel for appellant's alternative contention was that whatever the
precise cause of the palsy was, the onset of the palsy was so immediate and
complete that it had to be inferred, as a matter of probability, that it could only
have been caused by some unspecified negligent act on the part of the surgeon
32 which caused damage so severe that the act must have been closely akin to
severance in its traumatic impact. To that contention I now turn.
Foundational to the argument was the premise that the onset of the
palsy was immediate and its extent complete in the sense that all the muscular
functions of the left side of the face controlled by the facial nerve came to an end
within hours of the completion of the operation. That is not what the trial judge
found. It is so that he rejected first respondent's euphemistic evidence as to the
appearance of appellant's face when he saw him in the ward later on the day of the
operation. It is also so that he accepted the honesty of the evidence given by
appellant's wife and members of her family regarding the appearance of
appellant's face. However, he did not regard their evidence as sufficiently reliable
to warrant concluding that there was indeed a "sudden complete" palsy on 4
September 1991. After referring to their evidence as to the "skewness" of
appellant's face and the details allegedly observed, he stated that allowance had
33 to be made "for the telescoping of impressions that stretch over a period". He
plainly had in mind the fact that appellant's face looked progressively worse as the
months went by and that the only photographs of his face which were available at
the trial were those taken when its appearance was at its worst. No photographs
taken very shortly or even relatively shortly after the operation were produced.
The members of the family differed to some extent from one another in describing
the details of what was observed. Appellant's wife, when asked to compare the
appearance of appellant's face then with its appearance in the photographs, was
unable to do so. All she could say was that it was not as bad as was depicted in
the photographs. When asked whether his appearance improved or deteriorated
after his discharge from hospital in September 1991, she replied: "I do not know.
Maybe I was just too emotionally involved, I do not know." She added that she
saw it "on and on and on and it always seemed grotesque to me". The trial judge
referred to the fact that the members of the family had no previous experience of
34
diagnosing a paralysis and that Dr Kassner had testified that it requires some
experience to do so and particularly to assess the degree of a paralysis - a proposition for which there was support in the medical
literature. He opined that the worst appearance of appellant's face would be the one most likely to be imprinted on their memories.
He referred to the evidence of both first respondent and Dr Vasek (which he felt unable to reject) that when appellant was clinically
examined in the recovery room after the operation for signs of facial weakness, there were none. He considered that their evidence
that if appellant had displayed a virtually immediate complete facial paralysis, prompt action would have been taken to deal with
it, was in accord with probability. He thought that first respondent's remark about recourse to law in the United States of America
in such circumstances and a remark overheard by appellant's daughter-in-law to the effect that the palsy would take longer to resolve
than appellant had initially been led to believe, was inconsistent with any belief on first respondent's part that appellant
35 had sustained a severe surgical injury to his facial nerve and had experienced an
immediate and total paralysis. He attached some significance to the fact that in
February 1992 appellant himself described the condition as a partial (meaning
transient) facial palsy and that when he solicited a letter from first respondent
describing his condition and it was described as such, he accepted it without
demur. He recalled (wrongly) that Dr Kassner had testified that a paralysis
manifesting itself within 4 hours of an operation "could still be consistent with a
delayed onset". (As a fact Dr Kassner gave no such evidence; it was the evidence
of Dr Vasek which could be interpreted as supporting such a proposition.) In the
result he concluded that what the evidence of appellant and his family did show
was that when he was first seen in the ward on 4 September 1991, there was a
"visible deformity that made an abrupt and unpleasant impression", "something
which disturbed them", and which was "a far cry from the hardly discernible
sluggishness to which first (respondent) testified". The overall conclusion was
36
that "(o)n all this evidence it cannot be accepted as proven on a balance of
probabilities that clinically a sudden complete palsy was present when Mrs Broude saw her husband in the ward". Again, some of
these factors are not particularly cogent when viewed in isolation but in their totality they provide sufficient justification for
the conclusion reached.
The evidence of Dr Hamersma is of pivotal importance in appellant's case. The trial judge's mainly unfavourable assessment of him
as a witness is fully borne out by the evidence. He was found to be deserving of credit for his readiness to champion the cause of
the appellant but lacking in objectivity because of his professional animosity towards first respondent which pre-dated the operation
which first respondent performed upon appellant. A disturbing aspect of his evidence was the zeal with which he sought to persuade
Dr Fisch to include in his report an unequivocal statement to the effect that the cochlear nerve had not been cut despite the fact
that the factual foundation for such a statement was
37 slender. His motive for doing so was to enable it to be argued that the facial nerve
had been mistaken by first respondent for the cochlear nerve and mistakenly
severed. A perusal of his evidence shows him to be a forceful and at times
excitable personality who was intent upon dredging up anything he could think of
which might reflect adversely upon first respondent's performance of the
operation, his conduct after the operation, and his credibility. Anything which
appeared to militate against his own thesis of severance of the facial nerve or
damage so serious as to be akin to severance was dogmatically derided as being
of no consequence. The neurologist who conducted an electromyography (EMG)
test and found signs of life in the nerve inconsistent with its severance was
"dumb". Aspersions were cast upon the competence of the physiotherapist who
performed the electrical nerve excitability (NET) test upon appellant and found
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