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Last Updated: 3 December 2005
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 181/2004
In the matter between
DR HENK DOUW LOUWRENS APPELLANT
and
JAMES PETER OLDWAGE RESPONDENT
CORAM: MPATI DP, STREICHER, MTHIYANE, LEWIS et PONNAN JJA
HEARD: 18 MAY
2005
DELIVERED: 21 SEPTEMBER 2005
Summary: Medical
negligence – Vascular surgeon diagnosed a patient as having serious
arterial disease in the right leg –
diagnosis disputed – History of
symptoms with which patient presented disputed. Proper approach for resolving
factual disputes
discussed.
Informed consent – whether given by
patient.
Risks and post-surgical complications (steal/claudication)
– whether caused by surgical intervention.
Duty to warn patient
where risks are negligible discussed. Credibility findings by court a quo
– appellate court’s approach thereto. Proper approach to expert
medical evidence
discussed.
___________________________________________________________
JUDGMENT
MTHIYANE JA:
Introduction
[1] The dispute in this appeal
concerns the history given by a patient (the respondent and to whom I shall
refer as the plaintiff)
to a vascular surgeon (the appellant, referred to as the
defendant), in respect of the symptoms with which he presented, leading
to a
diagnosis subsequently made by the appellant. There are two conflicting versions
in this regard and the outcome of the appeal
depends on which of the two
versions is to be believed, having regard to the probabilities. The plaintiff
sued the defendant in the
Cape High Court for damages for alleged medical
negligence. At the commencement of the trial Yekiso J ordered a separation of
the
issues in terms of rule 33(4), and subsequently dealt only with the question
of negligence. The learned judge decided that issue
in favour of the plaintiff
and granted the defendant leave to appeal to this court.
[2] These are
the facts. On Monday 5 June 2000, the plaintiff was suffering from intense pain
in his right leg. He consulted his general
practitioner, Dr George Simons, who
examined him and then referred him to the defendant. The defendant saw him on
Tuesday 6 June
2000 and upon examining him he suspected, as he put it, that the
pain was caused by a lack of, or poor, blood flow to the lower leg.
On Wednesday
7 June, he did an angiogram on the plaintiff, which revealed that various
arteries in the right upper leg were occluded
(blocked). From this he concluded
that the plaintiff had severe ischaemia, which required urgent surgical
intervention (in the form
of a bypass operation). On Thursday 8 June, he
performed an iliac bi-femoral bypass operation on the plaintiff.
[3] On
Wednesday 14 June 2000, the plaintiff, who says that he was still not pain free
after the vascular surgery, consulted a neurosurgeon,
Dr Kieck. Dr Kieck
discovered that the plaintiff had disc degeneration at the L4/5 vertebrae which
had resulted in a prolapsed disc
in that area. There is a dispute as to whether
this condition had occurred before or after the plaintiff’s visits to Dr
Simons
and the defendant. The back problem also required surgery, in the form of
a laminectomy. On Wednesday 21 June 2000 Dr Kieck did the
back operation, which
the plaintiff says brought him instant relief. However, shortly after the back
neuro-surgery, he began to exhibit
(and, according to him, continues to exhibit)
symptoms of claudication (blockage of the arteries with resultant cramping) in
the
left leg. He alleges that the current claudication was caused by the
defendant’s surgical intervention.
[4] The central factual issue at
the trial was whether, when the plaintiff saw Dr Simons and the defendant, he
presented with lower
back pain, which radiated from the back of his leg upwards
into his buttock as a result of a recent fall and a ‘snap’
in his
back, as alleged by him, or pain in the right lower leg (in particular the right
foot), as alleged by the defendant (supported
by Dr Simons) primarily arising
from his vascular problem. The judge a quo found that the pain with which
the plaintiff presented was of neuralgic origin and not of vascular origin. In
essence thus, the judge
found that the defendant had made an incorrect
diagnosis.
Issues on appeal
[5] On appeal the principal issue
is whether the defendant misdiagnosed the plaintiff’s problem as being
primarily of vascular
rather than of neuralgic origin which, on the
plaintiff’s case, was more urgent. Three other related issues were also
raised:
first, whether in examining the plaintiff and in allegedly missing the
symptoms indicative of neuralgic/back pain, the treatment
of which should have
taken priority, the defendant acted as a reasonable vascular surgeon would have
done when faced with the symptoms
with which the plaintiff presented (of course
if we find that on the probabilities the defendant did not miss a neuralgic
problem
this issue will fall away); secondly, whether the plaintiff gave
informed consent to the surgical procedure performed by the defendant,
in the
absence of which consent such intervention would have amounted to an assault;
thirdly, whether the plaintiff’s current
claudication in the left leg was
caused by the defendant’s surgical intervention. I discuss these issues in
turn.
Did the defendant make an incorrect diagnosis?
[6] The
case for an incorrect diagnosis is based primarily on the plaintiff’s
evidence and on that of Professor D R De Villiers,
a vascular surgeon, who had
already retired by the time of the trial. Professor De Villiers told the court
that the pain which the
plaintiff described as having experienced when he had
consulted the defendant signified a neurological rather than a vascular problem,
and that he should then have been referred to a neuro-surgeon. He did not think
that the plaintiff had critical ischaemia, which
he described as a progression
from intermittent claudication - ‘a lameness, a weakness, a pain, a cramp
that usually starts
in the calf muscle and may extend upwards’- not
downwards - and which comes only with exercise. According to Professor De
Villiers,
intermittent claudication is not incapacitating and does not interfere
with a person’s everyday life. Claudication is only
incapacitating and
requires surgical intervention when it progresses to critical ischaemia. The
symptom that signifies critical ischaemia
is referred to as
‘restpain’, and is not intermittent, but constant, extremely severe
and maximal. It is constant because
it involves the nerves and is limited to the
farthest part of the foot, which is the last body part that the blood supply
reaches.
Restpain indicates a fairly advanced stage of arterial disease. The
worst form of critical ischaemia manifests itself in gangrene,
at which stage
the vessels become completely blocked and the tissues die. Then, nothing can
come through and the leg becomes absolutely
black and dies. The only
‘cure’ would be amputation. Although Professor De Villiers was
satisfied from what he was told
that the plaintiff had not reached the advanced
stage of critical ischaemia, he conceded that, if the plaintiff exhibited
restpain
at the time he consulted with Dr Simons and the defendant, then
surgical intervention was justified.
[7] I turn to the
plaintiff’s evidence. He told the court that, when he saw Dr Simons
on 5 June 2000, he complained of intense pain in the back of his right thigh,
which shot up into his buttock. He also mentioned severe pain in the back and
remarked: ‘my back is buggered’. Notwithstanding
this remark, Dr
Simons ‘fiddled’ with his feet, which he considered to have nothing
to do with the pain in the back.
[8] Dr Simons disputed the
plaintiff’s version. He testified that the plaintiff had mentioned pain in
the lateral part of the
right lower leg, which shot up to his buttock. The
plaintiff told him that he had had this pain for some five days and made no
mention
of pain in the back. The plaintiff also told him of a back operation, a
laminectomy, which he had had, way back in 1972. Thinking
that the pain in the
leg might be a recurrence of the old injury, Dr Simons decided to do a straight
leg-raising test on both legs.
The test achieved a 70˚ raise, as a result
of which he was satisfied that the plaintiff exhibited no neurological deficit.
In
fact, in his report Dr Simons noted the absence of entrapment of the nerve.
Professor De Villiers conceded that the test carried
out by Dr Simons was indeed
the normal test used to determine the presence or absence of neurological
deficit. Dr Simons also noted
that the plaintiff’s right foot was a little
different to the left. He felt pulses in the left foot but none in the right
foot.
He also felt pulses behind the left knee and up in the groin but found
that they were completely absent on the right side. Having
in addition
established that the plaintiff was a heavy smoker, smoking about 30 to 40
cigarettes per day, he was satisfied that the
plaintiff had definite ischaemia
or lack of blood supply to the right leg. He advised the plaintiff that there
was an urgent need
for correction and that he wished to refer him urgently to a
vascular surgeon, as he was extremely concerned with what appeared to
be a very
greatly diminished blood supply to the right leg. He feared that the plaintiff
was in danger of losing his leg and felt
that a decision had to be made
urgently.
[9] As regards the defendant’s version, he
had - not surprisingly - no independent recollection of what was said during his
consultation
with the plaintiff on 6 and 7 June 2000. Since then he had seen
many other patients. He could therefore only meet the plaintiff’s
version
by referring to how he routinely consulted with his patients and by referring as
an aide memoire to his records, which he had initially kept
electronically on computer, and which were replaced by a letter he sent to Dr
Simons
on 26 June 2000. The letter records that the plaintiff presented with a
five day history of pain in the right leg and restpain of
the foot. The pain is
described as most marked over the peroneal compartment of the right lower leg.
It also records that, on examination,
the right foot was clearly ischaemic with
blue discolouration and decreased temperature and that no pulse was felt in the
right leg
whereas pulses were present in the left leg. Elaborating on his
report, the defendant testified that the plaintiff had complained
of pain in the
right leg which he said was most pronounced in the outer part of the lower leg,
just above the ankle. He noticed that
the plaintiff limped into the examination
room and that his foot had a dusky, light bluish colour and was cool to the
touch. It was
clear to him that the plaintiff had severe pain seeing that, as he
walked, he attempted to place as little weight as possible on
the right
foot.
[10] The defendant suggested that an angiogram be done to define
the severity and extent of the disease, on the basis of which he
could then
recommend corrective treatment. The angiogram revealed a much more severe
situation than the defendant had anticipated.
Not only were the main vessels
which supplied blood to the right leg blocked, but the other vessels which
normally provide alternate
routes were also blocked. The external right iliac
artery - the vessel that normally takes the blood down the leg - was completely
blocked off. Although there were also blockages on the left hand side, the
plaintiff’s body had compensated adequately for
that deficit. There was
sufficient blood getting to the left foot via collateral arteries, which acted
as effective substitutes for
the arteries that were disabled by the blockage.
The angiogram confirmed the defendant’s earlier clinical suspicion of a
very
poor blood flow to the right leg. In the light of this he diagnosed the
plaintiff as having severe ischaemia. He considered that
the leg was under
threat and that the next stage, if the vascular problem was left uncorrected,
would be the setting in of gangrene,
with the consequent risk of amputation of
the lower leg. The defendant testified that if a leg did not receive blood it
was starved
of nutrients which are essential for it to function. In the absence
of nutrients, the leg would be jeopardised, which was the prospect
facing the
plaintiff. The defendant considered that, if there were a minor injury to the
leg, infection could set in and speed up
this process. He was of the view that
the plaintiff faced the real prospect of losing his leg and that something had
to be done urgently.
[11] The defendant stated that he attempted to explain
the situation to the plaintiff in as understandable a manner as possible. He
advised the plaintiff that his vascular problem could be corrected by doing an
aorta-bi-femoral bypass, which entailed bypassing
both iliac systems (affected
by blockages) and re-routing the blood along substitute tubing to the lower part
of the leg which was
not getting adequate supply of blood. This suggested
surgical procedure turned out to be beyond the plaintiff’s financial
means,
however, as the hospital and clinic fees alone amounted to between R80
000 and R90 000. Notwithstanding that the defendant was prepared
to lower his
fees, the aorta bi-femoral bypass surgical procedure was excluded as a viable
financial option, as the hospital and
the clinic were not prepared to lower
their charges.
[12] The defendant then suggested a cheaper, simpler and
less risky surgical procedure, an iliac bi-femoral bypass, the cost of which
was
in the region of R40 000. The plaintiff agreed to this procedure and the
operation was done on 8 June 2000.
[13] In deciding which
of the two opposing versions is to be accepted, it is necessary to have regard
first to what transpired at the consultation
the plaintiff had with Dr Simons
and later with the defendant, in respect of the history given to them by the
plaintiff and their
clinical findings, assessed in the light of the
probabilities. The plaintiff’s version as to the pain with which he
presented
and which he described to Dr Simons and, later, to the defendant
(namely the complaint concerning back pain) is totally divergent
from and
incompatible with the defendant’s version of ischaemic vascular disease of
the right lower leg and foot, with which
he says the plaintiff presented and
described to him. All the plaintiff’s experts were agreed that if, at the
time, the plaintiff
had back pain only and no pain in the lower leg and foot,
the plaintiff’s problem was of neuralgic origin.
[14] It seems to
me that the issue for determination is whether the plaintiff, when he consulted
the defendant, suffered from a neuralgic
or a vascular problem, and this is
entirely dependent upon which factual version is to be accepted. If there was a
dual pathology,
then we must determine whether the procedure followed by the
defendant was correct. The dispute thus involves a choice between the
version of
the plaintiff, on the one hand, and that of the defendant on the other,
supported by Dr Simons. Yekiso J accepted the plaintiff’s version
in preference to that of Dr Simons and the defendant. Counsel for the plaintiff
urged us to
follow suit and submitted, somewhat boldly it must be said, that the
judgment of the court a quo includes findings of credibility with which
the appellate court will not normally interfere. We were not referred to any
specific
passage in the judgment recording such credibility findings. I could
not find any. Indeed, it is not apparent from the record why
the version of Dr
Simons and the defendant was rejected. On a proper approach, the choice or
preference of one version over the other
ought to be preceded by an evaluation
and assessment of the credibility of the relevant witnesses, their reliability
and the probabilities.
(See Stellenbosch Farmers’ Winery Group Ltd
& another v Martell Et Cie &
others[1]). Unfortunately it is
not apparent from the record that this approach was adopted by the judge a
quo. I do not think this is a case where, sitting as a court of appeal, we
should defer to the trial court’s findings of credibility
because of the
peculiar advantages it had of seeing and hearing the witnesses. Even if such
findings were in fact made by the trial
court, I do not think that we are
precluded from dealing with findings of fact which do not in essence
depend on personal impressions made by a witness in giving evidence, but are
rather based predominantly upon inferences
from the facts and upon the
probabilities. In Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd
& another[2] this court, per
Zulman JA, said:
‘Although Courts of appeal are slow to disturb
findings of credibility they generally have greater liberty to do so where a
finding of fact does not essentially depend on the personal impression made by a
witness’s demeanour but predominantly upon
inferences from other facts and
upon probabilities. In such a case a Court of appeal with the benefit of an
overall conspectus of
the full record may often be in a better position to draw
inferences, particularly in regard to secondary
facts.’
[15] It follows therefore that the factual evidence
presented to the court a quo merits reconsideration and re-evaluation. It
seems to me that, if the plaintiff’s version regarding the history he gave
to Dr
Simons and the defendant is to be believed, the two doctors not only
clinically missed his back problem, but deliberately chose to
ignore it,
notwithstanding that he had specifically mentioned it to them. This is in my
view highly improbable. Furthermore, it is
difficult to see why the two doctors,
consulting the plaintiff individually and separately on different dates, would
both focus on
the right leg, in respect of which there was (on the
plaintiff’s version) no complaint. There is yet another important feature.
Is it merely a coincidence that the leg depicted on the angiogram happened to be
the leg that was in fact occluded? The picture revealed
in the angiogram appears
to support the diagnosis, made by both Dr Simons and the defendant, of a severe
vascular problem in the
right leg and contradicts the plaintiff’s
assertion that he had no pain in the right foot or that there was nothing wrong
with
his right lower leg. The evidence that the plaintiff, when he saw Dr Simons
and the defendant, complained of pain in the right lower
leg (in particular the
right foot) and not of pain in the back, and the defendant’s clinical
findings in this regard are supported
by all objectively verifiable facts and
circumstances. Those include the earlier presentation to Dr Simons who, in broad
terms, made
similar findings to those of the defendant; the angiogram which
depicted a vascular condition with very little blood flow to the
right lower
leg; the defendant’s letter to Dr Simons dictated some 3 weeks after the
operation and from contemporaneous notes
clearly confirming the
defendant’s version of events; and the clinical note made by Dr Kieck that
the plaintiff had told him
about pain in his right calf prior to his visit to
the defendant.
[16] As indicated above, Professor De Villiers conceded
that if, at the time, the plaintiff exhibited restpain, surgical intervention
was justified. In this regard the court had only the evidence of the plaintiff
to be weighed against that of the defendant. The defendant
noted restpain in the
letter he sent to Dr Simons. Dr Simons did not specifically mention the presence
of restpain, a fact which
might to some extent be taken to support the
contention that vascular surgical intervention was not urgent. Dr Simons did,
however,
testify that on examination he found the plaintiff’s right foot
to be ‘a little different to the left’; he felt
no pulses in the
right foot, which to him suggested severe arterial disease. Dr Kieck did not
note restpain but made a note that
the plaintiff had told him about pain in his
right calf prior to his visit to the defendant. The bits and pieces of evidence
that
support the contention that there was no restpain at the time of the visits
to Dr Simons and to the defendant pale into insignificance
when one has regard
to the evidence of the two doctors and the other supporting evidence. I think it
is fair to accept that a general
practitioner such as Dr Simons would not have
wished or been able to do a more in-depth investigation than a specialist. That
is
why he referred the plaintiff to the defendant for further evaluation. His
failure expressly to mention restpain in his notes does
not mean that he missed
it.
[17] The evidence of the plaintiff is riddled with other
difficulties. It is contradicted by the angiogram which demonstrated that
he had
a serious vascular problem notwithstanding his protestation that there was
nothing wrong with his right lower leg. The plaintiff
was also contradicted by
his estranged wife, Ms Marlene Oldwage, who told the court during
cross-examination that, when the defendant
visited Dr Simons, the pain in his
back resulting from a fall in the Cederberg had long disappeared. She said at
that stage he complained
of pain in the leg. There are also discrepancies
between, on the one hand, the plaintiff’s evidence relating to exercise,
and
that of his wife and his brother, Mr George Henry Oldwage, on the other. The
evidence of the plaintiff’s wife and of his brother
in this regard also
does not tie up in several respects. The plaintiff testified that, before the
vascular operation, he used to
do a lot of exercise in the form of walking,
swimming and cycling. The plaintiff’s evidence was that he and his wife
used to
cycle after supper but his wife said they cycled before supper. Her
evidence was that they used bikes belonging to the plaintiff,
whereas his
brother said that the bikes which the plaintiff and his wife used belonged to
him. The plaintiff’s brother said
that he had bought a bike for his
girlfriend and two for his children, and that the latter were the bikes that he
lent to the plaintiff
and his wife. At some stage the contradictions become
comical: the plaintiff’s wife said under oath that she and the plaintiff
had brought two bikes with them to the Cederberg and said: ‘O, ons het `n
Mercedes gehad, en agter die Mercedes was die ding
waar ons die fietse gesit
het’. To a further question in cross-examination, she replied that the
plaintiff cycled on his own
bike. At first glance these contradictions seem to
be minor. But when the plaintiff’s account of his exercising regime is
contrasted
with the expert medical evidence of Professor Immelman, Dr Stein and
the defendant, all supported by the angiogram, to the effect
that the state of
the plaintiff’s arterial disease was such that he could not do exercise to
the extent to which he claims
he did, the contradictions assume importance.
Those small lies cumulatively make one question the truth of the
plaintiff’s
evidence. In particular, the claim by the plaintiff’s
brother that the plaintiff cycled some 50 kilometres up the mountain
pass is
totally discredited by the medical evidence. It seems to me that the evidence of
the plaintiff and his witnesses to the effect
that he engaged in such exercise
before the defendant’s surgical intervention must be rejected as contrived
and unworthy of
credence.
[18] I also do not agree that the symptoms with
which the plaintiff presented were neurological and related to his back, rather
than
vascular. First, the plaintiff did not inform Dr Simons and the defendant
that he had slipped and injured his back in the Cederberg.
I find the evidence
of the doctors more reliable and persuasive than that of the plaintiff. It
cannot be said that the defendant
lied to the court in the version which he
presented. Against this is the evidence of the plaintiff which is very
unreliable. Furthermore,
the probabilities militate against the contention that
Dr Simons and the defendant missed and/or ignored the back pain which the
plaintiff says he mentioned to them.
[19] There is yet another feature
that supports the version of Dr Simons and the defendant and contradicts that of
the plaintiff.
The plaintiff says he was not pain-free after the surgical
procedure performed by the defendant. In this regard he is contradicted
by the
hospital notes prepared by the nurses during his post-operation confinement,
from which it appears that he did not complain
of any pain. His explanation when
confronted with this in cross-examination, to the effect that he did not
complain because he wanted
to be discharged, is not at all convincing. Also, the
plaintiff said that when Dr Simons visited him at home after the vascular
operation,
he told the doctor that he was suffering from exactly the same pain
that he had before the operation. This was disputed by Dr Simons
who said that
the plaintiff mentioned pain in the back. Indeed, when he went to see Dr Kieck,
the neurologist, he was diagnosed as
having a back problem for which he
underwent surgery on 21 June 2000, after he had told Dr Kieck of the incident in
which he hurt
his back and of the back pain that shot down to the right leg. In
my view, this supports the version of Dr Simons, that when he visited
the
plaintiff at home, the latter complained of pain in the back and casts serious
doubt on the plaintiff’s version in this
regard. Furthermore, at the first
consultation, as I have already indicated, Dr Simons did a leg raise, achieving
a 70˚ elevation
of both legs, from which he concluded that there was no
nerve entrapment. Dr Kieck was only able to achieve a leg raise of 30˚
in
the right leg. It is therefore clear that the symptoms with which the plaintiff
presented to Dr Simons and to the defendant were
different to those with which
he presented to Dr Kieck. In my view, there is no basis for concluding that the
pain which the plaintiff
had when he went to see Dr Simons and the defendant
arose from a neurological problem. Accordingly, on all the evidence, the
defendant’s
surgical intervention was justified and there is no basis for
a finding of misdiagnosis. In Mitchell v
Dixon[3] Innes ACJ said:
‘A practitioner can only be held liable in this respect, if his
diagnosis is so palpably wrong as to prove negligence, that
is to say, if his
mistake is of such a nature as to imply absence of reasonable skill and care on
his part, regard being had to the
ordinary level of skill in the
profession.’
In the present matter it cannot be said that the
defendant was negligent or did not exercise the necessary care and skill
required
of him in making the diagnosis. I am saying this mindful of the fact
that the defendant was a specialist and that what is expected
of him is the
following:
‘A specialist is required to employ a higher degree of care
and skill concerning matters within the field of his speciality
than a general
practitioner. The objective “reasonable physician test” is
subjectified to the particular branch of medicine
to which the specialist
belongs. This means that it is expected from a specialist in the treatment of
his patients to act as a reasonable
specialist would have done under similar
circumstances.’[4]
On all the
evidence that is exactly what the defendant did. He examined the
plaintiff’s problem in depth, subjected him to an
angiogram and did what
he and other specialists, Professor Immelman and Dr Stein, considered to be an
appropriate operation to treat
the plaintiff’s condition. In my view there
is no basis for a finding of incorrect diagnosis.
Did the defendant
perform an incorrect surgical procedure?
[20] Allied to the above
question is the issue whether the defendant acted as a reasonable vascular
surgeon would have done when faced
with the symptoms with which the plaintiff
presented, referred to in para 5 above. According to the plaintiff’s
expert witness,
Professor De Villiers, the defendant should have done an aorta
bi-femoral bypass. The problem was that the plaintiff could not afford
that
procedure and, for that reason, the defendant suggested the iliac bi-femoral
bypass, a simpler, cheaper and less risky - but
by no means inferior - surgical
procedure. As regards the plaintiff’s lack of sufficient funds, Professor
De Villiers suggested
that the procedure could have been done at a public
hospital. There was however overwhelming evidence from Professor Immelman that
this was not possible. He testified that the plaintiff might not have met the
means test. Besides, there was a long waiting list
and the plaintiff would not
have been permitted to jump the queue. If the defendant’s evidence of the
plaintiff’s serious
arterial disease is anything to go by, his leg might
well have had to be amputated by the time his turn came. It seems to me that
on
the acceptable evidence the defendant acted reasonably in his treatment of the
plaintiff. In any event the plaintiff would have
been aware of the existence of
public hospitals but chose to consult a private practitioner who could perform
an operation which
was appropriate and which cured the deficient blood supply to
the plaintiff’s lower right leg. In the circumstances even if
the
plaintiff could have had the more expensive operation done at a public hospital
there was no duty on the defendant to refer him
to such a hospital. What is
reasonable in the circumstances was explained by Innes CJ in Van Wyk v
Lewis[5] where he
said:
‘...[in] deciding what is reasonable the Court will have regard
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 the practitioner
belongs.’
On the acceptable evidence there can be no question that the
methods used by the defendant to diagnose the plaintiff’s problem
were
those used in his profession and the surgical procedure he performed was the
correct one. The plaintiff could not dispute this
but was driven to contend,
relying on the evidence of Professor De Villiers, that there had been a dual
pathology and that treatment
of the vascular problem diagnosed by the defendant
was not urgent. On the evidence of Dr Simons and the defendant the dual
pathology
had not been presented to them. According to them the plaintiff
exhibited a serious vascular disease and the angiogram confirmed
this. No
mention was made of pain in the back. I accept their evidence. The views and the
conclusion reached by Professor De Villiers
suggesting the presence of dual
pathology, at the time the plaintiff was seen by Dr Simons and the defendant,
must therefore be rejected.
It is true that in his letter to Dr Simons dated 26
June 2000 the defendant does allude to the possibility of dual pathology but
in
my view that seems to be based on the fact that subsequently the
plaintiff was found by Dr Kieck to have a neurological problem. It is by no
means an admission that at the time he was seen by
himself and Dr Simons the
plaintiff had both a vascular problem and a neurological problem.
Was
there informed consent?
[21] In argument it was submitted that the
plaintiff did not consent to the surgical procedure performed by the defendant
(the iliac
bi-femoral bypass). Counsel argued that the plaintiff did not know
what procedure was performed. He drew attention to the consent
form signed by
the plaintiff in which the operation was described as a ‘fem-fem
bypass’ whereas an iliac bi-femoral bypass
was performed. There is no
merit in the argument. According to the defendant that is the general
terminology used for the cross-over
bypass whether it be an iliac bi-femoral or
a femoro-femoral bypass. Professor De Villiers testified that the difference was
of semantic
interest only and that although the medical literature referred to
the femoro-femoral bypass everybody did the iliac-femoral bypass.
The defendant
explained in detail to the plaintiff the surgical procedure he planned to do and
which was eventually done. In the
circumstances I am satisfied that the
plaintiff gave informed consent to the operation. In any event Professor De
Villiers conceded
that the iliac bi-femoral bypass or the cross-over bypass was
superior to the femoro-femoral bypass, because of its advantages in
facilitating
a natural flow of blood to the extremities.
Was the plaintiff warned
of the risks involved and was his current claudication caused by the
defendant’s surgical intervention?
[22] It was argued that
the defendant had failed to warn the plaintiff of the risks at stake. In
Castell v De Greef[6]
Ackermann J said:
‘For consent to operate as a defence the
following requirements must, inter alia, be satisfied:
(a) the consenting party “must have had knowledge and been aware of the nature and extent of the harm or risk”; (b) the consenting party “must have appreciated and understood the nature and extent of the harm or risk”; (c) the consenting party “must have consented to the harm or assumed the risk”; (d) the consent “must be comprehensive, that is extend to the entire transaction, inclusive of all its consequences”.’
Relying on Castell v
De Greef it was argued that the defendant should have explained the
likelihood of claudication occurring as a result of the iliac bi-femoral bypass,
the so-called ‘small operation’. Professor De Villiers said that the
claudication which the plaintiff experienced on
the left leg is undoubtedly due
to what is termed a ‘steal syndrome’, as evidenced by the fact that
the first time the
plaintiff walked after his back operation, he had
claudication of the left leg. He said that the problem in the left leg relates
directly to the vascular operation. For this view Professor De Villiers relied
on what he called Veteran Administration Studies (VA
studies). The results of
the study were published in 1976. It was then the largest study in the world of
patients who had undergone
these extra-anatomical bypasses. The study was
conducted on ex-war veterans from the Second World War and the wars in Korea and
Vietnam
at the Veteran Administration Hospitals which were built across America.
Professor De Villiers said four per cent of these patients
demonstrated clinical
manifestations of ‘steal’ and that the defendant should have
anticipated a four per cent possibility
of ‘steal’. In simple lay
terms what Professor De Villiers suggested was happening was that blood which
was meant to
flow down the left leg was now being diverted to the right leg. He
argued that the claudication was directly related to the smaller
operation, that
is the iliac bi-femoral bypass. He said that if a bigger operation, that is the
aorta bi-femoral bypass had been
done, the graft would have been taken down to
the knee level on the left and the plaintiff would not be having a problem. Of
course
the evidence was that the latter operation could not have been done
because the plaintiff could not afford it.
[23] Professor Immelman who
gave evidence on behalf of the plaintiff said that there was only a two per cent
chance of steal occurring
where the smaller operation (the iliac bi-femoral
bypass) was done. He said that the comparison made by Professor De Villiers and
the conclusion reached by him were simply not valid. To compare the situation as
it was in the year 2000 with a study that was done
in 1976 at a hospital which
simply did not have many of the tests available to a vascular surgeon today was
unrealistic. So, for
example, in the cases referred to in the study, angiograms
were not performed to ascertain if there was stenosis (narrowing of the
vessels), whereas the defendant had done the angiogram in the present
matter. Professor Immelman also pointed out that the war veteran hospitals where
these studies
were done were not well-equipped. He said the VA studies are not
highly regarded as scientific studies.
[24] Professor Immelman further
pointed out that what makes modern vascular procedure difficult to compare with
the VA studies is
that the veterans were a generally unhealthy lot. They smoke;
they drink; they are obese and they tend to have very extensive diseases.
He had
seen them when he visited some of these hospitals when he was in the United
States. He did not consider it fair to compare
that group of patients with an
average patient in South Africa in the year 2000. He pointed out that, since
that study in 1976, technology
and investigations have improved enormously and
the ‘steal’ percentage in cross-over by-passes, if it was four per
cent
in 1976, must now surely be a lot lower than that. As indicated he put the
risk of ‘steal’ as being no higher than two
per
cent.
[25] The reasons advanced by Professor Immelman appear to me to be
so compelling that I have no hesitation in accepting them. If there
was only a
two per cent chance of ‘steal’ occurring then the risk to the
plaintiff was so negligible that it was not
unreasonable for the defendant not
to mention it. In Richter and another v Estate
Hammann[7] a neuro-surgeon
was found not to have been negligent in failing to warn the patient where on the
evidence there was only a remote
possibility of complications arising. The court
said that the doctor’s actions had to be tested by the standard of the
reasonable
doctor faced with the particular problem. In this regard Watermeyer J
said the following:
‘A doctor whose advice is sought about an
operation to which certain dangers are attached – and there are dangers
attached
to most operations – is in a dilemma. If he fails to disclose the
risks he may render himself liable to an action for assault,
whereas if he
discloses them he might well frighten the patient into not having the operation
when the doctor knows full well that
it would be in the patient’s interest
to have it. It may well be that in certain circumstances a doctor is negligent
if he
fails to warn a patient, and, if that is so, it seems to me in principle
that his conduct should be tested by the standard of the
reasonable doctor faced
with the particular problem. In reaching a conclusion a Court should be guided
by medical opinion as to what
a reasonable doctor, having regard to all the
circumstances of the particular case, should or should not do. The Court must,
of course,
make up its own mind, but it will be assisted in doing so by medical
evidence.’
In my view of the evidence, the likelihood of steal
occurring, with the resultant claudication, was so negligible that no duty arose
on the defendant to mention it and his omission to do so did not constitute
negligence. In any event there is no evidence that the
plaintiff’s current
claudication is due to ‘steal’ or that, if it is the result of
‘steal’, it is due
to the cross over bypass performed on the
plaintiff. The evidence was that there are many causes of ‘steal’.
Poor heart
functioning is one of them. Professor Immelman said that if
‘steal’ does occur, it can be rectified by a minor operation.
For
the above reasons it was not in my view shown that there was an absence of
informed consent or that the claudication was due
to the defendant’s
surgical intervention.
Expert evidence and how it was dealt with at
the trial.
[26] It is perhaps appropriate at this stage to touch on how
the expert evidence was dealt with by the judge a quo in coming to his
conclusion. Each side called experts eminently qualified in their respective
fields. Professor De Villiers, a retired
vascular surgeon, Dr Harries-Jones, a
consultant radiologist and Dr Parker, a neurosurgeon, gave evidence for the
plaintiff. Dr Stein,
a vascular surgeon, Professor Immelman, a vascular surgeon
and the Head of the Vascular Unit at Groote Schuur Hospital, testified
on behalf
of the defendant. Their evidence was helpful and illuminated many obscure and
complicated aspects and contributed enormously
to the understanding of the
issues for decision in this case.
[27] Confronted with the battery of
experts on either side, presenting competing and contrasting evidence, the
learned judge preferred
the evidence of the plaintiff’s experts to that of
the defendant without advancing any basis for so doing. All that he said
was
that the opinions of Professor De Villiers and Dr Parker are based on logical
reasoning but he failed to give any demonstration
of this. The learned judge did
not give equal credit to Drs de Kock and Stein and Professor Immelman whose
views he harshly dismissed
as being incapable of logical analysis and support. I
do not share these views. The conclusion reached was clearly wrong. It is an
approach which this court has recently decried in Michael and another
v Linksfield Park Clinic (Pty)
Ltd,[8] where it was
said:
‘...it would be wrong to decide a case by simple preference where
there are conflicting views on either side, both capable of
logical support.
Only where expert opinion cannot be logically supported at all will it fail to
provide “the benchmark by reference
to which the defendant’s conduct
falls to be assessed”.’
The uncritical acceptance of the evidence
of Professor De Villiers and the plaintiff’s other expert evidence and the
rejection
of the evidence of the defendant’s expert witnesses falls short
of the requisite standard and the approach laid down by this
court in Michael
v Linksfield Park Clinic. What was required of the trial judge was to
determine to what extent the opinions advanced by the experts were founded on
logical
reasoning and how the competing sets of evidence stood in relation to
one another, viewed in the light of the probabilities. I have
already indicated
why I found the evidence adduced on behalf of the defendant to be more
acceptable than that of the plaintiff’s
witnesses and why the conclusion
of the trial court cannot stand.
[28] In the result the following order
is made:
1. The appeal is upheld with costs, including the costs consequent upon the employment of two counsel.
2. The order of the court a quo is set aside and replaced with the following:
‘The plaintiff’s action is dismissed with costs, including the costs consequent upon the employment of two counsel.’
__________________
KK MTHIYANE
JUDGE OF
APPEAL
CONCUR:
MPATI DP
STREICHER
JA
LEWIS JA
PONNAN JA
[1] 2003 (1) SA 11
(SCA).
[2] 2002 (4) SA 408 (SCA)
para 24. See also R v Dhlumayo & another 1948 (2) 677 (A) at 698 and
S v Robinson & others 1968 (1) SA 666 (A) at
675G-H.
[3] 1914 AD 519 at
526.
[4] N J B Claasen & T
Verschoor Medical Negligence in South Africa (1992) p
15.
[5] 1924 AD 438 at
444.
[6] 1994 (4) SA 408 (C) at
425H-I.
[7] 1976 (3) SA 226 (C) at
232G-H.
[8] 2001 (3) SA 1188 (SCA)
para 39.
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