Medical Law – Res Ipsa Loquitur debate

It has until recently been accepted that the maxim of res ipsa loquitur (the facts speak for themselves) does not find application in cases involving medical negligence in accordance with the findings of the Appeal Court in the matter of Van Wyk v Lewis [1924 AD 438].  This position was recently reconsidered by the Supreme Court of Appeal (“SCA”) in the matter of Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA).

Generally speaking, for a plaintiff to succeed with his case, he carries the onus to prove on a balance of probabilities that the defendant was, inter alia, negligent.  In matters involving allegations of medical negligence, this would mean that the plaintiff has to prove that the defendant’s conduct did not meet the general level of skill and diligence possessed and exercised at the time by members of the defendant’s profession.

The maxim of res ipsa loquitur provides for instances where a court may, on the mere facts presented to it, draw an inference of negligence against the defendant in instances where the incident in question could not have occurred in the absence of negligence.  The application of the maxim was expressed in the matter of Sardi & others v Standard General Insurance Co Ltd 1977 (3) SA 776 (A) as “where the only known facts, relating to negligence, consist of the occurrence itself”.  

Certain requirements have crystallised over the year in case law, many of which relate to motor vehicle accidents, regarding the application of the maxim.  These include:

• The facts of the matter must be such as to give rise to an inference of negligence on the part of the wrongdoer.  The Court in the matter of Stacey v Kent 1995 (3) SA 344 (E) held that the maxim “gives rise to an inference, not a presumption of negligence”.  It further held that a court is not compelled to draw the inference.

• The maxim can only be invoked where the negligence depends on absolutes.  The matter of Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) involved the tearing of the plaintiff’s superior vena cava during surgery.  The court held that, if the evidence presented was such as to show that the mere fact of the perforation indicated negligence, the maxim could be applied.  However, on the particular facts of the case no such evidence emerged and, as such, the maxim did not find application.  On this basis, the question of negligence had to be decided on all the surrounding circumstances of the case.

• The maxim may assist a plaintiff who has little or no evidence at his disposal to persuade a court of the defendant’s negligence.  This is particularly so in instances where the facts of the incident are solely under the control of or within the knowledge of the defendant.  It assists the plaintiff in these instances in that the defendant cannot hide behind his own silence to the detriment of the plaintiff by not giving evidence.

• Once the plaintiff has proven the incident from which the inference of negligence on the part of the defendant is drawn, the defendant has the opportunity to adduce evidence to show that the incident did not occur due to negligent conduct on his part.  To quote the learned Judge in the Stacey case:  “. . . he [referring to the defendant] must tell the remainder of the story or risk judgement being given against him.”  In the absence of an acceptable explanation as to why the defendant was not negligent, a court may make a finding of negligence against him.

• The court in the Stacey case further held that the defendant’s explanation must have “substantial foundation in fact” and must be sufficient to eradicate any inference of negligence made by the court.  Insofar as the assessment of the applicability of the maxim is concerned, the defendant does not, however, carry an onus to prove on a balance of probabilities the correctness of his explanation.  Only once all the evidence is considered at the end of the case will aspects such as the probability and credibility of the defendant’s version be taken into account.   

• The maxim has no bearing on the onus of proof, which remains that of the plaintiff (Madyosi v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)).  The court in the Sardi matter warned against a piecemeal approach of “(a) first drawing the inference of negligence from the occurrence itself, and regarding this as a prima facie case; and then (b) deciding whether this has been rebutted by the defendant’s explanation”.  The court held that, just as would be the case in any other matter involving negligence, at the end of the trial it has to decide whether the plaintiff has discharged his onus of proving negligence on a balance of probabilities having regard to all the evidence, the probabilities and the inferences drawn.  

The question of the application of the maxim in medical negligence cases again came before the SCA in the matter of Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA).  Coincidentally, this case, as with the Van Wyk matter, involved a swab being left behind in the patient’s body following surgery.  In the appellant’s case, it was a gauze swab left behind during a routine hysterectomy for a fibroid uterus.  The appellant had to subsequently undergo a laparotomy performed by a certain Dr Muller for removal of the gauze and sued the respondent as the employer of all the medical staff involved (the medical practitioners and the nursing staff) in the surgery.

Both the appellant and Dr Muller testified in support of the appellant’s case.  Dr Muller testified that “leaving an abdominal swab in the abdomen invariably causes abdominal infections” and that “it should not happen ever”.  He further testified that “it’s . . .  a very rare situation to have a swab left in an abdomen after an operation” as there are strict procedures to be followed at all times after surgery to ensure that all swabs are accounted for to avoid exactly the appellant’s situation. 

No witnesses were called by the Respondent.

The court a quo dismissed the appellant’s action on the basis that she failed to discharge the onus of proving negligence, however, granted leave to appeal.  In its decision, the court a quo held that it is bound by the decision in the Van Wyk case in accordance with the stare decisis legal precedent system and had no alternative but to apply the findings of that judgement to the effect that the maxim does not apply to medical negligence cases.  Judge Lowe, however, commented that had he been entitled to rely on the said maxim, the outcome may have been different as “the absence of an explanation by the defendant may well have been sufficient, by way of inferential reasoning, to establish negligence on the part of the medical staff concerned”.

The SCA in its judgement opined that it may well be time for us to eliminate the term res ipsa loquitur from our legal vocabulary.  It summarised the nature and requirements of the maxim as crystallised in case law and discussed above.  The court reiterated that a piecemeal approach as warned against in the Sardi matter should not be adopted and that the question at the end of the case remains whether a plaintiff has, when regard is had to all the evidence led, probabilities and inferences, discharged his onus to prove negligence on the part of the defendant.

The SCA reiterated that it depends on the facts of every particular case as to whether and inference of negligence is justified and to what extent expert evidence is necessary.  It further reiterated that a court is not called to decide the issue of negligence until such time as all evidence has been led.  As such, any explanation proffered by the defendant would form part of the evidential material to be considered in deciding whether the plaintiff has proved negligence.

Turning to the facts of the particular case, the SCA held that the matter must be approached on the basis that one of the swabs was not removed following surgery as it could not have found its way into the appellant’s abdomen in any other way.  As the appellant was under general anaesthetic during the surgery, she did not have full knowledge of what occurred during the operation.  The facts of what occurred during surgery were solely within the knowledge of the respondent’s employees, none of whom were called to testify.  As such, no evidence was led as to whether a swab count did indeed take place prior to completing the surgery, whether the strict protocols that Dr Muller alluded to had been followed, the level of training of the particular employee responsible for the swab count, etc.  

The SCA emphasised that it is not necessary for a plaintiff in a civil case to prove that the inference she seeks the court to draw is the only reasonable inference.  It suffices for her to convince the court that the inference is the “most readily apparent and acceptable inference from a number of possible inferences”

The SCA held that the appellant adduced sufficient evidence for an inference of negligence to be drawn against the employees of the respondent involved in her surgery.  The respondent, by failing to adduce any evidence whatsoever to show that reasonable care was indeed taken during the surgery, took the risk of judgement being given against him.  The court further drew a negative inference against the respondent that his failure to call the relevant employees to testify could be indicative of a concern that their evidence would expose unfavourable facts.

The SCA found that the appellant discharged her onus to prove her case on a balance of probabilities when regard is had to all the evidence, probabilities and inferences and upheld the appeal with costs.

CONCLUSION

It would therefore appear that the SCA in the Goliath matter has overturned the position established in the Van Wyk matter with regard to the application of the maxim of res ipsa loquitur in medical negligence cases.   Even though the SCA does not specifically name it as such, it applied the principles of the maxim to draw an inference of negligence from the mere fact that a swab was left behind after surgery. 

Practically speaking, it will not suffice for the plaintiff to merely establish a causal link between the healthcare provider’s conduct and the adverse result on order for him to succeed with an argument based on the maxim, i.e. that the inference of negligence should be drawn against the defendant.  The plaintiff will also have to produce evidence to the effect that the incident could not have occurred in the absence of negligence on the part of the healthcare provider, which evidence will have to be adduced by a medical expert.  The SCA in the Goliath matter relied heavily on the evidence provided by Dr Muller, including that a swab should never be left behind following surgery, in order to arrive at the conclusion that the incident could not have happened in the absence of negligence.

Once a plaintiff has adduced sufficient evidence from which an inference of negligence can be drawn by reliance on the maxim, it is up to a defendant to provide an explanation as to why no negligence should be found on his part.  A defendant should therefore consider very carefully before deciding not to lead evidence in circumstances where the maxim may be found by a court to apply.   As Lord Justice Brooke stated in the matter of Ratcliffe v Plymouth and Torbay Health Authority [1998] EWCA Civ 2000“It is likely to be a very rare medical negligence case in which the defendants take the risk of calling no factual evidence, when such evidence is available to them, of the circumstances surrounding a procedure which led to an unexpected outcome of a patient.  If such a case should arise, the judge should not be diverted away from the inference of negligence dictated by the plaintiff’s evidence by mere theoretical possibilities of how that outcome might have occurred without negligence:  the defendants’ hypothesis must have the ring of plausibility about it . . .”

Medical Law – A claim for compensation arising from a failed sterilisation could include damages suffered during parturition

Introduction

1. It is trite that our law recognises a claim by parents in respect of the financial costs involved in supporting a child born following a failed sterilisation. The matter of The Premier of the Western Cape Province v Loots 2011 (SCA) 32, however, concerned a delictual claim for damages suffered by the mother following a failed sterilisation in respect of harm suffered during the birth process that went “terribly wrong”. The Court was called on to answer whether the damages flowing from the birthing complication fulfilled the foreseeability requirement as an element of negligence, as well as the requirements of legal causation.

Factual Background

2. The claim was brought by Johannes Hendrik Loots N.O. who acted in his capacity as the duly appointed curator ad litem for Mrs Johanna Cecelia Erasmus (the mother). Mrs Erasmus suffered brain damage as a result of complications during parturition resulting in her being unable to manage her own affairs.
 
3. Mrs Erasmus underwent a sterilization operation during 1999 performed by the Second Appellant, a clinical assistant at that stage in the employ of the First Appellant. The operation involved a laparoscopic occlusion of both fallopian tubes.  Mrs Erasmus, however, fell pregnant soon thereafter. It later transpired that the Second Appellant had mistakenly occluded Mrs Erasmus’ round ligaments instead of her fallopian tubes.
 
4. Mr and Mrs Erasmus were offered the option to terminate the pregnancy by the Tygerberg Hospital, which they declined for religious reasons.

5. During November 1999, Mrs Erasmus was admitted to the Tygerberg Hospital for hypertension.  As the baby was in distress, an emergency caesarean section was performed.  Sadly, the baby was severely compromised and did not survive. 

6. The experts for both the Appellants and the Respondent speculated that either shortly before, during or after the caesarean section Mrs Erasmus must have developed what is known as “amniotic fluid embolism” (AFE), which occurs when foetal antigens enter the maternal circulation.  The AFE probably caused Mrs Erasmus to suffer severe haemorrhaging and cardiac arrest, which in turn led to brain anoxia and eventually the irreversible brain damage.

Defences raised and distinction drawn with regard to the foreseeability requirement insofar as both negligence and legal causation are concerned.
 
7. The Court a quo found in favour of the Respondent and the Appellants appealed the judgment.  The Appellants persisted with only two defences in their appeal.
 
8. The first defence was that the Second Appellant was not negligent with regard to the consequences of the failed sterilization for which Mrs Erasmus sought to hold him liable. 

9. The Appellants relied on the concrete or relative approach to negligence as the basis for their defence, which approach does not require that the “precise nature and extent of the actual harm which occurred was reasonably foreseeable”. The Supreme Court went on further to comment that the relative approach need not require “reasonable foreseeability of the exact manner in which the harm actually occurred”. In effect, all that is required to establish negligence based on the relative approach is that the “general nature of the harm that occurred and the general manner in which it occurred was reasonably foreseeable”.

10. The Appellants argued that the harm which Mrs Erasmus actually suffered was not of a general kind reasonably foreseeable as AFE is an unpredictable and unpreventable event which occurs in about 1 out of every 8 000 to 30 000 deliveries. 

11. The Supreme Court of Appeal did not accept this argument.  In light of the expert testimony presented on behalf of Mrs Erasmus in the Court a quo, which was unchallenged by the Appellants, the Supreme Court of Appeal accepted firstly that “pregnancy was a generally foreseeable consequence of a failed sterilization”, and secondly that “pregnancy is a dangerous condition associated with a myriad of potential complications, one of which being AFE”.  As such, the Supreme Court of Appeal held that the AFE was reasonably foreseeable as a complication of pregnancy and concluded that the Second Appellant was therefore negligent with regard to the harm that Mrs Erasmus had suffered.
 
12. The second defence brought by the Appellants was that the causal nexus between the Second Appellant’s negligence and the harm suffered by Mrs Erasmus was too remote or not linked closely enough to the conduct (the failed sterilization) to hold the Appellants liable.

13. The element of causation involves two distinct enquiries, being factual causation and legal causation. In casu, the Supreme Court of Appeal held, by making use of the “but-for” test, that factual causation could be established. The matter of legal causation, however, required further consideration.

14. The purpose of the requirement of legal causation is to restrict the causal effect of the wrongdoer’s conduct so as not to create unlimited liability. In general, the Supreme Court of Appeal has opted for a “flexible umbrella criterion”, which determines the closeness of the link according to what is fair, reasonable and just. Our Courts decide the question of legal causation on the basis of a number of factors that relate essentially to public policy, the latter being informed by the values and principles enshrined in the Constitution.

15. The Appellants relied on the direct consequence theory with regard to legal causation and argued that Mr and Mrs Erasmus’ decision not to abort constituted a novus actus interveniens. The Supreme Court of Appeal, however, held that in order for the conduct of Mr and Mrs Erasmus to qualify as a novus actus interveniens, it had to be proved to be unreasonable. The Court found the conduct of Mr and Mrs Erasmus in their decision not to abort reasonable in light of the circumstances of the particular matter and, as such, the Appellants’ argument based on the principle of novus actus interveniens could not succeed. The Supreme Court of Appeal mentioned as obiter dictum that the parents’ decision not to abort may have been considered to be unreasonable were there any medical indications that parturition could be accompanied by any risks or complications.

16. The Appellants further relied on the reasonable foreseeability test with regard to legal causation, in that expert evidence showed that “the complication of AFE that led to the harm was so rare that it would not have been foreseen by the reasonable surgeon”. The Court in this instance accepted that foreseeability played a role in determining the issue of legal causation, the definition of which should be distinguished between its application in the context of negligence versus causation.

17. As already mentioned, the Supreme Court of Appeal held that the test for foreseeability with regard to negligence encompassed harm of a general kind, whereas with regard to legal causation foreseeability of the actual harm (as opposed to harm of a general kind) was required. On this basis the Court accepted that “because of the unforeseen intervention of AFE, the actual harm suffered by Mrs Erasmus was not a reasonably foreseeable consequence of Second Respondent’s negligence”.

18.  The Court, however, went on to hold that, on the other hand, AFE was not unknown to medical science and was therefore not the kind of “freakish occurrence” that has never happened before and will not happen again in future.
 
19. Ultimately, the Supreme Court of Appeal concluded that, taking into account all the circumstances of the particular case, considerations of reasonableness, justice and fairness dictated that the Appellants should be held liable for the harm suffered by Mrs Erasmus. The Supreme Court of Appeal consequently dismissed the appeal with costs.

Conclusion

20. In light of the Supreme Court of Appeal’s decision in this matter, the question can be asked whether a medical practitioner may also be held liable for damages resulting from complications suffered during pregnancy following a failed sterilisation. An example would be if the mother has to remain bedridden for an extended period of time during pregnancy, as a result of which she suffers damages in the form of medical expenses and a loss of income.

21. Moreover, if the baby in casu survived but suffered harm during birth as a result of the AFE, such as cerebral palsy, would the medical practitioner responsible for the failed sterilisation have been held liable for the additional damages relating to the disability over and above a claim for the normal financial costs expected from the support of a healthy child?

22. As mentioned before, the purpose of the requirement of legal causation is to prevent unlimited liability on the part of the wrongdoer. It would appear from the judgement under consideration that our Courts’ application of said requirement has become more lenient in favour of Plaintiffs, resulting in an extended liability on the part of wrongdoers.

Assisted by: 

Sheila-Ann Roos
Attorney, Markram Incorporated Attorneys
Tel: 012) 346 1278
Cell: 072 213 9706
www.markraminc.co.za

Medical Law – Recognition of “wrongful life” claims and its impact on Medical Malpractice in South Africa

The Constitutional Court in H v Fetal Assessment Centre 2014 JDR 2720 (CC) set the framework within which the High Court is to consider the recognition of a child’s claim against a medical practitioner who misdiagnosed a congenital disability or some serious medical condition pre-natally, resulting in the child being born with a disability.  Such a claim has until now not been recognised in our law and is more commonly referred to as a “wrongful life” claim.

The applicant is a boy born with Down Syndrome in 2008.  His mother instituted a claim on his behalf in the High Court for damages against the Respondent for their alleged wrongful and negligent failure to warn her of the high risk that the child may be born with Down Syndrome.  It is alleged that, had the mother been advised, she would have chosen to terminate the pregnancy.  The child’s claim is for special damages for past and future medical expenses, as well as for general damages for disability and loss of amenities of life.

The child’s claim was couched on the basis of a duty of care and a breach of said duty owed to the child’s mother in her representative capacity as mother and natural guardian of the child.  The Defendant brought an Exception to the Particulars of Claim on the basis the claim is bad in law in that it did not disclose a cause of action recognised by our law.  The High Court, seemingly in relying on the decision of the Supreme Court of Appeal in the matter of Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA), upheld the Exception and dismissed the Plaintiff’s claim with costs.  The child consequently appealed to the Constitutional Court against this judgement.

Even though our law recognises a parental claim for patrimonial damages (actual costs and expenses) suffered by the parents following the misdiagnosis of a congenital disability pre-natally in circumstances where the parents would have chosen to terminate the pregnancy, a similar claim is not recognised for the child after being born with the disability.  In the Stewart matter, the SCA described the core question to be answered when determining the viability of the child’s claim as whether it would have been preferable from the child’s perspective to not have been born at all, a question which it held goes so deeply to the heart of what it means to be human that it should not be asked of our law.  The SCA held further that for such a claim to succeed, the court would be required to evaluate the existence of the child against his or her non-existence.  Consequently, the SCA held that the child’s claim cannot be recognised by our law.

The Constitutional Court in its judgement is critical of the Stewart decision, inter alia, for not taking the values and rights enshrined in our Constitution, including the right of children to have their best interests considered of paramount importance in every matter concerning them, into account when considering the viability of the child’s claim. Section 39(2) of the Constitution requires that our courts must, when developing the common law, promote the “spirit, purport and objects of the Bill of Rights”.  Thus, our common law must conform to the values and rights enshrined in our Constitution and the Bill of Rights. 

The Constitutional Court was further critical of the term “wrongful life” as being inaccurate in that the legal issue to be determined is not the wrongful life of the child, but rather whether he or she should be allowed by our law to claim compensation for a life with disability.

The Constitutional Court defined its purpose with regard to its assessment of the case not to determine finally whether the child has a claim, but to decide whether our common law may possibly be developed to recognise it.  In this assessment, the Constitutional Court examined the potential for recognition of the child’s claim against the elements of a delict.  It found that, by using the principles of the “but for” test, factual causation can be established.  It left a determination on legal causation, and thus whether the wrongdoing is sufficiently closely linked to the loss for legal liability to ensue, for determination by the trial court after all the facts have been led in evidence. 

The Constitutional Court further held that negligence would have to be proved by the applicant in accordance with the general principles of our law and applied to the specific facts of the case.  With regard to the element of damages, the Constitutional Court opined that a child’s claim for patrimonial damages is conceivable.  However, a determination with regard to a claim for intangible losses (pain and suffering, and loss of amenities of life) was left to the High Court to consider.

The Constitutional Court’s approach to the elements of “harm causing conduct” and wrongfulness is of interest.  With regard to the requirement of harm causing conduct, the Constitutional Court stated that the paradox is that the medical condition or congenital disability was not caused by the practitioner’s negligence.  However, if the negligent conduct in the form of the misdiagnosis had not occurred and the mother was told of the risk of disability, there would never have been a birth, and consequently a disabled child and the addition financial burden it entails.

As mentioned, our law recognises the parents’ claim for patrimonial loss in the form of an unwanted financial burden in these instances on the basis that it deprived the parents of an informed choice to terminate the pregnancy.  Unlike the parents, the child suffers no constitutionally protected loss of personal choice.  

In terms of the legal position as it currently stands, the financial loss will befall the child instead of the medical practitioner should the parents fail to institute action.  As such, the Constitutional Court opined that the misdiagnosis could arguably cause harm to the child in the sense of a burden on the child in circumstances where the parents fail to pursue their own claim, i.e. the harm causing event. 

The Constitutional Court was further of the view that recognising the child’s claim for patrimonial damages will not result in a claim in excess of the medical practitioner’s liability to the parents on the basis that the two claims are seen as a single claim and not cumulative.  The Constitutional Court thus opined that it is conceivable that a court may, after all the facts are known at the trial, conclude that the practitioner is liable to the child for the same loss he would have been liable for apropos the parents. 

The question of wrongfulness (whether society requires that liability be imposed on a wrongdoer) is determined by public policy, which is to be found in the values enshrined in our Constitution.  Part of the wrongfulness inquiry is to determine whether a breach of a legal duty not to harm the claimant has taken place, or determine whether there has been a breach of a claimant’s rights / interests. 

In terms of the Constitution, children have the right to have their best interests given paramount importance to in every matter concerning them.  Should the parents not pursue a claim against the medical practitioner in respect of the child’s disability, it will result in the loss lying with the child in terms of our current legal position.  This outcome is conceivably not in the best interests of the child.  As such, the Constitutional Court opined that there may be a legal duty not to cause this loss to the child, a breach of which will infringe the child’s rights in terms of section 28(2) of the Constitution.

The court felt that there could be no argument that recognising this claim will result in a claim against the parents by the child for choosing not to abort in circumstances where the parents were aware of the disability as the child would have to show that the mother was wrongful and negligent in her choice not to abort.  The Constitutional Court opined that this might prove difficult when regard is had to the mother’s right to a free and informed choice regarding reproduction and her body.

The Constitutional Court was thus of the view that wrongfulness as element of a delict could conceivably be found with regard to the viability of the child’s claim.

The Constitutional Court opined that the Exception procedure was an inappropriate process on which to determine the viability of the child’s claim.  It referred to prior case law wherein it was held that, where the factual situation is complex and the legal position uncertain, the interests of justice will not be served unless all facts on which the determination is to be made are led in evidence.  The court further held that the issue at hand, namely the development of the common law of delict to allow a child’s claim of this nature, is too complex to be determined on Exception and, as such, requires that all the facts be lead in evidence.

The Constitutional Court held that a child’s claim may potentially be found to exist, however, left it up to the High Court to determine finally whether it in fact does and in what form.  It however, cautioned that the decision must accord with the Constitutional rights and values, which include that the best interests of the child be of paramount importance in all matters concerning him or her.

The Constitutional Court commented that, even if the High Court reaches the conclusion that the limits of our law of delict will be stretched beyond recognition in order to acknowledge the child’s claim, our Constitution gives our courts the liberty to develop motivated exceptions to the common law rules or recognise new remedies for infringement of rights.

Although the Constitutional Court does not make a final determination in respect of the viability of the child’s claim, one gains the impression from reading the judgement that the court leans towards recognising the child’s claim.  It continuously refers to the Constitution requiring that a child’s best interests be of paramount importance.  It further emphasises that the High Court is the upper guardian of children, which obliges our courts to act in the best interest of children in all matters involving them.  The Constitutional Court confirmed that said powers to determine what those interests are, are extremely wide. 

IMPACT OF RECOGNITION OF CHILD’S CLAIM ON MEDICAL MALPRACTICE IN SOUTH AFRICA

As pointed out by the Constitutional Court, should the High Court, after hearing all the evidence, recognise the child’s claim against the medical practitioner who negligently misdiagnosed the cognitive disability pre-natally in circumstances where the mother would have terminated the pregnancy, the practitioner will not be held liable to the child in excess of his liability to the parents insofar as patrimonial damages are concerned.  However, should the High Court also acknowledge the child’s claim for non-patrimonial damages (pain and suffering, loss of amenities of life, etc.), the claim against the medical practitioner by the child will exceed his liability to the parents.  The degree to which the child is aware of his or her situation will play a role in the determination of the quantum of certain heads of the non-patrimonial damages.

A further implication of the recognition of the child’s claim pertains to prescription.  Whereas the prescription period in respect of the parents’ claim is three years, prescription in respect of the child’s claim will occur much later when regard is had to the Prescription Act 68 of 19.  Prescription insofar as the child’s claim is concerned will depend on the degree and type of the disability, however, on the basis that the child is a minor, without taking the disability into account, the claim will only become prescribed one year after the child reaches the age of majority (18 years).  It is thus conceivable that, upon recognition of the child’s claim by the High Court, actions may be instituted against medical practitioners in respect of matters where the parents’ claim has long since become prescribed but not that of the child.    

As a consequence, medical malpractice and particularly insurance in respect thereof, will be placed under even further strain should the High Court recognise the child’s claim against the medical practitioner responsible for the misdiagnosis.

Medical Law – To turn or not to turn a critically ill patient – that is the question

The Supreme Court of Appeal handed down judgement on 26 September 2014 in the matter of Medi-Clinic Limited v George Vermeulen (unreported).  The issue before the court was the avoidability of bedsores in critically ill patients.  In coming to a decision, the court reaffirmed the principles involved when critically assessing directly opposing expert evidence.

Mr Vermeulen was hospitalised on 17 May 2007 at the Medi-Clinic Hospital in Nelspruit (“the hospital”) with a diagnosis of cerebral malaria.  He was gravely ill on admission with a depressed level of consciousness and having difficulty breathing.  His pulse rate was 130 beats per minute and he was already showing signs of respiratory failure.   He had a history of hypertension, weighed 150kg and was assessed to be at risk of developing pressure sores in accordance with the Waterlow scale.

Mr Vermeulen was treated in the ICU from 17 May 2007 to 24 July 2007, whereafter he was transferred to a general ward until his discharge on 21 October 2007.  The experts for both Mr Vermeulen and the hospital were ad idem that Mr Vermeulen’s condition was critical during the period 20 May 2007 to 24 May 2007 (“the critical period”).  His blood pressure levels were very low (at one stage life threateningly so), he developed renal failure, was hyperglycaemic, and had poor peripheral infusion with cold extremities and weak pedal pulses.  He was, inter alia, intubated, catheterised, receiving inotropic support to sustain his blood pressure, and on insulin and dialysis. 

It was accepted that Mr Vermeulen was incapable of turning himself during the critical period and that he developed a significant sacral bedsore, the severity of which caused bilateral sciatic nerve injuries.  As a result, Mr Vermeulen became paralysed and wheelchair bound. 

Mr Vermeulen instituted action against the hospital alleging that the nursing staff was negligent by not employing sufficient measures (such as turning him regularly) to avoid the onset of the bedsore.  The hospital in turn denied negligence on its part and contended that the bedsore was unavoidable in Mr Vermeulen’s case as turning him whilst critically ill would have been life threatening. 

The parties were ad idem that the bedsore developed during the critical period and that turning Mr Vermeulen regularly would have prevented the onset of the bedsore.  The dispute centred around whether it would have been safe to turn Mr Vermeulen during the critical period and thus the avoidability of bedsore.  The experts seemed to be in agreement that, generally speaking, it is unsafe to turn a critically ill patient if that patient’s mean blood pressure is too low.  They, however, were at odds as to what would constitute a life threateningly low mean blood pressure in Mr Vermeulen’s case. 

The court a quo rejected the evidence of the hospital’s expert that Mr Vermeulen’s blood pressure was too low during the critical period to turn him as being illogical and unfounded when regard is had to the ICU charts indicating instances where Mr Vermeulen was turned despite having a low blood pressure, and yet did not succumb.  It found in favour of Mr Vermeulen and the hospital appealed to the Supreme Court of Appeal (“the SCA”).

The SCA referred with approval to the approach taken in the matter of Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) when assessing conflicting medical evidence as to what constitutes proper treatment of a patient.  In order to determine which evidence is to be accepted, the court has to critically evaluate the conflicting expert testimony to determine whether it is founded on logical reasoning, and whether the expert had applied his mind to the question of comparative risks and benefits in reaching a conclusion.  Expert evidence not founded on logical reasoning should be rejected.  In instances where, after such a critical evaluation, it is found that both diametrically opposing views are based on logical reasoning, “it is not open to a court simply to express a preference for the one rather than the other and on that basis to hold the medical practitioner to have been negligent.  Provided a medical practitioner acts in accordance with a reasonable and respectable body of medical opinions his conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently”. 

Mr Vermeulen called a specialist surgeon as expert who testified that not every patient would become haemodynamically unstable when being moved.  As such, he argued that the nursing staff should turn a patient and report any change in the patient’s haemodynamic stability to the treating doctor, who would then be responsible for deciding whether said change is significant enough to be life threatening, in which event he should order the nursing staff not to turn the patient.  His approach was thus one of preventing the development of a pressure sore at all cost, even at the risk of the patient’s life.   

The hospital’s expert (an anaesthesiologist and critical care specialist) criticised Mr Vermeulen’s expert’s approach as being too risky.  He indicated that once a patient has a mean blood pressure low enough to result in cardiac muscle injury, any further lowering would cause greater damage with the risk of acute severe myocardial injury and even ventricular fibrillation.  Thus, if a patient’s blood pressure is theoretically too low, which was in his view the case with Mr Vermeulen, he should not be turned as doing so could have dire consequences. 

The SCA held that the court a quo should have determined whether the reasons provided by Mr Vermeulen’s expert for the contention that he could have been turned during this period, were valid in light of the hospital’s expert evidence as the assessment of medical risks and benefits is a matter involving clinical judgement. 

The SCA rejected Mr Vermeulen’s expert’s evidence on the basis that he did not direct his mind to the question of comparative risks and benefits.  It held that the approach taken by the said expert to determine whether it is safe to turn a critically ill patient by first having evidence that doing so would affect the patient’s haemodynamic stability is too risky.  It further held that in reaching the conclusion that Mr Vermeulen could be turned, his expert did not take into account his blood pressure levels, which according to the hospital’s expert’s evidence was a relevant factor to consider whether or not a critically ill patient should be turned. 

The court thus accepted the hospital’s expert’s evidence as it was found to be based on logical reasoning. It held that, in coming to the conclusion that Mr Vermeulen’s injuries were unavoidable, the said expert weighed the relative risks and benefits of the suggested nursing care aimed at avoiding the pressure sores and concluded that such care was medically inadvisable due to the risk posed to the patient’s life. 

The SCA accordingly held that the court a quo’s findings that the nursing staff was negligent cannot be sustained and upheld the appeal.  It mentioned that although one has sympathy for Mr Vermeulen:

“. . . we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong.  Doctors would be led to think more of their own safety than of the good of their patients.  Initiative would be stifled and confidence shaken.  A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work.  We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Roe v Ministry of Health & others; Woolley v Same [1954] 2 All ER 131 (CA)).

The judgement does not deal with whether the implementation of measures other than turning Mr Vermeulen regularly could have avoided or delayed the formation, alternatively minimised the severity of the bedsore.  A nursing expert called on Mr Vermeulen’s behalf testified that even though it is not advisable to turn an extremely unstable patient, other measured can be implemented to prevent pressure sores, such as treating a patient on a nimbus mattress, or placing a soft pillow underneath the patient’s buttocks for half an hour at a time.  Mr Vermeulen’s treating doctor testified that he recommended that Mr Vermeulen be treated on a nimbus mattress when purple coloured lesions were noted on his buttocks on 25 May 2007, but that the said mattress was only applied late that evening after the skin had already turned black.  It would have been interesting to know whether the court considered the implementation of these alternative measures as being capable of preventing the bedsore.

Medical Law: Compensation for the loss of love and affection from a parent

Whether a child can claim compensation for the loss of love and affection from a parent was just one of the questions that the court had to consider in the matter of M and Another v Minister of Police 2013 (5) SA 622 (GNP).

The deceased, the biological father of the Plaintiffs’ two minor children, was detained by the South African Police Service for suspected theft.  He was viciously attacked by 19 other inmates and subsequently died as a result of his injuries. 

The Plaintiffs instituted action on behalf of the deceased’s biological children for loss of support as provided for in the common law, as well as constitutional damages on the basis that the children have been deprived of their right to parental and family care as enshrined in section 28 of the Constitution.  The claim for loss of support had become settled between the parties and the only issue to be decided was the children’s’ right to constitutional damages based on the unlawful death of their father.  The defendant contended that there is no scope for the recognition of constitutional damages with regard to the unlawful death of a parent as ample compensation is provided for in terms of the common law. 

Section 28(1)(b) of the Constitution provides that every child has the right to family or parental care.  It does not, however, contain a definition of the said right.  As such, the court referred to the wide definition of “care” in the Children’s Act 38 of 2005 (“the Act”), which includes both the financial aspects involved in caring for a child (such as education, medical treatment, food, accommodation and clothes), as well as the non-pecuniary aspects thereof.  The court held that a child’s right to parental or family care is thus no longer restricted to the financial aspect of maintenance or support (as was the case in the common law) but now also includes the non-pecuniary  aspects of “. . . parental guidance, advice, assistance, responsibility, or simply parenting or child nurturing”.

The court opined that although the common law remedy for loss of support adequately compensates a child with regard to the financial aspects of his / her maintenance, it does not allow for compensation payable in respect of the non-pecuniary aspects of parenting.  Both section 38 of the Constitution and section 15 of the Act provide that a court may grant “appropriate relief” in the event that a right enshrined in the Constitution (such as the right to family or parental care) is infringed, which relief may include an award for constitutional damages in respect of losses suffered by the affected party as a result of the unlawful infringement. 

The court therefore acknowledged a child’s right to claim constitutional damages but it held that a child cannot claim for loss of parental care separate from loss of support (as the latter forms part of the former and such separate action would lead to a duplication of actions and undue enrichment).  The court further held that, although parental care generally includes a show of love and affection, the definition of “care” in the Act does not refer thereto and therefore does not create a duty on a parent to show love and affection to a child.  The court concluded that a claim for constitutional damages can therefore not include losses suffered as a result of the deprivation of a parent’s love and affection.

With regard to the manner in which constitutional damages should be quantified, the court referred to the approach taken in foreign jurisdictions.  In Canada, for example, courts have calculated these damages based on the cost of substitutes, such as a housekeeper or a nanny.  The US courts, however, measure the value of parental nurture by considering the impact a parent’s nurturing would have had on the future monetary success of a child. 

The court shied away from making any definitive findings as to the basis of calculation of a claim for the non-pecuniary aspects of parenting and held that each case should be considered on its own merits.  Factors to be taken into account include the child’s age at the time of the parent’s demise, the nature of their relationship, the role the parent played in the child’s development, time spent together and the general contribution of the deceased in the child’s upbringing.  The court referred the matter of quantification of damages to trial for further adjudication.

This matter was decided in the North Gauteng Division of the High Court and, as according to the principle of stare decisis, only has persuasive power with regard to other jurisdictions.  It has opened the door to change the basis of a child’s claim, for losses suffered due to the unlawful death of a parent, to no longer be found in the common law, but rather on statute.  Said claim would have to be pleaded on the provisions of the Constitution and the Act.

The scope of damages that a child could claim may have been increased to include non-precuniary losses.  As such, an increase in the quantum of damages claimed and awarded may be anticipated.  Claims for constitutional damages may not be restricted to the death of biological parents and may extend to the death of any person on whom a duty to provide parental care falls.  Such persons, it was held in Heystek v Heystek 2002 (2) SA 754 (T), may include step parents, adoptive parents and foster parents.

Quantification of these claims will not be without difficulty, particularly with regard to the child’s non-pecuniary losses, and it is yet to be seen what approach our courts will take to calculate these damages. 

Medical law – The role of the new Health Standards Watchman

The National Health Amendment Act, 12 of 2013 (“the Amendment Act”) provides for the establishment of quality requirements and standards in respect of health services provided by health establishments in both the public and private health sectors.  The purpose of the quality requirements and standards is to promote and protect the health and safety of the users of health services.  These quality requirements and standards are prescribed by the Minister after consultation with the Office of Health Standards Compliance (“the Office”). 

The Amendment Act provides for the appointment of an Ombud, whose function is to consider, investigate and dispose of complaints relating to the non-compliance with the prescribed quality requirements and standards in a fair, economical, independent and expeditious manner. 

When conducting an investigation, the Ombud may obtain testimony by affidavit or declaration, or he may direct any person to appear before him to give evidence under oath or affirmation, or produce any document in his possession or under his control pertaining to the complaint being investigated.  Any person being implicated in a matter being investigated must be given an opportunity to be heard by giving evidence and by questioning other witnesses who have appeared before the Ombud. 

Any aggrieved party may lodge a written appeal with the Minister against a finding by the Ombud within 30 days of becoming aware thereof.  The Minister must appoint an independent ad hoc tribunal and submit the appeal to the tribunal for adjudication.  The tribunal consists of a maximum of three individuals with a retired High Court judge or a magistrate as chairperson.  The remaining two seats are filled by individuals knowledgeable of the health care industry.  The tribunal may confirm, set aside or vary the decision of the Office or the Ombud and must notify all concerned parties accordingly.

Certain provisions of the Amendment Act may be in conflict with the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”).  PAJA requires that all administrative action must be lawful, reasonable and procedurally fair.  The Amendment Act only allows an accused to question a witness that has been called by the Ombud.  It does not provide for an accused to call its own witnesses.  The question arises as to what will happen should the Ombud fail or refuse to call a witness who has crucial evidence in support of an accused’s case. 

The Amendment Act further stipulates that questioning of a witness must be done “through the Ombud”.  The meaning of this phrase is unclear and it would seem that an accused cannot question a witness directly but has to address questions via the Ombud as a conduit.  The extent to which the Ombud may filter such questions is concerning.

The Amendment Act provides that no self-incriminating evidence made during an investigation by the Ombud may be used against a person in any subsequent criminal proceedings, except with regard to perjury or an offence in terms of the National Health Act, 61 of 2000.  The same protection is not afforded in respect of any subsequent civil proceedings and any self-incriminating evidence will be admissible.  Add this and no allowance for legal representation to the mixture of unfair witness practices and you get a recipe for substantial risk with regard to subsequent civil proceedings.  

The question arises whether an aggrieved patient with a potential civil claim for medical negligence could make use of the Ombud hearings as a tool to seek out self-incriminating evidence against a health establishment.  This is a definite possibility in cases where the alleged transgression by the health establishment relates to non-compliance to one of the promulgated health standards. 

The concept of an Ombudsman is not a new one and has been introduced with some success in other industries, such as the insurance and banking industries.  An Ombudsman without clearly defined powers and appropriate authority when it comes to sanctioning bad behaviour is, however, not expected to be particularly effective.  The Amendment Act contains only basic information pertaining to the Ombud and it will be necessary for the Minister to make regulations that will determine issues such as the identity of complainants, the type of complaints that can be adjudicated, the types of findings that the Ombud can make and the procedures to be followed during the investigation of a complaint.

Medical law – Introduction of Quality Requirements and Standards in the National Health System

The National Health Amendment Act, 12 of 2013 (“the Amendment Act”) provides for the establishment of quality requirements and standards in respect of health services provided by health establishments in both the public and private health sectors.  The purpose of the quality requirements and standards is to promote and protect the health and safety of the users of health services.  These quality requirements and standards are prescribed by the Minister after consultation with the Office of Health Standards Compliance (“the Office”). 

The Office will act as the watchdog for monitoring and enforcing compliance by health establishments.  The Office may issue guidelines for the benefit of health establishments on the implementation of said standards and will, inter alia, be responsible for:

1. Inspection and certification of health establishments by making use of health officers and 
    inspectors.

2. Investigating complaints relating to non-compliance with the quality requirements and 
    standards through the appointed Ombud.

The Office functions under the control of a Board consisting of between 7 to 12 members.  The Board must, in consultation with the Minister, appoint a Chief Executive Officer (“CEO”) of the Office, who will be a member of the board ex officio.  The CEO is responsible for appointing and managing suitably qualified employees and developing efficient administration.  The Amendment Act enables the CEO to delegate any of his powers or duties to an employee of the Office.  The CEO is also entitled, after consultation with the Board, to appoint expert or technical committees to assist the Office in the performance of its functions, including the conducting of inspections. 

The Amendment Act makes provision for the designation of health officers and the appointment of inspectors responsible for inspecting health establishments to ensure compliance with the National Health Act, 61 of 2000 (“the Act”).  During an inspection, the health officers or inspectors may question any person who may have information relevant to the inspection, require the production of any document (including patient health records) and take samples of any substance or photographs relevant to the inspection.  Even though the Amendment Act cautions that inspections must be conducted with strict regard to, inter alia, a person’s right to privacy, it is concerning that the health officers and inspectors may obtain copies of patient health records seemingly without such patient’s consent.   This provision of the Amendment Act seems to constitute an infringement of an individual’s right to privacy of personal information. 

In the event of a health establishment not complying with any prescribed quality requirement or standard, the health officer or investigator will issue a notice of compliance describing, inter alia, the breach and the steps to be taken over a prescribed period of time to remedy the breach.  Should the health establishment fail to comply, certain prescribed penalties may be imposed, such as temporary or permanent closure of the health establishment or part thereof, a fine or referral to the National Prosecuting Authority for prosecution. 

The Amendment Act provides for the appointment of an Ombud, whose function is to consider, investigate and dispose of complaints relating to the non-compliance with the prescribed quality requirements and standards in a fair, independent, economical and expeditious manner. 

Any aggrieved party may lodge a written appeal with the Minister against a decision of the Office or a finding by the Ombud within 30 days of becoming aware thereof.  The Minister must appoint an independent ad hoc tribunal and submit the appeal to the tribunal for adjudication.  The tribunal consists of a maximum of three individuals with a retired High Court judge or a magistrate as chairperson.  The remaining two seats are filled by individuals knowledgeable of the health care industry.  The tribunal may confirm, set aside or vary the decision of the Office or the Ombud and must notify all concerned parties accordingly.

The introduction and implementation of quality requirements and standards in the public sector is most welcome.  However, the implementation thereof in the private sector may have little effect as most private healthcare facilities already subscribe to international standards, such as accreditation by the International Organization for Standardization (ISO).