AM and Another v MEC for Health, Western Cape

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Wallis JA, Swain JA, Molemela JA, Mokgohloa JA and Dlodlo JA
• Judgment Date: 31 July 2020
• Court: Supreme Court of Appeal
• Hearing Date: 31 July 2020
• Citation: 2021 (3) SA 337 (SCA)
• Counsel: WRE Duminy SC (with JA van der Merwe SC) for the appellants. BDJ Gassner SC for the respondent.
• Docket Number: 1258/2018 [2020] ZASCA 89

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring):

[1] Shortly after 18h00 on 23 August 2011 the first appellant, Mr M, brought his 6-year-old son, J, to the trauma unit at Red Cross Memorial Hospital. A trauma nurse determined that all his vital signs (blood pressure, heart and respiratory rate, and temperature) were normal. He was walking, alert and responsive. Dr Horn, the duty registrar, examined him and concluded that he had suffered a minor injury, which she described as a bump on the head. After a brief discussion with his father, she discharged him. He was taken home, arriving shortly after 19h00, and put to bed in the bed he shared with his parents. They came to bed at about 21h30. In the ordinary course his father woke at around 03h30 to prepare for work. He tried to rouse J to take him to the toilet, but found him to be in an unusually deep sleep. Concerned, Mr M telephoned the hospital and was told that, if J was still sleeping deeply at his normal waking time of 06h30, he should be brought back to the hospital. Shortly after this J wet the bed and vomited and his parents rushed him back to the hospital arriving at about 08h00. Tragically this was too late, because a CT scan disclosed that he had suffered an extradural haematoma, caused, in common parlance, by a bleed between the skull and the brain. [1] An emergency craniotomy was performed, but

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring)

it was too late to prevent the serious brain injury that has left J with cerebral palsy and spastic quadriplegia.

[2] Mr and Mrs M instituted action in both their personal capacities and on behalf of J against the Member of the Executive Committee, Health, of the Western Cape (the MEC) to recover damages arising from J's injuries. The action came to trial before Binns-Ward J, who delivered a comprehensive judgment rejecting the allegations of negligence levelled against Dr Horn and dismissing the Ms' claims. The appeal is with his leave.

[3] The sole issue in the appeal is whether Dr Horn was negligent in her treatment of J. The nature of the allegations of negligence requires some explanation of J's injuries. A CT scan performed when J returned to hospital on 24 August 2011 established that the 'bump' on his head was caused by a subgaleal haemotoma, [2] and that he had sustained a linear fracture in the left temporo-parietal area of the scalp behind his left ear. This was accompanied by the rupture of the middle meningeal artery resulting in a left extradural haematoma between the skull and the dura surrounding the brain. The pressure exerted by this on the brain caused J's injury.

[4] Dr Horn could not have detected this fracture from her examination of J on 23 August 2011, because a linear fracture cannot be detected by a routine examination and palpation of a head injury such as that suffered by J. It would have been detected by a CT scan or a skull X-ray. At Red Cross Memorial Hospital any further investigation would have been by way of a CT scan. Accordingly, the first question the trial court needed to answer was whether Dr Horn should have ordered a CT scan.

[5] The scope of that issue was considerably narrowed because the experts agreed, subject to the one point mentioned below, that on Dr Horn's observations a CT scan was not indicated. [3] The qualification was that had the bump on J's head felt fluctuant or 'boggy' on palpation reference for a CT scan was indicated. Dr Horn agreed and said she would have ordered a CT scan if the bump had felt boggy on palpation. The only dispute was therefore the narrow factual one of whether on palpation the bump felt boggy. The judge held that it was not established on a balance of probabilities that it was boggy. The primary thrust of the appeal is against that factual finding.

[6] Two alternative arguments were addressed on behalf of the appellants. The first was that Dr Horn should not have discharged J but kept

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring)

him at the hospital for further observation and re-examination. It was claimed that this would have resulted in his condition being detected and treated earlier. The other was that the advice given to Mr M when J was discharged in regard to monitoring his condition was inadequate and he should have been told to wake him every two hours. Had this been done it was submitted that the deterioration in his condition would have been detected earlier and he would have been brought back to the hospital for the necessary treatment.

The issues and the approach to the appeal

[7] Whether the bump on J's head was fluctuant or boggy was a factual question. In determining it the judge assessed the evidence and credibility of Dr Horn. She said that in the course of her examination she had felt the bump. While at the time of the trial, nearly seven years later, she did not have a specific recollection of how it felt, she believed that it was firm and not boggy. Otherwise she would not have described it in her notes as a bump and her usual practice in dealing with a head injury that felt boggy was to order a CT scan. Against that was the evidence of Dr Edeling, who said that, given the nature of the underlying subgaleal haematoma, it must inevitably have felt boggy on palpation. Professor Taylor disagreed, for reasons that will be examined later.

[8] The judge found Dr Horn to be a careful and credible witness. He said that her evidence on this point could not be rejected. That involved both findings of credibility and fact. It is trite that an appeal court is reluctant to disturb findings of that character by a trial judge, who was steeped in the atmosphere of a lengthy trial and had the advantage of seeing and hearing the witnesses. Such findings are only overturned if there is a clear misdirection or the trial court's findings are clearly erroneous. [4] That has consistently been the approach of this court and the Constitutional Court as reflected recently in the following passage from ST v CT: [5]

'In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles outlined in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham Nursing Home:

"Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judges, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."' [Citations omitted.]

[9] The appellants did not point to any misdirection by the judge in regard to this issue. Their task therefore was to demonstrate that his

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring)

conclusion that he could not reject Dr Horn's evidence was clearly erroneous and that he should have accepted Dr Edeling's evidence that the bump inevitably had to have been fluctuant (boggy). Both conclusions were necessary in order to discharge the onus of proving negligence. That was a formidable task. It was made more formidable by the fact that Dr Horn's evidence was direct evidence, whereas Dr Edeling's was a reconstruction based on Dr Horn's clinical notes and the information that became available the following day from the CT scan. It has frequently been pointed out that direct and credible evidence of events usually carries greater weight than the opinion of an expert seeking to reconstruct those events afterwards, especially where the material on which that is based is scant. [6]

[10] The alternative argument that Dr Horn should have kept J in the Trauma Unit for further observation falls into a different category. The first underlying premise was that, notwithstanding Dr Horn's conclusion after her examination of J that his injury was minor, she should not have discharged him because good practice required her to keep him in the unit for further observation for a period of time, suggested to be one hour. The second premise was that had she done so J would, as he did in the car on his way home, have fallen asleep and this would have caused alarm bells to sound leading to further investigation, more particularly a CT scan.

[11] It was common cause that the decision to discharge J was a matter of clinical judgment. The only attack on the accuracy of her diagnosis was based on the contention that the bump must have been fluctuant or boggy. If that attack failed the further argument had to proceed on the basis that Dr Horn's diagnosis that J had suffered a minor head injury was correct, given her clinical observations. The question then was whether a reasonable medical practitioner, applying the degree of professional skill and diligence of a member of the medical profession in charge of a trauma unit at a hospital, [7] would not have discharged J but kept him at the unit for further observation. There was a dispute between the expert witnesses on that issue. It fell to be considered by the trial judge in terms of principles discussed in Michael v Linksfield Park Clinic [8]

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring)

and MediClinic v Vermeulen. [9] Provided Dr Horn's decision to discharge J had the support of a reasonable and respectable body of medical opinion, she was not negligent even though other reasonable and respectable medical opinions might have held a different view.

[12] If the decision to discharge J was not negligent, the second argument fell to be rejected. If she was negligent there was the further issue of whether, had she kept him for observation for an hour, the course of events would probably have been different. That involved a consideration of the observation and treatment that J would have received had he not...