Castell v De Greef

• Jurisdiction: South Africa
• Judge: Friedman JP, Ackermann J and Farlam J
• Judgment Date: 17 February 1994
• Docket Number: A976/92
• Court: Cape Provincial Division
• Hearing Date: 08 April 1993
• Citation: 1994 (4) SA 408 (C)

Ackermann J:

This is an appeal against the dismissal by Scott J on 17 February 1992 of appellant's claim for damages against respondent, a plastic surgeon, based on the latter's alleged negligence in performing a C surgical operation on appellant's breasts. Scott J refused leave to appeal, but leave was granted to the appellant by the Appellate Division to appeal to the Full Court of this Division. I shall refer to the appellant and defendant as 'plaintiff' and 'defendant' respectively. At the time of the trial, plaintiff was 44 years of age.

D The events leading up to the plaintiff's claim are conveniently summarised in Scott J's judgment [*] (at 502I-505D) as follows:

'On 7 August 1989, the plaintiff underwent a surgical operation known as a subcutaneous mastectomy. The operation was performed by the defendant, who is a plastic surgeon. It was not a success and the plaintiff sues for damages. The circumstances in which the operation came to be performed are E briefly as follows. The plaintiff's mother, and probably also her grandmother, died of breast cancer. In 1982 the plaintiff underwent surgery for the removal of lumps in the breast. In 1989 further lumps were diagnosed. In view of the plaintiff's family history, her gynaecologist recommended a mastectomy as a prophylaxis and referred her for this purpose to the defendant who saw her on 14 June 1989. It is common cause that on this occasion the plaintiff and her husband discussed the F operation with the defendant at some length. What was proposed was a surgical procedure involving the removal of as much breast tissue as possible with the simultaneous reconstruction of the plaintiff's breasts using silicone implants. Following the discussion the plaintiff decided to go ahead with the operation. Precisely what was said at this consultation with the defendant on 14 June 1989, however, is in dispute and I shall return to this aspect of the matter later.

G The plaintiff was admitted to the Panorama Medi-Clinic Hospital in the late afternoon of Sunday, 6 August 1989. The operation was performed the next day. It is common cause that breast tissue was removed bilaterally; a 280 ml prosthesis was implanted on each side behind the pectoral muscle, and the areolae and nipples were repositioned. The repositioning of the areolae was achieved by the creation on each breast of a superior pedicle, H or flap, which was then folded back on itself resulting in the areolae being repositioned some 3 cm above its former position. The reason for repositioning the areolae was to correct a pre-operative mild ptosis (drooping), the aggravation of which is one of the consequences of an implant. This method, known as "transposition" was employed in preference to the "free grafting" method by which the areolae are simply removed and grafted on in a different position. The former method has the advantage I that the areolae are not totally detached from the surrounding skin and in this way the risk of necrosis is reduced. It is common cause that the operation has a high risk of complications, the main one being necrosis of the skin and underlying tissue, including the areolae and nipples. The reason for this is that the removal of the J

Ackermann J

A breast tissue and lactiferous ducts in which carcinoma may develop results in the cutting off of the main blood supply to the skin and areolar complex (areola and nipple). The only source of blood that remains is the subdermal plexus or layer of fat beneath the skin. The surgeon's dilemma is that the more of this tissue he leaves behind the less risk there is of necrosis but also the less effective the procedure is as a prophylaxis for cancer. Even without repositioning the areolae, they are at risk. If they are removed, the risk is increased, but more so if the "free grafting", as B opposed to the "transposition", method is employed.

The operation was initially a success in the sense that upon completion all seemed well. On the morning of Wednesday, 9 August 1989, ie some 36 hours after the operation, the defendant observed a discoloration of the left nipple and first became concerned about the blood supply. He expressed this concern to the plaintiff. There was also a "wedge-shaped" C area below the right areola which appeared pale and ischaemic. Later the same day, when the dressings were being changed, the plaintiff's husband observed the incision marks around both areolae. The defendant was called to the ward where the plaintiff confronted him with this, saying that he had promised her that he would not "remove" the areolae. He replied that he had not "removed" them but had "moved" them. As I have said, the plaintiff's instructions to the defendant are in dispute, and I shall D return to this issue later. In the course of the next few days the discoloration of the plaintiff's left areolar complex worsened and by the time she was discharged from hospital on 13 August it had turned black. By this time, too, the area below the right areola had become discoloured but not to the same extent as the left areolar complex. Upon discharging the plaintiff from hospital, the defendant advised her that she would have to undergo further surgery but that it would first be necessary to wait and E see what the extent of the necrosis would be.

On completion of the operation on 7 August the plaintiff was given a broad spectrum antibiotic intravenously as a prophylaxis against infection. Thereafter she was put on a related oral antibiotic called Cefril. When she was discharged on 13 August she was also given a cream called Biostim which was to be applied topically. This cream is not an antibiotic but has F the effect of stimulating the body's own defence mechanisms and in this way combating infection. The course of Cefril was repeated and the plaintiff remained on this antibiotic until 18 August, when the second course was completed.

When the plaintiff's dressings were changed at home on 14 August 1989, both she and a friend, a Mrs Pickering, who assisted her, noticed a discharge from the area immediately below and bordering on the right G areola and also from the left areolar complex. They also detected an offensive smell. The following day there was no improvement. On Wednesday, 16 August 1989, the plaintiff went to see the defendant at his rooms in Paarl as previously arranged. He assured her that the discharge was to be expected and was a consequence of the necrosis. He also explained that it was necessary to wait before undergoing surgery for the debridement of the H dead tissue. The plaintiff testified that after the 16th the discharge seemed to get worse, as did the odour. She said she also experienced pain and began to feel feverish. Although her next appointment with the defendant was on Wednesday, 23 August, she arranged to come and see him on Monday the 21st as she was not feeling well. On this occasion he prescribed another antibiotic, namely Dalacin C. On the 21st the plaintiff also began receiving laser treatment which was administered to the scars I by Miss Susan Wessels, a physiotherapist. On 23 August the plaintiff again saw the defendant. On this occasion he told her that he would be away the following week-end, but that if there was a problem she should get in touch with his colleague, Dr Lückhoff. That week-end the plaintiff continued to suffer pain. She said she felt feverish and emotionally upset. On Sunday night, 27 August 1989, her husband took her to see Dr Lückhoff at the Panorama Medi-Clinic. He arranged for her to be admitted J and she remained

Ackermann J

A hospitalised until 11 September 1989. On Monday, 28 August, she was seen in hospital by the defendant who took swab specimens from both breasts and sent these off for analysis. Two days later, on Wednesday, 30 August, a debridement of the dead tissue was performed under a general anaesthetic. The plaintiff had lost the entire areolar complex on the left side and an area of skin (including a portion of the areola) below the nipple on the B right side. Six days later, namely on 4 September, she underwent a further surgical procedure involving a skin graft to both breasts, the skin for this purpose being taken from high up under the left arm. In the meantime, the analysis of the swabs taken on 28 August revealed the presence of staphylococcus aureus. According to the pathologist's reports received on 30 August and 1 September 1989 respectively, staphylococcus aureus is resistant to both Cefril and Dalacin C. A different antibiotic, namely C Bactrim, was then prescribed.

Upon her discharge from hospital on 11 September 1989, the plaintiff was not yet out of the wars. In May of 1990, she underwent a further operation for the revision of the scars and spent one night in hospital. By this time, however, she had lost confidence in the defendant and the revision D was performed by another plastic surgeon. On a subsequent occasion she had the original prosthesis removed and replaced by a smaller, 200 ml prosthesis, spending two nights in hospital for this purpose. Finally, in October 1991 she underwent a further operation in the course of which the left nipple and areola were recreated. On this occasion she spent one night in hospital.

The plaintiff is satisfied with the final result and no further surgery is E envisaged. As a result of the necrosis following the original operation, however, she had to undergo a number of additional surgical procedures which involved her in further expense. She also suffered pain and, for a long period, embarrassment and psychological trauma in consequence of the disfigurement of her breasts. Her claim against the defendant is for damages in the sum of R94 952,12.'

F The grounds of negligence averred against the defendant in plaintiff's particulars of claim were amended on at least two occasions prior to judgment. One of these amendments occurred...