Louwrens v Oldwage

• Jurisdiction: South Africa
• Judge: Mpati DP, Streicher JA, Mthiyane JA, Lewis JA and Pon JA
• Judgment Date: 21 September 2005
• Citation: 2006 (2) SA 161 (SCA)
• Docket Number: 181/2004
• Hearing Date: 15 May 2005
• Counsel: R S van Riet (with S C H Loots) for the appellant. P A L Gamble SC for the respondent.
• Court: Supreme Court of Appeal

Mthiyane JA:

Introduction

[1] The dispute in this appeal concerns the history given by a patient (the respondent, to whom I shall refer as the plaintiff) to E 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 F 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 G 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 H 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 I 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 J

Mthiyane JA

Kieck. Dr Kieck discovered that the plaintiff had disc degeneration at the L4/5 vertebrae, which had resulted in a prolapsed A 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. B 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. C

[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) D 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. E

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 F 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 G 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. H

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 I 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 J

Mthiyane JA

usually starts in the calf muscle and may extend upwards' - not downwards - and which comes A 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 B 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 C 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 D 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 E 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 F 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 G 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 H 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 I 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. J

Mthiyane JA

[9] As regards the defendant's version, he had - not surprisingly - no independent A 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 B 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 C 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 D touch. It was clear to him that the plaintiff had severe pain seeing that, as he walked, he attempted to...