Medi-Clinic Ltd v Vermeulen

• Jurisdiction: South Africa
• Judge: Ponnan JA, Wallis JA, Pillay JA, Zondi JA and Dambuza AJA
• Judgment Date: 26 September 2014
• Citation: 2015 (1) SA 241 (SCA)
• Docket Number: 504/13 [2014] ZASCA 150
• Hearing Date: 22 August 2014
• Counsel: R van Riet SC (with AD Brown) for the appellant. WP de Waal SC (with WL Munro) for the respondent.
• Court: Supreme Court of Appeal

Zondi JA (Ponnan JA, Wallis JA, Pillay JA and Dambuza AJA concurring): D

[1] No one can be unmoved by the disaster which has befallen Mr Vermeulen, the respondent in this appeal. Mr Vermeulen was hospitalised on 17 May 2007 at Medi-Clinic Nelspruit Hospital, which is operated by E the appellant (the defendant). He contracted cerebral malaria while on holiday in Mozambique during April 2007. As he was gravely ill on admission, he was treated in the Intensive Care Unit (ICU) where he remained from 17 May 2007 until 24 July 2007. Thereafter he was transferred to a general ward for further treatment until his discharge on F 21 October 2007. Shortly after he was admitted and while he was still in the ICU he developed a pressure sore to the sacral area and heels of his feet. As a result of the sacral bedsore he suffered bilateral sciatic nerve injuries with severe impediment of his mobility. Mr Vermeulen became paralysed and is now wheelchair-bound.

G [2] Mr Vermeulen sued the defendant for damages in the North Gauteng High Court, Pretoria, contending that the injuries he sustained were caused by the negligence of the defendant's nursing staff. He alleged that the nursing staff failed to take sufficient preventative measures to avoid the onset of the sacral bedsore. He said they ought to have prevented a H bedsore from developing by regularly turning him so as to remove continuous pressure from his sacrum. The defendant denied that its nursing staff were negligent in their treatment of Mr Vermeulen. It contended that, given Mr Vermeulen's predisposition to sustaining a bedsore and gravely ill condition, the development of the bedsore was unavoidable. In any event, as the only effective preventative measure, I namely turning, would have further endangered his life during the period of critical illness, the defendant contended that it was medically inadvisable to engage in such treatment. By agreement between the parties the trial judge (Mothle J) was asked to determine only the question of

Zondi JA (Ponnan JA, Wallis JA, Pillay JA and Dambuza AJA concurring)

liability. He found in favour of Mr Vermeulen and ordered the defendant A to pay costs. The learned trial judge granted the defendant leave to appeal to this court against his judgment and Mr Vermeulen against costs which he disallowed.

[3] As neither the court below nor counsel addressed the legal test to B apply in the determination of the issue of medical negligence, I consider it necessary to begin by setting out the applicable test. It was pointed out by this court in Mitchell v Dixon 1914 AD 519 at 525 that:

'A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care. . . .' C

In deciding what is reasonable, this court in Van Wyk v Lewis 1924 AD 438 at 444 held that 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.

[4] In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another D 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384) (para 35) it was observed that the Van Wyk v Lewis test is not always a helpful guide in determining the liability of a doctor for medical negligence. The reason is that, in the absence of evidence of the general practice prevailing in a specialist field, or a collective or representative opinion in relation to that E practice, it is difficult to determine the general level of skill shown by practitioners in that field. The court is often faced with conflicting medical opinion in regard to what constitutes proper treatment of a patient with the particular condition under treatment. It must then evaluate this conflicting expert testimony.

[5] In paras 37 – 39 the court held that what is required in the evaluation F of the experts' evidence is to determine whether and to what extent their opinions are founded on logical reasoning. It is only on that basis that a court is able to determine whether one of two conflicting opinions should be preferred. An opinion expressed without logical foundation can be rejected. But it must be borne in mind that in the medical field it may not G be possible to be definitive. Experts may legitimately hold diametrically opposed views and be able to support them by logical reasoning. In that event 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 H with a reasonable and respectable body of medical opinion, his conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently.

[6] This approach was first enunciated by McNair J in Bolam v Friern Hospital Management Committee I [1957] 2 All ER 118 (QB) ([1957] 1 WLR 582) at 122 and later adopted by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232 (HL) ([1997] 4 All ER 771). In Bolam McNair J, in summarising the true test for establishing negligence on the part of the doctor in medical negligence cases, said (at 122B – C): J

Zondi JA (Ponnan JA, Wallis JA, Pillay JA and Dambuza AJA concurring)

A 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of B opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: I don't believe in anaesthetics. I don't believe in antiseptics. I am going to continue to do my surgery in the C way it was done in the eighteenth century. That clearly would be wrong.'

[7] In Bolitho Lord Browne-Wilkinson, with regard to the treatment of expert evidence in cases where a doctor's negligence is sought to be established, stated (at 778d – g):

D '(I)n my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In Bolam's case [1957] 2 All ER 118 at 122, E [1957] 1 WLR 583 at 587 McNair J stated that the defendant had to have acted in accordance with the practice accepted as proper by a responsible body of medical men (my emphasis). Later he referred to a standard of practice recognised as proper by a competent reasonable body of opinion (see [1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 588; my emphasis). Again, in the passage which I have cited from F Maynard's case, Lord Scarman refers to a respectable body of professional opinion. The use of these adjectives — responsible, reasonable and respectable — all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before G accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.'

[8] After referring to various cases such as Hucks v Cole [1968] 118 New LJ 469 H ([1993] 4 Med LR 393) and Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] AC 296, Lord Browne-Wilkinson summarised the legal position as follows (at 779d – g):

'These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning I the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's...