Meyers v MEC, Department of Health, EC

• Jurisdiction: South Africa
• Judge: Ponnan JA, Plasket JA, Mbatha JA, Koen AJA and Dolamo AJA
• Judgment Date: 04 March 2020
• Citation: 2020 (3) SA 337 (SCA)
• Docket Number: 1010/2018 [2020] ZASCA 3
• Hearing Date: 04 March 2020
• Counsel: D Niekerk for the appellant. BL Boswell for the respondent.
• Court: Supreme Court of Appeal

Plasket JA (Koen AJA concurring):

[1] More than 100 years ago, in Mitchell v Dixon, [1] this court held in relation to the standard of care expected of medical practitioners 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; and he is liable for the consequences if he does not'.

This appeal concerns whether a surgeon, when performing an operation, fell short of that standard.

[2] On 2 March 2010 the appellant, Ms Felicia Meyers, was operated on in the Livingstone Hospital, Port Elizabeth, by Dr Richard Vogel, a surgeon employed by the Department of Health in the Eastern Cape provincial government. Her gallbladder was removed by means of a minimal access surgical procedure known as a laparoscopic cholecystectomy. It was common cause that during this procedure two small injuries, each about two millimetres in diameter, were caused to the common bile duct, with the result that bile leaked into her stomach after the operation, causing infection. This required surgery, also performed by Dr Vogel, in order to remedy the situation.

[3] Ms Meyers instituted a claim for damages in the Eastern Cape Division of the High Court, Port Elizabeth, against the MEC for Health as nominal defendant. In her particulars of claim she alleged that the

Plasket JA (Koen AJA concurring)

injuries to her bile duct that occurred during the first operation were caused by the negligence of Dr Vogel or members of his team in one of four ways, namely, by Dr Vogel failing to convert the procedure from a laparoscopic cholecystectomy to an open cholecystectomy; by him failing to perform the procedure with the care, diligence and skill required of a reasonable surgeon; by him failing to ensure that Ms Meyers' bile duct was not cut during the procedure; and by his failure to ensure that the electro-cautery device used in the procedure was properly insulated and therefore fit for use during the procedure. In the plea, the MEC denied these allegations of negligence.

[4] Revelas J dismissed the action with costs, on the basis that Ms Meyers had not discharged the onus on her to establish that the injuries were the result of negligence on the part of Dr Vogel or one of his team. With the leave of Revelas J, Ms Meyers appealed to a full court of the Eastern Cape Division of the High Court, Grahamstown. Brooks J, with the concurrence of Makaula J and Bloem J, dismissed the appeal with costs. Special leave to appeal was, however, granted by this court.

The trial and the full court appeal

[5] On the central issue involved, namely whether Dr Vogel or any member of his team [2] had been negligent in causing the injuries, one expert witness testified on behalf of Ms Meyers. He was Dr BH Pienaar. Professor PC Bornman was called as an expert witness on behalf of the MEC. In addition, Dr Vogel was qualified as an expert, although he obviously had an interest in the matter.

[6] Dr Pienaar and Prof Bornman compiled a joint minute in which they recorded their agreements and disagreements in respect of the injuries. It read:

'1.

We agree that the injury to the bile duct occurred during the laparoscopic cholecystectomy.

2.

We agree that the injury was most likely caused by Dr Vogel and/or other employees at the time of the laparoscopic cholecystectomy on 2 March 2010.

3.

We agree that there were two defects in the common bile duct/common hepatic duct. (See second operation note dated 11 March 2010.)

4.

We agree that the injury occurred during the performance of the procedure either due to a mechanical laceration (instrument) or electrothermal injury.

5.

With respect to whether the nature of this injury in this matter can be construed as the operation being performed negligently we disagree in the following:

5.1

Pienaar is of the opinion that the injury in this matter was caused in a negligent manner.

5.2

Bornman disagrees that the operation was performed negligently.'

Plasket JA (Koen AJA concurring)

[7] In essence, Dr Pienaar was of the view that the mere fact that the injuries were caused, irrespective of whether they were caused by the surgeon or a defective instrument, raised an inference of negligence. Professor Bornman took a different view. He said that if a major injury had been caused, such as the severing of the bile duct rather than the cystic duct, negligence could be inferred because the surgeon would have failed to properly identify the anatomical structures prior to dissecting. The same inference could not, however, be drawn when a minor injury, such as those suffered by Ms Meyers, had been inflicted. In the first scenario, the surgeon would not have acted in compliance with what both expert witnesses referred to as the ten commandments of gall-bladder surgery.

[8] Revelas J found that the evidence of Dr Bornman was to be preferred over that of Dr Pienaar. She reasoned that Prof Bornman's opinions were 'more in keeping with the test for negligence in matters where medical negligence is considered' and that he 'appeared to be a very objective expert'. [3] She concluded that he 'adopted a logical and balanced approach to the matter and had directed his mind to the question of comparative risks and benefits and reached a defensible conclusion'. [4] Dr Pienaar's approach, on the other hand, left 'no room for human error', set an 'unreasonably high standard for surgeons' and was 'dogmatic and unrealistic'. [5]

[9] Revelas J found that the error that had caused the injuries 'seems to be one that any reasonably competent practitioner in Dr Vogel's field could also have made'. [6] She concluded that no negligent conduct had been established and she consequently dismissed the claim with costs.

[10] The full court found that Revelas J had correctly evaluated the evidence of Dr Vogel against the backdrop of the expert evidence of Dr Pienaar and Prof Bornman, and that her conclusion that no negligence had been established was also correct. [7] Its reasoning, in arriving at this conclusion, was the following: [8]

'Significantly, there is no direct evidence which demonstrated that the surgeon offended one of the "ten commandments" by not identifying the anatomy. Nor is there any direct evidence to demonstrate that he offended the "ten commandments" by dissecting in the Calot's triangle with hook diathermy or, indeed with any other form of sharp instrument. Any attempt to draw an inference from the evidence that he offended either or both "commandments" is fundamentally flawed by the speculative nature of the postulations as to what might have caused the perforations and by the direct, unchallenged evidence given by the

Plasket JA (Koen AJA concurring)

surgeon of the methodology he employed during the surgical procedure. That evidence reveals no factual basis for a finding that the surgeon offended one or more of the "ten commandments". Accordingly, no logical basis or reasoning is identifiable to support the view expressed by the appellant's expert that the fact that the surgeon must have made contact with the common bile duct in order to cause the perforations unequivocally demonstrates negligence on his part.'

The evidence

[11] While the evidence of Dr Pienaar and Prof Bornman was extremely useful, and interesting, for purposes of detailing how laparoscopic cholecystectomies are performed, the physiology involved and the risks attached, Dr Vogel's evidence is of prime importance as he conducted the operation in question. Prior to turning to his evidence, it is necessary first to say something of the operation concerned.

[12] A surgeon may either operate to remove a gallbladder laparoscopically or by means of an open procedure. The laparoscopic procedure is arguably less invasive than the open procedure. In some cases, however, surgeons have little choice but to perform the open procedure, or to convert to it if they experience difficulties during the laparoscopic procedure. Indeed, in the second operation, Dr Vogel converted to an open procedure because of the inflamed and infected area in which he had to work.

[13] In the laparoscopic procedure, surgeons insert four ports, or tubes, into the patient's abdomen through which the video camera that provides visualisation and the instruments are inserted and utilised. The images from the camera are magnified 16 to 18 times when they are displayed on a screen. This enables the surgeon to identify anatomical structures and to see what he or she is doing. One drawback of the system is that the surgeon has to work from two-dimensional images in a three-dimensional environment.

[14] In order to remove the gallbladder, the surgeon is required to 'open up' the area around it by teasing away adhesions or fatty tissue that may be present. This is to enable him or her to identify the anatomical structures of relevance. He or she must sever the cystic duct and the cystic artery and then seal them with clips. The gallbladder is then free to be removed, but it must first be freed from the liverbed. This is done by means of electro-diathermy. It is then extracted from the patient's abdomen through one of the ports.

[15] The area in which the surgeon works is a small confined area. The gallbladder lies against the liver. It is connected to the bile duct by the cystic duct. The area between the gallbladder and cystic duct, the liver and the bile duct form, roughly, a triangular area known as Calot's triangle. The cystic artery which, like the cystic duct, must be severed in order to remove the gallbladder, runs in Calot's triangle. During the trial, Prof Bornman drew a sketch of the area and marked Calot's triangle. In brackets he added the words 'danger area'. His sketch is reproduced below.

Plasket JA (Koen AJA concurring)

[16] Dr Pienaar was asked about...