Meyers v MEC, Department of Health, EC

• Jurisdiction: South Africa
• Citation: 2020 (3) SA 337 (SCA)

Meyers v MEC, Department of Health, EC
2020 (3) SA 337 (SCA)

2020 (3) SA p337

Citation	2020 (3) SA 337 (SCA)
Case No	1010/2018; [2020] ZASCA 3
Court	Supreme Court of Appeal
Judge	Ponnan JA, Plasket JA, Mbatha JA, Koen AJA and Dolamo AJA
Heard	March 4, 2020
Judgment	March 4, 2020
Counsel	D Niekerk for the appellant.; BL Boswell for the respondent.

Flynote : Sleutelwoorde

Medicine — Medical practitioner — Malpractice — Negligence — Surgical operation — Bile duct injured during gallbladder removal — Whether evidence establishing negligence.

Headnote : Kopnota

Respondent MEC's servant, a surgeon, operated on appellant, Ms Meyers, to remove her gallbladder (see [2], [15] and [70]). During the operation, two small injuries were done to appellant's bile duct, causing infection (see [2] and [70]).

Appellant later sued respondent, claiming the injury was negligently caused (see [3] and [70]). A High Court dismissed the action on the basis that negligence was not proven; and appellant, with the High Court's leave, appealed unsuccessfully to the full court. Here, with special leave, appellant appealed to the Supreme Court of Appeal (see [4] and [10]).

That court was divided in its assessment of whether the evidence suggested negligence (see [50], [55] and [66]).

Plasket JA, writing for the minority, would have dismissed the appeal (see [65]).

2020 (3) SA p338

In coming to do so, he considered expert evidence on appellant's part, that any injury to the bile duct would suggest negligence, as against evidence for respondent that only major injuries would. Plasket JA favoured the latter:authority was to the effect that the mere fact of injury during surgery would not suggest negligence, and that injury could occur despite reasonable care being taken by the surgeon (see [58]). Here, the surgeon had taken such reasonable care, by applying the rules for this particular operation (see [64]).

Ponnan JA, writing for the majority, upheld the appeal (see [83]). In his view, while extent of the effect (major or minor injury) might well in the case of major injury suggest a negligent cause, minor injury did not negate the possibility of its cause being negligent (see [80]). In this instance, at the close of appellant's case, the evidence suggested negligence, and this inference was unmoved by respondent's evidence (see [82]).

Ordered, that the appeal was upheld; the full court's order was set aside; and replaced with an order setting aside and substituting the High Court's order, to hold respondent liable for any damages resulting from the injury (see [83]).

Cases cited

AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A): applied

Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A): referred to

Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ([2013] ZASCA 72): referred to

Charter Hi (Pty) Ltd v Minister of Transport [2011] ZASCA 89: referred to

Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA): referred to

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D): referred to

Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA): dictum in para [8] applied

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA) ([2014 ZASCA 150): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): referred to

Mitchell v Dixon 1914 AD 519: referred to

Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E): referred to

MV Banglar Mookh: Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA): referred to

Perlman v Zoutendyk 1934 CPD 151: referred to

Pillay v Krishna and Another 1946 AD 946: dictum at 952 applied

Premier of the Western Cape Province v Loots NO [2011] ZASCA 32: referred to

Roux v Hattingh 2012 (6) SA 428 (SCA) ([2012] ZASCA 132): referred to

S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A) ([1987] ZASCA 140): referred to

Sardi and Others v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A): referred to

Van Wyk v Lewis 1924 AD 438: dictum at 461 applied

Vousvoukis v Queen Ace CC t/a Ace Motors 2016 (3) SA 188 (ECG): referred to.

Case Information

D Niekerk for the appellant.

BL Boswell for the respondent.

2020 (3) SA p339

A High Court had dismissed appellant's delictual action, and the full bench had dismissed her appeal. Here she appealed to the Supreme Court of Appeal.

Order

(1)

The appeal is upheld with costs.

(2)

The order of the full court is set aside and substituted with the following:

'(a)

The appeal succeeds with costs.

(b)

The order of the court below is set aside and substituted with the following:

''(i)

The defendant is held liable for the damages, if any, that the plaintiff has suffered in consequence of the injury inflicted by Dr Vogel, namely two perforations to her common bile duct, whilst performing a laparoscopic cholecystectomy at the Livingstone Hospital on 2 March 2010.

(ii)

The defendant is ordered to pay the plaintiff's costs occasioned by this hearing, such costs to include the qualifying fees of Dr BH Pienaar.

(iii)

The matter is postponed sine die."'

Judgment

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

2020 (3) SA p340

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.'

2020 (3) SA p341

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...