Supreme Court of Appeal’s split decision over surgical negligence

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In a split decision by the Supreme Court of Appeal, a Port Elizabeth woman has won a 10-year negligence action over two small nicks to her bile duct during an operation to remove her gall bladder, reports MedicalBrief. The overturned High Court judgment had ruled that the error “seems to be one that any reasonably competent practitioner could have made”. The SCA, however, found “no reasonable suggestion has been offered as to how the injury could have occurred, save for negligence”.

Following a defeat in the High Court, Felicia Meyers, 51, finally succeeded at the Supreme Court of Appeal, which this week ruled that surgeon Dr Richard Vogel had been negligent and held Eastern Cape Health liable for Meyers’ damages and legal fees, quantum yet to be determined.

In March 2010, Meyers went for what she thought was routine surgery to remove her gall bladder, but two wounds to her bile duct left her in agony and she was forced to have another operation to fix it.

Ms Meyers instituted a claim for damages in the Eastern Cape Division of the High Court, Port Elizabeth, alleging that the 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 and 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.

On the central issue involved, namely whether Dr Vogel or any member of his team had been negligent in causing the injuries, one expert witness testified on behalf of Ms Meyers. He was Dr B H Pienaar. Professor P C Bornman was called as an expert witness on behalf of the province.

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. Prof 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 gallbladder surgery.

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’. 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”’. 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’.

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’. She concluded that no negligent conduct had been established and she consequently dismissed the claim with costs.

In the SCA, Judges Plaskett and Koen reached a minority finding to dismiss the appeal with costs, saying:

“ In all probability, the injuries were caused while Dr Vogel was teasing off adhesions within Calot’s triangle … There are risks inherent in this process and one of them is a risk of injury to the bile duct – a risk that materialises, according to Dr Pienaar, with ‘some regularity’. In working in this area, it is a matter of judgement on the part of the surgeon as to how much to dissect in Calot’s triangle and when he or she believes the area clear enough to make a proper identification of the structures.

“In the terminology of Kruger v Coetzee, Dr Vogel as a reasonable surgeon, would have foreseen the possibility of harm to Ms Meyers’ bile duct during the operation, but he took steps to avoid that harm from materialising by performing the operation in accordance with the ten commandments which were developed for the very purpose of avoiding that harm. In these circumstances, I am of the view that Ms Meyers has not discharged the onus on her to prove on a balance of probabilities that Dr Vogel was negligent when he caused the injuries. That means that the appeal cannot succeed.”

Ponnan JA, with Mbatha JA and Dolamo AJA concurring, found that Dr Vogel was simply unable to account for the injury.

“It was put to him in cross-examination that ‘the cold hard fact is you are unable to tell this Court how those perforations occurred’, to which he replied: ‘[t]hat is correct’. Dr Vogel testified that he could not ‘recall this specific operation’, so he could only go by what he had written in his ‘op note’. However, the operation note itself contained no explanation for the injury and Dr Vogel was driven to concede that the explanation for the injury ‘lies outside of the operation note’.”

“It is so, as the evidence in this case reveals, that the intersection between law and medicine is often complex. Here there is simply no acceptable evidence as to how the injury came to be inflicted. Importantly, according to Dr Vogel, it was not a difficult dissection.

“Both Prof Bornman and Dr Pienaar were at one on the need for a surgeon to properly identify the anatomy and structures. Both accepted that dissecting in the danger zone, namely Calot’s triangle, without having properly identified the structures would constitute negligence. However, Prof Bornman was unable to explain why, if Dr Vogel had properly identified the bile duct, he made direct contact with it.

“In my view, at the close of Ms Meyer’s case, after both she and Dr Pienaar had testified, there was sufficient evidence which gave rise to an inference of negligence on the part of Dr Vogel. In that regard it is important to bear in mind that in a civil case it is not necessary for a plaintiff to prove that the inference that she asks the court to draw is the only reasonable inference; it suffices for her to convince the court that the inference that she advocates is the most readily apparent and acceptable inference from a number of possible inferences.That inference remained undisturbed by the evidence of Dr Vogel. 

“And, as I have attempted to show, Prof Bornman’s evidence did not tip the scales against Ms Meyers. In short, when Prof Bornman’s evidence is read together with the evidence of Dr Pienaar (as, to my mind, it should be), no reasonable suggestion has been offered as to how the injury could have occurred, save for negligence on the part of Dr Vogel.”

Full SCA judgment


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