A woman’s damages claim against a Cape Town fertility specialist – after a procedure led to serious complications – has been dismissed with costs by the Western Cape High Court, reports IOL.
The hysteroscopic procedure by Dr Philip Zinn had resulted in a uterine perforation, followed by a bowel perforation and peritonitis, but Judge Hayley Maud Slingers found that although the doctor had failed to properly explain the material risks associated with the procedure, the patient had not established that he was negligent or that the lack of informed consent caused the harm for which she sought compensation.
The woman had consulted Zinn in November 2017 after battling to fall pregnant. During the consultation, Zinn identified a 1.5cm submucosal fibroid in her uterine cavity and discussed removing it through a hysteroscopic myomectomy.
The patient initially decided against the procedure but later returned and underwent the operation on 16 February 2018 – during which, her uterus was perforated.
Zinn then performed a laparoscopy to assess the injury and repaired the uterine perforation. However, her bowel was also perforated, resulting in peritonitis after she was discharged from hospital the next day.
She became increasingly unwell and during an examination by Zinn on 19 February, was clammy, tachycardic and developing signs of peritonism.
An emergency laparotomy was done, during which the bowel perforation was located and repaired.
Not properly informed
The patient argued that the operation amounted to an assault because she had not given informed consent. She also accused Zinn of negligence, including failing to properly investigate her fertility problems, performing the procedure without adequate indications, perforating her uterus and bowel, failing to detect the bowel injury during the initial surgery and failing to properly respond to her postoperative symptoms.
She testified that she understood the removal of the fibroid to be a quick and relatively simple procedure, comparing her understanding of it to having a wisdom tooth removed.
She said the risks had not been properly explained to her.
The court found that Zinn had, in fact, failed to provide her with the required information about the risks and consequences of the proposed myomectomy. He conceded that uterine perforation, the possible need for a laparoscopy and the potential risk of bowel injury, were material risks that should have been disclosed.
He also testified that he could not recall discussing the possibility of uterine and bowel perforation with her before the operation.
Despite this finding, the court held that the woman had not established the requirements necessary to succeed with a claim based on informed consent.
Slingers said there was no evidence showing she would have refused the hysteroscopic myomectomy had she been told about the risks. As a result, she had not established the necessary causal connection between the failure to obtain informed consent and the injury that followed.
Court rejects assault claim
The judge also rejected the characterisation of the treatment as an assault. The judgment noted that while medical treatment without informed consent can infringe a patient’s bodily integrity and potentially violate the trust, dignity and integrity of the patient, it does not automatically constitute an assault.
The court found that the necessary intention to assault had not been established in this case.
A major issue in the case was the conflicting evidence of medical experts. The plaintiff relied on retired general surgeon Dr Bastiaan Hendrik Pienaar and obstetrician and gynaecologist Professor Hendrik Stefanus Cronje.
However, the court found limitations in both experts’ evidence.
Pienaar was not a fertility specialist and had never performed a hysteroscopic myomectomy. His opinions about the procedure were largely based on literature rather than personal experience or specialist training in the relevant field.
The court concluded that he had expressed opinions outside his area of expertise.
Cronje, although an obstetrician and gynaecologist, was not a fertility specialist and had retired more than a decade earlier. He had performed fewer than 20 myomectomies, with his last such procedure taking place before 2011.
By contrast, Zinn’s expert, Dr Lawrence Gobetz, was a highly specialised reproductive medicine specialist who primarily treated infertility patients and also performed reproductive medicine surgery.
Gobetz testified that removing the fibroid was clinically justified and that the uterine perforation was a recognised complication of hysteroscopic myomectomy rather than evidence of negligence.
Court finds procedure was indicated
The court found that the evidence did not establish that Zinn was negligent in deciding to perform the myomectomy without first completing a wider fertility work-up.
Although questions were raised about the absence of a semen analysis and other fertility investigations, the court found no evidence that these steps would have changed the outcome.
The court also noted that the plaintiff’s expert Cronje ultimately accepted that the FIGO type 1 fibroid needed to be removed because it could prevent pregnancy and potentially affect a pregnancy and subsequent birth.
He also accepted that hysteroscopic myomectomy was indicated.
Bowel injury difficult to detect
The court found that the bowel perforation occurred during insertion of a Veress needle during the laparoscopy. However, the evidence showed that the perforation was very small and difficult to identify.
Dr Marr, who later treated the plaintiff, also struggled to locate it and initially doubted that a perforation existed.
Cronje ultimately accepted that Zinn could have missed the perforation during the initial laparoscopy and that such a failure was acceptable. The court therefore found that the plaintiff had failed to provide evidence showing that another doctor with Zinn's qualifications and experience would have detected the injury.
Follow-up care scrutinised
The court did, however, find shortcomings in Zinn’s postoperative communication.
After the operation, Zinn told the woman to “keep an eye” on her bowel, but the court found this was not a sufficiently detailed explanation of the symptoms she should have monitored.
The judge found the doctor had fallen short of the professional standard expected of him in this regard, but that finding did not by itself establish liability.
The court also considered his telephone follow-ups with the patient over the weekend.
While the plaintiff’s expert believed she should have been examined in person, Gobetz testified that telephone follow-up was an accepted method of postoperative assessment and triage.
The evidence showed that Zinn repeatedly contacted the plaintiff and, when he suggested she come to his rooms, she declined. The judge found that Zinn could not be expected to respond to an unexpressed expectation that he should make a house call.
No proof earlier treatment would have changed outcome
A crucial factor was causation. The court found no evidence that admitting the plaintiff to hospital on the Saturday or Sunday would have reduced or materially changed the consequences she suffered.
In fact, the evidence indicated that an earlier admission might not have resulted in the bowel perforation being detected and could have resulted in additional surgical intervention.
The court therefore found that the plaintiff had not established the necessary causal link between Zinn’s conduct and the harm for which she sought damages.
Slingers ultimately found that the woman had failed to discharge the burden of proving negligence, dismissing her claim with costs.
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