B J v Member of Executive Council for Health Gauteng (33179/2017) [2024] ZAGPPHC 235 (26 February 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 33179/2017

DOH: 14 – 17 & 25 August 2023

In the matter of:

B[…] J[…] Plaintiff

AND

MEMBER OF THE EXECUTIVE COUNCIL Defendant

FOR HEALTH, GAUTENG

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JUDGMENT

THIS JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF E-MAIL AND UPLOADING ON CASELINES. THE DATE OF HAND DOWN IS DEEMED TO BE 26 FEBRUARY 2024

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Bam J

1. This is a claim for delictual damages arising out of poor management of a perineal injury. The injury is described in the papers as a third degree tear¹. The plaintiff, Ms B[…] J[…], sustained the tear during a traumatic birth at Tshwane District Hospital, TDH. She and her baby were discharged a day following the birth. Four days after discharge, the plaintiff returned to hospital complaining of faecal incontinence and infection in her vaginal area. She was referred to Steve Biko Academic Hospital (SBAH) where she was informed that the tear had not been properly sutured, that her internal and external sphincter² muscles had suffered damage, and that she had a recto-vaginal fistula³. The remedial work was done by specialist surgeons at SBAH. In a joint note compiled by the surgeons appointed as expert witnesses by the parties, the surgeons could not fault the work done at SBAH. However, they underscored the delay from the date of diagnosis of 27 July 2014, to the start of the definitive diagnosis, on 15 September 2014.

2. The specialist nurses, the doctors specialising in gynaecology and obstetrics, and the surgeons, all being expert witnesses appointed by the parties, were in agreement that the treatment the plaintiff received pre-birth, during, and post birth at TDH was substandard and thus negligent. The experts further agreed on the sequelae⁴ arising from the defendant’s negligent conduct, excluding the issue of epilepsy which is dealt with by the neurosurgeons. Flowing from the joint positions of the previously mentioned experts, and despite initially refuting liability and contesting it throughout the trial, the defendant in their heads of argument finally conceded that they were negligent in their treatment and care of the plaintiff at TDH⁵.

3. With negligence having been conceded, including the sequelae as set out in the expert joint minutes, the only issue that remains for determination is whether the epilepsy complained of by the plaintiff was caused by the defendant’s negligent conduct. At the start of the trial, with leave of this court, the parties agreed that only liability would be determined while the quantification of the plaintiff’s damages would stand over for later determination. Following the agreement, the court granted the order separating liability from quantum. The plaintiff’s case was led through the testimony of six witnesses. They are, the plaintiff herself, Dr Sevenster, a specialist in gynaecology and obstetrics; Professor du Plessis, a specialist nurse; Dr Goosen, a general surgeon; Dr JA Smuts, a neurologist; and Dr Fine, a psychiatrist. The defendant called Dr Koll and Professor Ballot. Dr Ballot could not comment on the question of negligence as she had not been provided with the relevant records. Given the concession made by the defendant, the only evidence that remains for discussion is that related to the question of epilepsy.

A. The Parties

4. The plaintiff is an adult female. She resides in Silverton Pretoria.

5. The defendant is a Member of the Executive Council for Health, Gauteng. They are cited in this judgment in terms of the provisions of section 2(2) of the State Liability Act⁶. The defendant’s elected address is the Office of the State Attorneys, 316 Thabo Sehume Street, Pretoria.

B. Background

6. The following emerged from the plaintiff’s testimony and is common cause: On the evening of 22 July 2014, at about 18h00, the plaintiff, already at term, presented at the maternity section of TDH with contractions occurring at 10 minutes apart. She decided to walk up and down the waiting area as she was experiencing pain. At about 18h30, at her request, the sister confirmed that she was 4 cm dilated and that the birth would start after 21h00. There was some issue about the plaintiff’s request to the midwife that the latter rapture her membranes to hasten the birth but the midwife refused. Apparently the doctor who was present also asked the midwife to rapture the membranes but the midwife refused. Nothing turns on the issue. While standing next to a bed the plaintiff felt immense pressure in her abdomen and lower back, followed by a spontaneous rupture of her waters⁷. She tried to lift her leg to get to the bed but she could not as the birth had already started, with the baby’s head already out. The baby was born at 19h00.

7. It is not in dispute that the plaintiff experienced what is known as rapid or precipitate labour. The doctor who was assisting her informed her she had suffered a bad perineum tear. She was wheeled to the delivery room where the midwife sutured the tear, in contravention of the existing nursing regulations⁸ and guidelines⁹. The plaintiff and the baby were discharged the following day. On 27 July, four days later, the plaintiff returned to TDH complaining about faecal incontinence and infection in her vaginal area. After some preliminary investigations, she was referred to SBAH where she was informed that her internal and external sphincter muscles were damaged and that she had a recto-vaginal fistula¹⁰.

8. In the same month, she was informed that she had to undergo a sigmoid colostomy. The actual remedial work of the anal sphincter was eventually carried out on 17 November 2014. The colostomy was reversed in April 2015. After the colostomy was reversed, the plaintiff was admitted to hospital for, inter alia, post operative bowel obstruction and sepsis. These complaints were attended to at SBAH. The closure of the colostomy was complicated by recurrent would infections because, according to the experts, the procedure is contaminated by bowel content. In September 2017, the plaintiff a had a thyroidectomy performed at Dihlabeng Regional Hospital (DRH¹¹), in the Free State. By then she had moved to the Free State on account of her husband's work. There was no suggestion that the thyroidectomy had anything to do with the defendant’s negligent conduct during evidence. The record suggests that the plaintiff complained of, inter alia, blackouts, mood swings, headaches and dizziness. In August 2019 the plaintiff was diagnosed with uncontrolled epilepsy, described in the record as temporal lobe epilepsy.

Dr Johannes Albertus Smuts - neurologist

9. Dr Smuts provided an impressive CV. He began lecturing in neurology in 1994 and as from 2017 to 2019 he was senior lecturer in neurology at the University of Pretoria. He has ran a private neurology practice. He has participated in over 70 clinical trials as principal and sub-investigator. He has written extensively on the subject and has delivered numerous papers and presentations on the subject of neurology. Although the defendant had indicated its intention to call Professor Kakaza, also a neurologist, she could not attend court. Dr Smuts and Professor Kakaza had signed a joint minute which records areas of agreement and disagreement.

10. Dr Smuts had consulted with the plaintiff on 25 March 2021. His report is dated 30 March 2021¹². He testified that he had noted that the plaintiff had no history of epilepsy. He mentioned the multiple surgeries as a possible source of risk of epilepsy because there was no history of septicaemia. Aside from the doctor’s brief testimony, he had provided a summary of his evidence to which I now turn: When explaining the nexus between epilepsy and the primary obstetric problems experienced by the plaintiff, the doctor said:

‘The most important link of the epilepsy and the long hospitalisation, is the fact that the epilepsy started very soon after the other illness with no alternative etilological causes for such condition.’¹³

He went on on:

'The primary reason why it would be difficult to establish a link is that a detailed review of the course of events in each operation regarding the ‘potential hypoxemia and or hypovolemia and or hypotension’ would need to be tract and it is doubtful that such documentation is available.’

He further added:

‘It is an open question whether many operations and anaesthetic procedures potentially could lead to epilepsy. It is also documented that hospital onset seizures are different from that (sic) of the general population.

In closing the doctor noted:

‘Finally, regarding he link to the original problem, is that she developed her epilepsy problems in a temporally linked fashion and that there are circumstantial evidence that link the epilepsy to the prolonged illness.’

11. I will in a moment turn to the established principles pertaining to the evaluation of expert evidence. For now, I record what I find challenging about the doctor’s report, which was not explained at all during his brief testimony. I start by recording that the doctor refers to many operations but does not mention anywhere what he means by many operations. The record shows that the plaintiff went through a number of procedures. At no point was there a statement that each of those procedures account for an operation. The second difficulty is that the doctor refers to long hospitalisation in his report. The record suggests numerous visits and admissions and not necessarily prolonged hospital stay. For example, would the seven days for which the plaintiff was admitted to do the re-work of the third degree tear be considered a long stay? These were also not clarified during the doctor’s oral evidence.

12. The main challenge with the doctor’s opinion is that in the first instance the link between epilepsy and the obstetric problems is the fact that the epilepsy developed soon after the ‘other illness’. Without context to understand what the doctor was referring to by the ‘other illness’, it is difficult for anyone to understand what the doctor was referring to. In his conclusion, the doctor states that the epilepsy problem developed in a temporally linked fashion and ‘there are circumstantial evidence that link the epilepsy to the prolonged illness’. The question arises, what exactly did the doctor mean by the ‘circumstantial evidence’? Again, no care was taken to ensure that the doctor explains this area of his report during his testimony. It is noted however, that the doctor made the point that it would be difficult to draw a link between the epilepsy and the many operations. Likewise, he says it is an open question whether many operations and anaesthesia may lead to epilepsy.

The joint minute signed by Professor Kakaza and Dr Smuts

13. I now consider the doctors’ joint minutes. The doctors agree that the patient suffers from epilepsy and that its history is complex. They confirmed that the hospital records note that epilepsy began in 2019. I shall from now on concentrate on Dr Smut’s views in the joint opinion since Professor Kakaza was not called to explain her views to the court. Dr Smuts records that the link between the ‘epilepsy and the long hospitalisation is the fact that the epilepsy started in temporal association with multiple hospitalisation and repetitive anaesthesia and surgery. He further recorded that many factors such as respiratory problems lead to epilepsy and that hospital onset seizers are different from that of the general population. Finally, he notes that the likelihood of a link between surgery and the epilepsy is possible.

Legal Principles relevant to expert evidence

14. The court is duty-bound to assess and evaluate expert evidence together with all the evidence adduced by the parties and it must be satisfied that the expert’s opinion is based on fact and is underpinned by proper reasoning¹⁴. What is required in the evaluation of such evidence is establishing whether and the extent to which the expert’s opinion is founded on logical reasoning¹⁵. This is particularly so where medical certainty is virtually impossible, the court must be satisfied that the expert has considered comparative risks and benefits and has reached a defensible conclusion¹⁶. An opinion expressed without logical foundation can be rejected¹⁷.

15. Secondly, experts draw inferences from established facts. The inferences must be reasonably capable of being drawn, for, in the event the inferences are tenuous or far-fetched they cannot be foundation for the court to make a finding of fact¹⁸. Thirdly an expert’s opinion does not bind a court. Such opinion does no more than help the court to itself arrive at a conclusion in an area that the court knows little or nothing about based on the specialised knowledge bearing on the issue¹⁹. It is also necessary to bear in mind the words of the Constitutional Court in Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape, that logical theories put forwards by experts and not gainsaid by other experts should not be scoffed at without a basis²⁰. Finally, this court is mindful that the standard of proof is not scientific but proof on a preponderance of probabilities, as set out in Michael and Another v Linksfield²¹.

Legal principles on causation

16. An enquiry into causation commences with the ‘but for test’ to determine whether a postulated cause is the causa sine qua non for the damage complained of, International Shipping Company (Pty) Ltd. v Bentley (138/89) [1989] ZASCA 138; [1990] 1 All SA 498 (A) (10 October 1989). The question that must be answered in these proceedings is whether the epilepsy, the onset of which, according to the joint minute between Professor Kakaza and Dr Smuts can be traced back to 2019, can be causally be linked to the obstetrics problems experienced by the plaintiff in 2014? From reading Dr Smuts’ views as expressed in his report and in the joint minute, and based on his testimony, there is no way of telling whether there is a link between the obstetric problems experienced by the plaintiff and the epilepsy.

17. The manner in which counsel for the plaintiff approached this aspect of the plaintiff’s case was by pressing the fact that Dr Smuts’ evidence stands uncontested. He further relied on the statement made by Dr Smuts in the joint opinion that, ‘The likelihood of a link between surgery and the epilepsy is possible’ and suggested that the link between the obstetric problems and epilepsy had been established. In so doing, counsel ignored various parts of Dr Smut’s evidence which confirm Professor Kakaza’s opinion that: These are:

(a) It would be difficult to establish a link [between the obstetric problems and the epilepsy] because to do so, one would need to analyse what occured in each of the operations;

(b) It is an open question whether many operations and anaesthesia can lead to epilepsy.

(c) And, in the joint minute, the doctor says epilepsy can be caused by many factors such as respiratory problems.

18. Professor Kakaza in the joint opinion expresses similar views. She notes:

(i) Epilepsy is a problem that has multiple causes;

(ii) There is no evidence of direct or indirect trauma;

(iii) The temporal relationship of the onset of epilepsy and the history of surgery is accepted by this is an indirect association.

(iv) Lastly, she says, it is not possible at the present stage to draw a link between the epilepsy and the obstetric problems experience by the plaintiff in 2014.

19. I have already mentioned my difficult with the use of the word many with reference to the operations, when no care had been taken to state what the doctor Smuts regards as many. The fact that Prof Kakaza did not testify simply means the court only has the benefit of Dr Smuts’ evidence but that too must still be weighed. This is so because the court does not have the benefit of Prof Kakaza’s explanation for her reasoning as expressed in the joint note. The court is duty bound to assess Dr Smuts’ evidence to understand to what extent it is founded on logic and whether the conclusions reached are defensible. The defendant was emphatic in their response that the evidence on this issue lacks logic. Having earlier expressed my difficulties with Dr Smuts’ evidence on this issue, all that need be said is that the plaintiff has failed to draw a link between the obstetric problems of 2014 and the epilepsy diagnosed in 2019.

20. Were I to adopt a charitable view and conclude that factual causation had been established, would the plaintiff succeed in establishing legal causation? Legal causation is concerned with remoteness. Justice Theron explains the function of legal causation in De Klerk v Minister of Police thus:

‘[26] The function of legal causation is to ensure that liability on the part of the wrongdoer does not extend indeterminately….The question of legal causation is whether that further harm is too remote from the initial conduct for liability to be imputed to the defendant.

[27]In this way, remoteness operates along with wrongfulness as a measure of judicial control regarding the imposition of delictual liability and as a ‘longstop’ where most right-minded people will regard the imposition of liability in a particular case as untenable, despite the presence of all other elements of delictual liability.

[28] Legal causation is resolved with reference to public policy. As held by the Supreme Court of Appeal in Fourway Haulage SA, although this implies that the elements of legal causation and wrongfulness will overlap to a certain degree as both are determined with reference to considerations of public policy, they remain conceptually distinct…’²²

21. The court in Premier of the Western Cape Province and Another v Loots NO²³ further explained legal causation thus:

‘…[I]t has been held by this court that the criterion in our law for determining remoteness is a flexible test, also referred to as a supple test. In accordance with the flexible test, issues of remoteness are ultimately determined by broad policy considerations as to whether right-minded people, including judges, would regard the imposition of liability on the defendant for the consequences concerned as reasonable and fair.

[18] But, as also appears from the authorities to which the flexible approach owes its origin and development, its adoption did not result in a total discard of the variety of tests, such as foreseeability, adequate causation or direct consequences that were applied in the past. These tests still operate as subsidiary tests or pointers to what is indicated by legal policy. Stated somewhat differently, according to the flexible test, the existing criteria of foreseeability, directness and so forth should still be applied, but in a flexible manner so as to avoid a result which most right-minded people will regard as unjust and unfair.

22. In Premier Western Cape v Loots²⁴, the claimant, Ms Erasmus, or more accurately, her curator, had brought a delictual claim arising from an unsuccessful sterilisation. The claim, as the court noted was not for child raising expenses from an unwanted conception but for the harm suffered by Ms Erasmus in a subsequent birth which left her in a vegetative state. It was common cause that Ms Erasmus had suffered what is known as amniotic fluid embolism, AFE, which is caused when the foetal antigens enter the maternal circulation. AFE, it was accepted by all the experts, was a very rare condition which flows from pregnancy. The pregnancy which flowed directly from the defendant’s negligent conduct of performing an occlusion of the patient’s ligaments as opposed to the fallopian tubes. The point about Loots is that at no point did the court of appeal question whether causation had been established, based on the expert evidence or rather the lack thereof, accepted by the trial court. In fact, as the court found, the evidence of the defendant’s (appellants’) expert witness who, for some reason had not testified, was congruent with that of Loots’ expert.

Conclusion

23. Bearing in mind that the question whether legal causation has been established calls for judicial determination based on policy considerations as informed by our constitutional values whilst not discarding the traditional factors such as, foreseeability, adequate causation or direct consequences, I cannot say that the theory presented by Dr Smuts helps this court to reach the conclusion that legal causation has been established. Epilepsy as the doctors conceded can be caused by many factors and, it is not possible to make the connection between the plaintiff’s obstetric problems and the epilepsy. Even taking the surgical history, Dr Smuts conceded that it is an open question whether surgical history or has he put it, many operations and anaesthesia, can cause epilepsy. As I had earlier said, the theory presented by Dr Smuts does not even assist in finding factual causation. I conclude that the plaintiff has failed to establish that the defendant’s negligent conduct at TDH — which occasioned the obstetric problems — caused the epilepsy complained of. Thus, this part of the plaintiff’s case fails.

Costs

24. The plaintiff seeks punitive costs. The basis as explained by counsel is this, after the joint minutes of the various experts were filed, the defendant had no more room to wiggle out of the merits. The defendant, so the argument goes, should have conceded liability. Whilst the plaintiff argues that the defendant wasted public funds by engaging in a longdrawn trial, that charge may easily be undermined by the need for transparency and accountability in matters involving public finances. I do not accept these assertions as being a sound basis for punitive costs. As was said in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others²⁵, the award of costs is in the discretion of the court.

Order

25. The defendant is liable to compensate the plaintiff for her proven or agreed damages, excluding liability for epilepsy which the plaintiff failed to prove.

26. The defendant must pay the plaintiff’s costs.

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NN BAM (Ms)

JUDGE OF THE HIGH COURT, PRETORIA

Date of Hearing: 14 – 17 & 25 August 2023

Date of Judgment: 26 February 2024

Appearances:

For the Plaintiff: Adv J De Beer

Instructed by Surita Marais Attorneys

Arcadia, Pretoria

For the Defendant: Adv M.S Phaswane

Instructed by: State Attorneys

Pretoria