Conflicting expert testimonies - Which approach should the court take?
23 April 2015
The Supreme Court of Appeal handed down a judgment on 26 September 2014 in the matter of Medi-Clinic Limited v George Vermeulen (504/13)  ZASCA wherein it upheld an appeal against an order of the North Gauteng High Court, Pretoria, by finding the appellant to have not negligently caused the pressure sores that the respondent sustained during his admission and treatment at the appellant's hospital in Nelspruit. The issue before the appeal court was the avoidability of bedsores in critically ill patients. In coming to a decision, the court reaffirmed the principles involved when critically assessing directly opposing expert evidence.
The respondent was hospitalised at Medi-Clinic Nelspruit on 17 May 2007 after having contracted malaria while on holiday in Mozambique. He was admitted and treated in the Intensive Care Unit where he remained from 17 May 2007 until 24 July 2007. During the period of 20 to 24 May 2007 (herein after referred to as "the critical period") the respondent's condition deteriorated and worsened and he developed a sacral pressure sore. By 26 May 2007, when the critical period had passed, the respondent had significant and irreversible sacral bedsores. The respondent became paralysed and wheelchair bound.
The respondent sued the appellant in the court a quo, contending that the injuries sustained by him were caused by the negligence of the appellant's nursing staff, who allegedly failed to take preventative measures to avoid the onset of the sacral bedsores by failing to regularly turn him to remove continuous pressure from his sacrum.
Experts for both the appellant and the respondent were in agreement that the respondent was in a critical condition during the critical period. The respondent's blood pressure was very low, he developed renal failure, was a hyperglycaemic, and had a poor peripheral infusion with cold extremities and week pedal pulses.
The experts for the respondent in the court a quo found that the appellant was negligent in failing to prevent the bedsores when it should have done so by implementing a pressure sore regime of sufficient frequency and adequacy to allow, remove or relieve pressure from the respondent's sacrum, heels and nerves.
The experts for the appellant in the court a quo were of the view that the appellant was not negligent by refraining from turning the respondent during the critical period, as the respondent's condition was at such a stage that it was dangerous and life threating to move him at all.
The court a quo found in favour of the respondent and granted the appellant leave to appeal. The appeal court in this matter had to determine which expert evidence it should rely on when determining negligence in medical malpractice cases.
The test for negligence
The court in the case of Mitchell v Dixson 1917 AD 519 at 525 pointed out that:
"A medical practitioner is not expected to bring to bear upon that case entrusted to him the highest possible degree of professional skill but he is bound to employ reasonable care and skill."
In the Van Wyk v Lewis 1924 AD 438 at 444 case it was held that:
"The court will have regard to the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which the practitioner belongs."
The test for negligence in medical malpractice cases is an objective one, taking into account the reasonable care and skill of the practitioner in exercising his duties and that of the members of the profession in the practitioner's field.
It is not required for the practitioner or the members of the profession to have acted in one specific way in any given situation, however, it is required that they must act in a reasonable way having exercised the skill and diligence that is expected in their profession.
In the case of Bolam v Friern Hospital Management Committee 1957 it was stated that the defendant had to have acted in accordance with the practice accepted as proper by a responsible body of medical men or a standard of practice recognised as proper by a competent reasonable body of opinion.
This view is correct in that in the medical profession it is not possible to always have a definitive conclusion in certain cases. Practitioners may apply different methods to achieve the same result. The question it seems is not what specific steps the practitioner should take in exercising its duties of care and skill, but rather what reasonable, responsible and respectable steps the practitioner can take in achieving the required end result. A practitioner will not be liable for negligence if he can prove that he exercised skill and care in the method administered, even though he did not achieve the result he intended, that is the patient's condition worsened or he subsequently died.
Logical basis and comparative risks and benefits
The components that a body of an opinion relies upon must be reasonable, respectable and responsible. This demonstrates that the experts have directed their mind in a logical manner and have taken into account the risks and benefits to the patient and have reached a defensible conclusion to the particular situation.
Logic denotes a critical analysis of the situation and the patient. This is a step by step process where the practitioner and/or the members of the profession reason and find rational argument to their conclusions and decisions. The reasoning applied must be assessed according to strict principles of validity, and each step must ultimately reach a defensible conclusion on the matter.
Once the practitioner and/or members of the profession have taken a decision in respect of the treatment they will administer, they must further compare the risks and benefits associated with the procedure before continuing with it. The condition of the patient at the time of the procedure must be considered and the practitioner must reconcile himself that the treatment he is employing is for the benefit of the patient and not only a necessary procedure that would ordinarily be administered in that particular situation. This would prove that the practitioner directed his mind in the situation.
The Appellate Division in the case of Van Wyk v Lewis 1924 AD 438 held that the doctrine of res ipsa loquitur does not apply in medical negligence cases in South Africa. Res ipsa loquitur is a doctrine or maxim that functions in the realm of the law of evidence and gives rise to a permissible inference that may be drawn if it is sustained by the proven facts. The maxim applies in those instances where a plaintiff proves an injurious result caused by an instrumentality that was in or under the exclusive control of the defendant or an injurious result following upon the happening of an occurrence solely under the defendant's control. It is furthermore said that the maxim can only be applied where the negligence alleged depends on absolutes and not relatives.
In the case of Gabriel Buthelezi v Priscilla Zanele Ndaba (575/2012)  ZASCA where the practitioner had conducted the hysterectomy procedure a 1000 times before in his 20 years of experience, he still had to take into account the tethering or adhesions between the organs that the patient had sustained before during a caesarean section in order to establish the risks to the patient. It was determined by the experts that the tethering during the caesarean section could have caused the fistula although this was not conclusive. Experts when reaching their decisions should not only rely on experience to determine a particular result, but should also apply their mind to the particular situation. In this case the appeal court found in favour of the appellant because it was not determined what had actually caused the fistula and therefore negligence was not proved. However, if it is proved that a practitioner conducted a procedure he had always done before, without taking into consideration the condition of the patient at the time of the procedure, and subsequently as a result thereof the plaintiff suffers damages, then that practitioner should be held liable, as it was not logical to conduct a procedure in such a situation without first considering the risks to the plaintiff.
In the case under discussion the experts for the appellant and for the respondent had conflicting testimonies in respect of what the appellant should have done when confronted with the respondent's bedsores.
The court considered the following:
The respondent's expert evidence was simply that the practitioner should have turned the respondent despite the threat that it posed to the respondent's life. The evidence submitted was that all bedsores are preventable and or treatable; patients who are in the Intensive Care Unit must be treated for bedsores regardless of their condition and there must be irrefutable proof that the life of the patient is at risk of death if the bedsores were to be treated.
The appellant's expert evidence was that the bedsores had developed during the critical period, during which time the respondent's condition was so bad that if he had to be moved even slightly his blood pressure levels would have further dropped to such an extent that it could have resulted in death. The appellant on this premise made the decision not to turn the respondent after having considered that it could result in his death.
When the court considered the respondent's evidence it found that such evidence lacked logic and further failed to compare the risks and benefits of turning the respondent during the critical period. The court found that the evidence was more of a gamble rather than sound reasoning. Even if ordinary practice would require a patient to be turned regularly to avoid bedsores, it cannot be said that this should be done in all circumstances despite the risks involved.
The court found that the evidence of the appellant was logical. The appellant acknowledged that the bedsores had developed, however they developed during the time when it was not advisable to move the patient at all because of the risks involved. The appellant reconciled himself not to move the patient as this was in his best interest, even though he would suffer a terrible fate. The appellant was logical in his approach and further compared the risks and benefits of not turning the respondent.
When the court has to determine negligence in medical malpractice cases and has to consider conflicting testimonies from experts, it must apply the test for negligence applicable in the medical profession and rely on testimonies that are logical and those which have compared the risks and benefits to the patient. Testimonies that lack the aforementioned should be rejected.