Clarke v MEC for Health Western Cape and Another [2018] ZAWCHC 64 (8 March 2018)

Farieda Clarke underwent a laparoscopic cholecystectomy to remove her gallbladder on November 30, 2011, due to an inflammation usually associated with gallstones. The operation, performed by Dr. Petrus Rautenbach and Dr. Colin McGuire, two qualified specialist surgeons, was converted into an open cholecystectomy when the doctors encountered difficulties.

Mr. Suleiman Hoosen Bhaila, a Registered Specialist Surgeon, assisted with the open procedure. During the operation, a small tear in the duodenum was noted and repaired. A drain was also inserted, and the doctors performed a sub-total cholecystectomy on Clarke's recommendation.

On December 3, 2011, faecal material was found in the drain, and Clarke was taken back to surgery, where a 4cm perforation of the colon was diagnosed and treated with a hemicolectomy and ileostomy. Clarke alleged that the colon injury occurred during her initial surgery due to the doctors' negligence and that it caused the delayed perforation. She claimed that the injury was either caused by a diathermy or serosal injury to her colon, which the doctors failed to notice or repair.

Two expert witnesses, Dr. David Stein and Professor PC Bornman, offered conflicting opinions on the cause of the injury. Stein believed it was more likely caused by a diathermy burn, while Bornman favoured the serosal injury theory. Bhaila, who participated in the open surgery, testified that diathermy was not used during either stage of the procedure and that the injuries likely occurred during the open surgery while dissecting the colon and duodenum from the gallbladder.

The key issues were whether the surgeons caused a 4cm diathermy injury to Clarke's colon during the operation and whether they were negligent in failing to notice or repair the alleged diathermy injury. Clarke had to prove these claims on a balance of probabilities.

The court found that Clarke failed to discharge the onus of proving that the surgeons used diathermy negligently, as the evidence, including the factual testimony of Bhaila and the expert opinion of Professor Bornman, supported the defence. Additionally, the claim that the surgeons failed to notice or repair a diathermy injury was not proven, as it was likely that any injury occurred during the open surgery when Bhaila was present, and he would have identified and repaired it then.

Ultimately, the court dismissed Clarke's action for failure to establish negligence on the part of the defendants' employees.

The ratio decidendi of the case is that a plaintiff in a medical negligence case bears the burden of proving negligence on a balance of probabilities. Where expert opinions are conflicting, the court must qualitatively assess the evidence and determine which version is more probable. In this case, the court found that the plaintiff failed to discharge the onus of proving that the surgeons negligently used diathermy or failed to notice and repair a diathermy injury to the colon.

The court held that negligence is not established merely because something went wrong during an operation. Instead, plaintiffs must prove a definite act of negligence, and speculation is insufficient to discharge the onus of proof. The evidence of eyewitnesses who were present during the operation, if credible, carries more weight than the opinions of experts reconstructing the events.

Ultimately, the court held that the defendant surgeons acted reasonably and in accordance with acceptable medical practice, and their conduct did not amount to negligence.

The court found that when faced with conflicting opinions of experts in highly scientific or technical issues, it must determine whether and to what extent the opinions advanced by the experts are founded on logical reasoning or have a logical basis. The court emphasised that experts may legitimately hold diametrically opposed views and be able to support them by logical reasoning. In such cases, it is not open to a court simply to express a preference for one opinion over another. Instead, provided a medical practitioner acts in accordance with a reasonable and respectable body of medical opinion, their conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently.

The court also highlighted that direct and credible evidence regarding what occurred during an incident carries greater weight than the opinion of an expert, irrespective of his experience. This is because an expert's view of what might probably have occurred must give way to assertions of the direct and credible evidence of an eyewitness, especially when such direct evidence is not improbable.

In this case, the court relied on the testimony of Mr. Bhaila, an eyewitness expert, and Professor Bornman, an independent expert, to determine the likelihood of a diathermy injury occurring during the surgery. The court found Mr. Bhaila's evidence to be clear, concise, and uncontroverted, and it accepted his testimony over the speculative opinions of Dr. Stein, the plaintiff's expert. The court concluded that the plaintiff had not discharged the onus of proving that the surgeons used diathermy in a manner that caused a diathermy injury to the right colon, and therefore, no negligence on the part of the defendants' employees could be established.

In evaluating the expert evidence, the court referenced several cases to establish principles for assessing such evidence, especially when faced with conflicting expert opinions. Here are the cases cited along with a summary of their relevance:

1. Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA): This case establishes that when faced with conflicting expert opinions, a court must determine the extent to which the opinions are founded on logical reasoning. The court must not merely express a preference for one expert over another without a logical basis for doing so.

2. Louwrens v Oldwage 2006 (2) SA 161 (SCA): Similar to the Michael case, this decision underlines the importance of logical reasoning in expert testimony. The court must assess the inherent probabilities and truthfulness of the expert evidence.

3. Mitchell v Dixon 1914 AD 519: This case sets the standard for medical negligence, stating that a medical practitioner is expected to employ reasonable skill and care, not necessarily the highest possible degree of professional skill. The burden of proving negligence rests on the plaintiff, and the mere occurrence of an accident is not prima facie proof of negligence.

4. Medi-Clinic v Vermeulen 2015 (1) SA 241 (SCA): This case highlights that a medical practitioner's conduct cannot be deemed negligent if it aligns with a reasonable and respectable body of medical opinion, even if another body of opinion would have acted differently. It underscores the principle that expert opinions can legitimately differ without necessarily attributing negligence.

5. F M v Member of the Executive Council, Department of Health, Eastern Cape: This case illustrates the complexity of the human body and its reactions to surgical interventions. It acknowledges that complications can arise without negligence and that expert opinions on what might have occurred are often speculative, giving rise to various feasible possibilities.

6. Buthelezi v Ndaba 2013 (5) SA 437 (SCA): Although not detailed in the provided summary, this case likely reinforces the principles regarding the evaluation of expert evidence and the determination of negligence in medical malpractice cases.

7. Hucks v Cole [1968] 118 New LJ 469 ([1993] 4 Med LR 393) and Castell v De Greef 1993 (3) SA 501 (C): These cases are cited for the proposition that not all complications in medical treatment are indicative of negligence. A practitioner is not deemed negligent for an error that a reasonably competent practitioner might have made under similar circumstances.