10 October 2018 by and Dispute Resolution Alert

Medical negligence: Expert evidence not necessarily decisive – The SCA has spoken

In two recent cases, the Supreme Court of Appeal (SCA) illustrated a court’s role in evaluating expert evidence in matters concerning medical negligence. In doing so, the SCA issued a reminder that a court should not uncritically substitute its own judgment with the opinion of an expert witness. The logical reasons (or lack thereof) underpinning expert opinions should guide a court as to what weight to attach to it.

Life Healthcare Group (Pty) Ltd v Dr Suliman (529/17) [2018] ZASCA 118 (20 September 2018)

The alleged grounds of negligence related to the nursing staff’s failure to alert the attending doctor of decelerations in the foetal heart rate, and the unavailability of the requisite instruments and skills for the urgent delivery of the baby. The allegation in respect of the doctor’s negligence lies in the doctor’s hands-off approach in that he only saw the mother for the first time approximately 10 hours after she had been admitted. The only question before the High Court was the apportionment of liability between the hospital and the doctor.

The High Court held the hospital 100% liable for the damage as a causal link between the doctor’s negligence and the damage was not proved.

Shongwe ADP, writing for the SCA, reiterated that establishing factual causation with sufficient certainty can be difficult in medical negligence matters. It must be established that, ‘but for’ the doctor’s conduct or omission, the harm would not have occurred (Lee v Minister of Correctional Services [2012] ZACC 30). In respect of factual causation, the SCA stated that the High Court should have asked whether it was “more probable than not that the birth injuries suffered by the baby could have been avoided if Dr Suliman had attended the hospital earlier”.

The High Court relied on an isolated statement of the hospital’s expert to arrive at its factual causation finding, when the expert said that he “could not say that the baby would have been saved [if the baby was] delivered by caesarean section at some time between 17h30 and 20h00”. On appeal the SCA found that the expert contradicted his own statement when he indicated that:

There is strong reason to believe that, [an earlier decision to do a caesarean section] would have [prevented the cerebral palsy], because cerebral palsy or brain damage does not occur to that extent that rapidly.

The joint minute of the respective experts also confirmed that the damage could have been prevented if the doctor had seen the patient earlier as the brain damage probably only occurred at a later stage of the labour process.

After careful consideration of all the evidence, the SCA cautioned judges against readily accepting isolated statements of experts, especially when dealing with a field where medical certainty is virtually impossible. Expert evidence must be weighed, as a whole, and it is the exclusive duty of a court to make the final decision on the evaluation of expert opinion.

Accordingly, the SCA held that the doctor’s conduct was causally connected to the damage. The SCA upheld the appeal and ordered an apportionment of 60% - 40% in favour of the hospital.

MEC for Health, Western Cape v Quole (928/2017) [2018] ZASCA 132 (28 September 2018)

This case concerned allegations of negligence against medical staff, which essentially related to the pre-natal period, as it pertained to the treatment of the mother’s urinary tract infection and the non-intervention of medical staff to deliver the baby at an earlier stage. The baby in this matter was born with an abnormally small head (known as microcepahly). The main questions in the case related to the cause and time of occurrence of the microcephaly, and whether the cause was connected to the conduct of the medical staff.

The High Court found that the defendant’s medical staff breached their legal duty towards the mother and baby, and ordered that the MEC pay damages.

The SCA was critical of the High Court’s acceptance of the evidence of the plaintiff’s expert, which had no factual basis, while the opinion evidence of the MEC’s experts was logical, well-reasoned and founded on established facts. The High Court came to a general conclusion which made no factual finding as to the cause of the brain damage, nor did it set out reasons for its preference of the opinion of the plaintiff’s expert, over that of the defendant.

JA Dambuza, writing for the SCA, repeated the principle that “she who asserts a damage causing event must prove it”. The medical staff’s legal duty to the mother and her baby entailed, as set out in Van Wyk v Lewis 1924 AD 438, “an adherence to the general level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which they belong”.

The SCA confirmed that the evidence of medical experts is central to the determination of the required level of care and whether there was a breach of it. The requirement in evaluating such evidence is that expert witnesses support their opinions with valid reasons. Where proper reasons are advanced in support of an opinion, the probative value of the opinion is strengthened. As was held in the matter of Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E):

It is not the mere opinion of the witness that is decisive but his ability to satisfy the Court that, because of his special skill, training and experience, the reasons for the opinion which he expresses are acceptable.

The SCA ultimately held that both the cause of the damage and its timing remained unidentified and accordingly upheld the appeal, dismissing the plaintiff’s claim. The SCA warned that the fact that harm had been occasioned was not, on its own, proof that the medical staff caused it, or that they had done so negligently, or even that it resulted in the brain injury. Such reverse reasoning from effect to cause is impermissible. (Goliath v Member of Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA))

Conclusion

In both judgments, the SCA referred to the case of Michael & another v Linksfield Park Clinic (Pty) Ltd & another [2002] 1 All SA 384 (A) wherein it was stated that:

The court is not bound to absolve a defendant from liability for allegedly negligent medical treatment or diagnosis just because evidence of expert opinion… . The court must be satisfied that such opinion has a logical basis, … that the expert has considered comparative risks and benefits and has reached a “defensible conclusion”.

The SCA overturned both High Court judgments after proper consideration of the expert evidence. Neither expert opinions, nor the agreements contained in a joint minute of expert witnesses should be regarded as conclusive on its own. To make an informed finding, a court should enquire into the logical reasons which underlie the expert opinion. This is exactly what the SCA did in these judgments.

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