IN THE HIGH COURT OF SOUTH AFRICA

CASE NO: 9230/2005

In the matter between:

and

[2] The defendant is the Minister of Health, Western Cape, in his official capacity as the member of the Executive Council responsible for health in the Western Cape, which includes the George Hospital, George.

[5] At the commencement of the trial, I ordered, at the request of the parties, a separation of the issues in terms of Rule 33(4). The subsequent trail was concerned only with the questions of liability and causation. At the trial, the plaintiff was represented by Mr PF Cloete; the defendant by Mr D Irish and Ms N Bawa.

The course of events

[7] Philisandre was a healthy infant: at birth she weighed 3260g and the Apgar score was 9/10,10/10 and 10/10 at 1, 5 and 10 minutes.

[11] Some hours after the completion of the second exchange transfusion, the baby became pyrexic and tachycardic; she had a high blood glucose level, a prolonged capillary filling time and was tachypnoeic. Dr J Smit, the paediatrician on call, was consulted. An infection screen was ordered; dexamethasone was administered for a possible blood transfusion reaction; intravenous antibiotics was commenced to counter any septicaemia and a bolus (50ml) of normal saline was given.
[12] Dr Breytenbach assessed the baby at about lOhOO on 11 January and described her as acutely ill, possibly due to either septicaemia, or to meningitis or to kernicterus. She had apnoeic spells and was treated with phenobarbitone as Dr Breytenbach was concerned that the apnoea may have been convulsions related to early kernicterus. It was not clear at that stage whether the apnoeic spells could be attributed to septicaemia or to the previously high bilirubin levels.
[13] There were no signs on 11 January of compromised arterial blood supply to the baby's left hand and fingers, such as pallor, coolness, poor capillary refill time or discolouration. On the contrary, the patient persistently demonstrated both a good radial pulse and good capillary refill time.

[15] Dr Van der Walt was able to withdraw blood from the arterial line but encountered resistance when she tested injecting saline through the line. She accordingly decided to remove both the arterial line and the umbilical venous line, which was leaking blood. In view of the improvement of the baby's haemological status, it was at that time unlikely that another exchange transfusion would be required.

During the succeeding days, movement of the left arm is recorded but there is minimal movement of the fingers.

Beweeg armpie maar nie vingertjies. Lyk na klou figuur.

Spalkie aan linker polsgewrig. Vingers maak klou vorm.

Wiegieverpleging pienk en aktief. Abdomen sag, nie opgeset. Neem en behou voedings baie goed. Passeer urine en stoelgange. Linkerarmpie nog in spalk. Baba beweeg armpie met tye en met aanraking. Nog steeds ietwat sensitief met aanraking. Vingers pienk en voel warm, minimale beweging in vingers
The nursing note at discharge reads as follows:
Vitale tekens binne normale perke. Velkleur pienk. Linker armpie in spalkie en voorligting gegee aan moeder ivm versorging. Neem en behou voedings goed.

The plaintiffs cause of action
[32] The defendant admits that the doctors and medical staff employed at the George Hospital had an obligation to provide the plaintiff and the baby with medical advice, service and treatment with the skill, diligence and care reasonably required in the same or similar circumstances of hospitals, doctors and medical staff in their respective fields of specialisation with the requisite level of expertise and to do so in a manner which is not negligent. The defendant avers that on the admission of the plaintiff and her daughter Philasandre, the doctors and medical staff of the George Hospital had acted accordingly in providing medical services and related care.
[33] The plaintiffs Particulars of Claim were amended on several occasions, the last time during the course of the trial when it gave rise to considerable argument. In paragraph 13 of the Particulars of Claim as finally amended it is stated:

failed to consult with an experienced neonatologist at an early stage;
failed to ascertain whether arterial supply of the left arm had been compromised or not, by means of Doppler or other technology such as a pulse-oxymeter;
failed to ascertain the possible level of vascular occlusion by means of e.g. an arteriogram;
kept the arterial line m situ in the left arm, for more 10 hours without any anticoagulant (between, some time before 04h20 on 11 January 2002 and 14hl5 11 January 2002), exposing Philasandre to a high risk of thrombosis;
failed to initiate contralateral limb warming when vascular compromise was or should have been noted;
failed to consider and to perform a sympathetic cervical block;
failed to initiate anticoagulant or thrombolytic therapy at the appropriate time;
failed to treat Philasandre's arm with nitroglycerine application;
failed to timeously refer Philasandre to the surgical orthopaedic disciplines, or to an anaesthetist;
failed to intervene surgically when it was appropriate to do so;

13. 14 discharged Philasandre on 2 February 2002, despite evidence of the presence of a left-sided radial nerve palsy manifesting with a wrist drop, necrotic skin and a painful left arm, and at a time when it was therefore inappropriate to do so;
13.15 elevated Philasandre's left arm, and kept it elevated for some time, when it was inappropriate to do so.
[34] The fifteen grounds in respect of which it was contended that the doctors and medical staff at the George Hospital would be shown to have been negligent were all canvassed, in greater or lesser detail, during the course of the trial. Counsel for the plaintiff relied on but two of those grounds of negligence in argument at the end of the trial. These are:
1.	
2.	The inappropriate discharge of the patient on 2nd February, 2002, as alleged in sub-paragraph 13.14 of the plaintiffs Amended Particulars of Claim.

[35] The plaintiffs case has during the course of the trial undergone considerable shift, and much of the evidence of the two experts called by the plaintiff has been effectively abandoned. The shift in the plaintiffs case will, to the extent that it may be relevant, be considered below when the remaining two grounds of negligence on which the plaintiff relies, are considered.

The issue of negligence

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A specialist is required to employ a higher degree of care and skill concerning matters within the field of his speciality than a general practitioner. The objective 'reasonable physician test' is subjectified to the particular branch of medicine to which the specialist belongs. This means that it is expected from a specialist in the treatment of his patients to act as a reasonable specialist would have done under similar circumstances.

defendants, in acting in the way they did, were acting in accordance with a practice of a competent body of professional opinion ..

and that a medical practitioner -

	is not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular art.

5
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[38] The experts expressed divergent and conflicting opinions. A meeting of the experts was arranged in an effort to resolve the differences. The experts reached agreement on a number of matters (a minute of the meeting was placed before the Court as Exhibit "B"). However, on the issue of the cause of the left forearm tissue ischaemia they were unable to reach agreement. Professors Smith and Moore were of the opinion that the arterial line in the left radial artery and its management was the principal cause of the ischaemia. Dr Numanoglu was of the view that there is significant evidence that point to septicaemia as the underlying cause of the forearm ischaemia. Dr Solomons is unable to identity the pathogenesis and ultimate cause of the forearm ischaemia.

that the question of reasonableness and negligence is one for the Court itself to determine on the basis of various and often conflicting, expert opinions presented. As a rule that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the Court reaching its own conclusion on the issues raised.

An expert witness -

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1011

Chief Constable, Strathclyde Police13 :
[o]ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a Judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved - instead of assessing, as a Judge must do, where the balance of probabilities lies on a review of the whole of the evidence.

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	 I have to say that a judge's 'preference' for one body of distinguished

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The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer the one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.

The Supreme Court of Appeal gave its stamp of approval to this approach
1 o
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Other witnesses

[42] Some of the doctors and other medical staff who were involved in the treatment of the baby also gave evidence on behalf of the defendant. They were: Dr WFJ Bruere, a specialist orthopaedic surgeon who was head of orthopaedic surgery at the George Hospital at the time, and Drs WJJ Breytenbach and Dr HS Van der Walt, both specialist paediatricians. Sister LN Uithaler, who had been intimately involved in the treatment of the baby, and Mrs LC Ackerman, a physiotherapist, were also called to give evidence on behalf of the defendant.

[43] The three doctors, all specialists, were not called as experts and no expert summaries were filed on their behalf. Yet their expert knowledge as medical specialists cannot be ignored. After all, their conduct in the treatment of the baby is to be evaluated by the standard of care and skill required of the reasonable specialist within their respective fields of specialisation. The evidence they gave was therefore not purely factual: they gave evidence not only of the clinical facts they observed and of which they had personal knowledge, but also of their inferences from those facts and their conclusions as to the appropriate action in the circumstances. Thus both Dr Bruere and Dr Van der Walt stated in evidence that their observations of the clinical picture did not lead them to the inference that there was a compartment syndrome. In cross-examination, Professor Moore's hypothesis in regard to the existence of a compartment syndrome was canvassed with them and they were invited to state their opinions thereon20.

[45] The first of the two remaining grounds of negligence on which the plaintiff relies, is the alleged failure to operate on the baby's arm on or about 16 January 2002, in accordance with the allegations contained in sub-paragraphs 13.10 - 13.13 of the further amended particulars, being a failure to intervene surgically "when it was appropriate to do so"; a failure to perform a fasciotomy, a failure to debride necrotic tissue; and a failure to perform "explorative surgery".

[47] Compartment syndrome arises from swelling in the "compartment" formed by the sheet of fibrous tissue, the fascia, which envelopes a muscle. In the forearm the two major compartments are the extensor and flexor compartments. Prompt recognition and treatment of an acute compartment syndrome in a forearm compartment is necessary, for prolonged ischaemia can result in irreversible changes in the muscles, nerves and vascular endothelium, leading to permanent disability of the and and wrist. Professor Moore explained that if -

	for whatever cause, if you get swelling inside of those compartments you
will get pressure on the artery, you'll get pressure on the nerves and that will increase. So any hint that there is a compartment syndrome, every surgeon knows that the most important thing to think about and to evaluate is to do a fasciotomy by which it means you just cut the skin, the underlying tissues and that fascia over the muscles, it releases the pressure and allows the blood to get in.

Dr Solomons pointed out that as a general rule, skin death or amputation is not a consequence of compartment syndrome.

[48] The contention that on or about 14 or 15 January there was a compartment syndrome present in the baby's forearm is not premised on the mechanism Professor Moore relied upon for his postulated compartment syndrome. Professor Moore's evidence was that the compartment syndrome was occasioned by a thrombus forming more or less at the site of the radial artery cannula, and that the thrombus then propagated itself proximally up the radial artery towards the bifurcation of the brachial artery, in the process compromising arterial supply to one or other of the compartments in the forearm. There was extensive debate in cross-examination as to the method by which it would be the flexor compartment (supplied principally by arteries arising from the ulnar artery with collateral supply from above the elbow) and not the extensor compartment (supplied by the radial network with an extensive collateral supply) that was initially affected, if the swelling noted did indeed have any relation to a compartment. The plaintiff no longer relies on the theory propounded by Professor Moore, and it was conceded in argument that it was improbable that there was an arterial thrombosis,

[49] It was further conceded in argument that the most likely cause of the postulated compartment syndrome was probably septicaemia. In making this concession, the plaintiff effectively abandoned the evidence to the contrary of Professor Smith, and indeed also that of Professor Moore. The concession that there was an underlying infection present is well justified in the light of the evidence of Dr Numanoglu and that of Professor Kirsten. In response to an invitation to express a view as to the probability or otherwise of the baby undergoing some form of infective process, Professor Kirsten said:

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[50] Mr Cloete found support in the evidence of Dr Numanoglu and Professor Moore for the submission that any compartment syndrome in this case might have been caused by septicaemia. In his report under Rule 36(9)(b) and in his evidence, Dr Numanoglu stated that the hospital records suggest that the ischaemic changes which occurred in the baby's arm were the result of bacterial septicaemia, and specifically, bacterial endotoxaemia leading to endothelial damage, microthrombosis and haemorrhagic necrosis. In cross-examination, Dr Numanoglu agreed that the leaking of the fluid part of the blood outside the blood vessels and capillaries can increase the pressures within the compartments and can lead to compartment syndrome. Dr Numanoglu stated that the process is an uncommon phenomenon which has been the subject of a retrospective review of about 100 patients at the Red Cross War Memorial Hospital over a 28 year period from 1978 to 2000. Professor Moore agreed that -

	 the micro circulation gets involved and there is necrosis which causes
swelling in the compartments and then the rest of the thing is fairly standard.

[51] On the question whether it was possible that septicaemia could lead to compartment syndrome, Dr Solomons said in evidence:

Whether infection can cause a compartment syndrome or an infection of muscle and the arteries and nerves deep inside the forearm, I have never seen it, I have never heard about it, I have never read about it, but I'll defer to the opinion of the neonatologists and pediatrician surgeons. I wouldn't know whether that's possible, or not.

[52] Dr Solomons emphasised that the diagnosis of acute compartment syndrome remains principally a clinical diagnosis. He agreed that -

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Dr Solomons described the swelling as a wooden-like tenseness. An oedematous swelling, which is a subcutaneous swelling, is soft and spongy and not consistent with that of a compartment syndrome which is woody and hard.

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[54] Dr Solomons further pointed out that discolouration of the skin and blistering are atypical of compartment syndrome. He added that he had seen many, many compartment syndromes but -

I have never seen or heard of a compartment syndrome presenting with skin lesions.

Stevanovic and Sharpe25do not include skin lesions in their "5 p's" of the diagnosis of compartment syndrome: pain, pain with passive motion, pallor, pulselessness, and pareshesia and paralysis.

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[56] In regard to his awareness of compartment syndrome, Dr Bruere testified that he had "done orthopaedics" for 35 years and that -

the first and foremost thing you do when you look at a swollen or injured limb is to establish the neuro-vascular status of that limb. That is the first thing you do. You feel for the pulses, you check for sensation, you check for movements, muscular function. If — you make sure that the swelling does not involve a compartment. So you look for all the signs of compartment syndrome. It is fundamentally ingrained in any orthopaedic surgeon's mind. And anybody who does orthopaedic surgery thinks that way, especially in the circumstances of George Hospital, where you're dealing with large volumes of neglected trauma, neglected infections and that sort of thing

Gesien deur Dr La Grange, Dr Bruere & Dr Moodley: Arm deeglik bestudeer. Bespiegel dat skade reeds gedoen is. Eerste gedeelte van voorarm? reeds nekroties is. Wil baba teater toe neem. Wil kyk wat onder aan gaan; Besluit weer om nog dop te hou vir 1 dag of twee. Hou ge-eleveer op druipsakkies. Nie sodat handjie hang nie. Baba oor algemeen baie beter. Indien ouers kom sal Dr La Grange met ouers wil praat indien hulle vrae het.

Sister Uithaler testified that she was not party to the discussion and that she merely wrote down her impressions of what she heard. Neither sister Uithaler nor Dr Bruere has any independent recollection of the discussion which had taken place between the orthopaedic surgeons. According to the note, the surgeons were in a quandary as to what exactly to do and whether an interventionist or conservative approach should be adopted.
Dr Bruere's said that the orthopaedic team usually did ward rounds together and what the note reflects, is the doctors in attendance debating the case among themselves. He added that the discussion of going to theatre was part of their debate, of their analysis of the case: at that point, there was no threat to the patient; the necrosis was not becoming more extensive and the baby was getting better and, indeed, breastfeeding. In other words, there was no point in opening up the arm and operating, especially in that they did not think there was compartment syndrome. In the end they decided that they were not going to go in, but that they would wait and see what happens.

[58] Dr Bruere said that he considered it bad practice to operate on compromised tissue "just because you want to have a look". Support for this view is found in the evidence of Dr Solomons who said that in the presence of both staphylococcus aureus and enterobacter organisms he would have counselled against surgical intervention. Dr Numanoglu drew attention to the further consideration that the baby's general condition would have to be taken into account as the child's condition needs to be fit for a general anaesthetic to be able to performance fasciotomy, otherwise one might be taking a greater risk by doing a fasciotomy on a sick child because of the anaesthetic complications.

breast-feeding27 ; a fact which, as Mr Irish submitted, is hardly compatible with the insistent and unremitting agony which a compartment syndrome would cause.

[67] When the baby was discharged it was no longer sick, it had recovered from the jaundice and the sepsis31. The baby had two small open wounds on her forearm in respect of which all signs of infection had cleared. Dr Bruere testified that he and Dr Dippenaar agreed that the baby was fit to be discharged:

As to the state of the arm Dr Bruere said:

Those (sores) were skin defects. I can't remember if the actual dead skin had come off, or if they were like scales sitting there, or scabs. I'm not sure about it, but I know that I was happy that there was no active infection or any threat to that arm coming from that ulceration.

As far as wrist drop is concerned, it has been pointed out above that the causes of wrist drop are various. Professor Kirsten pointed out that wrist drop in a baby is often the result of an arm being stretched in delivery (which is not the position in the present case), that it is a condition which heals in time and that there is nothing one can do in a hospital to speed it up. He stressed that "[w]rist drop on its own is not a contraindication to send a child home."

When asked whether the baby was in pain at the time of discharge, Dr Bruere said that the baby looked healthy and fine, and was on the mother's arm. Professor Kirsten said that the sores, though healing, might have caused some residual pain which could have been controlled by an analgesic such as Panado syrup. He added that if a baby has pain, it will usually cry all the time. There is no indication that upon discharge the baby was distressed and crying. Upon discharge of the baby, Panado syrup was prescribed for use as needed32.

In paragraph 16.7 of the defendant's request of further particulars for purposes of trial, the plaintiff was asked:

On what basis does Plaintiff contend that Philasandre should not have been discharged at the time when she was discharged?"

The reply was as follows:

Because Philasandre had a critically ischaemic limb when she was discharged. The loss of motor function in a critically ischaemic limb is of particular significance as loss of motor function heralds impending muscle necrosis.

In response to a further question, the plaintiff stated:

The Defendant's employees, by discharging Philasandre with a critically ischaemic limb, failed to exercise the general level of skill and diligence possessed and exercised by members of the branch of the profession to which they belong.

Earlier intervention could probably have prevented the development of cellulites and therefore limited the extent of the amputation.

In his evidence in chief, Professor Smith confirmed this view and stated:

In my view the discharge from hospital was not indicated and represents sub-optimal clinical practice. Earlier, in my view, earlier intervention could probably have prevented the development of cellulitis which we will get to later on and therefore could have limited the extent of the amputation.

He added that the fact that the baby was inappropriately discharged -

	is also borne out by the fact that the infant developed cellulitis and that it
would not and should not have occurred if the infant was in hospital.

Professor Smith explains this statement as follows:

Cellulitis in the situation probably occurred due to neglect after the infant was
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developing progressive poor blood flow to the tissues the infant became more and more prone to secondary infection.
Professor Smith was then asked whether it is correct that on the day of discharge there was not evidence in the hospital records of cellulitis. His response was, "It appears like that yes."

[71] Professor Moore in his evidence explicitly confirmed the following statement is the summary of his expert opinion filed under Rule 36(9)(b):

It is my opinion that the discharge of the patient with a critically ischaemic arm had an influence on the eventual outcome and was probably responsible for the fact that the amputation had to be revised at a higher level than the initial amputation level.

In evidence he elaborated on this point of view by stating that -

	I felt that by not dealing with the problem when there was a claw hand,
when there was sepsis, severe sepsis, by discharging the patient home to whatever bugs there might be there to improve on I suppose, and delay the amputation it increased the level of sepsis and led to the fact that it could'nt be just a dry gangrene which could just be cut off and one a nice, clean surgical closure; it had to be a stage procedure which involved further surgery, two further operations to get it closed which included shortening the bone so that the muscles could cover it and left the child with a relatively short arm .Now that's the only point I wanted to make from it and a did'nt criticise the actual amputation and looking at the picture, it's not a bad result.

Numanoglu pointed out, granulation is part of the healing process and incompatible with an inadequate blood supply to the affected areas.

[73] The second preliminary observation relates to Professor Moore's contention that the delay of the amputation increased the level of sepsis and led to the fact that there was not merely a dry gangrene which could be excised in one, clean surgical closure, and that it had to be a staged procedure which involved further surgery. This is not borne out by the evidence of Dr Bruere and the contemporary hospital note - Dr Bruere in doing the amputation found dry gangrene without any sign of suppurating or infected wet gangrene.

If you just look at the wound itself, which is under control and with regards to the sepsis, one can follow it up. One can follow the patient in an outpatient setting or even a day hospital setting. If you just look at the wound and the treatment of the wound.

This approach is supported by Professor Kirsten who said that the decision whether or not to discharge a child with necrotic skin on a forearm would be one within the domain of surgeons and orthopaedic surgeons who deal with many babies on an outpatient basis, and -

They know in which ones they can close the wound or wounds, send the mother and baby home, and then reassess because it is a slow healing process.

[76] Dr Bruere, who had examined the baby prior to discharge, was of the opinion that there was no active infection or any infective threat to the arm. In my view, his decision to discharge the baby with follow up at the orthopaedic clinic was in accordance with accepted practice and cannot be faulted.

Causation

[79] The existence of such a causal link is premised on the necessity of surgical intervention on or about 16 January. If there had been no necessity to intervene surgically at the time, the absence of surgical intervention cannot be a cause of the eventual amputation. It has been held above that there is no merit in the first of the two remaining grounds of negligence on which the plaintiff relies; namely, the alleged failure to operate on the baby's arm on or about 16 January.
[80] Moreover, it has further been held above that the discharge of the baby on 2 February was not inappropriate and not negligent. If there was no wrongful conduct, there can be no legal liability.

Conclusion

[79] The plaintiff has not established negligence on the part of the defendant's employees on the two remaining grounds relied on at the end of the trial. The claim must accordingly be dismissed.

[80] There is no reason why costs should not follow the result, such costs to include the costs consequent upon the employment of two counsel. The defendant is also entitled to the qualifying costs of the expert witnesses, Dr AN Numanoglu, Dr MS Solomons and Professor GF Kirsten, and the costs incurred in bringing to Cape Town, Dr WFJ Bruere, Dr WJJ Breytenbach, Dr HS Van der Walt, Sister LN Uithaler and Mrs LC Ackerman.

[81]  The following orders are made:
1. The plaintiffs claim is dismissed with costs including the costs consequent upon the employment of two counsel.
2. The plaintiff must pay the qualifying costs of the expert witnesses, Dr AN Numanoglu, Dr MS Solomons and Professor GF Kirsten.
3. The plaintiff must pay the costs incurred in bringing to Cape Town, Dr WFJ Bruere, Dr WJJ Breytenbach, Dr HS Van der Walt, Sister LN Uithaler and Mrs LC Ackerman.

HJ ERASMUS. J