Buthelezi v Ndaba

[2013] ZASCA 72
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The respondent patient had filed a claim of negligence against the appellant doctor. She alleged that she suffered from urine incontinence after her hysterectomy surgery performed by the appellant.

When she consulted a urologist, it was found that a fistula or hole was present in the patient’s bladder wall.

In the High Court, there was a difference of opinion between the expert witnesses on whether the respondent’s condition was the result of negligence on behalf of the appellant. The expert called on behalf of the respondent (Prof Green) stated that it was the failure to keep the bladder separate and safe during the hysterectomy surgery that caused the perforation of the bladder. The expert called on behalf of the appellant (Prof. Snyman) stated that the cause was unknown and all the theories advanced were only speculations. The High Court accepted the opinion of the former and held the appellant liable for negligence. Hence the appeal.

The Court upheld the appeal and dismissed the respondent’s claim with costs. It stated that Prof. Synman’s opinion was based on his expertise and experience. His opinion that this type of injury irrespective of reasonable care by the surgeon could occur in a hysterectomy operation was supported by views published in international journals. Prof. Green did not produce any material in support of his hypothesis.

In his testimony Prof Snyman underscored the fact that no one really knew how the fistula came about and that all the theories advanced, including the one by Prof Green-Thompson, amounted to no more than speculation. Although he did not deny that Prof Green-Thompson’s thesis could be valid, his view was that there were other hypotheses that would have an equal claim to validity. Amongst these he seemed to prefer the possibility of a small cut in the bladder wall which occurred when the bladder was separated from the uterus, particularly because of the potential tetherings or adhesions resulting from the respondent’s previous caesarean section. The injury thus caused, he explained, could have been so small that it was not noticeable during the operation. Yet, over time and especially in the light of the respondent’s diabetes and the chronic pelvic infection from which she suffered, the small injury could have developed into the fistula. Another possibility that he recognised was the one suggested to the appellant in cross-examination, to wit, that the fistula resulted from an infection in the vaginal vault which was in turn caused by accumulated blood in the area of the oozing which had not been removed. With regard to the latter possibility Prof Snyman stated, however, that failure to remove the accumulated blood would not constitute negligence per se because ‘[t]here is good evidence that if you do not remove blood after an operation . . . it does not cause any problems . . . [because] the body absorbs [the accumulated blood]’..” (Para 12)

 By contrast, Prof Snyman’s opinion, based on his expertise and experience in practice, that this type of injury may result from a hysterectomy operation despite reasonable care on the part of the surgeon, appears to be well-supported by views expressed in international journals in the field. In fact, these publications seem to indicate that this type of injury to the bladder is generally accepted as one of the inherent risks of a hysterectomy operation. In these circumstances, I consider that the court a quo erred in finding that negligence on the part of the appellant had been established.” (Para 17)

 

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