BACKGROUND AND SUMMARY
The Defendant is a practicing neurosurgeon and the Plaintiff was his patient. During or about 2004, the Plaintiff consulted with the Defendant in respect of a nerve related pain. The Defendant operated on the Plaintiff to repair, inter alia, an intervertebral disc herniation. The operation was successful and the Plaintiff was rendered free from pain.
In or about 2011, the problem recurred. The Plaintiff visited 2 (two) other medical professionals, who prescribed medication and various forms of treatment, which provided no relief. Thereafter, the Plaintiff returned to the Defendant, who proceeded to perform a routine examination and took a history. The Plaintiff advised the Defendant of the medications and other medical treatments he had attempted and, further, confirmed that the purpose of his visit to the Defendant was to consider the possibility of further surgery.
On the Defendant’s advices, the Plaintiff underwent a Magnetic Resonance Imaging (“MRI”) scan. The Defendant noted a bulging disc as well as scar tissue. The Plaintiff recalls that the Defendant stated that the operation to remove the scar tissue was a simple operation, and has no recollection of the Defendant mentioning the risks involved in the operation and, in fact, believed that there were no risks involved.
Accordingly, the Defendant performed a revised operation; however, such operation was less successful than the initial operation on the Plaintiff and, the Plaintiff sustained permanent and irreversible nerve damage.
The Court held that there were 3 (three) issues to be determined:
1. firstly, whether or not the Defendant was negligent in not treating the Plaintiff conservatively in the first instance before resorting to surgery;
2. secondly, whether or not the Defendant failed in his duty to obtain the Plaintiff’s informed consent to the surgery; and
3. finally, whether or not such negligence on the Defendant’s part, if any, contributed to, or was the cause of, any damages which the Plaintiff might have suffered.
The two versions placed before the court were irreconcilable. The test, in such circumstances, is that the Plaintiff can only succeed if he pleases the court on a preponderance of probabilities that his version is true and accurate and, therefore, acceptable. The Plaintiff must further show that the other version advanced by the Defendant is, therefore, false and must be disregarded. In deciding whether that evidence is true or not, the court will compare the plaintiff’s allegations against the general probabilities.
Both the Plaintiff and the Defendant relied on the evidence of expert witnesses. The Court held that the difference between the evidence of the Plaintiff’s expert and the Defendant’s expert is principally a matter of opinion. The expert of the Plaintiff and the Defendant, respectively, agreed that in the circumstances, it was not unreasonable for the Defendant to have recommended surgery without further conservative treatment. Further, the Court held that even if it could be shown that the Defendant was negligent in not treating the Plaintiff conservatively before resorting to surgery, the Plaintiff had not succeeded in presenting a case that further conservative treatment would have resulted in recovery. Accordingly, the Plaintiff had failed to discharge the onus of proving causal negligence on the part of the Defendant.
The Court found in favour of the Defendant.
This case highlights the methodology used by the Court when ruling upon issues whereby there are materially contradictory versions of expert evidence.
Written by Loyiso Bavuma and supervised by Kerry Theunissen
09 July 2019