“Aide Memoires such as these can turn out to be invaluable particularly when witnesses are expected to cast their minds back to what may have transpired in a very busy hospital close on seven years previously, when litigation was not in contemplation. As stated by the defendant’s counsel, given the contemporaneous nature of such notes and records, they are not susceptible to the vagaries of the frailty of human memory” – Zwedala v The Member of the Executive Council for Health, Eastern Cape 2018 JDR 1325 (ECB).
Generally speaking, the onus of proof in a medical malpractice claim falls on the plaintiff, including to prove on a balance of probabilities that the healthcare provider acted causatively[1] negligent[2]. The plaintiff may discharge his / her evidentiary burden by leading factual evidence, in the form of both viva voce and documentary evidence. The plaintiff will also in all probability require the evidence of an expert witness(es), to consider the standard of care provided by the healthcare provider, and testify that same fell short of the reasonable standard expected.
Once a plaintiff has adduced sufficient evidence from which an inference of negligence can be drawn, it is up to a defendant to provide an explanation as to why no negligence should be found on his/her/its part and rebut the evidence led by the plaintiff[3]. The defendant healthcare provider may do so through the leading of factual (viva voce and documentary) and expert evidence.
In instances where a plaintiff is not in a position to produce evidence on a particular aspect, such as where the matter is peculiarly within the knowledge of the defendant (for instance, healthcare providers), less evidence will suffice to establish a prima facie case against the defendant. In such situations, the law places a shifting evidentiary burden on the defendant to show what steps were taken to comply with the standards to be expected[4].
Once all the evidence has been led, the court will be called on to decide the issue of negligence on the entirety of the evidence led by both the plaintiff and the defendant. It is not necessary for a plaintiff in a civil case to prove that the inference of negligence he/she seeks the court to draw is the only reasonable inference; it suffices for him/her to convince the court that the inference is the “most readily apparent and acceptable inference from a number of possible inferences”[5].
There is a multitude of reported judgements involving inadequate record keeping by the healthcare provider, or the medical records have simply gone missing. Such judgements are rarely in favour of the healthcare provider, a few of which is discussed below by way of illustration:
- The Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) matter involved a surgical swab left behind in the appellant’s[6] abdomen during a surgical procedure. The hospital records were “missing”, and the respondent[7] led no viva voce evidence of the nursing staff involved:
- The court pointed out that as the appellant was under general anaesthetic during the surgery, the facts of what occurred during surgery were solely within the knowledge of the respondent’s employees, none of whom were called to testify (for instance to testify if there was a swab count prior to closing up the appellant).
- On the basis of the logical inference that the swab was not removed prior to closing up the plaintiff (as it could not have found its way into the appellant’s abdomen in any other way), and the evidence of the plaintiff’s expert that leaving behind a swab “should not happen ever”, the court held that the appellant had adduced sufficient evidence for an inference of negligence to be drawn against the employees of the respondent involved in her surgery. The respondent, by failing to adduce any evidence whatsoever (be it the medical records or the viva voce testimony of the nursing staff involved) to show that reasonable care was indeed taken during the surgery, took the risk of judgement being given against him. The court found in the appellant’s favour.
- In the matter of Khoza v MEC: Health and Social Development 2017 JDR 1912 (GJ), baby Khoza was born with cerebral palsy. The hospital produced substandard records, and did not call any of the staff involved in the monitoring or delivery of either the plaintiff or baby Khoza, to give evidence:
- The experts testified that:
- The midwives gave sub-standard care as they did not monitor the maternal condition and fetal heart rate in accordance with the reasonable standard (if they had monitored their condition, it was not recorded);
- From the records that were available, the baby had to be intubated at birth for severe birth asphyxia. Expert evidence was that the event that caused the birth asphyxia was acute and profound, but unidentified, and occurred shortly before or at the time of birth. The experts further testified that the birth asphyxia resulted in hypoxic ischaemia[8] and subsequent cerebral palsy.
- The court held that, in the absence of an explanation by the defendant on what transpired during the plaintiff’s labour and baby’s delivery, on all the evidence presented to the court, the defendant’s staff were negligent. The court commented that:
“How can it be that the defendant who fails to comply with accepted standards of record-keeping, is allowed to benefit from its own remissness by declining to call viva voce evidence to supplement the inadequate record?
. . . the fact of the unexpected and unusual event of cerebral palsy following an otherwise uneventful labour and birth, does not of itself justify the inference of negligence; but it does place a duty on the defendant to call the witnesses who were there and can therefore likely explain what happened, if it wishes to avoid the risk of a finding being made that in all the circumstances of the case, the staff were more probably than not casually negligent in relation to the resultant consequence”.
- The appellant[9] in Saki v Member of the Executive Council of the Department of Health, Eastern Cape Government 2020 JDR 2064 (ECG) attended at the respondent’s[10] hospital for injuries sustained when he walked into a glass door. During a review consultation a few weeks later, a large shard of glass (8cm x 3cm) was discovered in the wound on his thigh, causing infection:
- The appellant testified that the medical personnel did not explore his wound during the initial consultation. The nurse involved in the appellant’s care during this consultation, testified that she examined and explored the wound, but was unable to provide a reasonable explanation for the omission to record the examination of the wound in the hospital records.
- The appellant’s expert testified that it was highly improbable that a shard of glass that size could have been concealed in the appellant’s thigh, cognisant of his slender build.
- The court held that there was sufficient evidence to evince a reasonable inference of negligence, in that it is more probable than not that the nurse failed to explore the appellant’s wound properly for any foreign objects lodged therein.
- MB v The Member of the Executive Council for Health and Social Development of the Gauteng Provincial Department 2018 JDR 1791 (GJ) involved another cerebral palsy baby where most of the records pertaining to the labour and birth periods were lost by the defendant (including the antenatal and intra-partum records). The plaintiff provided factual evidence and led the evidence of expert witnesses. When coming to a decision, the court accepted the following factual and expert evidence:
- The baby was healthy just before the delivery process commenced, she was born with a cord around her neck, required immediate resuscitation at birth, and was diagnosed with mixed cerebral palsy;
- MRI imaging showed evidence of a prolonged, partial hypoxic ischaemic insult. Experts agreed that in the case of a prolonged, partial hypoxic ischaemic insult, with proper monitoring, fetal distress can be detected at an early stage, and the resultant early intervention would lead to a positive outcome;
- The court accepted the plaintiff’s evidence that she was connected to a CTG monitor and that, about 4 hours before delivery, a doctor mentioned something about a caesarean section to a co-worker. In the absence of any of the attending doctors and nurses testifying to negate “this irresistible conclusion”, the court inferred that the consideration of a caesarean section must have been a manifestation of the doctor foreseeing a complicated delivery as a result of warning signs depicted on the CTG monitor or from the plaintiff’s condition. The court concluded that on the probabilities, the defendant’s employees were negligent.
- In Meyers v MEC, Department of Health, EG 2020 (3) SA 337 (SCA) the respondent’s[11] surgeon performed a laparoscopic cholecystectomy on the appellant[12]. It was discovered in a second surgery by the same surgeon that the appellant had sustained two small injuries (2mm in diameter) to the bile duct, leaking bile and causing infection. Judgement by the Supreme Court of Appeal was divided, with the majority judgement being in the appellant’s favour:
- The surgeon was unable to recall the operation specifically, given the number of surgeries he performs, and was guided during his testimony by his contemporaneous operation notes. These included that he queried electro-diathermy as a possible cause for the injuries, made at the time of the second surgery. As he was unaware of the injuries at the time of the first surgery, he was unable to say definitively what had caused it;
- The experts for the appellant and respondent were in agreement that the injuries could only have been caused by electro-diathermy or mechanically inflicted. It was further accepted that one of the “10 commandments” of gallbladder surgery is to not use electro-diathermy in Calot’s triangle[13] (referred to as a danger area by the experts). The surgeon conceded that, if electro-diathermy was used in Calot’s triangle (which he denied), the injuries one would expect to find would be similar to those suffered by the appellant;
- The court held that, at the close of the appellant’s case, the evidence suggested negligence, and placed an evidentiary burden on the respondent (through the surgeon) to shed some light on the circumstances of the appellant’s injury. The surgeon could, however, not recall the surgery, and neither did his operation note contain an exculpatory explanation for the injury. The court held that, in the circumstances, the surgeon failed to tip the scales against the appellant, and the inference of negligence against him was unmoved.
The caselaw illustrates the importance of medical records in rebutting the inference of negligence made against a defendant healthcare provider after the closing of a plaintiff’s case. It is most often than not imperative for a successful defence that the defendant healthcare provider gives viva voce evidence on his / her treatment of the patient during the trial, be it the medical practitioner or the nurse(s) who rendered the medical care. Most medical malpractice claims only come to trial many years after the treatment was rendered. The contemporaneous notes made by the healthcare provider(s) as part of the medical records are of invaluable assistance to such healthcare provider(s) as a reminder of the treatment rendered, most of whom would by then have no independent recollection of either the patient or the particularity of the treatment rendered.
Our courts assess the opinions of experts on the basis firstly of whether the underlying facts relied on by the witness as basis for the opinion have been established on a prima facie basis[14]; and secondly whether and to what extent their opinions advanced are founded on logical reasoning[15]. Accordingly, the factual information contained in medical records (often supplemented by viva voce evidence) are imperative for an expert witness to prepare a balanced report on patient care, particularly that the insured healthcare provider has met the standard of care expected, that will withstand judicial scrutiny.
When regard is had to the above adverse findings against healthcare providers brought about by insufficient record keeping, it is no surprise that it is a material term of most medical malpractice insurance policies that the insured healthcare provider must maintain and retain (for at least the stipulated period of time) accurate, descriptive medical records.
ANNELIZE HEFER
[1] In other words, that the healthcare provider’s proven negligence caused the patient’s bodily injuries (or death in the case of a loss of support claim by the deceased patient’s dependants), and consequent damages.
[2] Put simply, a healthcare provider is negligent when his / her / its medical management of the patient falls short of the standard reasonably expected of a healthcare provider in similar circumstances.
[3] Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA).
[4] Monteoli v Woolworths (Pty) Ltd 2000 (4) SA 735 (W).
[5] Goliath judgement.
[6] The plaintiff in the court a quo.
[7] The defendant in the court a quo.
[8] Deprivation of oxygen to the brain.
[9] The plaintiff in the court a quo.
[10] The defendant in the court a quo.
[11] The defendant in the court a quo.
[12] The plaintiff in the court a quo.
[13] The area between the gallbladder, cystic duct and common hepatic duct.
[14] MV Pasquale della Gatta; MV Filippo Lembo; Impaerial Marine Co v Deiulemar Compagnia di Navigazione Spa ZASCA 2012 (1) SA 58 (SCA): If not, then the expert’s opinion is worthless, because it is purely hypothetical, and can be disregarded.
[15] Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA)