Has the recent Constitutional Court decision of Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape[1] resulted in the effective substitution of expert evidence by the logical reasoning of court? If so, the question is, where does this leave us?

Introduction

The courts' task of dealing with medical negligence matters has never been an easy one.  It involves weighing the act or omission of a medical practitioner against the standard of care of a reasonably skilled practitioner in that particular branch of the profession at the time.[2]  A practitioner will be found to have acted negligently if a reasonably skilled practitioner would have foreseen the likelihood of harm occurring, taken steps to guard against it and the practitioner in question failed to take those steps.  To assist the courts in determining what this standard of care entails, expert evidence is generally led by the parties.

However, difficulty often arises when the court is faced with two conflicting experts' opinions.  In Michael and Another v Linksfield Park Clinic and Another[3], the Supreme Court of Appeal held that "A defendant can be properly held liable, despite the support of a professional opinion sanctioning the issue, if that body of opinion is not capable of withstanding logical analysis and is therefore not reasonable."

In Medi-Clinic v Vermeulen[4], the SCA held that the court's duty is to evaluate whether and to what extent the opposing expert evidence is founded on logical reasoning.  The SCA held that if two experts have opposing views which are both based on logical reasoning, it cannot choose to simply prefer one expert's evidence over that of the other.  It held that "If a medical practitioner acts in accordance with a reasonable and respectable body of medical opinion, his conduct cannot be condemned as negligent merely because another reasonable and respectable body of medical opinion would have acted differently." 

The result of the abovementioned judgments was that where both experts' opinions are based on logical reasoning, the plaintiff's claim could not succeed.

The Oppelt decision

Towards the end of 2015, the Constitutional Court ("CC") reconsidered this approach to assessing expert evidence in medical negligence matters in the majority judgment handed down by Molemela, AJ in the Oppelt case. The facts were briefly as follows: in 2002, a 17 year old male sustained severe spinal injuries during a rugby match.  He was initially taken to Wesfleur Hospital, and was then transferred via ambulance to Groote Schuur Hospital.  After arriving at Groote Schuur, Oppelt was transferred to Conradie Hospital's specialist spinal cord injury unit where closed reduction surgery was performed. Oppelt was rendered quadriplegic.

Oppelt instituted a delictual action in the High Court alleging negligence on the part of the defendant's employees due to delayed treatment.  In support of his claim, Oppelt relied on the expert evidence of Dr Newton, an orthopaedic surgeon who had been in charge of the Conradie Hospital spinal cord injuries unit some years previously and who testified that Oppelt would have had a 64% chance of a full recovery had the closed reduction been performed within four hours of his injury. 

Dr Welsh, a Neurosurgeon, gave evidence for the defendant. He testified that while the prognosis for the victim of an incomplete spinal cord injury is better when treated earlier, Dr Newton's theory (no pun intended) was unreliable as there is no consensus within the medical fraternity regarding the relationship between the lapse of time between the sustaining of an injury and its decompression and whether this affects the neurological outcome.  Dr Welsh classified scientific data into three categories of reliability, with class three data being the least reliable because it leaves room for scientific bias, and into which Dr Newton's evidence should be placed.[5]

Oppelt was successful in the High Court, which found that Dr Newton's evidence was "well-reasoned and logical" and that there was no acceptable evidence adduced by the defendant to refute it. 

The defendant appealed to the Supreme Court of Appeal ("SCA") which upheld the appeal.  In its unanimous decision, Swain JA evaluated Dr Newton's theory by firstly looking at the reliability of the evidence upon which it is based; and secondly, by examining Dr Newton's reasoning.  The SCA found that Oppelt had failed to prove, on a balance of probabilities, that Dr Newton's view that decompressing a spinal injury within four hours of the injury would probably lead to complete recovery was sound. The SCA also found that it was not foreseeable to the defendant's employees that failure to follow Dr Newton's method would result in paralysis. 

The Oppelt Constitutional Court decision

Oppelt further appealed to the Constitutional Court ("CC"), which considered whether legal causation had been established by Oppelt. 

The majority CC judgment questioned whether the defendant's employees knew or ought reasonably to have known that spinal cord injuries were to be treated with urgency at the Conradie Hospital and not later than four hours as per Dr Newton's theory. The CC emphasised the defendant's failure to lead evidence that its employees were unaware of the urgency to arrange a decompression within four hours.  The CC also criticised the failure to deviate from the provincial health department protocols for referrals and treatment in an emergency situation and found this failure to contravene Section 27(3) of the Constitution which provides that "no-one may be refused emergency medical treatment".

The CC considered the test in the Linksfield Park Clinic decision which deals with the evaluation of conflicting medical experts' opinions, finding that "the court is not bound to absolve a defendant from liability for allegedly negligent treatment or diagnosis just because evidence of expert opinion, genuinely held, is that the treatment or diagnosis in issue accorded with sound medical practice.  The court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached a defensible conclusion."[6]

The CC then referenced the House of Lords decision of Dingley v The Chief Constable, Strathclyde Police[7] which explained the difference between the "scientific and the judicial measure of proof" and which reminds the court to refrain from applying the standards set by experts and to decide whether a case has been made out on a balance of probabilities.

The majority decision of the CC was that the SCA erred in rejecting Dr Newton's evidence. The SCA's emphasis was on scientific data without taking cognisance of the weight of Dr Newton's reasoning and experience as a whole.  In particular, the SCA erred in the following respects:

  • Dr Newton's evidence was reasonable and logical and therefore overcomes the Linksfield Park Clinic test;
  • Dr Newton's evidence was partially peer-reviewed and accepted, and was about to be published in a reputable journal;
  • Dr Newton's explanation as to why he could not present Class 1 data was plausible and a lack of general acceptance of his theory should not cause its rejection.
  • The SCA did not evaluate the evidence as a whole and on a balance of probabilities but focussed on scientific proof;
  • Dr Newton's study spanned the evaluation of spinal cord injuries over a period of 12 years at Conradie Hospital and therefore the sample should not have been criticised as being too small.

The CC criticised the SCA's rejection of Dr Newton's evidence which it considered to be based on logical reasoning.  The CC warned that "Logical theories put forward by experts, not gainsaid by other experts, should not be scoffed at without a basis."[8] 

In its conclusion, the CC rejected the evidence of Dr Welsh in favour of Dr Newton and found that "The respondent constructively refused to provide the necessary emergency medical treatment and breached its legal duty to provide the applicant with medical treatment promptly or within the required four hours and thus acted unlawfully."

How the Oppelt decision has changed the way disputed expert evidence is considered

The CC effectively substituted its own logical reasoning, for that of the expert's evidence before it.  It made a decision based on its "gut-feel" without adequately taking into account the views of the medical community on the scientific data on which the expert's evidence was based. It favoured the theory of Dr Newton over the evidence of Dr Welsh even though Dr Newton's theory was (in 2002) just that: a theory. One of the reasons listed by the CC for accepting Dr Newton's theory was that, in their view, "Alack of general acceptance of Dr Newton's theory cannot, without more, warrant a rejection of his theory[9]". Does this mean that simply because a theory propounded by a medical expert has not been rejected by his peers, it is reliable for judicial purposes? We respectfully disagree.

Common sense dictates that a propounded theory may not be rejected for a number of reasons.  Primary among these is that there may be no scientific data available to gainsay it at the time.

With respect, the decision seems flawed.  If one were to assume for the moment that both experts' evidence was based on logical reasoning and supported by a school of thought accepted within the medical fraternity, in those circumstances the plaintiff's claim should not have succeeded because the plaintiff would not have proven his case on a balance of probabilities.

Turning briefly to the minority judgment of Cameron, J (with whom Jappie, J concurred), that found Oppelt was given appropriate emergency medical treatment and that "in light of the desperate situation of resource scarcity and pressure on the medical personnel, we cannot say he was inappropriately treated."

We are of the view that the minority judgment should be preferred, because it correctly reaffirms the test for determining medical negligence, namely whether in light of all the circumstances a reasonable medical professional would have foreseen the damage and taken steps to avoid it. Cameron, J found that Newton's theory was "brand new" in 2002 and that no academic publications directly supported his approach.[10] The minority also found that, at that time, specialist opinions contrary to Newton's theory were current and that Newton felt the need to "evangelise" his theory at conferences and the like.

Ultimately, Cameron J was of the view that Dr Newton's four hour cut-off period was a theory among many other theories and interestingly, was published only nine years after the incident. The minority consequently found that the doctors and the Department were not negligent.

Conclusion

Perhaps one the most disturbing effects of the Oppelt decision is that it could change the way doctors treat their patients. A doctor may well follow a newly-proposed modality of treatment on a patient to escape the Oppelt criticism only for later study and research to find that the theory was flawed.  Is this what we would have?