The Supreme Court of Appeal handed down judgement on 26 September 2014 in the matter of Medi-Clinic Limited v George Vermeulen (unreported).  The issue before the court was the avoidability of bedsores in critically ill patients.  In coming to a decision, the court reaffirmed the principles involved when critically assessing directly opposing expert evidence.

Mr Vermeulen was hospitalised on 17 May 2007 at the Medi-Clinic Hospital in Nelspruit (“the hospital”) with a diagnosis of cerebral malaria.  He was gravely ill on admission with a depressed level of consciousness and having difficulty breathing.  His pulse rate was 130 beats per minute and he was already showing signs of respiratory failure.   He had a history of hypertension, weighed 150kg and was assessed to be at risk of developing pressure sores in accordance with the Waterlow scale.

Mr Vermeulen was treated in the ICU from 17 May 2007 to 24 July 2007, whereafter he was transferred to a general ward until his discharge on 21 October 2007.  The experts for both Mr Vermeulen and the hospital were ad idem that Mr Vermeulen’s condition was critical during the period 20 May 2007 to 24 May 2007 (“the critical period”).  His blood pressure levels were very low (at one stage life threateningly so), he developed renal failure, was hyperglycaemic, and had poor peripheral infusion with cold extremities and weak pedal pulses.  He was, inter alia, intubated, catheterised, receiving inotropic support to sustain his blood pressure, and on insulin and dialysis. 

It was accepted that Mr Vermeulen was incapable of turning himself during the critical period and that he developed a significant sacral bedsore, the severity of which caused bilateral sciatic nerve injuries.  As a result, Mr Vermeulen became paralysed and wheelchair bound. 

Mr Vermeulen instituted action against the hospital alleging that the nursing staff was negligent by not employing sufficient measures (such as turning him regularly) to avoid the onset of the bedsore.  The hospital in turn denied negligence on its part and contended that the bedsore was unavoidable in Mr Vermeulen’s case as turning him whilst critically ill would have been life threatening. 

The parties were ad idem that the bedsore developed during the critical period and that turning Mr Vermeulen regularly would have prevented the onset of the bedsore.  The dispute centred around whether it would have been safe to turn Mr Vermeulen during the critical period and thus the avoidability of bedsore.  The experts seemed to be in agreement that, generally speaking, it is unsafe to turn a critically ill patient if that patient’s mean blood pressure is too low.  They, however, were at odds as to what would constitute a life threateningly low mean blood pressure in Mr Vermeulen’s case. 

The court a quo rejected the evidence of the hospital’s expert that Mr Vermeulen’s blood pressure was too low during the critical period to turn him as being illogical and unfounded when regard is had to the ICU charts indicating instances where Mr Vermeulen was turned despite having a low blood pressure, and yet did not succumb.  It found in favour of Mr Vermeulen and the hospital appealed to the Supreme Court of Appeal (“the SCA”).

The SCA referred with approval to the approach taken in the matter of Michael & another v Linksfield Park Clinic (Pty) Ltd & another 2001 (3) SA 1188 (SCA) when assessing conflicting medical evidence as to what constitutes proper treatment of a patient.  In order to determine which evidence is to be accepted, the court has to critically evaluate the conflicting expert testimony to determine whether it is founded on logical reasoning, and whether the expert had applied his mind to the question of comparative risks and benefits in reaching a conclusion.  Expert evidence not founded on logical reasoning should be rejected. In instances where, after such a critical evaluation, it is found that both diametrically opposing views are based on logical reasoning, “it is not open to a court simply to express a preference for the one rather than the other and on that basis to hold the medical practitioner to have been negligent.  Provided a medical practitioner acts in accordance with a reasonable and respectable body of medical opinions his conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently”. 

Mr Vermeulen called a specialist surgeon as expert who testified that not every patient would become haemodynamically unstable when being moved.  As such, he argued that the nursing staff should turn a patient and report any change in the patient’s haemodynamic stability to the treating doctor, who would then be responsible for deciding whether said change is significant enough to be life threatening, in which event he should order the nursing staff not to turn the patient.  His approach was thus one of preventing the development of a pressure sore at all cost, even at the risk of the patient’s life.   

The hospital’s expert (an anaesthesiologist and critical care specialist) criticised Mr Vermeulen’s expert’s approach as being too risky.  He indicated that once a patient has a mean blood pressure low enough to result in cardiac muscle injury, any further lowering would cause greater damage with the risk of acute severe myocardial injury and even ventricular fibrillation.  Thus, if a patient’s blood pressure is theoretically too low, which was in his view the case with Mr Vermeulen, he should not be turned as doing so could have dire consequences. 

The SCA held that the court a quo should have determined whether the reasons provided by Mr Vermeulen’s expert for the contention that he could have been turned during this period, were valid in light of the hospital’s expert evidence as the assessment of medical risks and benefits is a matter involving clinical judgement. 

The SCA rejected Mr Vermeulen’s expert’s evidence on the basis that he did not direct his mind to the question of comparative risks and benefits.  It held that the approach taken by the said expert to determine whether it is safe to turn a critically ill patient by first having evidence that doing so would affect the patient’s haemodynamic stability is too risky.  It further held that in reaching the conclusion that Mr Vermeulen could be turned, his expert did not take into account his blood pressure levels, which according to the hospital’s expert’s evidence was a relevant factor to consider whether or not a critically ill patient should be turned. 

The court thus accepted the hospital’s expert’s evidence as it was found to be based on logical reasoning. It held that, in coming to the conclusion that Mr Vermeulen’s injuries were unavoidable, the said expert weighed the relative risks and benefits of the suggested nursing care aimed at avoiding the pressure sores and concluded that such care was medically inadvisable due to the risk posed to the patient’s life. 

The SCA accordingly held that the court a quo’s findings that the nursing staff was negligent cannot be sustained and upheld the appeal.  It mentioned that although one has sympathy for Mr Vermeulen:

“. . . we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong.  Doctors would be led to think more of their own safety than of the good of their patients.  Initiative would be stifled and confidence shaken.  A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work.  We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Roe v Ministry of Health & others; Woolley v Same [1954] 2 All ER 131 (CA)).

The judgement does not deal with whether the implementation of measures other than turning Mr Vermeulen regularly could have avoided or delayed the formation, alternatively minimised the severity of the bedsore.  A nursing expert called on Mr Vermeulen’s behalf testified that even though it is not advisable to turn an extremely unstable patient, other measured can be implemented to prevent pressure sores, such as treating a patient on a nimbus mattress, or placing a soft pillow underneath the patient’s buttocks for half an hour at a time.  Mr Vermeulen’s treating doctor testified that he recommended that Mr Vermeulen be treated on a nimbus mattress when purple coloured lesions were noted on his buttocks on 25 May 2007, but that the said mattress was only applied late that evening after the skin had already turned black.  It would have been interesting to know whether the court considered the implementation of these alternative measures as being capable of preventing the bedsore.

Written by Annelize Hefer, LLB, Certificate in Medical Law, Markram Inc Attorneys