Monday, June 5, 2023
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Contemporaneous notes once again to the rescue

In an unusual recent case, a claim in the Pietermaritzburg High Court against a specialist obstetrician and gynaecologist was not in delict but in contract, after a tubal ligation was not performed.

Donald Dinnie, CEO of Natmed Medical Defence writes:

The matter was that of CSR and WR v Dr K C Dhavaraj.

The plaintiffs argued that they had contracted with the defendant, a specialist obstetrician and gynaecologist, to perform a sterilisation by tubal ligation on the first plaintiff when their second child – a boy – was born by Caesarean section and that the defendant had therefore failed to perform the tubal ligation. The only issue was whether the doctor had contractually bound himself to perform that procedure. The case was not that a tubal ligation was performed or not, but whether it had failed because of alleged negligence or the substandard professional care of the doctor.

All the parties agreed that no tubal ligation had been performed. The result was that the first plaintiff subsequently fell pregnant, and gave birth to a further child, with damages being claimed for reasonable costs regarding the construction of an additional room at the plaintiffs’ residence, maintenance and support in respect of the further child until self-supporting, as well as general damages.

No written consent documentation, signed or otherwise, was available regarding the tubal ligation. The versions of the plaintiffs and defendant were mutually destructive, with the plaintiffs bearing, of course, the onus of proof on a balance of probabilities that their version was true and accurate and therefore acceptable – and that the defendant’s version was false and mistaken and fell to be rejected.

Deciding on whether evidence is true or not requires testing the plaintiffs’ allegations against general probabilities. If the probabilities are evenly balanced – in the sense that they do not favour the plaintiff’s case any more than the defendant’s – then the plaintiff can only succeed if the court believes the plaintiff is satisfied that their evidence is true and the defendant’s version is false. It is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is then had to an estimate of the relative credibility of the witnesses apart from the probabilities.

The matter went to trial some eight years after the actual events leading to the claim. All of the witnesses fairly conceded that their memories were no longer crystal clear. The doctor conceded that apart from his contemporaneous clinical and other notes, made at the time, he did not have an independent recollection of what had transpired.

The Court held that the doctor’s contemporaneous notes had not been impeached. The notes indicated that there was still uncertainty as regards the tubal ligation at the last consultation with the plaintiffs, before the Caesarean was performed. The first plaintiff was advised that no tubal ligation was to be performed and that she was to come back about having such a procedure done. The Court said that those notes could not simply be ignored.

That the procedure had been charged for (but not done) was explained by a billing error – which had not been made by the doctor, personally.

The notes were clear that in consultation, the doctor offered the tubal ligation as a service but the offer of performing that procedure still had to be accepted by the plaintiffs. To give rise to an enforceable contract, acceptance of the offer to perform the tubal ligation had to be communicated to the defendant by the first plaintiff in the form of a written consent actually coming to the doctor’s attention. This was required by the relevant legislation. The plaintiff could not establish whether the consent she gave actually came to the doctor’s attention.

Cross-examination of the doctor proceeded on the basis that he had not become aware of the consent form which the plaintiffs maintained was handed to them, then signed by them, and then handed to a member of the doctor’s staff.

The Court accepted that both parties had genuinely believed in their respective versions, but that on the evidence the probabilities favoured the defendant – or at best were evenly balanced – in which case the onus was not discharged.

This is another case that demonstrates the value of comprehensive contemporaneous consultation notes.

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