Dr F Kluever and Others v Michiel Jacobus De Goede

Michiel de Goede (the respondent) was a young rugby player with a five-year contract with the Sharks Rugby franchise junior team. On 5 April 2007, he sustained a ruptured patella tendon injury during a rugby match. He was initially treated at 1 Military Hospital where Dr Khwitshana misdiagnosed the injury as a sprained knee. Five days later, Dr Thiart at Unitas Hospital correctly diagnosed a patella tendon rupture. On 13 April 2007, Dr Kluever (first appellant), an orthopaedic surgeon employed by the SANDF at 1 Military Hospital, performed surgery to repair the ruptured patella tendon. After the operation, Michiel's leg was placed in a brace for six weeks. Following removal of the brace on 25 May 2007, he commenced physiotherapy with Mr du Plessis. Du Plessis struggled to restore full flexion. In September 2007, biokineticist Mr Liebel noticed the right patella was higher than the left. On 1 October 2007, Dr Bhawani (second appellant) removed the circulage wire. Despite ongoing rehabilitation, Michiel could not regain full knee function. In September 2008, Dr de Vlieg identified a 'high riding patella' and performed remedial VY quadriceps plasty surgery. He found the original repair still intact but the patella positioned too high, with irreversible damage. Michiel's rugby career ended. He sued the doctors for negligence, with the Minister of Defence (third appellant) to be held vicariously liable.

• Whether Dr Kluever was negligent in performing the primary surgery on 13 April 2007
• Whether Dr Kluever and Dr Bhawani were negligent in failing to identify and correct the high riding patella after the primary surgery
• Whether the negligence of the medical practitioners caused Michiel's disability and ended his rugby career
• Whether Michiel was contributorily negligent by performing strenuous exercises that allegedly caused the patella to migrate upwards
• Whether the Minister of Defence was vicariously liable for the negligence of the medical practitioners employed by the SANDF

The appeal was dismissed with costs, including costs for two counsel. The High Court's order declaring the Minister of Defence liable to compensate Michiel de Goede for damages arising from injuries sustained during the operation of 13 April 2007 was upheld.

A medical practitioner performing surgery must employ reasonable skill and care judged against the standard of competent practitioners in that field. This duty includes: (1) Proper pre-operative preparation including taking a comprehensive history, conducting a personal examination, and reviewing all relevant diagnostic imaging; (2) Using appropriate surgical techniques and materials suited to the patient's specific physical characteristics; (3) Verifying the correct outcome of surgery through appropriate means such as x-rays; (4) Properly monitoring post-operative progress and identifying complications timeously. Where a medical practitioner fails to meet these standards and damage results, negligence is established. Inexperience does not excuse failure to consult senior colleagues or take additional precautionary measures. When expert evidence establishes that surgery was improperly performed and the causal link to injury is proven through findings that the original repair remained intact but was incorrectly positioned, negligence is established. The state is vicariously liable for the negligence of medical practitioners employed in public hospitals acting within the scope of their employment.

The Court observed that there was an unfortunate accumulation of mishaps in this case, beginning with the initial misdiagnosis and the eight-day delay before surgery was performed. The Court noted that literature supports the need to repair ruptured patella tendons immediately for optimal prognosis. The Court commented that Dr Kluever's response to the serious allegation that she failed to place the patella properly was not the unequivocal and confident refutation that would be expected - instead leaving the matter "in the dark." The Court noted that Prof Lukhele's description of determining patella height by feeling as a "guestimate" that should be reserved for surgeons with at least five years' experience was telling, given Dr Kluever had qualified only the year before. The Court observed that all orthopaedic surgeons agreed that Dr Kluever's method of determining patella height by feeling the left knee was incorrect. The tragic outcome - the end of a promising young rugby player's career due to preventable medical negligence - underscores the importance of proper surgical technique and post-operative monitoring.

This case is significant in South African medical negligence law as it: (1) Reaffirms and applies the long-standing test for medical negligence from Mitchell v Dixon (1914) and Van Wyk v Lewis (1924) that a medical practitioner must employ reasonable skill and care judged against the general level of skill and diligence of members of that branch of the profession. (2) Emphasizes that mere lack of experience does not excuse a medical practitioner from the duty to take adequate precautionary measures, consult with more experienced colleagues, and properly prepare for surgery. (3) Illustrates the importance of proper pre-operative assessment, examination, and review of diagnostic imaging. (4) Demonstrates that courts will scrutinize expert evidence and prefer opinions founded on logical reasoning, as established in Louwrens v Oldwage and Medi-Clinic v Vermeulen. (5) Reinforces that vicarious liability of the state for medical practitioners in public hospitals extends to negligent surgical procedures. (6) Shows that where original surgical repair remains intact but the condition is clearly attributable to improper initial placement, this negates defences of contributory negligence or intervening cause. The case serves as an important reminder of the standard of care required in surgical procedures and the devastating consequences when that standard is not met.