Anele Lobishe v Member of the Executive Council, Department of Health, Eastern Cape

The Plaintiff was involved in a motor vehicle accident in 2009 with no serious injuries. In 2015, he began experiencing weakness in both legs and back pain. By March 2017, he was walking with the assistance of a single crutch and was admitted to Provincial Hospital, then referred to Livingstone Hospital. He was diagnosed with a T11/T12 disc herniation and underwent a T11/T12 posterior laminectomy and fusion on 12 April 2017. Shortly after the operation, the Plaintiff suffered complete loss of motor function in both lower limbs. A CT scan revealed misplacement of the right-sided pedicle screws, which had been inserted directly through the spinal cord instead of through the pedicles. The Plaintiff has been wheelchair-bound and paraplegic since the operation. Expert evidence established that the screws were grossly misplaced - not merely deviated but completely off the starting point by about half a centimetre, going through the spinal canal instead of the pedicle. The experts agreed that biplanar imaging during screw insertion should have and could have avoided this misplacement.

• Whether the Defendant's employees were negligent in the medical treatment provided to the Plaintiff during spinal surgery
• Whether factual causation was established between the misplacement of pedicle screws and the Plaintiff's paralysis
• Whether the misplacement of pedicle screws constituted a known complication or amounted to negligence
• Whether the Defendant is vicariously liable for damages caused by its employees' negligent medical treatment
• The appropriate costs order in medical negligence proceedings, including the scope of costs allowable and the role of the taxing master

1. The separation order of 19 May 2023 was varied to reflect amended paragraph references. 2. The Defendant was found liable for all damages the Plaintiff may prove resulting from negligent medical treatment received on 12 April 2017. 3. The Defendant was ordered to pay the Plaintiff's costs on scale B (Rule 67A), including: costs of the hearing on 22-23 January 2025 including costs of counsel; costs of preparing for and attending consultations (if any); costs of preparing for trial and argument (if any); reservation, qualifying/preparation fees, and travel and accommodation costs for Professor Vlok (if any). 4. Interest on legal costs at the legal rate from 30 days after allocatur/agreement to date of payment. 5. All reserved costs (if any) were awarded to the Plaintiff.

1. In medical negligence cases involving spinal surgery, the gross misplacement of pedicle screws that could and should have been avoided through standard imaging techniques constitutes negligence, not a mere surgical complication. 2. Where standard procedures are well-documented in medical literature and appropriate imaging equipment is available, failure to follow these procedures resulting in catastrophic injury falls below the standard of a reasonably competent practitioner. 3. Factual causation in medical negligence is established by the 'but-for' test applied on a balance of probabilities - the plaintiff must prove it is more likely than not that the harm would not have occurred but for the negligent conduct. 4. Foreseeability of harm is a critical element of negligence but must be kept distinct from the wrongfulness enquiry to avoid conflation of these separate elements of delictual liability. 5. While courts have discretion to award costs in specific categories to guide the taxing master, quantification of those costs (including determination of reasonable counsel fees and expert witness fees) is the exclusive function of the taxing master and should not be usurped by the court making the costs order. 6. A medical practitioner's failure to adhere to the general level of skill and diligence possessed and exercised by members of the same branch of the profession constitutes negligence, with the test being whether the practitioner exercised reasonable skill and care.

The court made several non-binding observations: 1. It commended counsel for their cooperative approach in preparing a document of common cause facts, stating this assisted the court and should be encouraged in similar litigation. 2. The court noted with approval the efficiency of the trial, which was completed with only two witnesses. 3. The court observed that Professor Vlok's carefully drafted heads of argument were of great assistance to the court, implicitly encouraging similar standards of preparation. 4. The court expressed gratitude to Ms Ayerst for preparing the draft order, noting it assisted the court and allowed the opposing party proper opportunity to respond. 5. The court made observations about the practical application of the 'but-for' test, noting it is based on common sense and the practical way ordinary people think, not on mathematics, pure science or philosophy. 6. While not strictly necessary to the decision, the court commented on the propriety of experts relying on medical records despite their hearsay nature, affirming established practice in this regard. 7. The court noted that the Plaintiff's 2009 motor vehicle accident, while relevant medical history, played no causal role in his 2017 condition given his functional status in the intervening years. 8. The court observed that the delay in surgery (from 4 to 12 April 2017) to allow for further assessments demonstrated the Defendant's own recognition of the significant risks involved in the procedure.

This case provides important guidance on the standard of care required in complex spinal surgery in South Africa, particularly distinguishing between acceptable surgical complications and negligent conduct. It confirms that gross misplacement of pedicle screws during thoracic spine surgery, where standard imaging techniques could have prevented the error, constitutes negligence rather than an unavoidable complication. The judgment reinforces the application of the 'but-for' test for factual causation in medical negligence cases, emphasizing that causation must be established on a balance of probabilities, not certainty. The case also provides valuable guidance on costs orders in medical negligence litigation, clarifying the distinction between the court's power to award specific categories of costs and the taxing master's exclusive role in quantifying those costs. The court's acceptance of expert reliance on medical records maintained by the defendant healthcare provider, despite their hearsay nature, is consistent with established practice in medical negligence litigation. The case demonstrates the importance of maintaining proper surgical notes and the adverse inferences that may be drawn from their absence.