McGregor and another v MEC Health, Western Cape

On 23 August 2011, six-year-old Justin McGregor fell and hit his head, developing a large swelling behind his left ear. His father brought him to Red Cross Memorial Hospital trauma unit at approximately 6:00 pm. Dr Horn, the duty registrar, examined Justin, found him alert and responsive with normal vital signs and a GCS of 15/15, diagnosed a minor head injury ("bump on the head"), and discharged him within approximately 15 minutes. Justin was taken home, but by 3:30 am the next morning became difficult to wake. He was rushed back to hospital where a CT scan revealed an extradural haematoma caused by a ruptured middle meningeal artery associated with a linear skull fracture in the left temporo-parietal area. Emergency surgery was performed but too late to prevent serious brain injury, leaving Justin with cerebral palsy and spastic quadriplegia. The parents sued the MEC for Health alleging Dr Horn was negligent in her examination, diagnosis, discharge decision, and discharge instructions.

• Whether Dr Horn was negligent in failing to detect that the scalp swelling was fluctuant/boggy, which would have indicated need for CT scan
• Whether Dr Horn was negligent in discharging Justin without keeping him for further observation and re-examination
• Whether Dr Horn gave adequate discharge instructions to Justin's father regarding monitoring for deterioration
• The standard of care applicable to a medical registrar in a hospital trauma unit dealing with paediatric head injuries
• The admissibility and weight of expert evidence, particularly reconstruction evidence versus direct evidence
• The requirement for expert witnesses to base opinions on proven facts rather than speculation
• Application of clinical guidelines (NICE Guidelines, Western Cape Head Injury Guidelines, Red Cross Hospital protocols) to determine standard of care
• Whether failure to comply with clinical guidelines constitutes negligence

Appeal dismissed. The High Court's dismissal of the claim was upheld. No costs order was made on appeal at the request of the respondent.

Where a plaintiff alleges medical negligence based on expert evidence that contradicts the direct evidence of the treating doctor: (1) Direct, credible evidence of what occurred during examination generally carries greater weight than expert reconstruction based on post-event information; (2) Expert opinions must be based on facts proved at trial, not speculation or assumption - opinions based on facts not in evidence have no probative value; (3) A medical practitioner's decision will not be negligent if supported by a reasonable and respectable body of medical opinion, even if other reasonable practitioners might have acted differently (applying Michael v Linksfield and Medi-Clinic v Vermeulen principles); (4) Clinical guidelines inform but do not definitively determine the standard of care - practical application by experienced practitioners is relevant to assessing reasonableness; (5) Appellate courts will only interfere with trial court findings of fact and credibility where there is clear misdirection or findings are demonstrably wrong; (6) The onus remains on the plaintiff throughout to prove all elements of negligence on a balance of probabilities.

The majority judgment made important observations about expert evidence practice: (1) Expert summaries prepared by lawyers often create problems - consideration should be given to requiring experts to prepare their own reports with statements of truth; (2) Pre-trial meetings between experts should involve genuine engagement, not mere formality; (3) Witness statements should be exchanged in appropriate cases; (4) Agreed bundles of academic articles with executive summaries should be prepared to avoid reading lengthy extracts into evidence; (5) Medical notes should not be subjected to the same forensic scrutiny as commercial contracts. The majority also noted that while Dr Horn's notes could have been more detailed, the absence of detail about the bump's consistency was consistent with it being unremarkable, and medical notes should not be expected to meet standards of perfection with the benefit of hindsight. The dissent emphasized that reliance on "usual practice" should not substitute for inadequate record-keeping, and that courts must critically evaluate expert opinions to ensure they have a logical basis and do not overlook obvious risks.

This case is significant for: (1) Reaffirming the reluctance of appellate courts to interfere with trial court findings of fact and credibility, particularly where based on assessment of witnesses; (2) Emphasizing the superiority of direct evidence over expert reconstruction evidence, especially where reconstruction is based on limited information; (3) Clarifying requirements for expert evidence under Uniform Rule 36(9), including that opinions must be based on facts proved at trial, not speculation or conjecture; (4) Addressing the role of clinical guidelines in determining medical negligence - guidelines inform the standard of care but departure does not automatically constitute negligence if conduct is supported by reasonable medical opinion; (5) Critiquing inadequate use of pre-trial procedures (Rules 37 and 37A) in complex medical negligence cases; (6) Demonstrating the difficulty plaintiffs face in medical negligence cases where the attending doctor's direct evidence is credible and consistent with accepted practice, even where alternative approaches might have been preferable; (7) Highlighting tensions between majority and dissenting approaches to evaluating incomplete medical records and the probative value of evidence about "usual practice".