Geyer v Jekel (17818/02) [2005] ZAGPHC 41 (8 April 2005)

Geyer v Jekel (17818/02) [2005] ZAGPHC 41 (8 April 2005)

The court found that the plaintiff failed to discharge the onus of proving negligence on the part of the defendant. The evidence established that the defendant acted as a reasonably competent surgeon would under the circumstances, encountering unexpected fibrosis and bleeding, and making a reasonable clinical judgment to abandon the initial dissection. The subsequent approach and identification of the nerve were reasonable. The defendant's postoperative management, including consulting specialists and adopting a 'wait and see' approach, was supported by expert testimony as acceptable practice. The plaintiff did not prove that he would have refused consent if properly informed of the...

Citation
[2005] ZAGPHC 41
Parties
Plaintiff: W.J. Geyer; Defendant: Dr J.K. Jekel
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
8 April 2005
Case Number
17818/02
Procedural Posture
Civil Trial / Liability Only; Quantum Separated by Rule 33(4)&(5) Order
Outcome
Plaintiff's claim dismissed with costs.
Judges
J B Shongwe
Legal Topics
Medical Negligence, Standard of Care, Onus of Proof, Professional Liability
Delict Medical Negligence Standard of Care Onus of Proof Professional Liability

Case Brief

Summary, issues, holding and outcome

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Parties

W.J. Geyer

Plaintiff

Dr J.K. Jekel

Defendant

Procedural Posture

Civil Trial / Liability Only; Quantum Separated by Rule 33(4)&(5) Order

Legal Issues

  1. 1 Whether the defendant failed to properly identify and preserve the plaintiff's left facial nerve during parotidectomy.
  2. 2 Whether the defendant failed to ensure the anatomical configuration of the plaintiff's left facial nerve was intact prior to closing the operation wound.
  3. 3 Whether the defendant failed to explain the risks related to parotid gland surgery, including neuropraxia and facial nerve paralysis, to the plaintiff.

Ratio Decidendi

The court found that the plaintiff failed to discharge the onus of proving negligence on the part of the defendant. The evidence established that the defendant acted as a reasonably competent surgeon would under the circumstances, encountering unexpected fibrosis and bleeding, and making a reasonable clinical judgment to abandon the initial dissection. The subsequent approach and identification of the nerve were reasonable. The defendant's postoperative management, including consulting specialists and adopting a 'wait and see' approach, was supported by expert testimony as acceptable practice. The plaintiff did not prove that he would have refused consent if properly informed of the...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed.
  • The plaintiff is ordered to pay the costs of the action, including costs occasioned by the previous postponement on 16 October 2003, which include qualifying and reservation fees and fees for attending court on 16 October 2003 of the defendant's expert witness, Dr Laage.