“No one may be refused emergency medical treatment.” This guarantee is contained in section 27(3) of the Bill of Rights (Chapter 2) of the Constitution of the Republic of South Africa, 1996.
But anyone who ever visited the emergency room of any hospital on a Saturday afternoon can testify that the wait for this guaranteed emergency treatment can be quite long. The reasonability of the length of time spent before such a wait deprives a patient of his or her imbedded constitutional right was a decisive factor in the judgement of Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape  ZACC 33 handed down in the Constitutional Court on 14 October 2015.
Oppelt sustained spinal cord injuries at 14:15 on a Saturday afternoon when his head struck the shoulder of an opponent, after a scrum collapsed, during a club rugby game. He was rushed to the nearest hospital and admitted to Wesfleur Hospital at 15:15, an hour after the accident. More than three hours after the accident Oppelt were transported via ambulance to Groote Schuur Hospital, after telephonic advice was obtained from a neurosurgical registrar, who also advised that Oppelt rather be airlifted to Groote Schuur Hospital, a mere twelve minutes away from Wesfleur Hospital, if transported via helicopter. However, no helicopters were apparently available at the time and Oppelt arrived at Groote Schuur Hospital at 17:40 and was only examined at 18:00, 4 hours after the accident. Oppelt was yet again transported to Conradie Hospital, a unit specialising in spinal cord injuries, via ambulance, where he received a closed reduction procedure at about 03:50, more than 13 hours after the accident. Oppelt was ultimately medically qualified as a quadriplegic.
The mentioned time frames are important due to the fact that Oppelt’s argument for claiming damages, resulting from the Health Department’s failure, through its hospitals, to provide Oppelt with emergency medical treatment, is primarily based on a theory by Dr Newton, an orthopaedic surgeon who was in charge of the Conradie Spinal Cord Injuries Unit from 1988-2002, that if low velocity spinal cord injuries, such as the injuries sustained by Oppelt, where the spinal cord is not transected or severed, are treated within 4 hours, the patient has a substantially better prospect of not suffering permanent damage, or suffer damage to a much lesser degree. During low velocity injuries the primary injury is caused by trauma to the neck resulting in a dislocation, while the secondary injury called “ischemia”, or oxygen deprivation of the cells, resulting from an interference with blood flow as a result of the dislocation, is actually the injury that ultimately causes paralysis. Relief of the primary injury, the dislocation, by means of inexpensive, non-invasive skin traction that can be set up fairly quickly, within 4 hours from suffering such a dislocation, Dr Newton theorised that neurological recovery could be drastically improved. Dr Newton concluded that had a closed reduction procedure been performed on Mr Oppelt within 4 hours of his injury, he would probably not have become a quadriplegic. Dr Newton’s opinion was motivated with reference to two of his own research papers in this respect, the latest one only being published after finalisation of the trial.
In the majority judgement Molemela AJ found the delay by Wesfleur Hospital that did not even had an x-ray machine, to refer Oppel to a facility that could have properly treated him unreasonable. Molemela also held that no reason was advance why Oppelt was never referred to Conradie Hospital’s speciality spinal cord injury directly and heavily criticised the rigid following of protocol by hospital staff by first referring the patient to Groote Schuur Hospital and thereafter to Conradie Hospital.
He said that
“Although protocols are vital for the proper functioning of a health care system, reliance on rigid protocols cannot be allowed to trump section 27(3) of the Constitution.”
and further held that
“The respondent (Health Department) constructively refused to provide the necessary emergency medical treatment and breached its legal duty to provide the applicant with medical treatment promptly within the required 4 hours and thus acted unlawfully.”
In respect of negligence the majority of the court found that where Dr Newton’s four-hours theory was well known in the medical community, that it was also well known that Conradie Hospital was best equipped to deal with spinal cord injuries, that a deviation from the referral protocol in Oppelt’s circumstances should have been allowed and reasonable steps to avoid the onset of permanent neurological damage to Oppelt’s spinal cord were not taken, and that emergency treatment was negligently frustrated, resulting in Oppelt’s permanent paralysis.
However, in a minority judgement Cameron J refused to find the hospital staff negligent by accepting that they did not take every reasonable step to avoid further harm befalling Oppelt and unpacked his opinion as follows.
Oppelt was never “refused” emergency treatment as provided for in the Constitution.
“Mr Oppelt was assessed, stabilised and catheterised. He was given oxygen and a high dose of steroids. The system received him and treated him with due care. It afforded him the standard of treatment the circumstances demanded of reasonable hospital personnel and delivered him to Conradie.”
Although the majority judgement did indicate that Wesfleur Hospital did not have an x-ray machine, it did not go further to state that an x-ray was also a requirement for admission at Conradie Hospital.
Cameron J further said that the majority judgement placed insufficient weight on the circumstances in which doctors and medical personnel worked on the critical day. In another Constitutional matter of Soobramoney v Minister of Health, KwaZulu-Natal  ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) the court made it clear that the constitutional obligations that section 27 places on the state is dependent on the availability of resources and that a lack of resources may limit the rights this provision confers. Abundant evidence were provided that Groote Schuur Hospital’s trauma unit was burdened with acute trauma cases ranging from multiple motor vehicle accidents, gunshot wounds, stabbings, assaults and resuscitations. It must be borne in mind that it is under “this near-hellish” situation that the reasonability of the steps taken by hospital staff must be judged. Accordingly it was impossible for Cameron J to find that Oppelt was refused emergency treatment or inappropriately treated in light of this desperate situation of resource scarcity and pressure medical personnel had to work in and confirmed the statement of the court in Mitchell v Dixon 1914 AD 519:
“A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but is bound to employ reasonable skill and care…”
Cameron J also highlighted that, on Dr Newton’s own testimony, there was no consensus in the medical scientific literature concerning the relationship between the success of spinal decompression following an acute spinal injury and the time when such decompression is applied, and that his theory in this regard was “brand new”. No other evidence existed to indicate that Dr Newton’s theory was well known or practiced widely. Accordingly the majority judgement in this regard was based on one contested expert opinion, which theory was only publish after the trial.
Lastly Dr Newton also testified that the referral protocol did not need to be followed in emergencies. The referring doctor at Wesfleur Hospital first consulted with a specialist at Groote Schuur before referring the patient, thus only after satisfying himself that Oppelt would receive the best treatment available there. Protocol was accordingly not followed blindly. Cameron J then summed up the situation from his view:
“Were they wrong? Yes. Tragically so. Had they struck out the Groote Schuur option, and sent Oppelt straight to Conradie, he would, on Dr Newton’s theory, probably not be paralysed today. But were they negligently wrong? No. Culpability depends on what they knew or should have known at the time. As shown, Dr Rothmeyer had no notion whatsoever of Dr Newton’s four-hour theory. That is why. In Mr Oppelt’s best interests, she had him brought to Groote Schuur.”
They say that in hind sight everyone has 20/20 vision. Not having any insight into the exact circumstances in which life changing decisions must be made in limited time under pressure, Cameron J found that
“…it would be unjust to impose an after-the-fact wisdom on the doctor’s best professional judgement at the time. The medical personnel’s course of conduct was, at the time, and given their means of knowledge, reasonable.”
Both judgements leave much to be debated and conjures up more questions than answers, but must one be alive to the fact that we often don’t see the world as it is, but as we are, and must we then ask the question, which reality is the truer…
by Marietjie Botes