Looking at medical malpractice through Bach’s eyes (Part 2)

Modern day medical treatment is founded on the consensual relationship between doctor and patient better known as informed consent. During the 1700s when medical paternalism ruled no consent from the patient was required before the doctor may proceed to treat the patient. It was only after the Nuremberg Trials that was held from 20 November 1945 to 1 October 1946, during which numerous Nazis was prosecuted for various atrocities suffered by Jews, committed by Nazis doctors during World War II under the auspices of medical research, that the requirement of informed consent was created in the Nuremberg Code. Although informed consent was then only required in terms of a code which could not be legally enforced, today informed consent is constitutionally protected in Section 12(2)(c) of the South African Constitution.

However, informed consent aside, a doctor still owes a patient the duty of care and should a doctor therefore perform any operation with such professional skill as to avoid injuring the patient, especially in view of the doctors’ Hippocratic Oath to do no harm. Failure to attend to their duty of care may result in harm to the patient and a subsequent delictual claim for damages.

Because Bach, an adult of sound mind, sought and requested the services of Taylor, who happened to be in the right place at the right time, it can be accepted that Bach tacitly consented to medical treatment by Taylor when he commenced his examination and surgical treatment of Bach. However, in today’s terms, to qualify as legally binding informed consent, a doctor must have informed a patient of all material facts such as his diagnosis, the nature of his proposed medical treatment and the inherent risks of such treatment, described in simple terms to enable the patient to apply his mind intelligently.

The criteria used to judge the materiality of information necessary for obtaining adequately informed consent in the United Kingdom (UK) differs from that in the United States of America (USA). The UK follows a doctor-centered approach to the effect that the court in Sidaway v Bethlem Royal Hospital Governors and Other [1984] 1 All ER 1018(CA), [1985] 1 All ER 635 (HL) held that a doctor is only required to inform a patient as expected in accordance with practice accepted as proper by a body of reasonable and skilled medical practitioners. This stands in stark contrast to the patient-centred approach followed by the USA court in Canterbury v Spence (1972) 464 F2d 772 in which it was held that the standard is not so much that of the reasonable doctor, but rather the reasonable or prudent patient. Although informed consent has not received much attention from South African courts it was said in the unreported matter of Rompel v Botha 1953 TPD that if medical treatment involve possible “serious risks” a patient should be apprised. Moreover, with the dawn of consumer rights in South Africa and the enactment of the Consumer Protection Act 68 of 2008 (CPA), consumers of medical services, in contrast to Bach, became much more educated and protected in respect of their consumer rights. Section 22 of the CPA specifically provides consumers with the right to receive information, including information regarding proposed medical services such as surgical interventions, in plain and understandable language, which is compatible with the patient-centred information requirement for obtaining legally binding informed consent.

It is unlikely that Bach was ever fully informed of the risks involved in his eye surgery, especially considering Taylor’s reputation and work methods. At worst Bach may have been provided with false, misleading or deceptive information regarding the couching procedure and its outcomes, which is strictly prohibited by section 41 of the CPA.

It may also have been that Taylor made an error of judgement when diagnosing or operating on Bach. A medical judgmental error is not necessarily negligent, but depends on the error made and whether it was an error that would not have been made by a reasonable competent professional man, having the standard and type of skill that the doctor held himself out as having and acting with ordinary care. Considering that Taylor confessed to blinding hundreds of his previous patients and left patients to their own devices after applying questionable post-operative care, he did not seem reasonable, competent or professional. He was further also accused of exaggerating his own abilities.

In deciding on a doctor’s negligence considering whether he measure up in any respect to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon the court, in Whitehouse v Jordan and Another [1981] 1 All ER 267 (HL), was of the opinion that to:

…say that a surgeon has committed an error of clinical judgment is wholly ambiguous and does not indicate whether he has been negligent, for while some errors of clinical judgement may be completely consisted with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgement may be so glaringly below proper standards as to make a finding of negligence inevitable.

In comparison with the successful cataract extraction operations performed by Daviel in France in 1847, 3 years prior to Bach’s operations, Taylor clearly did not measure up to his colleagues and may his diagnostic and/or treatment error not be an error in judgement or opinion, but almost deliberate ignorance, having regard to his career history and reputation. Section 54(1)(b) of the CPA entitles consumers to the performance of medical services in a manner and of a quality that patients are generally entitled to expect and should a doctor render substandard services, section 61 of te CPA stipulates that the docotr will be held liable for harm suffered by the patient, irrespective of whether the harm is the result of negligence on the part of the doctor. This so-called faultless liability has dramatically changed the ambit and burden of proof of medical malpractice claims, because the negligent exercise of medical care is no longer required.

However, a patient mus still prove that the medical treatment received from the doctor was the proximate cause of the harm suffered by the patient to succeed with a medical malpractice claim against the specific doctor.

Bach died less than 4 months after being operated on. Since his second eye operation he suffered continuous eye problems, pain, fever and what was then described as a “stroke”, but probably rather indicated a loss of consciousness. The fevers suggested infection, but is it very difficult to make a connection between the operations and the illness that killed Bach, but is the opthalmologic opinion that it seems unlikely that postoperative endophthalmitis would have smoldered for 4 months before causing a fatal sepsis, notwithstanding the fact that the operations itself as well as the post operative care would have weakened Bach and predisposed him to new infections.

In Mitchell v Dixon 1914 AD 519 it was held that no inference of negligence can be made merely on the basis that the diagnosis was wrong, unless the diagnosis was so palpably wrong as to imply the absence of skill and care with regard to the ordinary levels of skill in the medical profession.

Very little is known about the exact diagnosis of Bach disease or eye condition and is it questionable whether cataract surgery would result in death, even in the Baroque period. Although blinded by the same oculist (Taylor) Händel survived cataract surgery.

Should Taylor have warned Bach of the possibility of death that eye surgeries carry? Considering Taylor’s overdeveloped selfconfidence it seems unlikely that he would inform Bach of any such risks. Was death a realistic risk for eye surgeries at the time, and if so, would Bach have pressed on with the procedure(s)?

We’ll never know, but what we do know is that although Taylor escaped liabilty for Bach’s death in 1750, he may not have been so lucky under the current South African legal regime.

Marietjie Botes