- The woman consulted Dr Phillip Zinn in November 2017 because she had been unable to fall pregnant after six months of unprotected intercourse.
- A fibroid was discovered in her uterus, and she later underwent surgery to remove it, but the procedure resulted in uterine and bowel perforations and subsequent peritonitis.
- Judge Slingers found that Zinn ought to have explained the important risks involved in the procedure. However, the woman was unable to prove negligence or show that she would have declined the surgery if she had been fully informed.
The woman went to see Dr Phillip Zinn because she wanted to become pregnant. After six months of unprotected intercourse without falling pregnant, she consulted the gynaecologist on 13 November 2017 in the hope of finding out why she was struggling to conceive.
During the consultation, Zinn discovered a 1.5cm submucosal fibroid polyp inside her uterine cavity and discussed surgery to remove it. What began as an attempt to improve her chances of falling pregnant would eventually leave her with a perforated uterus, a perforated bowel and peritonitis, followed by emergency surgery.
The woman later sued Zinn for damages, arguing that he had failed to properly investigate her fertility, performed a procedure that was not indicated and failed to obtain her informed consent. She also alleged that he had been negligent in performing the procedure and in managing her after the operation.
The High Court in the Western Cape has now dismissed her claim with costs, although Judge HM Slingers found that Zinn had failed to properly inform her of material risks associated with the surgery.
She wanted to know why she was not falling pregnant
The woman consulted Zinn after six months of trying to conceive. Their relationship created both contractual obligations and a legal duty on Zinn to examine, treat and manage her with the care, skill, knowledge and diligence expected of a reasonable gynaecologist and obstetrician.
During the consultation, Zinn diagnosed a 1.5cm submucosal fibroid polyp in her uterine cavity and discussed a hysteroscopic myomectomy to remove it. She initially decided not to undergo the procedure. She later changed her mind and underwent the hysteroscopic myomectomy on 16 February 2018.
During the operation, her uterus was perforated. Zinn performed a laparoscopy to assess the injury and found and repaired the uterine perforation. But a second injury had occurred. Her bowel was also perforated, and after she was discharged the following morning, she developed peritonitis.
By 19 February, her condition had deteriorated significantly. When Zinn examined her at about 4.45pm, she was unwell, clammy, suffering from sweating and a rapid heart rate and developing signs of peritonitis. She underwent a pelvic ultrasound before emergency abdominal surgery was performed.
She said she had not understood the risks
The woman claimed that the operation had taken place without her informed consent and therefore constituted an assault. She also alleged that Zinn had failed to properly investigate the reasons for her difficulty falling pregnant before deciding to remove the fibroid.
Among other things, she alleged that he had failed to investigate her former husband’s fertility, failed to consider alternative approaches to her possible subfertility and performed the operation when it was not indicated.
She further alleged that he had performed the procedure without an assistant, perforated her uterus and bowel, failed to detect the bowel injury and failed to properly respond to the symptoms that developed after she was discharged.
Her case therefore involved whether she had been properly informed before undergoing surgery and whether Zinn’s treatment amounted to negligence.
Court found surgery was indicated
The court heard competing evidence from medical experts about whether Zinn should have proceeded with the myomectomy. The woman’s experts criticised the decision to operate before a broader fertility work-up had been completed, including the absence of a semen analysis of her then husband.
But the evidence ultimately established that the fibroid was a FIGO type 1 submucosal fibroid and that its removal could improve fertility and pregnancy outcomes.
Professor Hendrik Stefanus Cronje, one of the woman’s experts, ultimately accepted that the hysteroscopic myomectomy was indicated. Dr Lawrence Gobetz, a reproductive medicine specialist called by Zinn, testified that removing the intrauterine fibroid was clinically justified.
Judge Slingers found that there was no evidence that a semen analysis or further fertility investigations would have changed the decision to remove the fibroid. The woman therefore failed to establish that Zinn had acted negligently by proceeding with the hysteroscopic myomectomy.
But the risks should have been explained
The court found a different problem with the informed-consent process. The woman testified that Zinn had made the procedure sound quick and simple. She said she understood it as something that would take about 45 minutes and compared her understanding of the procedure to having a wisdom tooth removed.
Zinn accepted that uterine perforation, the possible need for a laparoscopy and the risk of bowel injury were material risks that should have been disclosed to her. He could not recall discussing those risks with her before the procedure.
Judge Slingers wrote in the judgment, “Section 6 of the National Health Act required Zinn to inform her about the risks and consequences associated with the proposed treatment… He failed to do so.” However, that finding did not mean that the woman was entitled to damages.
The court found that she had not produced evidence showing that she would have refused the procedure had she known about the risks. She therefore failed to establish the causal connection required for her informed-consent claim.
The complications did not establish negligence
The court also found that the uterine perforation itself did not prove negligence because it was a recognised complication of hysteroscopic myomectomy.
The bowel perforation occurred during insertion of the Veress needle during the subsequent laparoscopy. The injury was very small and difficult to detect, and the evidence showed that another doctor later struggled to locate it.
The woman did not provide sufficient evidence that another doctor with Zinn’s qualifications and experience would have detected the bowel injury during the original procedure. The court also rejected the claim that Zinn had been negligent in his postoperative management. He repeatedly contacted the woman during the weekend. When he suggested that she come to his rooms for an examination on the Sunday, she declined.
Judge Slingers found that Zinn could not be expected to respond to an unspoken expectation that he should make a home visit. The woman also failed to prove that an earlier admission would have resulted in the bowel injury being detected sooner or would have materially changed the consequences she suffered.
The judge concluded that the woman had failed to prove negligence and dismissed her claim with costs. The costs included the reasonable and necessary qualifying expenses of Zinn’s experts, Dr Lawrence Gobetz and Dr Mark van Rensburg.
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