This blog is co-authored by Mishka Maharaj, a candidate attorney.

The importance of appointing appropriate medical experts to provide evidence in medical malpractice disputes was highlighted in this April 2025 High Court judgment.

A patient claimed damages from an orthopaedic surgeon arising from the surgeon advocating for and performing a surgical procedure to his right foot in the absence of clinical or radiological support, causing a fracture to his calcaneus and damage to his Achilles tendon. The patient further claimed that the surgical procedure performed was more extensive than what was agreed upon with the surgeon.

The surgeon denied negligence. He disputed that the surgical procedure was clinically and radiologically unjustified and that he caused the patient’s injuries. The surgeon argued that the fracture to the patient’s calcaneus was actually a stress fracture, likely caused by the patient’s non-compliance with his post-operative care orders, including the use of crutches and a moonboot.

The parties appointed expert orthopaedic surgeons to provide evidence in support of their respective cases. Whilst the patient’s expert considered all available radiological evidence, including the twelve MRI images taken of the patient’s right foot post-surgery, the surgeon’s expert only considered one MRI image despite all twelve MRI images being available to him. Based on this one MRI image, the surgeon’s expert testified that in his opinion there was no damage to the Achilles tendon as a result of the surgery.

The surgeon’s expert conceded that he did not perform surgeries on feet in practice. He testified that based on the available radiological evidence that was considered by the surgeon, he would never have done the surgery. In his opinion, the surgeon should have obtained a CAT scan of the patient’s foot before considering the surgery.

Having considered all the radiological evidence, the patient’s expert testified that the calcaneus was fractured and damage was caused to the Achilles tendon during the surgery. The patient’s expert was adamant that the consideration of only one MRI image by the surgeon’s expert was inadequate to support his contradictory expert opinion.

The court decided that the surgeon performed significantly more extensive surgery than was agreed upon with the patient. The surgeon was negligent in fracturing the calcaneus and caused significant harm to the Achilles tendon during the surgery, which resulted in the serious and permanent disability of the patient’s right foot and ankle.

This judgment serves as a reminder to lawyers in personal injury matters to ensure that a medical expert is briefed with all relevant documentation and provided with detailed and specific instructions to enable the expert to provide accurate and objective opinions. The appointed expert should have practical experience in dealing with the surgical procedure or medical treatment that forms the subject of the dispute between the litigants.

Cheminais v Crane (7078/2023) [2025] ZAWCHC 183 (24 April 2025)