In Buthelezi v Ndaba 575/2012 [2013] ZASCA 72, the
Supreme Court of Appeal (SCA) finally refused to draw an inference
of negligence in a medical negligence case. In so doing, it settled
the debate that has been raging in South Africa about whether the
maxim res ipsa loquitur (the thing/ occurrence speaks for
itself) can be applied in medical negligence cases.
The impact of the res ipsa loquitur principle is that
certain events create a presumption of negligence which, without
sufficient evidence presented by the defendant to exculpate him or
her, will result in a finding of negligence.
This principle is often applied in collision cases, where for
example, skidding or driving on the wrong side of the road would
automatically be considered negligent, if there is no sufficient
reason furnished by the defendant to the court to exonerate him or
her.
It is natural to presume that certain severe errors are, in the
absence of an appropriate explanation, automatically negligent. For
example, when a doctor amputates the incorrect limb or leaves an
instrument in the patient's abdomen after surgery.
Case law
In the Appellate Division decision of Van Wyk v Lewis 1924
AD 438, the majority of the court found that the retention of a
swab in a patient's abdomen, during surgery did not warrant the
application of the res ipsa loquitur principle. The
minority decision has, however, queried whether the maxim should
not be applied in certain cases.
The Van Wyk v Lewis decision has been criticized by
authors such as Van den Heever and well known medical law experts,
Carstens and Pearmain, for several reasons such as:
- comparison with some other delictual matters - why, it is argued, is skidding in a vehicle considered automatically negligent, but leaving a surgical instrument in a patient's abdomen is not necessarily negligent?
- the fact that victims of medical negligence are at a disadvantage as they often do not have sufficient information to prove what occurred, being unconscious, ill or lacking the technical knowledge of the procedures performed or treatment provided.
- the conspiracy of silence, which means patients often have difficulty retaining experts to testify against other medical practitioners and impacts their constitutional rights to have equal access to court.
It is for these reasons that many academics have postulated that
the SCA should consider revisiting the Van Wyk decision.
In Truter v Deysel 2006 (4) SA 168, there was an obiter
recognition of the res ipsa loquitur principle to certain medical
negligence cases. The authors Carstens and Pearmain postulated that
if the SCA was presented with the opportunity to reconsider the
Van Wyk v Lewis decision, it would apply the res ipsa
loquitor principle to certain medical negligence cases.
The Buthelezi decision is likely to disappoint these authors as it
reiterated the principle referred to in Van Wyk v
Lewis.
The facts
In the Buthelezi matter, the plaintiff launched a medical
negligence claim against the defendant for complications that
ensued (vesioc-vaginal fistula) as a result of a hysterectomy
performed by him.
There were opposing views by the experts as to the likely cause of
the fistula and various theories were provided. The expert on
behalf of the plaintiff theorised that:
- the damage was caused by a lack of blood supply to the bladder wall when the bladder wall separated from the uterus or when the uterus was removed from the vaginal vault;
- this would have occurred by the defendant's failure to ensure that the bladder was kept separate and safe during the course of the procedure; and
- this inevitably gave rise to the inference that reasonable precautions were not taken and the defendant was therefore negligent.
The court found this reasoning as "being reminiscent of the
res ipsa loquitur maxim".
The defendant's raised other possible causes for the damage. He
postulated that a small cut in the bladder wall occurred when the
bladder was separated from the uterus and the injury could have
been so small that it was not noticeable during the procedure. This
injury could, in light of the plaintiff's pre-existing
morbidities, have developed into a fistula over time.
The defendant's expert noted that this is a recognized
complication and that "even if the operation... is performed
to an adequate standard... it would be generally agreed that
inadvertent bladder injury is a recognized complication of
hysterectomy and occur even with careful surgical
technique".
Accordingly, a doctor cannot be held negligent simply because
something went wrong. The SCA aptly referred to the Castell v de
Greef 1993 (3) SA 501 (C) decision which stated "if the error
is one which a reasonably competent practitioner might have made,
it will not amount to negligence".
The SCA pronounced that the facts of the Buthelezi case did not
warrant application of the res ipsa loquitur maxim, when
it was unclear what caused the defect and the cause of same was
based on mere speculation. The court therefore confirmed that a
simple error cannot be considered to amount to negligence.
Conclusion
While the critics of the Van Wyk decision would be dissatisfied
with this dictum, they may well find scope to distinguish a case
with has clearer causes for the damage. This debate may therefore
continue.
There may be some merit in not allowing this maxim to apply.
Doctors and professionals often make decisions and take steps based
on their experience and knowledge and even in the best hands
complications occur.
The SCA's refusal to apply the res ipsa loquitur maxim
to the facts provides some measure of comfort for defendants in
that litigants still need to prove the factual basis for negligence
to be proved.
What is clear is that the Buthelezi judgement cautions litigators
against assuming that errors or mistakes are automatically
negligent. If a professional in similar circumstances would have
reasonably made the mistake, it will not be considered
negligent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.