Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
6.32 Res ipsa loquitur 171
‘Res ipsa loquitur’ means ‘the thing [referring to the incident in question] speaks
for itself.’ 172 The maxim applies where an accident happens in a manner which is
unexplained but which does not ordinarily occur unless there has been negligence.
The court may therefore be entitled to infer that the accident was caused
by negligence. 173
It is frequently difficult in medical malpractice cases to establish negligence
on the part of the defendant. A number of factors combine to produce this result:
the procedure in issue is often technically complex; the patient rarely has the
necessary expertise to assess whether the standard of the reasonable medical
practitioner has been complied with and the patient is often unconscious when
the procedure is performed. As a result, the doctrine of res ipsa loquitur has been
advanced as being relevant to the plaintiff establishing his or her case.
Therefore, in a well-known English case 174 where the plaintiff went into hospital
for an operation to be treated for two stiff fingers (as a result of Dupuytren’s
contracture), and came out with four stiff fingers, Denning LJ held that the plaintiff
was quite entitled to say: ‘I went into hospital to be cured of two stiff fingers.
I have come out with four stiff fingers and my hand is useless. That should not
have happened if due care had been used. Explain it if you can.’ Where circumstances
analogous to these occur, then the plaintiff will have established a
171
In Goliath v Member of the Executive Council for Health, Eastern Cape (unreported at the time
of going to print, but available as (085/2014) [2014] ZASCA 182; 2015 (2) SA 97 (SCA) (25
November 2014). 12]) the Court held: ‘Thus in every case, including one where the maxim
res ipsa loquitur is applicable, the enquiry at the end of the case is whether the plaintiff has
discharged the onus resting upon her in connection with the issue of negligence (Osborne
Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) at
897H–898A). That being so, and given what Holmes JA described as the “evolved mystique
of the maxim”, the time may well have come for us to heed the call of Lord Justice Hobhouse
to jettison it from our legal lexicon. In that regard he stated in Ratcliffe v Plymouth and Torbay
Health Authority [1998] EWCA Civ 2000 (11 February 1998): “In my judgment the leading
cases already gives sufficient guidance to litigators and judges about the proper approach to
the drawing of inferences and if I were to say anything further it would be confined to suggesting
that the expression res ipsa loquitur should be dropped from the litigator’s vocabulary
and replaced by the phrase a prima facie case. Res ipsa loquitur is not a principle of law: it does
not relate to or raise any presumption. It is merely a guide to help to identify when a prima
facie case is being made out. Where expert and factual evidence has been called on both
sides at a trial its usefulness will normally have long since been exhausted.” [13] Medical negligence
cases do sometimes involve questions of factual complexity and difficulty and may
require the evaluation of technical and conflicting expert evidence. But the trial procedure,
which is essentially the same as in other cases, is designed to deal with those and thus no
special difficulty ought to be involved in determining them.’
172
Groenewald v Conradie 1965 (1) SA 184 (A) at 188. See, generally: Arthur v Bezuidenhout and
Mieny 1962 (2) SA 566 (A); Stacey v Kent 1995 (3) SA 344 (E) at 352; Bayer South Africa (Pty)
Ltd v Viljoen 1990 (2) SA 647 (A) at 662; Neethling et al Law of Delict 6 ed (LexisNexis 2010)
at 155. In respect of medical malpractice cases, see: Van Wyk v Lewis 1924 AD 438; Pringle v
Administrator, Transvaal 1990 (2) SA 379 (W); Broude v McIntosh 1998 (3) SA 60 (SCA); Blyth v
Van den Heever 1980 (1) SA 191 (A); Buthelezi v Ndaba 2013 (5) SA 437 (SCA).
173
Hoffmann & Zeffertt The South African Law of Evidence 4 ed (Butterworths 1988) at 551.
174
Cassidy v Ministry of Health [1951] 2 KB 343 at 365.