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Medical malpractice claims, adverse inferences and res ipsa loquitur






The Eastern Cape MEC for Health was held vicariously liable for the negligent conduct of provincial hospital nursing staff in failing to take the necessary steps to ensure that a patient’s wound was properly assessed and cleaned and that all debris, specifically a large shard of glass, had been removed. The patient’s wound became infected as a result and he suffered severe pain.

In subsequent treatment of the patient a 8cm by 3cm shard of glass was removed from the wound. Having regard to the dimensions of the shard of glass removed from the wound, and that the Department was unable to explain the omission in the hospital records confirming the nursing sister’s allegation that she had explored the wound, the probabilities and the circumstances compelled the inference that the wound was not explored as alleged.

The court referred to the Supreme Court of Appeal judgment of Goliath holding that the doctrine of res ipsa loquitur is not to be viewed as a presumption of law. Res ipsa loquitur means ‘the thing speaks for itself’ and is sometimes used to presume negligence in the absence of direct evidence of how the event happened. It is merely a permissible inference a court may draw if justified on consideration of all the facts.

A court must adopt a common sense approach in evaluating the evidence as a whole.

The burden of proof on the plaintiff never shifts. At the end of a trial, the court has to decide whether on the probabilities the defendant was negligent and that the negligence caused the plaintiff’s injury.

Determining negligence in medical negligence cases (as in all cases) should not be done in a piecemeal manner. In adjudicating causation the court must consider all the evidence placed before the court as a whole.

The res ipsa loquitur doctrine is merely a facet of the enquiry and cannot be construed to be the sole factor upon which a party’s case succeeds or fails.

The enquiry is always, having regard to all the evidence, has the plaintiff discharged the onus of proving, on the balance of probabilities, the negligence averred against the defendant.

In civil proceedings, however, it is not necessary for a plaintiff to prove that the inference asked to be drawn is the only reasonable inference. It is sufficient for the inference to be the most reasonably apparent and acceptable inference from a number of possible inferences.

The case is Saki v MEC for Health.


Source: Donald Dinnie - Norton Rose Fulbright South Africa Inc
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