Advertise Here
Icon

Directory

IconAccounting & Tax
IconAccreditation Bodies
IconActuaries
IconAssociations and Institutes
IconAuditors
IconBBBEE Consulting and Verification Agencies
IconBusiness Process Management
IconBusiness Process Outsourcing
IconCompany Secretarial Services
IconCompare Medical Scheme Benefits
IconCompliance
IconConsumer Protection
IconCorporate Governance
IconCredit Bureaus
IconDebit Order Collection Facilities
IconEducation and Training
IconEmergency Medical Rescue
IconExpatriate Cover
IconFAIS
IconHealthcare Consultants
IconHuman Resources
IconInformation Technology and Software Partners
IconLegal
IconManaged Healthcare Service Providers
IconMedical Aid Administrators
IconMedical Aid Schemes
IconMedical Schemes Trustees Liability Insurance
IconMedical Service Providers
IconOmbud
IconPolicy Administration
IconPublications
IconRegulatory Authorities
IconSurveys & Research
IconTraining Courses & Workshops
IconWellness Programs
Advertise Here
  Subscribe To »

Medical malpractice claims, adverse inferences and res ipsa loquitur

Published

2020

Sun

01

Nov

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
 
« Back to previous page Print this page » |
 

Breaking News »

To insure or self-insure? A conundrum for fleet operators

Johannesburg, 4 March21: Fleet insurance is essential for businesses with vehicle fleets and drivers. With proper management and meticulousness, fleet managers can reduce insurance costs, improve the safety of ...
Read More »

  

Allianz Global Corporate & Specialty Partners with Google Cloud and Munich Re to Provide Cyber Risk Management Solution for Cloud Customers

Johannesburg/London/Munich/New York/Paris/Sao Paulo/Singapore - March 2, 2021 – Allianz Global Corporate & Specialty (AGCS), the corporate insurer of Allianz SE, and Munich Re have jointly developed a ...
Read More »

  

Michael Furtschegger to lead Entertainment line of business at AGCS globally

Furtschegger was previously responsible for the international expansion of Entertainment, which is an AGCS line of business since 2015 Entertainment was hit significantly by Covid-19-driven claims in 2020, but ...
Read More »

  

AGCS 12 months results update

In an extremely challenging environment in 2020, Allianz demonstrated resilience to an unprecedented health crisis and prolonged interest rates. The financial performance in the fiscal year 2020 has been remarkably ...
Read More »

 

More News »

Image

Investment »

Image

Life »

Image

Retirement »

Image

Short-term »

Advertise Here
Image
Image
Image
Advertise Here

From The Glossary »

Icon

Policyholder:

The policyholder is the person in whose name the policy is registered. It may or may not be the same person as the one who stands to benefit from it. For example, one may take out a life policy and although you are the policyholder that policy will eventually be paid out to someone else. Most policies are payable to the policyholder but he or she has the right to make it payable to someone else.
More Definitions »

 

Advertise

 

eZine

 

Contact IG

 

Media Pack

 

RSS Feeds

By using this website you agree to the Terms of Use.
Copyright © Insurance Gateway (Pty) Ltd 2004 - 2021. All Rights Reserved.