Has The South African SCA Imported The Res Ipsa Loquitur Maxim Into Medical Negligence Cases?

• Published date: 04 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Clyde & Co
• Author: Mr Athol Gordon

The Supreme Court of Appeal ("the SCA") handed down judgment in Meyers v MEC, Department of Health, Eastern Cape¹ which was delivered on 04 March 2020. The SCA was faced with the question of whether a surgeon, Dr Richard Vogel, employed by the Department of Health in the Eastern Cape Provincial Government, negligently caused injuries to Ms Felicia Meyers during a surgical procedure to remove her gall bladder (known as a laparoscopic cholecystectomy). It was common cause that during this procedure two small injuries, each about two millimetres in diameter, were caused to Ms Meyers's common bile duct, with the result that bile leaked into her stomach after the operation, causing infection.

There were competing views amongst the bench on whether or not Dr Vogel's conduct fell short of the standard of care required of a surgeon in the circumstances, and the minority judgment, penned by Plasket JA, adopts the traditional approach in respect thereof. As it was put in Goliath v MEC for Health, Eastern Cape ("Goliath")²:

"The failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence"

Plasket JA's interpretation is to adjust the general standard of care upwards, when, such as in this case, a person possesses a higher level of skill. However, it is not to demand the highest possible degree of professional skill, but to hold them to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. This corresponds with the court a quo's judgment, penned by Revelas J, advocating for the inevitability of human error and holding that placing an unreasonably high standard on surgeons is "dogmatic and unrealistic".

Plasket JA later paraphrased the important judgment of S v Bochris Investments (Pty) Ltd and Another ("Bochris")³, that:

"In assessing a person's conduct [...] one must guard against the 'insidious subconscious influence of ex post facto knowledge', and bear in mind that '[n]egligence is not established by showing merely that the occurrence happened . . . or by showing after it happened how it could have been prevented' - the reasonable person does not have 'prophetic foresight."

On this basis, Plasket JA (Koen AJA concurring) was of the view that Ms Meyers had not discharged the onus on her...