The Trouble With Oppelt And The Treatment Of Evidence In Medical Negligence Matters

Has the recent Constitutional Court decision of Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape1 resulted in the effective substitution of expert evidence by the logical reasoning of court? If so, the question is, where does this leave us?

Introduction

The courts' task of dealing with medical negligence matters has never been an easy one. It involves weighing the act or omission of a medical practitioner against the standard of care of a reasonably skilled practitioner in that particular branch of the profession at the time.2 A practitioner will be found to have acted negligently if a reasonably skilled practitioner would have foreseen the likelihood of harm occurring, taken steps to guard against it and the practitioner in question failed to take those steps. To assist the courts in determining what this standard of care entails, expert evidence is generally led by the parties.

However, difficulty often arises when the court is faced with two conflicting experts' opinions. In Michael and Another v Linksfield Park Clinic and Another3, the Supreme Court of Appeal held that "A defendant can be properly held liable, despite the support of a professional opinion sanctioning the issue, if that body of opinion is not capable of withstanding logical analysis and is therefore not reasonable."

In Medi-Clinic v Vermeulen4, the SCA held that the court's duty is to evaluate whether and to what extent the opposing expert evidence is founded on logical reasoning. The SCA held that if two experts have opposing views which are both based on logical reasoning, it cannot choose to simply prefer one expert's evidence over that of the other. It held that "If a medical practitioner acts in accordance with a reasonable and respectable body of medical opinion, his conduct cannot be condemned as negligent merely because another reasonable and respectable body of medical opinion would have acted differently."

The result of the abovementioned judgments was that where both experts' opinions are based on logical reasoning, the plaintiff's claim could not succeed.

The Oppelt decision

Towards the end of 2015, the Constitutional Court ("CC") reconsidered this approach to assessing expert evidence in medical negligence matters in the majority judgment handed down by Molemela, AJ in the Oppelt case. The facts were briefly as follows: in 2002, a 17 year old male sustained severe spinal injuries during a rugby match. He was initially taken to Wesfleur Hospital, and was then transferred via ambulance to Groote Schuur Hospital. After arriving at Groote Schuur...