The incommensurability of the Archaic perceptions of the maxim Res Ipsa Loquitur in medical ...

314 Pages·2017·2.51 MB·English

The incommensurability of the archaic perceptions of the
maxim res ipsa loquitur in medical negligence litigation

by

CATHERINA ELIZABETH PIENAAR

Submitted for the degree of
n
DOCTOR OF PHILOSOPHY IN LAW
w

o
T
to the
e

p
Faculty of Law
a
C
at the

f
o
University of Cape Town

y

t
i
s
r
e
Promoter: Prof A Price
v
i
n

U

July 2016
1
n
w
The copyright of this thesis vests in the author. No
o
T
quotation from it or information derived from it is to be

published without full acknowledgeement of the source.
p
The thesis is to be used for private study or non-
a
C
commercial research purposes only.

f
o
Published by the Universit y of Cape Town (UCT) in terms
y
t
of the non-exclusive license granted to UCT by the author.
i
s
r
e
v
i
n
U
PREFACE
The delict of medical negligence is based on the process of identifying fault on the part of a
medical professional or medical institution for the harm caused to a patient. The medical
professional or hospital is criticised for the alleged substandard care that resulted in injury to
the patient. Unfortunately, medical professionals sometimes perceive a claim for
compensation based on liability as a personal attack on their character that suggests that they
are inefficient or incompetent, whereas it should be seen as a way of correcting a wrong.
Furthermore, cases like Michael v Linksfield Park Clinic1contribute to public cynicism about
a prejudiced judicial system that seems to favour the medical profession. Michael v Linksfield
Park Clinic2embodies this perceived injustice, as it is a case where uncomplicated surgery for
the repair of a broken nose in a healthy young man resulted in permanent brain damage. The
facts in the causal chain of events were that the anaesthetist, in administering certain
anaesthetic solutions, caused a hypertensive crisis that he failed to control. This caused the
patient to go into cardiac arrest, which was not adequately managed. The patient suffered a
hypoxic incident with insufficient oxygen to the brain and, ultimately, permanent brain
damage. The medical professionals failed to explain the medical clinical course of an
anaesthetic-induced error to the court and thus the court did not appreciate the medical
reality. ‘Medical reality’, in this sense means the true interpretation of the medical facts.
Because liability cannot arise before causation has been established, the focus of the thesis is
on the medical interpretation of the injury in order to determine factual and legal causation.
Perhaps the need to understand such ‘unfairness’ or injustice is the motive behind the
legal appeals for the reintroduction of the res ipsa loquitur maxim in medical negligence
cases in South Africa. Maybe it is a plea for the introduction of an all-encompassing phrase to
confer a reverse onus on the defendant based on the complexity of the science of medicine –
or indeed in all complex technical cases. Perhaps it is simply an appeal for greater equality in
the doctor-patient relationship thereby advancing patient’s rights. The South African
Constitution3 as the supreme law of the country includes a Bill of Rights for a society based
on ‘social justice and fundamental human rights’4 with equal rights and equal opportunities to

12001 (3) SA 1188 (SCA). Cf CE Pienaar An analysis of evidence-based medicine in context of medical
negligence litigation (unpublished LLM dissertation, University of Pretoria 2011), available at
http://upetd.up.ac.za/thesis/available/etd-09212011-130356/unrestricted/dissertation.pdf (accessed 3 February
2012). Pienaar describes the anaesthetic chaos that occurred during the operation in detail.
2Michael (n 1). The plaintiff failed to discharge his onus of proof from the available medical evidence and the
court dismissed the plaintiff’s case. See chapter 1 para 3.1
3The Constitution of the Republic of South Africa, 1996 (the Constitution).
4Preamble to the Constitution.
2
all.5 It stipulates that ‘everyone has the right to have access to health care services’ and the
right to make decisions over your own body ie the ‘right to bodily integrity’.6 The
Constitution places a positive obligation on the state to promote the rights of all South
Africans taking into consideration the wrongs of the past, socio- and economic injustices and
the right to equality and human dignity; this is referred to as a substantive approach to adapt
the common law so that it fulfils the constitutional needs of the country. It should provide
more substance to the concept of equality with a purpose to rectify wrongs and eliminate past
racial discrimination.7 The Constitutional Court has linked the notion of equality with human
dignity. Any violation of a human right affects a person’s dignity and should be interpreted as
a form of discrimination.8 This strong constitutional influence resulted in the court leaning
towards a wider interpretation of legal principles.9 This is in line with the global movement
towards bending the rules of causation in certain cases, motivated by the desire to remedy
breach of human dignity and to safeguard physical and bodily integrity.10
South Africa currently has a compromised health system. A finding of fault in
medical negligence cases is directed at an individual health professional or institution and
such claims rarely highlight organisational errors or badly managed systems. However,
statistical evidence11that shows an increase in medical negligence litigation in the last five
years may well indicate systemic failures. South Africa is fighting crime, corruption and
systemic failures. Although it seems inadequate to promote human dignity to the homeless in
South Africa where people are starving, it should remain our constitutional vision and goal to
strive for and promote human dignity as a human value worthy of protection. It is certainly

5Preamble to the Constitution.
6Section 27(1)(a)and section 12(2) of the Constitution respectively.
7City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC). The court held that it is the duty of the
municipality to eliminate all disparities in the community. The aim is substantive equality and not formal
equality so the previously disadvantaged community was treated with a ‘softer hand’.
8Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape [2015] ZACC 33.The
human worth (dignity) refers to a situation where all human beings are treated equally for purposes of section
9(2) of the Constitution and in respect whereof they may not be unfairly discriminated against in terms of
section (3). See chapter 2 para 7.
9Oppelt (n 8). The majority ruled in favour of the plaintiff based on inadequate policy and system structures.
10Chester v Afshar (2004) All ER (HL) 24, where the English court developed the English common law on
causation to protect patient rights and the ‘right of autonomy and dignity can and ought to be vindicated by a
narrow and modest departure from traditional causation principles’.
11See article written by Prof M Pepper (University of Pretoria, Department Immunology)
http://www.news24.com/Archives/City-Press/Doctors-lose-patience-as-suites-spike-20150429 (accessed 14
March 2013). The author describes a case in point, the death of Rita Nel (45) of Carolina, Mpumalanga. On 2
April she was admitted to the Steve Biko Academic Hospital in Pretoria with a lung condition, and had to
undergo a diagnostic CT scan. However, the scanner was broken and, because the Gauteng health department
had failed to pay their suppliers, the latter refused to repair the machine. For three weeks, Nel lay untreated in
the hospital, waiting in vain for the scan. She died untreated on 23 April. Cf Bulletin of the World Health
Organization: Bridging the gap in South Africa, http://www.who.int/bulletin/volumes/88/11/10-021110/en/
3
worthy of being developed by means of the substantive constitutional approach for a better
South Africa.12One sees activists, like the group Know Your Constitution, 13campaigning for
the Constitution to be made available to the people in all South African languages. From this,
it is natural to see the public developing a growing interest in, for example, patients’ rights
and awareness regarding the expected standard of health care delivery. Because the function
of the Bill of Rights is to enable rights to be vindicated and to provide remedies when duties
have been breached, it is not surprising to find claims based on the fallacy that any medical
accident or ‘any medical injury’ or negative medical outcome is or should be seen as a breach
of a legal duty by a medical professional.
The global increase in litigation in the field of medical negligence is perhaps as a
result of a heightened general awareness of patients’ rights. However, from a medical
perspective, the increase in litigation may be based on unrealistic expectations from the
public regarding treatment options and surgical outcomes. An additional cause for the
increase in litigation may be the consequence of the rapid development in the field of
technical-medicine (such as laparoscopic surgery) and its higher risk of injury.14 It is in this
technical field where the incidence of injury decreases with the experience of the surgeon and
where the unaware jurist might be tempted to make use of the res ipsa loquitur maxim.
Another silent, yet fundamental, cause of the increased number of court cases is the shift in
focus of managed health care systems to cutting costs rather than delivering effective health
care. This has a marked influence on medical insurance systems. Such a notional shift in
managed health care is cause for concern in respect of the expected standard of care, as cost-
reducing principles increase the risk of compromising the golden standard of care delivery in
health care. One can only be astounded at the lack of ethical considerations and the failure of
integrity and respect for human life exhibited in Sibisi NO v Maitin, 15where a larger-than-
normal baby was born with severe shoulder paralysis. When asked why he had not
considered performing a caesarean section when dealing with this large baby (4.5 kg) of an

12City Council of Pretoria v Walker (n 7). See chapter 2 para 1, for a discussion where a substantive
constitutional revolution is described as the achievement of the goal of equality in a community by correcting
wrongs of the past. It will sometimes come at a price for those who were previously advantaged in favour of the
previously disadvantaged. It describes the action needed to be taken to advance the position of those who
suffered unfair discrimination in the past. It considers the community as a whole and it includes socio-economic
disadvantages and it promotes human dignity.
13T Hodgson ‘Towards an active citizenry’ Daily Maverick 30 October 2013, available at
http://www.dailymaverick.co.za/article/2013-10-30-towards-an-active-citizenry-bringing-the-constitution-to-
the-people (accessed 3 February 2014).
14See chapter 4 para 10 regarding the risks and complications of this procedure.
15[2014] ZASCA 156 para 35.
4
African woman – African women are known for their smaller pelvic frames – the defendant-
doctor testified that, in accordance with the American Family Physician guidelines,16 these
risk factors (of the case) were not a reason for performing a caesarean section. He observed
that, if an unnecessary caesarean section was performed, it would entail a huge cost factor:
performing about 2 000 caesarean sections to prevent one shoulder dystocia. Perhaps similar
managed health care guidelines17 were the cause of an obstetrician’s reluctance to perform a
caesarean section in England in Pearce v United Bristol Healthcare NHS Trust,18 where a
baby went 14 days beyond term and the failure to perform a caesarean section caused the
death of the unborn baby. In another English case, Montgomery v Lanarkshire, 19a large baby
was born during normal delivery with cerebral palsy (brain damage) to a mother of small
build. When asked why a caesarean section was not considered, the defence of the
obstetrician in this 2015 case was that she did not warn the mother of the high risk of
shoulder dystocia because most women would then elect to have a caesarean section as
opposed to natural birth.
The interaction between law and medicine is challenging and complex because of the
intricacies of diseases and the function of the human body and its reaction to injuries and
pathology. Concepts such as cause and effect in medicine, or why certain things happen to
the body or what causes it are found in medical science, and not easily understood. Medical
science focuses primarily on the cause of a disease or injury in order to treat or prevent it, and
seeks medical solutions by examining the relationship between medical conditions and their
occurrence. It does not focus on the causal chain to attribute liability in order to compensate a
claimant for a wrongdoing. The legal focus is on holding a wrongdoer legally accountable in
a fair and just manner. The clinical course in medicine is seldom one occurrence but is often

16In a guideline issued in December 2012 by the Royal College of Obstetricians and Gynaecologists, dealing
with shoulder dystocia a caesarean section was not indicated;
https://www.rcog.org.uk/globalassets/documents/guidelines/gtg_42.pdf (accessed 8 July 2016). However, see
MA Zamorski & WS Biggs ‘Management of suspected fetal macrosomia’ (2001) 63(2) Am Fam. Physician
302–307: ‘Elective caesarean section is not recommended for suspected fetal macrosomia (estimated fetal
weight over 4.5 kg) without diabetes. Estimation of fetal weight is unreliable and the large majority of
macrosomic infants do not experience shoulder dystocia. In the USA, a decision analysis model estimated that
an additional 2 345 caesarean deliveries would be required, at a cost of US$4.9 million, to prevent one
permanent injury from shoulder dystocia.’ In other words the cost of an unnecessary caesarean section is
weighed against the prevention of a permanent disability like brachial plexus injury (Erb’s palsy); DJ Rouse et
al ‘The effectiveness and costs of elective caesarean delivery for fetal macrosomia diagnosed by ultrasound’
(1996) 276(18) JAMA 1480–1486.
17See Guidelines (n 16).
18[1999] ECC 167; [1999] PIQR P53; (1999) 48 BMLR 118 CA (Civ Div). This case is discussed in detail in
chapter 3 para 9.4.
19[2015] UKSC11; [2013] CSIH 3; [2010] CSIH 104. Fortunately the court found in favour of the plaintiff. This
case is discussed in detail in chapter 3 para 9.5.
5
seen as a chain of events leading to optimal medical health. This ‘medical reality’ means
understanding and appreciating the medical facts. Every single part of the chain (the clinical
course) causes or has an effect on, or even a cumulative effect on, the subsequent part. The
cumulative causal chain of events is explained by the medical expert in context with the
expected or desired standard of care, which is then weighed against the care that was
delivered. The court, against the set standard then evaluates the nature of the care delivered as
it forms the basis of factual causation in delict. The required standard of care means more
than simply skill and care of a doctor. It includes referring to the acceptable standard of the
practice of medicine. For example, in Michael v Linksfield Park Clinic20the medical chain
consisted of (i) a hypertensive crisis; (ii) leading to cardiac arrest; (iii) leading to hypoxia that
ultimately led to brain damage. All these events form part of the clinical course and are pure
medical science. In other words, the law makes an assessment according to medical standards
and policies from the facts of the injury and construes (in the above example) that the
insufficiently managed hypertensive crisis led to insufficiently managed cardiac arrest that
resulted in irreversible hypoxia and ultimate brain damage. Furthermore, every change in the
clinical course of the patient should be evaluated to ensure that it forms part of the main
causal chain that led to the injury. If this is not done, the defendant cannot be found liable for
the undesired outcome, based on a failure to establish legal causation.21
Without satisfying all the elements in delict, namely (a) a commission or omission
(actus reus), (b) that is unlawful or wrongful (wrongfulness), (c) that was committed
negligently or with particular intent (culpa or fault), (d) that results in or causes the harm
(causation) and (e) the existence of injury, loss or damage (harm),22 the plaintiff would be
unable to convince the court to attribute liability to the defendant. The elements of delict test
whether the defendant’s conduct should be seen as the breach of a legal duty in law and
whether the defendant’s conduct falls short of the expected standard of care.23 Negligence
(culpa) is established only when it becomes evident from the defendant’s testimony that he
failed to act reasonably in the circumstances.24

20Michael (n 1).
21Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) SA 144 (CC); 2013 (2) BCLR 129 (CC)
para 39.
22Judd v Mandela Bay Municipality 2011 ZAECPEHC 4 para 8.
23Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [1999] ZASCA 87; 2000 (1) SA
827 paras 21–22.
24Kruger v Coetzee 1966 (2) SA 428 (A).
6
The thesis argues that in medical cases the law in South Africa as it stands contains no
easy solution or catch-all phrase encapsulated by the res ipsa loquitur maxim. More
particularly, in medical negligence cases one has to appreciate the medical causes and effects
to be able to say ‘the facts speak for themselves’ or ‘res ipsa loquitur’, which would rarely be
the case considering the difficult science of medicine. In determining liability based on the
breach of a legal duty in a medical case, there is ultimately only one question, and that is
whether the plaintiff, having regard to all the evidence in the case, has discharged the onus of
proof on a balance of probability.25Such a judgment is possible only with a proper
appreciation of the medical reality. In South African law, even the unintentional leaving of a
swab in a patient’s body is not evidence of negligence (culpa and liability) or even a
presumption of negligence, if all the delictual elements are not satisfied or cannot be inferred
from the facts.26If an investigation into the circumstantial evidence is necessary to evaluate
the medical professional’s conduct at the time of the injury it would conflict with the design
of the res ipsa loquitur maxim in a medical negligence case and the possible opportunity to
make use of the maxim falls away. The fact of the injury is not an ordinary occurrence that is
known to the non-medical person. To argue in South African context that, the maxim attracts
a presumption of negligent conduct (culpa) based on the fact of the injury because of the
extraordinary nature of the injury in a situation under the control of the defendant-doctor will
not discharge the onus of proof resting on the plaintiff. Such an allegation lacks substance in
terms of delictual principles. It is vague and does not provide sufficient information for a
court to arrive at a decision that inadequate care caused the injury, because there are too
many alternative explanations that are not negligent in nature. In South Africa, to get a
medical professional to explain why he failed to guard against leaving a swab behind,
requires at least sufficient circumstantial evidence to show, for example, that the doctor
neglected his legal duty to the patient by ignoring the swab-count of the theatre nurse. The
thesis ultimately argues that the application of the maxim is not the solution to the problem of
assisting plaintiffs in medical negligence cases in South Africa. As the law stands, the
plaintiff’s case will be better served by preparing a medical case based on medical expert
evidence than to allege lack of care without considering the other delictual principles.

25Sardi v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A) 780C–H per Holmes J.
26Minister of Safety and Security v Van Duivenboden (2002) (6) SA 431 (SCA) 441E–442B (para 12), where
Nugent JA said that ‘[w]here the negligence manifests itself in a positive act that causes physical harm it is
presumed to be unlawful, but that is not so in the case of a negligent omission. A negligent omission is unlawful
only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid
negligently causing harm’.
7
The author had a career in the medical profession before becoming involved in the
legal profession, which gave her insight into the nature of the medical merits of a case
supported by expert medical interpretation. She found that medical negligence cases are often
dismissed on the ground that insufficient medical information is presented to the court. In
addition, unfortunately, she found that some medical professionals are determined to mislead
the court into believing unjustifiable alternative causes of harm.27Once the plaintiff’s case is
mired in such an inaccurate interpretation of the medical facts, any legal inference or factual
inference made will be flawed. This influenced the author’s decision to take on the daunting
task of explaining the methodology of medicine and the legal principles applicable to claims
for medical negligence. It follows that one can hardly draw a factual presumption, ie the
function of the res ipsa loquitur maxim, from complex medical facts that are not clearly
appreciated. This led to the statement of the thesis, namely, that the res ipsa loquitur maxim
is incommensurable with the medical reality.
The author trusts that this thesis may provide a guide for novice legal practitioners in
the interesting field of medical negligence litigation, with its proud roots in Roman law. The
author does not favour the use of the res ipsa loquitur maxim in medical negligence cases in
South Africa, based on the argument that the maxim does not satisfy all the elements in
delict. In summary, it is the author’s view that it is fundamental that the South African
plaintiff should make use of medical expert evidence that sets the desired standard of care for
the court. This standard is then contrasted against the standard that was delivered.
Furthermore, the plaintiff should rely on remedial equality principles that ensure that the
basic right to be treated with dignity, predominantly in context of bodily integrity, is
promoted and has been respected. Managed health care studies that are based on cost and not
based on optimum health care, should be investigated to monitor any disregard for bodily
integrity. The common law should be development on a continuous basis in accordance with
constitutional principles. In this context, the relaxation of causal principles should include a
South African court moving to a more inquisitorial approach with more judicial involvement
in medical cases, as it may assist with the elimination of possible medical expert bias.

27Sibisi (n 15).
8
ACKNOWLEDGEMENTS
I extend my sincere thanks and gratitude to Professor Antoine van Gelder, who steered me
through the difficult perspectives in medicine; to Professor Alistair Price, who assisted,
encouraged and guided me through the complex legal principles; and to Mr Martin Rollo,
who copy edited my thesis. My thanks to my mother, who is no longer with me, and my
father; through their actions and love they inspired me, as they always believed in me. Above
all, I am grateful to my God, who made all this possible.
Rina Pienaar
July 2016
9