In the recent case of Buthelezi v Ndaba 2013 ZASCA 72 the Supreme Court of Appeal confirmed the principles involved when drawing inferences as to negligence on the part of a surgeon where a known complication arises.
Dr Buthelezi, the appellant, performed a total abdominal hysterectomy on Ms Ndaba. She developed a vesico-vaginal fistula, which she alleged was due to the doctor’s negligence during performance of the surgery. The Court a quo agreed with Ms Ndaba and found that Dr Buthelezi was negligent.
On appeal, the Court referred to the locus classicus on medical malpractice, Van Wyk v Lewis 1924 AD 438, wherein it was held that the maxim res ipsa loquitur (the facts speaks for themselves) cannot find application in cases based on alleged medical negligence “because the human body and its reaction to surgical intervention is far too complex for it to be said that because there was a complication, the surgeon must have been negligent in some respect.”
In essence, the Supreme Court of Appeal held that where a known complication of a surgical procedure presents itself, the Court cannot solely on the presence of such complication assume negligence on the part of the surgeon. The mere fact that a surgical complication occurred does not in itself justify an inference that the surgeon was negligent in some way.
The Supreme Court of Appeal referred to Hucks v Cole 1986 LJ 118 and Castell v De Greef 1993 (3) SA 501 (C) and affirmed the test for negligence in the case of a medical practitioner, being whether the practitioner exercised reasonable skill and care and whether his conduct fell short of the standard expected of a reasonably competent practitioner in his field of expertise. The aforementioned cases held that a practitioner is not to be held negligent “simply because something went wrong”.
The Supreme Court of Appeal further held that a court has to consider the opinions of expert witnesses regarding a surgeon’s negligence, but ultimately the decision as to the negligence of the surgeon’s conduct falls within the Court’s discretion. Where the experts’ opinions are in conflict, the determination of negligence must depend on an “analysis of the cogency of the underlying reasoning which led the experts to their conflicting opinions”. In effect, the Court will favour the expert’s opinion that is founded on sound principles and is well supported.
The expert witness for Dr Buthelezi testified that a fistula is a widely recognised complication of hysterectomy procedures and cannot always be avoided. Based on the principles set out above, the Court was unable to draw an inference of negligence on the part of Dr Buthelezi. The Supreme Court of Appeal consequently upheld the appeal and Ms Ndaba’s claim was dismissed.