Document Type Doctoral Thesis Author Van den Heever, Patrick URN etd-08062007-165205 Document Title The application of the doctrine of res ipsa loquitur to medical negligence cases : a comparative survey Degree LLD Department Public Law Supervisor
Advisor Name Title Prof P A Carstens Keywords
- practice of medicine
- medical inquests
- medical accident
- res ipsa loquitur
- medical negligence
Date 2002-01-30 Availability unrestricted Abstract
The purpose and object of this thesis was to investigate and research the utility and effect of the application of the doctrine of res ipsa loquitur to medical negligence cases. More particularly, it was endeavoured to establish conclusively that the approach of the South African courts that the doctrine can never find application to medical negligence cases is untenable and out of touch with modern approaches adopted by other Common law countries. It was further endeavoured to provide a theoretical and practical legal framework within which the application of the doctrine to medical negligence cases and related matters can develop in South Africa, in future. The research includes a comprehensive comparative survey of the diverging approaches with regard to the application of the doctrine to medical negligence cases between the legal systems of South Africa, England and the United States of America. The most important conclusions which the investigation revealed were the following:
1. There are substantial differences with regard to the application of the doctrine between the three legal systems, with regard to the requirements for, the nature of, the procedural effect on the onus of proof and the nature of the defendant's explanation in rebuttal. These differences are further compounded by differences between the principles enunciated by the courts and the opinions of legal commentators on the subject.
2. Whereas the approach adopted by the South African courts with regard to the application of the doctrine to medical negligence cases is outdated and untenable, more legal clarity, however, exists in South Africa with regard to the application of the doctrine to personal injury cases in general, so that the existing principles which are applied provide a structure within which the extension of its application to medical accidents can be readily accommodated.
3. The current approach adopted by England, where provision is made for the application of the doctrine to obvious medical blunders as well as more complex matters, where the plaintiff is permitted to buttress evidence relating to the res with expert medical evidence, commends itself for acceptance. Such an approach not only alleviates the plaintiff's burden of proof but also provides adequate protection to the defendant by endorsing the principle of honest doubt in the form of letting the defendant prevail if he comes to court and explains that despite due care, untoward results do sometimes occur especially in the practice of medicine.
4. The approach adopted by the majority of jurisdictions in the United States of America is probably too liberal and unstructured so that it may in some instances result in the imposition of liability in medical context, in a arbitrary fashion.
5. Constitutional principles such as procedural equality, policy and other considerations support the extension of the application of the doctrine to medical negligence cases in South Africa. There are also substantial grounds for advancing a persuasive argument that the majority judgment in the Van Wyk v Lewis case should be overruled and that the general application of the doctrine of res ipsa loquitur should not only be extended to cases of medical negligence, but also to related legal procedures which follow a medical accident such as medical inquests, criminal prosecutions and disciplinary inquiries instituted by the Health Professions Council of South Africa.
© University of Pretoria
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