Title page for ETD etd-09212011-130356

Document Type Master's Dissertation
Author Pienaar, Catherina Elizabeth
Email rinapienaar@law.co.za
URN etd-09212011-130356
Document Title An analysis of evidence-based medicine in context of medical negligence litigation
Degree LLM
Department Public Law
Advisor Name Title
Prof P A Carstens Supervisor
  • evidence-based medicine
  • medical negligence
  • litigation
Date 2011-09-08
Availability unrestricted
A medical negligence case presented to the court is based on averments of neglected duty of care of the defending doctor, a duty owed in accordance with the law of delict, and alternatively and/or accumulatively averments that the contractual agreement between the complainant and the defending doctor was not honoured.

In order to prove failure of duty of care and/or breach of agreement, the complainant bears the onus of proof to present to the court reliable medical evidence that would enable the court to reach a decision. The courts have ruled for and against many plaintiffs throughout the years, setting the standards and yardsticks for the requirements of medical negligence.

The value or lack thereof of the medical evidence presented came under the magnifying glass in the case of Michael vs Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 SCA and the court indicated the necessity for a "collective mind" from the medical profession. Brilliant legal writers published on this topic and the search and need created this dissertation.

The study sets as goal to scrutinize the quality of medical evidence in general, and more specific the Michael-case. From a wide perspective medical evidence was researched, and the term evidence-based medicine led the study to an existing "collective mind" of the medical profession. The study investigated the history and development of evidence-based medicine in order to evaluate whether it can be seen as the "collective mind" of the medical profession. Satisfied that the "collective mind" was found the study tested the available medical evidence, randomly searched, against specific medical issues in the Michael-case and the study compiled substantial medical evidence to work with. An independent expert was consulted and the medical evidence was scrutinized with commentary, explanation and the basis formulated for negligence. The Michael-case was deconstructed and subsequently reconstructed, and the outcome predictably different, based on sound medical evidence.

The study explained and warned against exploitation of the statistical data and incorrect interpretation of results.

The study concluded that the court as the ultimate trier of the facts should determine whether the medical evidence presented to the court forms part of the "collective mind", and whether it complied with logical principles and reasoning prior to reaching a decision.

General notes:

    1. Wikipedia and e-medicine was used as first search and easy reference and not for court purposes or proper reference;

    2. Note that the dissertation has a legal component and medical component and the references in the Bibliography is split under legal and medical references;

    3. Note all the chapter regarding the Michael-case reference to: epinephrine=adrenaline; nor-epinephrine=nor-adrenaline; propranolol=propanolol (American spelling versus the English spelling, both accepted in South Africa);

    4. The spelling of nomenclature like anaesthetist versus anesthetist, gynaecologist versus gynecologist; paediatrist versus pediatrist etc are used inconsistently as it is once again the American spelling versus the British spelling, which are accepted in South Africa.

2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Pienaar, CE 2011, An analysis of evidence-based medicine in context of medical negligence litigation, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-09212011-130356 / >


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