This recent Supreme Court of Appeal judgment finds negligence on the part of a surgeon even in the absence of direct evidence about what conduct caused a specific patient injury.
The Supreme Court of Appeal ("the SCA") handed down judgment in Meyers v MEC, Department of Health, Eastern Cape which was delivered on 04 March 2020. The SCA was faced with the question of whether a surgeon, Dr Richard Vogel, employed by the Department of Health in the Eastern Cape Provincial Government, negligently caused injuries to Ms Felicia Meyers during a surgical procedure to remove her gall bladder (known as a laparoscopic cholecystectomy). It was common cause that during this procedure two small injuries, each about two millimetres in diameter, were caused to Ms Meyers's common bile duct, with the result that bile leaked into her stomach after the operation, causing infection.
There were competing views amongst the bench on whether or not Dr Vogel's conduct fell short of the standard of care required of a surgeon in the circumstances, and the minority judgment, penned by Plasket JA, adopts the traditional approach in respect thereof. As it was put in Goliath v MEC for Health, Eastern Cape ("Goliath"):
“The failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence”
Plasket JA's interpretation is to adjust the general standard of care upwards, when, such as in this case, a person possesses a higher level of skill. However, it is not to demand the highest possible degree of professional skill, but to hold them to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. This corresponds with the court a quo's judgment, penned by Revelas J, advocating for the inevitability of human error and holding that placing an unreasonably high standard on surgeons is “dogmatic and unrealistic".
Plasket JA later paraphrased the important judgment of S v Bochris Investments (Pty) Ltd and Another ("Bochris"), that:
“In assessing a person’s conduct […] one must guard against the ‘insidious subconscious influence of ex post facto knowledge’, and bear in mind that ‘[n]egligence is not established by showing merely that the occurrence happened . . . or by showing after it happened how it could have been prevented’ – the reasonable person does not have ‘prophetic foresight.”
On this basis, Plasket JA (Koen AJA concurring) was of the view that Ms Meyers had not discharged the onus on her to prove on a balance of probabilities that Dr Vogel was negligent when he caused the injuries, and held that the appeal could not succeed.
In the majority decision, penned by Ponnan JA, a very different approach is adopted. According to the Ponnan JA, Dr Vogel did not apply the degree of professional skill and diligence expected of members of his profession when he performed the laparoscopic cholecystectomy on Ms Meyers. In arriving at this conclusion, Ponnan JA places a substantial amount of weight on the opinion of Dr Pienaar, expert witness for Ms Meyers, holding that the result (or fact) of injury, regardless of its degree, would be enough to attribute negligence to a defendant surgeon. This is in opposition to the view of Prof Bornman, expert witness for the MEC, who testified that to hold Dr Vogel liable for such a small injury not knowing the reasons for how it materialised, would be placing too heavy of a burden on a surgeon. Ponnan JA's approach to the opinion of Dr Pienaar would appear to be inconsistent with that of Brand JA in Buthelezi v Ndaba ("Ndaba"), in which an expert witness had also expressed the view that the fact that an injury had occurred pointed to negligence on the part of the surgeon. Brand JA held that this appeared reminiscent of an application of the res ipsa loquitur maxim, which would be inappropriate.
In the separate case of AM and Another v The MEC for Health, Western Cape, the Western Cape High Court set out quite extensively how to deal with conflicting expert opinions, and in doing so relied on the approaches adopted in leading English case law, such as Maynard v West Midlands Regional Health Authority  1 W.L.R. 634, which held that:
“[...] a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred […] For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary.”
Nevertheless, Ponnan JA (Mbatha JA and Dolamo AJA concurring) held that a minor injury, without direct evidence being provided by Dr Vogel or the plaintiff on how it came to be sustained, justified a finding of negligence, concluding in his judgment that:
“no reasonable suggestion has been offered as to how the injury could have occurred, save for negligence on the part of Dr Vogel.”
This sounds ominously like the application by the majority of the res ipsa loquitur maxim which would be an "inappropriate" application of the maxim as expressed by Brand JA in Ndaba. It further goes against the principles laid down in Goliath and Bochris, that only a departure from the general level of skill and diligence expected of a surgeon would constitute negligence, which is not established by showing merely that the occurrence happened or by showing after it happened how it could have been prevented.
As it was put by Wessels JA in the locus classicus on medical malpractice, Van Wyk v Lewis, the maxim res ipsa loquitur should rarely, if ever, find application in cases based on alleged medical negligence, where it has not been established what went wrong, and where the views of experts are all based on speculation – giving rise to various but equally feasible possibilities – as to what might have resulted in the injury being sustained. Therefore, it is respectfully suggested that Plasket JA’s approach is logically to be preferred, as existing authority establishes that there is no room for the application of the maxim in a case like this.
To view the full judgment click here
Authors: Athol Gordon and Dylan Reeves
 Meyers v MEC, Department of Health , Eastern Cape 2020 (3) SA 337 (SCA)
 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA)
 S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A)
 Buthelezi v Ndaba 2013 (5) SA 437 (SCA)
 AM and Another v MEC for Health, Western Cape 2018 ZAWCHC 113
 Page 33 paragraph 82