Proving negligence in medical malpractice claims: There can be complications

Ei incumbit probatio qui dicit: non qui negat - the burden of proof is on the alleger, not the denier.

This is a reminder we received in the case of M.L v Van Der Merwe (5560/2019) [2025] ZAWCHC 88 (7 March 2025), particularly on the onus borne in medical negligence cases. Unlike some general liability cases, our courts err on the side of caution when applying the res ipsa loquitur (the thing speaks for itself) doctrine in medical negligence cases. 

In this case, the defendant, a specialist gynaecologist and obstetrician, performed a laparoscopic procedure on the plaintiff, during which she sustained a perforation in the dome of her bladder. The plaintiff accordingly instituted action against the defendant, alleging that the complication arose as a result of the defendant’s negligence when performing the procedure. The plaintiff clearly assumed that the complication was an obvious indication of negligence, an assumption her own experts could not prove. On the evidence before it or lack thereof, the Court found that the injury was an unfortunate complication, one which ‘can occur [even] in the best of hands.

Keeping with application of this principle from earlier cases, Van Wyk v Lewis¹, Hucks v Cole², and Castell v De Greef³, the Court in M.L v Van Der Merwe explained that “as is so often evident, ‘even with the best will in the world things sometimes go amiss’ in surgical operations or medical treatment”.⁴ This is a reminder that one cannot expect to succeed in proving negligence in medical malpractice matters (and professional indemnity matters in general) by simply relying on what “appears obvious”. 

Although a simple principle, we remain reminded that the onus of proof is on plaintiff to adduce evidence that not only did the doctor cause the alleged harm, but that their conduct was negligent. The practice of medicine, as most other professions for that matter, is not simple, so why would we expect the prosecution of claims against these professionals to be…. In conclusion, quoting Kotze JA in Van Wyk v Lewis - 1924 AD 438, “if at the conclusion of the case the evidence is evenly balanced, [a plaintiff] cannot claim a verdict; for [they] will not have discharged the onus resting upon him."

¹1924 AD 438.

²[1968] 118 New LJ at 469 

³1993 (3) SA 501 (C).

⁴M.L v Van Der Merwe (5560/2019) [2025] ZAWCHC 88 (7 March 2025) para 116, Hucks v Cole [1968] 118 New LJ 469, cited in Buthelezi n 4 para 15