The incommensurability of the archaic perceptions of the maxim res ipsa loquitur in medical negligence litigation
This thesis assesses the legal doctrine res ipsa loquitur ('the thing speaks for itself) in the context of delictual claims for compensation for medical negligence in South African law. The thesis accepts that the doctrine is defensible in principle: a civil court may justifiably draw an inference that a defendant's negligent conduct was a factual cause of the harm suffered in simple cases where there is uncontradicted evidence sufficient to establish a prima facie case. However, it is argued that the South Africa Appellate Division's rejection of the doctrine in the context of medical negligence in 1924 remains justified. It is sometimes thought that the doctrine would assist plaintiffs in complex medical cases by easing the difficulty of establishing a cause of action on a balance of probabilities. However, the thesis argues to the contrary that applying the doctrine in the context of medical negligence claims in South Africa is potentially unjust to claimants and defendants alike. Judgments of medical negligence cannot be made soundly without a proper appreciation of the relevant medical facts. The availability of the doctrine, in the South African context, provides a motivation for plaintiffs to advance insufficiently-prepared evidence, sometimes without the views of experts. This results in the oversimplification of complex medical realities, which increases the risk that courts may reach conclusions regarding negligence and factual causation for reasons that are unjustifiable from a medical perspective. Insufficiently-prepared evidence is also vulnerable to rebuttal by defendant-doctors on 'exotic' or inadequate grounds from a medical perspective, resulting in the unjust rejection of negligence claims. By enabling a superficial approach to deciding questions of medical negligence in the South African context, the doctrine may promote the erroneous assumption that bad medical outcomes typically result from medical wrongdoing. To make its case, the thesis draws on case studies of a variety of medical procedures and contrasts the operation of res ipsa loquitur in South Africa against English legal experience. Differences between the two systems of medical negligence cast doubt on the notion that the English approach should be transplanted to South Africa. Rather than relying on the res ipsa loquitur doctrine to bolster claims made without medical expert evidence, the South African plaintiff should instead rely on constitutional arguments, appealing to basic rights to bodily integrity and dignity, to justify the injection of a degree of flexibility into the common-law elements of a delictual claim.
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