Cape Town -
For the first time in over a century of South African law, the onus to completely prove negligence by medical practitioners no longer rests with the patients who sue them.
Judgment was handed down in the Supreme Court of Appeal (SCA) on Tuesday in favour of Cecilia Goliath, who had taken the Executive Council for Health in the Eastern Cape to court for damages because a surgical swab had been left in her abdomen, causing severe pain and an abscess.
City attorney and branch chairwoman of the SA Medico Legal Society, Romany Sutherland, said the judgment in the SCA meant that complainants would need to lead less evidence to prove negligence.
“The judgment has essentially decreased the amount of evidence a plaintiff needs to prove to court. Previously they needed to prove that the medical practitioner was negligent and provide evidence to foresee harm. That has changed,” Sutherland said.
Goliath had a hysterectomy at the Dora Nginza Hospital in Port Elizabeth in 2011. In June that year, she complained of severe pain and a wound abscess. In July, she admitted herself into the Settlers Hospital, where, during a laparotomy, Goliath had a septic gauze swab removed.
She filed a lawsuit in the Eastern Cape High Court against the council, where Judge John Lowe dismissed her claim after Goliath was allegedly unable to prove the hospital staff negligent. The general rule was that the plaintiff had to prove that the respondent was negligent and that the injury suffered was as a result of that.
In his ruling, Judge Lowe said: “I am unable to find that (Goliath) has discharged the onus which fell upon her to establish the negligence of either the surgeon or nursing staff in the theatre relevant to the swab being left behind.”
Goliath appealed the ruling in the SCA, where it was ruled that Goliath had provided evidence which had given rise to an inference of negligence by the medical staff at Dora Nginza Hospital – and that was enough.
“This case must be approached on the basis that one of the swabs was overlooked and remained in (Goliath’s) body. For no other way could it have found its way into her body,” the judgment read.
Goliath was granted a R250 000 payout and her legal costs.
Cape Times