F.M v Member of the Executive Council, Department of Health, Eastern Cape (273/2013) [2016] ZAECPEHC 74 (13 December 2016)

F.M v Member of the Executive Council, Department of Health, Eastern Cape (273/2013) [2016] ZAECPEHC 74 (13 December 2016)

The court found that the plaintiff failed to prove negligence on the part of the defendant's employees. The evidence established that Dr Vogel performed the procedure in accordance with accepted medical standards and that the injury to the bile duct was a minor complication that could occur even when reasonable care is exercised. The expert evidence of Professor Bornman was preferred, as it was logical, balanced, and consistent with the test for medical negligence. The court rejected the plaintiff's expert's view that any bile duct injury is per se negligent, holding that such a standard is unreasonably high and does not account for human error. The court further found that the issue of...

Citation
[2016] ZAECPEHC 74
Parties
Plaintiff: F M; Defendant: Member of the Executive Council, Department of Health, Eastern Cape
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
13 December 2016
Case Number
273/2013
Procedural Posture
Civil Trial / Liability Only; Quantum Separated by Agreement
Outcome
Plaintiff's action dismissed with costs.
Judges
E Revelas
Legal Topics
Medical Negligence, Vicarious Liability, Informed Consent, Aquilian Action
Delict Medical Negligence Vicarious Liability Informed Consent Aquilian Action

Case Brief

Summary, issues, holding and outcome

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Parties

F M

Plaintiff

Member of the Executive Council, Department of Health, Eastern Cape

Defendant

Procedural Posture

Civil Trial / Liability Only; Quantum Separated by Agreement

Legal Issues

  1. 1 Whether the defendant's employees were negligent in causing injury to the plaintiff's common bile duct during laparoscopic cholecystectomy.
  2. 2 Whether the injury to the bile duct constitutes actionable medical negligence under South African law.
  3. 3 Whether informed consent was properly obtained and whether it constitutes a defence to negligence.

Ratio Decidendi

The court found that the plaintiff failed to prove negligence on the part of the defendant's employees. The evidence established that Dr Vogel performed the procedure in accordance with accepted medical standards and that the injury to the bile duct was a minor complication that could occur even when reasonable care is exercised. The expert evidence of Professor Bornman was preferred, as it was logical, balanced, and consistent with the test for medical negligence. The court rejected the plaintiff's expert's view that any bile duct injury is per se negligent, holding that such a standard is unreasonably high and does not account for human error. The court further found that the issue of...

Court Disposition

Plaintiff's action dismissed with costs.

Orders

  • The plaintiff's action against the defendant is dismissed with costs.