The case of Felicia Meyers v MEC, Department of Health, Eastern Cape deals with the evidence required to give rise to an inference of negligence on the part of an operating surgeon as to whether the injury caused in the course of the operation resulted from negligence (the failure to apply the professional skill and diligence expected of a surgeon in the circumstances).
In the course of a laparoscopy, the surgeon inflicted two small injuries each about 2mm in diameter to the patient’s bile duct leading to bile peritonitis and subsequent surgical repair. The plaintiff’s evidence was sufficient to place an evidentiary burden on the surgeon to shed light on how the injury occurred.
Expert evidence was led for both sides which is fully examined in the judgment. An operation close to the bile duct requires the surgeon to identify all the structures properly and to avoid injuring them. Evidence that it was a minor injury did not help because it was an injury nonetheless which led to the consequences.
In a civil case it is not necessary for a plaintiff to prove that the inference of negligence sought to be drawn is the only reasonable inference. It is enough for the claimant to convince the court that the inference is the most readily apparent and acceptable inference from a number of possible inferences.
On this basis no reasonable suggestion had been offered as to how the injury could have occurred without negligence on the part of the surgeon. Judgment was given for the plaintiff by a majority of 3-2 judges.
The case is Felicia Meyers v MEC, Department of Health, Eastern Cape (SCA).
