JUDICIAL RECOGNITION OF THE APPLICATION OF THE MAXIM RES IPSA LOQUITUR TO A CASE OF MEDICAL NEGLIGENCE Lungile Ntsele v MEC for Health, Gauteng Provincial Government (unreported as yet, Case Number: 2009/52394 (GSJ) dated 24 October 2012)

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

6. Breach of duty

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

6. Breach of duty

This chapter examines breach of duty in negligence. It discusses the factors that courts consider in determining whether defendants are in breach of their duties of care to claimants. In each case, these factors include the foreseeability of harm to the claimant, the appropriate standard of care owed by the defendant to the claimant, and the conduct of the defendant in comparison to the expected standard of care. This chapter suggests that the question of whether the defendant has breached a duty of care is a mixed one of law and fact and that the standard of care required of the defendant is an exclusively legal construct and based on the standard of a hypothetical reasonable person. The chapter considers also special issues involving proof of breach, most importantly in the application of the res ipsa loquitur doctrine.

Cíborgs: res ipsa loquitur

En el presente trabajo analizamos el daño desproporcionado sobre la naturaleza humana causado por el fenómeno cíborg a través de su encaje en la regla res ipsa loquitur, o la cosa habla por sí sola. Por un lado, fundamentamos lo que denominados naturaleza humana haciendo referencia a las iguales capacidades humanas, necesarias en el cumplimiento de funciones vitales. Por otro, esta regla recibe también el nombre de daño desproporcionado y su teoría vincula el resultado causado sobre la cosa con la lex artis de una profesión, de ahí que, para su análisis jurídico, hayamos optado por el ámbito sanitario

3. Breach of duty

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The first step in establishing a negligence claim is to prove that the defendant owed the claimant a duty of care. The claimant must then show that the defendant has been negligent, that is, has breached that duty. To determine negligence, one must therefore establish how the defendant ought to have behaved in the circumstances (that is, standard of care) and whether the defendant’s behaviour fell below the desired standard (that is, breach). The basic standard of care in negligence is objectively assessed: that of the reasonable man. The objective standard can at times appear to work particularly harshly against a defendant, as exemplified by the case Nettleship v Weston (1971). This chapter examines breach of duty and the standard of care, the proof of negligence, and the application of the maxim res ipsa loquitur. It also discusses the Compensation Act 2006 which addresses the problem of the so-called compensation culture.

Studi Komparatif Upaya Penanganan Malpraktek Medis dalam Proses Peradilan Pidana di Indonesia dan Amerika

Penelitian ini bertujuan untuk mengetahui perbandingan mengenai upaya penanganan Malapraktik medis dalam proses peradilan pidana di Indonesia dan Amerika sebagai salah satu negara yang maju dalam bidang medis dan teknologi kedokterannya. Penelitian ini menggunakan metode penelitian hukum normatif dengan pendekatan komparatif. Hasil penelitian yaitu diketahui bahwa pembuktian pada kasus Malapraktik di Indonesia menggunakan cara yang sama seperti yang diatur oleh KUHAP. Pembuktian dalam KUHAP menganut sistem atau teori pembuktian yang berdasarkan undang-undang secara negatif (negatief wettelijk), sedangkan di Amerika Serikat dalam menyelesaikan kasus Malapraktik medis menerapkan asas res ipsa loquitur. Di Amerika Serikat tiap-tiap negara bagian memiliki ketentuan-ketentuannya sendiri-sendiri dalam mengadili dokter. Beberapa perangkat hukum kedokteran yang dikenal di Amerika Serikat yaitu Liability Act, Good Samaritan Law dan Medico Legal Consideration.

KEDUDUKAN DOKTRIN RES IPSA LOQUITUR (DOKTRIN YANG MEMIHAK PADA KORBAN) DALAM TATA HUKUM INDONESIA

This research is a library research that uses data in the form of books, laws, articles, journals and other literature related to the title, while the technique and data collection is by collecting various ideas, theories and concepts from various literatures that focus on the process of comparison between the arguments or other laws. The results of the study can be drawn a conclusion that the doctrine of res ipsa loquitur can be applied in Indonesia through the evidences that have been concluded by the judge, in accordance with applicable law. Article 173 of the RIB states that the allegations which are not based on an applicable law, may only be considered by the judge in passing the verdict, if the allegations are important, thorough, certain and in accordance with one another. In line with Article 1922 of the Civil Code, it is stated that the allegations that are not based on the law are left to the consideration and alertness of judges, which should not be considered by other allegations, other than those that are thorough and certain, and in accordance with each other

6. Breach of duty: the standard of care

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.