Buthelezi v Ndaba

Dr Gabriel Buthelezi, a specialist gynaecologist and obstetrician, performed a total abdominal hysterectomy on Ms Priscilla Ndaba on 13 February 2006. Some time after the operation, the respondent suffered from urine incontinence caused by a vesico-vaginal fistula (a hole in the posterior bladder wall and anterior vaginal wall). The fistula was diagnosed and repaired by a urologist, Dr Abdul Dada, approximately six weeks after the hysterectomy. The respondent was HIV positive, diabetic, had previously undergone a caesarean section, and suffered from chronic pelvic infection at the time of the operation. The appellant had performed approximately 1,000 hysterectomy operations over nearly 20 years of practice. His contemporaneous notes recorded a 'standard TAH' with some difficulty due to oozing of the vaginal vault, which was resolved. The respondent sued the appellant for damages, alleging negligence in performing the hysterectomy.

• Whether the occurrence of a vesico-vaginal fistula following a hysterectomy operation gives rise to an inference of negligence on the part of the surgeon
• Whether the surgeon's concession that something 'should not have happened' amounts to an admission of negligence
• Whether the res ipsa loquitur maxim applies in cases of alleged medical negligence
• What standard of care applies to specialist medical practitioners and how negligence should be determined in cases involving conflicting expert medical opinions

The appeal was upheld with costs. The order of the KwaZulu-Natal High Court, Pietermaritzburg (Jappie J) was set aside and replaced with an order dismissing the plaintiff's claim with costs.

The occurrence of a recognized complication following a medical procedure does not, without more, establish negligence on the part of the medical practitioner. Negligence in medical malpractice cases must be determined by evaluating whether the practitioner exercised reasonable skill and care according to the standard of a reasonably competent practitioner in the field. Where expert medical opinions conflict, the court must analyze the cogency of the underlying reasoning of each expert opinion rather than simply accepting one over the other. A medical practitioner's acknowledgment that a complication 'should not have happened' does not amount to an admission of negligence; it merely acknowledges that something went wrong. The res ipsa loquitur maxim rarely, if ever, applies in medical negligence cases because the complexity of the human body and its reactions to surgical intervention preclude the inference that a complication necessarily indicates negligence. Where international medical literature establishes that a particular complication is a recognized risk of a procedure that can occur despite careful surgical technique, this is relevant evidence in determining whether negligence has been established.

The court made observations about the various possible causes of the vesico-vaginal fistula that were advanced during the trial, including: damage to the blood supply causing devascularization and tissue necrosis; a small unnoticed cut during bladder separation from the uterus (particularly due to tetherings from previous caesarean section); or infection from accumulated blood in the vaginal vault. The court noted that all theories were speculative and that no one really knew how the fistula developed. The court also observed that failure to remove accumulated blood after an operation does not necessarily constitute negligence, as there is evidence that the body absorbs such blood without problems. Brand JA cited with approval the observation of Lord Denning MR in Hucks v Cole that 'with the best will in the world things sometimes went amiss in surgical operations or medical treatment' and that 'a doctor was not to be held negligent simply because something went wrong.'

This case is significant in South African medical malpractice law as it clarifies the standard for establishing negligence in medical treatment cases. It confirms that: (1) the occurrence of a complication or adverse outcome does not, in itself, establish negligence; (2) courts must undertake a careful analysis of the reasoning underlying conflicting expert opinions rather than simply choosing between them; (3) the res ipsa loquitur maxim has limited, if any, application in medical negligence cases due to the complexity of the human body and its reactions to surgical intervention; (4) internationally recognized medical literature regarding inherent risks of procedures is relevant to establishing the standard of care; and (5) a medical practitioner's acknowledgment that a complication 'should not have happened' does not constitute an admission of negligence. The case reinforces the principle from Van Wyk v Lewis and Castell v De Greef that the test for medical negligence is whether the practitioner exercised reasonable skill and care according to the standard of a reasonably competent practitioner in the field.