Dutton - Medical Malpractice in SA

90
Medical Malpractice in South African Law
The same expertise cannot therefore be expected from a general practitioner
as from a specialist. 63 However, the converse is also true: the specialist is required
to employ a higher degree of care and skill concerning matters within his or her
field. 64 As discussed above, the ‘reasonable person’ is not perfect. 65 In considering
the notion of the reasonable medical practitioner, the courts apply this principle
by bearing in mind that a doctor is a human being and not a machine, and that
no human being is infallible. 66
The application of these principles is illustrated in the case of Buls v
Tsatsarolakis. 67 The plaintiff was injured on duty, experienced severe pain and
went to a hospital. A general medical practitioner employed as a casualty officer
at the hospital found no evidence of a fracture. The plaintiff was given tablets and
told to return after a week. His hand was strapped with an elastoplast bandage.
The plaintiff returned a few days later still suffering pain. The radiologist had
reported that no fracture was seen on the X-rays. The plaintiff was given ointment
and more tablets and told to return if he continued to experience pain. The
plaintiff did not return to the hospital but consulted an orthopaedic surgeon
who suspected a fracture of the scaphoid bone of the right wrist. X-rays revealed
a fracture. The plaintiff sued for damages, alleging that the casualty officer had
been negligent. He claimed damages for pain and suffering, loss of earnings and
fees paid. The medical evidence disclosed, however, that such a fracture took
up to three weeks to show up on X-rays, that it was a very difficult fracture to
diagnose and that the casualty officer had been reassured clinically at the second
interview by the fact that the swelling had substantially disappeared and the
pain had been reduced. The Court held that the question was not how a specialist
orthopaedic surgeon would have acted in the treatment of the plaintiff but how
the average general practitioner carrying on his duties as a casualty officer in a
public hospital would have acted. It found that the casualty officer had acted as a
reasonable general medical practitioner would have done in the circumstances of
the case and that, consequently, negligence had not been proved.
The application of the assessment of the negligence of the practitioner’s
conduct by the courts is illustrated by reference to the following two cases. Both
involved the question of whether a medical practitioner can reasonably rely on
another person to perform their professional duties. The important principle
demonstrated in these two cases is that ultimately the courts assess the practitioner’s
conduct against what the reasonable practitioner would have done in the
circumstances, and although guidelines can be given, no hard and fast rule can
be formulated.
63
Buls v Tsatsarolakis 1976 (2) SA 891 (T) at 894; Blyth v Van den Heever 1980 (1) SA 191 (A).
64
Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA); Michael v
Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA).
65
Paragraph 6.16 above.
66
Van Wyk v Lewis 1924 AD 438 at 470; Mitchell v Dixon 1914 AD 519 at 526.
67
1976 (2) SA 891 (T).