Dutton - Medical Malpractice in SA

Fault 91
In Dale v Hamilton 68 the plaintiff claimed damages from the defendant, a
general medical practitioner, after the plaintiff had suffered an x-ray burn which
was alleged to be due to the unskillfulness and neglect of the defendant in undertaking
to do the skilled work of a radiographer in conducting an x-ray examination.
69 The defendant in dealing with new x-ray apparatus relied on an expert
who was employed to install the apparatus to ensure that the distance of the
machine from the patient was safe before commencing treatment. The issue was
what the appropriate limit of the responsibility of a medical practitioner undertaking
such type of work was, and whether the practitioner could delegate the
responsibility of checking the distance to some other person. Could the practitioner
take the proper setting of the machine by such person on trust, or must
he personally satisfy himself as to the setting? The Court held that the medical
practitioner was responsible for arranging his own setting, stating ‘I think the
different factors which go to constitute the setting are things within the department,
so to speak, of the radiographer himself, and that he must satisfy himself
as to those factors … It seems to me that the responsibility for having the tube in
the right position in relation to the exposure which he intended to employ is one
which the defendant cannot shift to anybody else’. The Court accordingly found
that the defendant had been negligent.
In the classic case of Van Wyk v Lewis, 70 a surgeon was sued because a swab
used during an urgent and difficult abdominal operation was overlooked and
remained in the plaintiff’s body. In accordance with the usual practice at the hospital,
the surgeon had relied upon a qualified nurse on the hospital staff who had
acted as a theatre sister during the operation to count and check the swabs used.
At the conclusion of the operation, the surgeon had made as careful a search for
swabs as the critical condition of the patient permitted and both the surgeon and
the sister believed that all the swabs were accounted for before the wound was
sewn up. The Court held that although the surgeon in performing the operation
was bound to exercise all reasonable care and skill expected of a surgeon in the
circumstances, because it was a reasonable and proper practice in all the circumstances
of the case to leave the duty of checking the swabs to the theatre sister,
the surgeon in following that practice had not been negligent.
The different outcomes in Dale v Hamilton and Van Wyk v Lewis reflect an
important point in respect of how the courts deal with negligence. Superficially,
the two cases appear to be inconsistent: in Dale v Hamilton, the Court held that
it was negligent for the practitioner to delegate his duty; in Van Wyk v Lewis, the
68
1924 WLD 184.
69
This case is also an example of the application of the principle of imperitia culpae adnumeratur,
in terms of which the medical practitioner who engages in an undertaking that requires
certain training, knowledge, experience, skill, competence or diligence, knowing that he
or she lacks such qualities, will be bound by her undertaking and judged according to the
standards of the undertaking. (This principle is discussed at para 6.26 below.) In this case, the
defendant was judged according to the standard of the reasonable radiographer.
70
1924 AD 438.