Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
Court held that it was not negligent to do so. However, when one appreciates
that the court is conducting an examination of whether the conduct in question
was reasonable in all the circumstances of the case, the difference in outcome
can be understood. In Dale v Hamilton it was unreasonable, in the circumstances,
to simply accept that the x-ray machine was properly positioned; in Van Wyk v
Lewis, on the other hand, it was reasonable in the circumstances of the case to
rely on the theatre sister having properly checked the swabs. Much will turn on
the specific facts of the case in deciding the question of reasonableness.
The role of guidelines and usual practices adopted by an institution or which
apply to the circumstances of the case are an important consideration. In themselves,
they will not bind the court, which will ultimately seek to satisfy itself of
the reasonableness of the practitioner’s conduct. However, whether the practitioner
followed established guidelines or usual practices is an important factor
which the courts will have regard to in assessing the reasonableness of such
conduct. Following guidelines or usual practices will be a strong indication of
reasonable conduct, and should the policy or practice itself be reasonable, the
practitioner’s conduct will almost certainly not be negligent. 71 That is not to say,
however, that the courts will slavishly adhere to guidelines or usual practices;
as is apparent, this is simply one factor which the courts will consider when
assessing negligence.
6.18.1 The role of the medical profession in assessing negligence 72
The evidence of qualified surgeons or physicians is regarded by the courts as being
of the greatest assistance in establishing the level of the reasonable medical practitioner.
73 The question of the medical profession adjudicating itself has however
received widespread discussion internationally. 74 The South African approach
71
See further, in this regard, S v Soobramoney 1998 (1) SA 765 (CC) as to the reasonableness of
hospital guidelines; Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 850 as to an application
of the then South African Medical and Dental Council’s guidelines (the decision is still relevant
to the question of the application of guidelines and policies generally); and Michael v
Linksfield Park Clinic 2001 (3) SA 1188 (SCA) as to the courts’ approach to determining the
issue of the reasonableness or negligence of a defendant’s conduct in the light of various, and
often conflicting, expert opinions, and as to the standard of the reasonable medical practitioner.
72
Sue Carr QC & Helen Evans ‘The Removal of Immunity for Expert Witnesses: The decision
in Jones v Kaney and some unanswered questions’ Journal of Professional Negligence, PN 2011 3
27(3) 128–137. In the United Kingdom, the ever dwindling immunity from suit from negligence
employed by expert witnesses was finally brought to an end by the Supreme Court in
Jones v Kaney [2011] 2 WLR 823 . The first instance judge (Blake J) described as an ‘unhappy
picture’ the manner in the joint statement had come into existence. In this respect the case
echoes the sentiments in Ndlovu v Road Accident Fund 2014 (1) SA 415 (GSJ). In Ndlovu, it
appeared that the expert had not read the driver’s expert’s report prior to the joint meeting,
had agreed to the joint minute even though she felt ‘pressurised to do so’ and asserted that
the joint minute did not reflect her true views.
73
See generally: Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd 1997 (3) SA 448
(SCA); Michael v Linksfield Park Clinic 2001 (3) SA 1188 (SCA).
74
There are differing views on the correct approach to be taken to assessing the appropriate
standard in the light of what the medical profession determines is acceptable. In England,