Dutton - Medical Malpractice in SA

Fault 93
to such evidence was set out in Michael v Linksfield Park Clinic. 75 It is ultimately
for the court to decide what is reasonable in the circumstances. The role of the
medical profession in assessing negligence is clarified in this judgment:
‘Although it has often been said in South African cases that the governing test for
professional negligence is the standard of conduct of the reasonable practitioner in the
particular professional field, that criterion is not always itself a helpful guide to find the
answer. The present case shows why. Apart from the absence of evidence of what practice
prevailed one is not simply dealing here with the standard of, say, the reasonable
attorney or advocate, where the court would be able to decide for itself what was reasonable
conduct. How does one, then, establish the conduct and views of the notional
reasonable anaesthetist without a collective or representative opinion?’ In assessing
expert opinions on the reasonable standard ‘… the Court is not bound to absolve the
defendant from liability for allegedly negligent medical treatment or diagnosis just
because evidence of expert opinion, albeit genuinely held, is that the treatment and
diagnosis in issue accorded with sound medical practice. The Court must be satisfied
that such opinion has a logical basis, in other words that the expert has considered
comparative risks and benefits and has reached “a defensible conclusion”.’ 76
Of considerable significance to this issue, and to a wide range of issues arising
in medical malpractice was the endorsement by the Supreme Court of Appeal in
Michael v Linksfield Park Clinic 77 of the speech of Lord Browne-Wilkinson in Bolitho
v City and Hackney Health Authority. 78 In Bolitho, the House of Lords addressed the
approach to professional negligence set out in Bolam v Friern Hospital Management
Committee. In Bolam, the Court held that ‘a doctor is not guilty of negligence if
he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art.’ 79 The English law, relying
on Bolam, subsequently developed a line of authority that the courts could not
substitute their views for the evidence of medical experts as to the reasonableness
of a medical practitioner’s conduct, and therefore his or her negligence. The
Bolam principle expanded into all sorts of other areas of medical law. The underlying
issue is the relationship between medical practitioner and patient, and the
changing nature from that of medical paternalism to a recognition of the fundamental
right of individual autonomy and self-determination to which many
the principle emerged that a doctor will not be negligent if he acted ‘in accordance with the
practice accepted by a responsible body of medical men skilled in that particular art.’ (Bolam
v Friern Hospital Management Committee [1957] 2 All ER 118 and Bolitho v City and Hackney
Health Authority [1997] 4 ALL ER 771). The ‘Bolam test’ was rejected in Australia in Rogers
v Whitaker (1993) 67 ALJR 47, where it was held that the standard ‘is not determined solely
or even primarily by reference to the practice followed or supported by a responsible body
of opinion in the relevant profession or trade’. In South Africa, the test in Bolitho v City and
Hackney Health Authority supra was accepted in Michael v Linksfield Park Clinic (Pty) Ltd 2001
(3) SA 1188 (SCA) at [36].
75
2001 (3) SA 1188 (SCA).
76
At paras [35] and [37]. See also Van Wyk v Lewis 1924 AD 438 at 444; Durr v ABSA Bank Ltd
1997 (3) SA 448 (SCA).
77
At paras 241–242.
78
[1997] 4 ALL ER 771 at 241–242.
79
[1957] 2 All ER 118 at 122.