Dutton - Medical Malpractice in SA

98
Medical Malpractice in South African Law
In Collins v Administrator, Cape 103 the plaintiff was the father of a baby who at
16 weeks of age had been a patient in the paediatric tracheostomy unit of a hospital.
The baby sustained irreversible brain damage and was reduced to a vegetative
state which would remain for the rest of her life. A nurse had been left alone
in the unit the time, and the issue was whether the baby had suffered harm due
to her negligence. The incident which resulted in the brain damage occurred at
a time of day when the babies had all recently woken up and were clamouring
for attention. The Court found that this was all the more reason to keep the
babies under careful observation. In other words, in the circumstances in which
the nurse found herself, she was obliged to ensure that she did not devote her
attention solely to one child for too long. The Court found that it was her duty
constantly to be aware of how each child was doing. Having regard to the relatively
small size of the room, all that would have been required was a regular
glance at each child. The Court gained the impression that the nurse’s attention
was devoted to another child attempting to climb out of its cot. The nurse then
looked back in the direction of the patient and saw that a tracheostomy tube
inserted into the baby was not in place. By that time, however, the patient was
already limp and unconscious. The probability was that, on losing her tracheostomy
tube the patient would have thrashed around in obvious distress. It would
have taken in the region of about a minute for the patient to lose consciousness.
All this, however, was missed by the nurse. By the time she became aware of the
problem the patient was already unconscious. To compound matters, the nurse
was then inexplicably unable to replace the tracheostomy tube. The baby as a
result suffered permanent brain damage. The Court applied the principle that a
patient in a hospital is entitled to be treated with due and proper care and skill
in accordance with what a reasonable practitioner would ordinarily have exercised
under similar circumstances (in other words, the conduct of the particular
medical practitioner must measure up to the objective standard of the reasonable
medical practitioner). The nurse in question failed to exercise the care and skill
expected of a reasonable nurse in her position, and was found to be negligent.
In Pringle v Administrator, Transvaal 104 the plaintiff had undergone a mediastinoscopy
in order to have a small growth removed from her chest. The plaintiff’s
superior vena cava was torn during the procedure, resulting in “torrential”
internal bleeding, which in turn resulted in permanent damage to her brain. The
mediastinum was plugged when the bleeding was noticed, X-rays were thereafter
taken, and a thoracotomy performed to repair the vena cava. The plaintiff
alleged that the perforation of the vena cava and its consequences were the result
of negligence on the part of the surgeon. According to the surgeon’s own testimony,
the bleeding occurred when, in attempting to excise the growth using
biopsy forceps, he “tugged” at the instrument when it did not initially “bite”
cleanly. Under cross-examination the surgeon agreed that, in retrospect, he
103
1995 (4) SA 73 (C).
104
1990 (2) SA 379 (W).