Dutton - Medical Malpractice in SA

Fault 99
had tugged too forcefully. The Court held that the reasonable surgeon would
not have committed the error of tugging too hard in the circumstances. The
surgeon had failed to apply the necessary degree of skill and diligence in the
course of the operation in that he had failed to conduct himself in accordance
with the standard of the reasonable surgeon, he had therefore been negligent,
and damages were awarded.
What is noteworthy about these two cases (which are selected from an extensive
list of similar cases) is that, in each case, the test for negligence was satisfied
because the reasonable medical practitioner would not have acted as the medical
practitioners did in both cases. As such, they failed to meet the standard of the
general level of skill and diligence possessed and exercised by the members of
the branch of the profession to which the practitioners belonged, and the practitioner
was found to have been negligent. It will also be noticed that, in both
cases, the reasonable medical practitioner in the position of the defendant would
have foreseen the reasonable possibility of his or her conduct causing harm to
another and would have taken reasonable steps to guard against such occurrence,
and in both cases, the medical practitioners failed to take such steps. The requirements
of foreseeability and preventability were therefore met. The practitioners
were accordingly negligent in both cases. The remaining elements for delictual
liability (unlawfulness, causation and harm) would still, however, have to be satisfied
for liability to result.
6.23 The problem of the novice 105
The degree of expertise possessed by a medical practitioner is obviously affected
to a large extent by the level of experience of the practitioner. It may be expected
that the standard of competence required of the newly qualified physician will
be somewhat less than that of the experienced practitioner. That, however, is not
the law. Where a beginner’s lack of skill generally exposes the public to an appreciable
risk of harm, no allowance should be made for that lack of proficiency
and expertise. The principle is long-established. 106 The principle is based on the
notion that, for reasons of public policy, a patient is entitled to expect the proficiency,
knowledge and skill which medical practitioners hold themselves out as
possessing. After all, the patient cannot assess the level of skill or experience of the
medical practitioner. The position of the novice raises the issue of the characteristics
of the ‘reasonable practitioner’, which is often dealt with as an application of
the principle of imperitia culpae adnumeratur. 107 As we have seen, a certain measure
105
See, generally, S v Mkwetshana 1965 (2) SA 493 (N); R v Van Schoor 1948 (4) SA 349 (C); Wilsher
v Essex Area Health Authority [1988] 1 All ER 871 HL; Jones v Manchester Corporation [1952] 2
All ER 125 at 133, CA; Van Niekerk et al ‘Is there a foundation in South African legislation
to require students to disclose their academic status to patients when involved in their care?’
S Afr BL 2014; 7(1) 9–13 — the authors point out that there are no South African guidelines for
healthcare students’ contact with patients.
106
Voet, Book IX Title 2: The Aquilian Law s 23.
107
See Imperitia culpae adnumeratur at para 6.27 below.