Dutton - Medical Malpractice in SA

100
Medical Malpractice in South African Law
of subjectivity is introduced by judging the reasonable person being placed ‘in
the position of the [wrongdoer]’. To what extent, however, must the objectiveness
of the standard be tempered by subjective considerations? The approach is that
the inexperience of the particular medical practitioner is not considered and the
standard of the reasonable medical practitioner is maintained. 108 This approach
may be thought to impose too high a standard. The problem is particularly acute
in the public health setting. Due to limited resources, the reality is that junior,
inexperienced practitioners are placed in positions where they have to ‘learn on
the job’. However, the situation is mitigated by the courts’ approach that the
standard will be met should the novice seek advice or consult with more experienced
colleagues. 109
The facts of S v Mkwetshana 110 are set out in paragraph 6.27 below. For present
purposes, one of the reasons for the Court finding that the medical practitioner
who was still serving his internship was found to be negligent and guilty of
culpable homicide was that he had not sought advice from a more senior practitioner
when he could have done so. The decision is in principle similar to the
English case of Wilsher v Essex Area Health Authority, 111 where the plaintiff had
been born prematurely and had been admitted to a specialised neonatal intensive
care unit. An error was made by junior hospital doctors. It was claimed by
the plaintiff that this could have caused the virtually blinding condition which
subsequently occurred. The defendants contended that extensive use had to be
made of recently qualified medical and nursing staff due to resource constraints,
and that the standard of care expected of the junior doctor was not the same as
that of his experienced counterpart. It was stressed by the Court that an objective
standard would be applied which would not take account of an individual
doctor’s inexperience. However, the Court held that the standard of care is very
likely to be met if the novice seeks advice or consults with more experienced
colleagues when appropriate. In this respect, the reasoning is similar to the
Mkwetshana decision and the importance of the novice obtaining advice from
more experienced counterparts in order to avoid a determination of negligence
should be noted.
In R v Van Schoor 112 a young doctor was required to administer a dangerous
drug. He had no experience of doing so. The court found that he did not exercise
108
In Weber v Santam 1983 (1) SA 381 (A) at 410–411: Joubert JA, in dealing with the attributes of
the reasonable person, put it thus: ‘We are furthermore not concerned with what the care of
a legion of reasonable person types would have been, such as a reasonable educated person, a
reasonable illiterate person, a reasonable skilled labourer, a reasonable and skilled labourer, a
reasonable adult or a reasonable child. There is only one abstract, objective criterion, and that
is the Court’s judgment of what is reasonable, because the Court places itself in a position of
the diligens paterfamilias’.
109
It may be said that this approach in reality introduces an element of subjectivity into the
assessment of the test to be applied to the novice.
110
1965 (2) SA 493 (N).
111
[1988] 1 All ER 871 HL.
112
1948 (4) SA 349 (C).