Dutton - Medical Malpractice in SA

Fault 101
the degree of care required in administering the drug. He failed to ascertain the
correct dosage and failed to satisfy himself as to the instructions in the use of the
drug. The Court found that, had he read the instructions, he would have seen
what was required of him and had he still been in doubt he could have consulted
with a more experienced practitioner.
6.24 Failure to follow up and render post-operative care 113
Having accepted a patient for treatment, the physician’s duty towards the patient
includes the duty to provide reasonable post-operative care and/or to reasonably
follow up on the patient. The physician’s duty to treat the patient generally
arises on commencement of the doctor–patient relationship. The very existence
of this relationship gives rise to the physician’s duty to take all reasonable steps
to prevent the patient from suffering harm. 114 This duty extends beyond the
period during which the patient is under the physician’s direct care, and covers
all future potential harm which is reasonably foreseeable. 115 It is not reasonable to
expect the patient to fix the date for follow-up treatment, or to leave it up to the
patient to decide on appropriate further treatment.
The duty to follow up and provide post-operative care does not, however,
saddle the physician with the responsibility of going to inordinate lengths to
ensure that the patient comes to no future harm. Undue hardship will not be
visited on the physician, nor will the physician be expected to do the impossible. 116
The courts recognize that, in many cases, the physician cannot be in constant
attendance upon the patient. It is therefore reasonable or even necessary for the
physician to make a patient responsible for some part of the treatment which he
receives. 117 This includes delegating to the patient the responsibility to return for
113
See, generally, Dube v Administrator, Transvaal 1963 (4) SA 260 (W); Webb v Isaac 1915 ECD
273.
114
See para 4.14 above ‘A special relationship between the parties’.
115
See ‘The foreseeability test’ at para 6.19 above.
116
Webb v Isaac 1915 EDL 273 at 280 and ff.
117
It has been held that the physician also has a duty to inform the patient of potential harm
and the risks of the intervention. See, esp: Lymbery v Jefferies 1925 AD 236; Prowse v Kaplan
1933 EDL 257; Dube v Administrator, Transvaal 1963 (4) SA 260 (W); Richter v Estate Hammann
1976 (3) SA 226 (C); See, contra: Castell v De Greef 1993 (3) SA 501 (C); Castell v De Greef 1994
(4) SA 408 (C); Allott v Paterson and Jackson 1936 SR 221. Sonny and Another v Premier of the
Province of Kwazulu-Natal and Another 2010 (1) SA 427 (KZP) quotes from Lord Nathan Medical
Jurisprudence at 46ff, where the learned author gives a lucid account of the obligations in such
circumstances: ‘In many cases it is reasonable or even necessary for the medical man to make
the patient himself responsible for the performance of some part of the treatment which the
medical man has undertaken to give. Where, as often happens, the medical man’s course of
action depends upon a report by the patient as to his condition or symptoms or as to the progress
of the treatment, the medical man has no choice in the matter; he must rely upon the
patient for the necessary information by which to determine what action should be taken,
and must therefore, in a sense, delegate to the patient part of his own duties. Frequently also
it would be quite unreasonable to expect the medical man to be in constant attendance upon
the patient or to exercise supervision over every detail of the treatment; he is compelled
therefore to delegate to the patient the performance of some part of the treatment or cure. …
In all these cases where the medical man justifiably delegates to the patient the performance