Dutton - Medical Malpractice in SA

Fault 103
The premature discharge of a patient or cessation of a patient’s treatment may
be negligent. In Prowse v Kaplan, 122 discussed more fully below, a medical practitioner
was found to be negligent for allowing his patient to leave his care when
she was ignorant of certain injuries which she had sustained.
Clearly, the medical practitioner cannot simply abandon the patient before
treatment is complete. Should further treatment be necessary, then the physican
is under a clear duty to take reasonable steps to ensure that this occurs. However,
even when the treatment is apparently completed, but complications may arise,
there is a duty on the physician to provide the patient with reasonably sufficient
information to enable the patient to make informed decisions about future
medical treatment. The duty to advise must take into account the likelihood and
seriousness of risks occurring. The more likely or serious the possibility of complications
arising, the more likely it will be that the reasonable practitioner would
have provided the patient with information about the complication.
In Dube v Administrator, Transvaal 123 the Court found that a public hospital’s
medical practitioners had been negligent, inter alia, for failing to give a clear and
unambiguous instruction and warning to return to the hospital immediately if
pain suffered as a result of a comminuted fracture of the ulnar persisted and/
or swelling developed in the hand and fingers. The Court held that the patient
should have been warned of the possible consequences of not obeying such an
instruction implicitly. The very fact that many patients with fractures ignore
instructions to return indicated the need to give not only the instruction to
return, but also to impress upon each patient the risk of failing to do so. 124
In Webb v Isaac 125 the plaintiff alleged that the defendant, after performing
an operation on a fractured femur, had failed to remove the patient to a hospital,
or fix a date for follow-up treatment. The Court held that there was a good deal
of force in the argument that it was not reasonable for the patient to fix the date
of the doctor’s return visit. It should be noted, however, that the Court found
that it was impossible from the evidence to say that even had such a return visit
occurred, anything could have been done. Negligence was therefore established,
but not causation, and the claim failed.
6.25 Misdiagnosis 126
The law expects medical practitioners to exercise the same standard of skill and
care when making a diagnosis as is required in all dealings with patients: the
122
1933 EDL 257.
123
1963 (4) SA 260 (W).
124
At 269.
125
1915 ECD 273.
126
In addition to the South African cases considered below, culpable misdiagnosis has been held
in other jurisdictions to have occurred for failure to take a proper medical history, failure to
conduct reasonable tests and simple failure to diagnose a condition which a reasonable practitioner
would have diagnosed. It has been held, at a minimum, that the doctor must examine
his patient and pay adequate attention to the patient’s medical notes and to what the patient
tried to tell him: Chin Keow v Government of Malaysia [1967] 1 WLR 813 (failure to enquire