Dutton - Medical Malpractice in SA

104
Medical Malpractice in South African Law
physician who fails to comply with the standard of the reasonable medical practitioner
in diagnosing a patient will be negligent. A wrong diagnosis is not necessarily
negligent. The courts accept that no human being is infallible, and it has
been said that ‘unfortunate as it was that there was a wrong diagnosis, it was one
of those misadventures, one of those chances, that life holds for people.’ 127 The
dividing line between such judicial fatalistic insouciance and a finding of negligence
is to be found in the principle that a practitioner will only be negligent if
his diagnosis is so palpably wrong as to be of such a nature as to imply an absence
of reasonable skill and care on his part, regard being had to the ordinary level of
skill in the particular branch of the profession of the practitioner. 128
In Mitchell v Dixon, 129 the Court considered whether there was a misdiagnosis.
It held that a medical practitioner is not expected to bring to bear the highest
possible degree of professional skill, but is bound to employ reasonable skill and
care. 130 That being so, the Court held that a medical practitioner is not necessarily
liable for a wrong diagnosis. No human being is infallible and in the present state
of science, even the most eminent specialist may be at fault in not detecting the
true nature of a diseased condition. The diagnosis must be ‘so palpably wrong as
to prove negligence, that is to say, if his mistake is of such a nature as to imply an
absence of reasonable skill and care on his part, regard being had to the ordinary
level of skill in the profession.’ 131
Similarly, in Coppen v Impey, 132 it was alleged that a physician had negligently
made an incorrect diagnosis. The defendant had diagnosed a case of tubercular
rheumatism, while the medical witnesses for the plaintiff stated that they saw
no indication of tuberculosis in respect of the plaintiffs. The plaintiff’s witness,
however, admitted that it would be a reasonable diagnosis to have suspected
tubercular rheumatism in this case. The Court stated that a medical man, while
he does not in law undertake to perform a cure, or to treat his patient with the
utmost skill and competence, is liable for negligence or unskillfulness in his treatment.
Unskillfulness is equivalent to negligence. The question was not whether
a correct diagnosis was made, but whether the diagnosis manifested a lack of
‘reasonable skill and judgment’. 133
as to the possibility of penicillin allergy); Coles v Reading and District Hospital Management
Committee (1963) (107) Sol Jo 115 (failure to consider possibility of tetanus). Telephonic diagnosis
or advice is hazardous, especially if the facts of a possible diagnosis could only be verified
by proper clinical examination (Barnett v Chelsea and Kensington Hospital Management
Committee [1968] 1 All ER 1068 ).
127
In the English decision of Crivon v Barnet Group Hospital Management Committee (1959) The
Times, 19 November.
128
Mitchel v Dixon 1914 AD 519.
129
Ibid.
130
At 525.
131
At 526.
132
1916 CPD 309.
133
At 321.