Dutton - Medical Malpractice in SA

Fault 105
The position is, therefore, that the plaintiff, in seeking to establish liability on
the basis of a misdiagnosis must prove not only that the diagnosis was wrong,
but that the diagnosis was negligently made in that the degree of skill and diligence
was lacking which is expected of the reasonable medical practitioner in
the branch of the profession to which the defendant belongs. 134 For this reason,
it is not necessarily sufficient for the plaintiff to establish that other practitioners
disagree with the diagnosis, or indeed that the plaintiff’s expert is right in the
alternative diagnosis. However, where a physician makes an incorrect diagnosis
and, in doing so, fails to comply with the standard of the reasonable medical
practitioner, the practitioner will be negligent.
In Prowse v Kaplan 135 the defendant, a dentist, was sued for damages due to
alleged negligence. The Court found that (1) in the course of an extraction-operation,
the defendant had caused a dislocation of the plaintiff’s jaw which he
should, on such examination as it was his duty to make, have perceived; (2) that
although the plaintiff remained in the defendant’s care for some time thereafter,
and subsequently returned to his care, the defendant made no attempt to remedy
the dislocation and failed to inform the plaintiff of its existence; (3) that he thereafter
for the first time made an unsuccessful attempt to remedy the dislocation,
but in doing so, caused a fracture of the jaw and that (4) the defendant failed to
inform the plaintiff of the existence of a fracture for some time thereafter. The
Court found that the defendant was negligent in that he had omitted to inform
the plaintiff of the nature of the injuries he had caused, he had failed to treat the
dislocation and had allowed the plaintiff to leave his care, ignorant of the injuries
and still suffering from those injuries.
In Blyth v van den Heever 136 the plaintiff had sustained fractures of his right
radius and ulna. After the defendant, a medical practitioner, had operated to
reduce the fractures, sepsis had set in, together with an ischemic condition. The
plaintiff had ultimately been left with a useless clawlike right arm. The case
revolved around an enquiry into the defendant’s post-operative care of the plaintiff.
The chief complaint against the defendant was that he had failed to take
action which in the circumstances he could reasonably have been expected to
take. The Court found that the reasonably skilled and careful medical practitioner
in the position of the defendant would have been aware of the danger of
an ischemic condition developing in the plaintiff’s forearm, and would have realised
that the development of a compartmental syndrome was a special risk in this
case. This would have placed upon the defendant a duty to be especially careful
to watch out for any untoward signs that might point to the development of an
ischemic condition and to act immediately if any such signs became apparent.
Moreover, a reasonably skilled and careful medical practitioner in the position
of the defendant would have realised that there were symptoms which, even if
134
See the discussion of the reasonable medical practitioner at para 6.18 below.
135
1933 EDL 257.
136
1980 (1) SA 191 (A).