Dutton - Medical Malpractice in SA

106
Medical Malpractice in South African Law
they did not demonstrate a developing ischemia, raised a real suspicion that one
might be developing. The Court accordingly found that the defendant was negligent
in failing to diagnose that a serious ischemic condition was developing or
threatening to develop.
6.26 Failure to refer 137
The failure to refer a patient to a specialist or practitioner with particular skill,
training or experience may constitute negligence. Where a medical practitioner
is doubtful about a diagnosis, it may be good practice to refer the patient to a
specialist and failure to do so may fall short of the standard of the reasonable
medical practitioner. In the English case of Wilsher v Essex Area Health Authority, 138
the Court held 139 that ‘… it is normally no answer for [the medical practitioner]
to say the treatment he gave was of a specialist or technical nature in which he
was inexperienced. In such a case, the fault of the doctor lies in embarking on
giving treatment which he could not skillfully offer: he should not have undertaken
the treatment but should have referred the patient to someone possessing
the necessary skills.’ 140
In McDonald v Wroe 141 the defendant, a general dental practitioner, extracted
three of the plaintiff’s wisdom teeth. During the procedure, she suffered trauma
to the inferior alveolar nerve on the left side of her face, which resulted in a
feeling of numbness and ‘pins and needles’. The sequelae were permanent. The
plaintiff sued the defendant, inter alia, for negligently failing to offer to refer the
plaintiff to a specialist maxilla-facial and oral surgeon for the removal of her
wisdom teeth. The Court a quo accepted that the defendant had the necessary
skill to perform the surgery correctly and had in fact done so, and had not performed
the surgery negligently. 142 On appeal, in Wroe v McDonald 143 the Court
upheld the finding that the defendant was not under a duty to refer the plaintiff
to a specialist because he had the necessary skill to perform the procedure.
The failure to refer is in certain circumstances closely related to the principle
of imperitia culpae adnumeratur, in that one who has insufficient knowledge and
137
See, generally, S v Mkwetshana 1965 (2) SA 493 (N); Lymbery v Jefferies [1925] AD 236.
138
[1988] 1 All ER 871 HL.
139
Per Sir Nicolas Browne-Wilkinson V-C at 833.
140
The principle in Wilsher is similar to that articulated by our courts in S v Mkwetshana 1965
(2) SA 493 (N) (conviction of an inexperienced practitioner of culpable homicide for causing
the death of a patient); and S v Nel 1987 TPD (unreported) (conviction of a general medical
practitioner of culpable homicide for negligence in failing to call in a specialist obstetrician
in a complicated delivery).
141
[2006] 3 All SA 565 (C).
142
The case also dealt with an argument that the defendant had failed to warn the plaintiff of
the risk of permanent nerve damage, which was both unlawful and negligent, and had the
plaintiff been warned of the risk, she would have had the procedure done by a specialist
surgeon in which event, so reasoned the Court, there would have been a lesser likelihood of
the harm being caused. The Court accordingly found that the defendant had been negligent
on this ground; this was reversed on appeal.
143
[2011] JOL 29733 (C).