Dutton - Medical Malpractice in SA

Fault 109
nor to have troubled to have them made available to him. The Court also found
that although the appellant was alone in that part of the hospital, he could have
communicated with a more senior practitioner. The Court found that the appellant
had sufficient opportunity to do so, and held that the appellant had been
negligent. The case demonstrates the view of the courts that when a medical
practitioner embarks upon a task for which he or she does not have training, skill
or knowledge, the practitioner assumes the risk of embarking upon that task.
The rationale is that the patient cannot assess the level of skill or experience of
the medical practitioner. By professing to have a certain skill and knowledge, the
medical practitioner is bound to such a standard, and the imperitia rule applies.
6.28 The concept of error of judgment or medical misadventure
The law draws a distinction between medical mistakes which it regards as excusable
and mistakes which amount to negligence. The true position is that an error
of judgment may, or may not, be negligent; it depends on the nature of the error.
The courts recognise that doctors are human beings and not machines, and that
it is human to err, but that some mistakes lie beyond the bounds of the standard
which is expected of the reasonable medical practitioner. 155
In Pringle v Administrator, Transvaal 156 (the facts of which are dealt with at
paragraph 6.22 above), the issue which the court had to decide was whether a
surgeon had acted negligently in tugging too forcefully at the plaintiff’s superior
vena cava. The defendant had clearly committed an error of clinical judgment,
but there was no suggestion that any act or omission by him ‘was so glaringly
below proper standards as to make a finding of negligence inevitable.’ 157 The
Court referred to Whitehouse v Jordan: 158
‘to say that a surgeon committed an error of clinical judgment is wholly ambiguous, for
while some such errors may be completely consistent with the due exercise of professional
skill, other acts or omissions in the course of exercising clinical judgment may
be so glaringly below proper standards as to make the finding of negligence inevitable’.
In determining whether a clinical error of judgment or medical mistake amounts
to negligence, the Court will consider whether the error or mistake is one that
the reasonable medical practitioner might have made in the circumstances.
If it is, then the practitioner is not negligent. However, if the error is one that
would not have been made by the reasonable medical practitioner in the circumstances,
then the practitioner is negligent: ‘If a surgeon fails to measure up to that
standard in any respect (‘clinical judgment’ or otherwise), he has been negligent
and should be so adjudged.’ 159 It is submitted that, in applying this principle,
155
Van Wyk v Lewis 1924 AD 438 at 470; See also ‘The concept of the reasonable medical practitioner’
at para 6.18 above.
156
1990 (2) SA 379 (W).
157
At 395.
158
[1981] 1 All ER 267 at 276 H.
159
Per Lord Edmund Davies in Whitehouse v Jordan [1981] 1 All ER 267 at 121, cited with approval
in Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) at 385.