Dutton - Medical Malpractice in SA

110
Medical Malpractice in South African Law
one must be alive to the fact that the true nature of the enquiry is into compliance
with the concept of reasonableness as an abstract, objective criterion. The
ascribing of various anthropomorphic characteristics to the ‘reasonable medical
practitioner’ is often useful, but should not be allowed to obscure the essence of
the underlying enquiry into reasonableness as an objective standard. 160
In Buthelezi v Ndaba, 161 a fistula had developed during the performance of a
hysterectomy procedure. The defendant conceded that during the operation the
plaintiff’s bladder had been compromised. The defendant could not explain how
this had occurred, but agreed that it should not have happened. The Supreme
Court of Appeal held that this concession by the defendant did not amount to
an admission of negligence. It quoted Lord Denning MR as saying: ‘with the
best will in the world things sometimes went amiss in surgical operations or
medical treatment. A doctor was not to be held negligent simply because something
went wrong’ 162 or as Scott J put it in Castell v De Greef, 163 ‘the test remains
always whether the practitioner exercised reasonable skill and care or, in other
words, whether or not his conduct fell below the standard of a reasonably competent
practitioner in his field. If the “error” is one which a reasonably competent
practitioner might have made, it will not amount to negligence’. In the light of
the fact that there was credible expert evidence to the effect that an injury of
the type which occurred could result despite reasonable care on the part of the
surgeon, and that this opinion was well supported by views expressed in international
journals in the field, the Court found that negligence on the part of the
defendant had not been established.
Gross medical mistakes will almost always result in a finding of negligence.
These cases fall into the category of being ‘so glaringly below proper standards
as to make a finding of negligence inevitable.’ 164 The sensational cases where the
wrong limb or organ is removed, or the wrong patient is operated upon, almost
inevitably settle out of court. There is therefore an unsurprising paucity of such
decisions, both in South Africa and internationally. 165
6.29 Negligence and omissions
Negligence as a form of fault must not be confused with omissions as a form of
conduct. The test for negligence, as discussed at paragraph 6.15 above is whether
the reasonable person in the position of the defendant would have foreseen
the possibility of harm, would have taken reasonable steps to guard against the
harm, and that the defendant failed to take such steps. Negligence can therefore
160
See, e g the remarks by Joubert JA in Weber v Santam Versekeringsmaatskappy Bpk supra, which
are discussed at para 6.16 above.
161
2013 (5) SA 437 (SCA).
162
Hucks v Cole [1968] 118 ULJ at 469.
163
1993 (3) SA 501 (C) at 512.
164
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.
165
See also para 6.32 below regarding the maxim res ipsa loquitur.