WHAT IS MEDICAL NEGLIGENCE?
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Sir William Blackstone was the first to use the phrase medical negligence in 1768 - “how trust is broken between the patient and the practitioner”.
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According to Carstens and Pearman, Medical negligence in South Africa started with an 1877 case where Judge de Villiers brought medical negligence to the fore when he stated that:
‘There can be no doubt that a medical practitioner, like any professional man, is called upon to bring to bear a reasonable amount of skill and care in any case to which he has to attend: and that where it is shown that he has not exercised such skill and care, he will be liable in damages.’
THREE COMPONENTS TO PROVING MEDICAL NEGLIGENCE:
The medical practitioner owed the claimant / patient a duty of care;
The medical practitioner breached the duty of care;
As a result of the breach of duty of care, the claimant / patient
suffered damages / loss.
WHY PATIENTS LITIGATE: 3 A’S
ACCOUNTIBILITY
ANSWERS
ASSURANCE
WHAT IS THE STANDARD OF CARE REQUIRED?
“that of a Reasonably Competent Practitioner, in the same branch of the profession, under the same circumstances…..” (expert)
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The test is whether a REASONABLE PRACTITIONER in the same profession would have foreseen the likelihood of harm and taken steps to prevent it.
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No legal liability for unforeseeable complications.
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The same standard of care is not expected from a doctor called out at night in a rural setting as from a doctor working in a fully equipped and staffed hospital.
THE MOST COMMON INCIDENCES OF NEGLIGENCE THROUGHOUT ALL SPHERES OF MEDICINE:
USUALLY NEGLIGENCE IS AS A RESULT OF ONE OF THE FOLLOWING OR A COMBINATION OF A FEW OF THE FOLLOWING:
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Misdiagnosis:
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Failure to examine properly,
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take a proper history,
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use available diagnostic tools
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Errors in Judgment:
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“ I tugged too hard on the tumour which resulted in a tear in the vena cava during a medias-tinos-copy”
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Volksmann Cases:
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Negligently Omitting to Diagnose Foreseeable Complications (volksmann ischaemic contractures)
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Failure to communicate a diagnosis
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Failure to complete the treatment
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Failure to refer to another hospital / specialist – “if he had been brought to me in time I could have successfully done a mechanical embolectomy, he would be walking today, the stroke unit is a mere 20 km away, you should have known…”
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Failure to follow up and render post-operative care
