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MEDICAL NEGLIGENCE

SEQUENCE OF LEGAL PROCESS

INITIAL CONSULTATION WITH ATTORNEY

PRESCRIPTION

SUMMONS

EXPERT REPORT

MEDIATION

OR

INVESTIGATE

PAIA APPLICATION

WHAT IS MEDICAL NEGLIGENCE?

 

  • Sir William Blackstone was the first to use the phrase medical negligence in 1768   - “how trust is broken between the patient and the practitioner”.

  • 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)

 

  • The test is whether a REASONABLE PRACTITIONER in the same profession would have foreseen the likelihood of harm and taken steps to prevent it.

  • No legal liability for unforeseeable complications.

  • 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:

  1. Misdiagnosis:

    • Failure to examine properly,

    • take a proper history,

    • use available diagnostic tools

  2. Errors in Judgment:

    • “ I tugged too hard on the tumour which resulted in a tear in the vena cava during a medias-tinos-copy”

  3. Volksmann Cases:

    • Negligently Omitting to Diagnose Foreseeable Complications (volksmann ischaemic contractures)

  4. Failure to communicate a diagnosis

  5. Failure to complete the treatment

  6. 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…”

  7. Failure to follow up and render post-operative care

IMPACT OF THE CONSUMER PROTECTION ACT ON HEALTH CARE:

INFORMED CONSENT / HOSPITAL / INDEMNITIES/ WAIVERS

MEDIATION