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Recent comments by the Minister of Health Dr Aaron Motsoaledi exclaiming concern at the spurt in growth of numbers of medical malpractice lawsuits against practitioners and the state require closer examination.
The Minister was careful to concede that there are high chances of mistakes occurring at the hands of doctors specializing in obstetrics and gynecology, neurosurgery, neonatology, and orthopedics. However, he laid blame for the surge in malpractice lawsuits at the feet of attorneys disinterested with the wellbeing of patients and engrossed with lining their pockets instead. He alleged that lawyers used ostensibly unethical methods of procuring clients and that they abused contingency fee agreements to inappropriately benefit from claims.
In light of the Minister’s concerns and allegations, it is useful to provide the public with a better understanding of the applicable law and and how it operates in cases of medical malpractice. This column is by no means an attempt to diagnose the surge in medical negligence lawsuits, it is simply an explanation of the applicable law in such cases, which will invariably expose the Minister’s utterances as misguided.
Medical Malpractice
Medical malpractice can be described as the improper or negligent carrying out of duties by a medical practitioner. In order to constitute negligence it must be shown that the conduct of the practitioner did not measure up to the standard of care the law required of him.[1]
For the purposes of liability, negligence arises if a person in the position of the practitioner (1) would foresee the reasonable possibility of his conduct injuring another in his person or causing him loss in money and (2) would take reasonable steps to guard against such occurrence and (3) he failed to take such steps.[2] This test applies in cases of professional malpractice irrespective of whether the professional is a doctor or an attorney.[3]
In Van Wyk v Lewis, the authoritative case on medical malpractice, the court cited with approval the case of Mitchell v Dickson where it was held that “a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care.” Judge Innes then determined that, “In deciding what is reasonable the Court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs”.
In simple terms the test the court applies in determining whether a practitioner is liable for medical malpractice is “whether or not his conduct fell below the standard of a reasonably competent practitioner in his field.”[4]
The court’s determination is informed by expert opinion and evidence. However, experts usually provide conflicting opinions. In this regard the court determines to what extent the opinions of the contributing experts are founded on logical reasoning.[5] It is only on that basis that the court is able to determine whether one of two conflicting opinions should be preferred.
The prevailing opinion is that “it is not open to a court simply to express a preference for the one rather than the other and on that basis to hold the medical practitioner to have been negligent. Provided a medical practitioner acts in accordance with a reasonable and respectable body of medical opinion, his conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently”[6]
Consequently, the occurrence of harm to a patient is not in itself proof of negligence. This is the case in instances of medical equipment being left in a patient after an operation, or an infant suffering an incision during a birth by caesarian section or the administration of an inappropriate dosage of anesthetic are not in themselves proof of negligence. The maxim res ipsa loquitur (the occurrence of an accident implies negligence) has been rejected as a means of determining liability in cases of medical malpractice.
It is evident that only a substantive instance of negligence where the medical practitioner’s conduct falls foul of the standards of his peers can form the basis of a lawsuit for medical malpractice, the mere existence of harm is not enough.
In the circumstances it is evident that only a substantive instance of negligence where the medical practitioner’s conduct falls foul of the standards of his peers can form the basis of a lawsuit for medical malpractice, the mere existence of harm is not enough.
Medical negligence litigation is also cash intensive and very expensive. A lot money is required upfront in order to secure expert medical reports and the attendance of expert witnesses at trial. You will be hard pressed to find better reasons to avoid litigation.
Notwithstanding the existence of unethical attorneys, it is evident that on the operation of the law alone medical negligence litigation is not something easily embarked upon or launched by the mere existence of an injury. This and the attendant initial costs of this kind of litigation limit the ability of using it as a get rich quick scheme even by the slickest of ambulance chasers.
In order to effectively diagnose the problem of the surge in this kind of litigation each case needs to be evaluated on its individual merits. The surge could be, amongst others, as a result of more South Africans having access to legal recourse in recent years[7], it could be as a result of deteriorating standards in the medical profession, it could be the abuse of this kind of litigation or it could be a combination of factors. The point is we won’t have a definite answer until the issue is properly investigated.
NOTES:
[1] S F Otto Medical Negligence (2004) Vol 8 No 2 SA Journal of Radiology 19
[2] Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F
[3] A surgeon is in no different a position than any other professional person – Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 488C.
[4] Castell v De Greef 1993 (3) SA 501 (C) at 512A-B (cited with approval in Buthelezi v Ndaba 2013 (5) SA 437(SCA) para 15).
[5] Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para 36
[6] Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA) 2015 (1) SA at para 5
[7] Risk Management and Insurance firm AON alarm that: Medical malpractice claims in South Africa are soaring as South Africa becomes an increasingly litigious society as awareness of rights grows under the Consumer Protection Act (CPA), as well as a growing number of legal professionals who are heavily marketing medical malpractice litigation services – https://www.aon.co.za/index.php/en/news-articles/302-soaring-medical-malpractice-claims-demand-statutory-intervention (Accessed March 18, 2015)
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