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The evolution of medical malpractice law in South Africa
Published online by Cambridge University Press: 28 July 2009
Extract
It is matter for debate whether there has been an evolution of medical malpractice law in South Africa, as the term implies progressive change and many would argue that South African law in this regard has changed very little over a long time. There have been changes in medical law, such as the development of the doctrine of informed consent, where there has been a shift from an overtly paternalistic approach in terms of which the patient was expected to make a choice based on the information (if any) that the doctor chose to reveal, to the current position that the patient is an autonomous subject and therefore is entitled to be fully informed and, on the basis of that information, to make the final choice regarding treatment.
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References
1 In the English decision of Hucks v. Cole 1968 112 SJ 483Google Scholar Lord Denning insisted that in order to reach the conclusion that a doctor was negligent his conduct should be deserving of censure or inexcusable. This decision was quoted in Esterhuisen v. Administrator, Transvaal 1957 (3) SA 710 (W) 723A. This view supposes that it should be more difficult to prove negligence against a doctor–an approach that South African courts have regularly followed: see the authorities listed in nn. 9 and 11. However, in the decision of Whitehouse v. Jordan [1980] 1 All ER 650Google Scholar (CA) the same Lord Denning attempted to characterize the “inadvertent slip” as an error of clinical judgment and accordingly not negligent. This approach was rejected by the House of Lords in Whitehouse v. Jordan [1981] 1 All ER 267 (HL) on the grounds that to state that the defendant had made an error of judgment, whether clinical or otherwise, tells one nothing about whether the error was negligent or not.Google Scholar
2 M. Jones, Medical Negligence, 1991, at 1 adopts a tough stance by introducing his work with the proposition that whenever a doctor is negligent his conduct is inexcusable and deserving of censure.
3 See S.A. Strauss, Doctor, Patient and the Law, 3rd ed., 1991, 243 where he quotes the following figures: in the period between 1968 and 1976 the ratio of requests to the Medical Protection Society and the Medical Defence Union from doctors for legal assistance rose from one per 522 doctors to one per 108 doctors—an increase of almost five times in eight years. Strauss continues that in 1986 the relevant figures were one per 48 doctors and in 1988 one per 22. However Strauss does make the point (at 243ff.) that not all these requests for legal assistance relate to patient threats to bring suit for alleged malpractice, but also involve professional legal issues in general including complaints relating to alleged professional misconduct. See also K.L. Simons, “The legal pitfalls of medical practice and how to avoid them”, (1978) 11 De Jure 123–33. This trend is global rather than local. In the United Kingdom, claims for medical negligence in 1989 were estimated to cost the NHS £40 million, in 1992 £58 million and in 1995 £125 million pounds. See C. Newdick, Who Should We Treat? 1995, 12.Google Scholar
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9 Strauss, op. cit., n. 3 at 244. The recent decision in Castellv. De Greef 1994 (4) SA 408 (C) seems to indicate that this attitude might be changing.
10 Lanphier v. Phipos (1838) 8 C & P 475 at 479Google Scholar; 173 ER 581.
11 Van Wyk v. Lewis 1924 AD 438Google Scholar; Buls v. Tsatsarolakis 1976 (2) SA 891Google Scholar (T); Pringle v. Administrator, Tvl. 1990 (2) SA 379 (T)Google Scholar; Administrator, Natal v. Edouard 1990 (3) SA 581Google Scholar (A); Castell v. De Greef.
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15 Ibid.
16 Strauss and Strydom, op. cit., n. 12 at 111; Cf. Lillicrap, Wassenaar & Partners v. Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A).Google Scholar
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18 1945 AD 354. Also Smith and Watermeyer v. Union Steamship Co. (1867) 5 S 311 at 322Google Scholar; Ward v. Gardner (1902) 13 EDC 73Google Scholar; Bennett v. Shaw (1902) 19 SC 248 at 251Google Scholar; Commissioner of Public Works Dreyer 1910 EDL 325; Reeds. Eddies 1920 OPD 69.
19 1990 (3) SA 581 (A).
20 [1973] 1 All ER 71 (A).
21 At 596C-597H.
22 At 597G-H.
23 Buls and Another v. Tsatsamlakis; Pringle v. Administrator, Tvl.
24 Blyth v. Van den Heever, Administrator, Natal v. Edouard.
25 Lillicrap, Wassenaar & Partners v. Pilkington Bros (SA) (Pty) Ltd; Comira v. Bewind 1986 (4) SA 60Google Scholar (ZH). See Claasen, N.J.B. and Verschoor, T., Medical Negligence in South Africa, 1992, 125–27Google Scholar.
26 Bull v. Taylor 1965 (4) SA 29 (A) at 36G. D. Giesen, International Medical Malpractice Law, 1988, at 73 argues that there is really only one duty generating alternative (or concurrent) remedies or causes of action. Thus, there is no essential distinction between the duty of care and skill owed by the physician to his patient in contract and the delict of negligence. He further argues that a physician may give advice or treatment under a contract or without a contract, but in either case he is under one and the same duty to use reasonable care and to keep confidential the information he obtains. The current South African common law does not seem to go that far: see cases cited above, n. 25.
27 Claasen, and Verschoor, , op. cit, n. 25 at 119.Google Scholar
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29 See nn. 27 and 28.
30 Blyth v. Van den Heever at 220 B-F.
31 Ibid, a t 195E-F, 220B-221C; cf. International Shipping Co. (Pty) Ltd v. Bentley 1990 (1) SA 680(A).Google Scholar
32 Whitney Erf Thirteen (Pty) Ltd v. Loth Lorien Waste Paper Dealers 1978 (3) SA 832Google Scholar (W).
33 Buls v. Tsatsarolakis; Van Wpk v. Lewis; Pringle v. Administrator Tvl.
34 Claassen and Verschoor, op. cit., n. 25 at 10–11.
35 Pringle v. Administrator, Tvl at 397G–398C.
36 Claassen and Verschoor, op. cit., n. 25 at 121–22.
37 Buls and Another v. Tsatsamlakis.
38 Castell v. De Greef.
39 Ibid.
40 Supreme Court Rule 18(10).
41 Billings v. Sisters of Mercy of Idaho 389 P2d 224 at 230 (Idaho 1964).
42 Giesen, op. cit., n. 26 at 31.
43 Ibid. at 74 talks of the standard of care implied by contract, and imposed by delict.
44 Possibly the clearest exposition of the duty of care expected of a medical practitioner was that formulated in the case of Van Schoor, R v. 1948 (4) SA 349Google Scholar (C) at 350: “Coming to the case of a man required to do the work of an expert, as e.g. a doctor dealing with the life or death of his patient, he too must conform to the acts of the reasonable man, but the reasonable man is now viewed in the light of an expert; and even such expert doctor, in the treatment of his patients, would be required to exercise in certain circumstances a greater degree of care and caution than in other circumstances”. See also Mitchell v. Dixon 1914 AD 519 at 525Google Scholar: “A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible care of professional skill, but he is bound to employ reasonable skill and care; and he is liable for the consequences if he does not”; and Buls and Another v. Tsatsamlakis at 894D: “The question in the present case is, therefore, not how a specialist orthopaedic surgeon would have acted in the treatment of the plaintiff, but how an average general practitioner, carrying on his duties as a casualty officer in a public hospital, would have acted”.
45 See R v. Van der Merwe 1953 (2) PH H124(W) at 142: “When a general practitioner is tried, the test is not what a specialist would or would not do in the circumstances, because a general practitioner is not expected to have the same degree of knowledge and skill and experience as a specialist has”. See also Esterhuizen v. Administrator, Tvl at 723—24; S v. Mkwetshana 1965 (2) SA 493 N) at 496.
46 S v. Mkwetshana at 497B-C. See also Barlow, T.B., “Medical negligence resulting in death”, (1948) 11 Journal of Contemporary Roman-Dutch Law 173–190 at 175;Google ScholarTaylor, J.L., The Doctor and Negligence, 1971, 12Google Scholar; Claasen, and Verschoor, , op. cit., n. 25 at 15.Google Scholar
47 S v. Kramer and Another 1987 (1) SA 887 (W).Google Scholar
48 Van Wyk v. Lewis at 444; Roe v. Ministry of Health [1954] 2 QB 66Google Scholar, [1954] All ER 131 at 137. The reasonable physician is expected to keep himself or herself abreast with current developments in medicine and can be held liable if a patient suffers prejudice through the physician's use of outmoded methods. See Giesen and Fahrenhorst, op. cit., n. 12 at 82.Google Scholar
49 In the case of Anns v. London Borough of Merton [1977] 2 All ER 492Google Scholar, HL, Lord Wilberforce posited the following general duty of care test: “First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship or proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damage to which a breach of it may arise”.
50 Castell v. De Greef, Whitehouse v. Jordan and Another [1981] 1 All ER 267 at 276Google Scholar g-j, Lord Edmunddavies: “The principal questions calling for decision are: (a) in what manner did Mr Jordan use the forceps? and (b) was that manner consistent with the degree of skill which a member of his profession is required by the law to exercise? Surprising though it is at this late stage in the development of the law of negligence, counsel for Mr Jordan persisted in submitting that his client should be completely exculpated were the answer to question (b), ‘Well, at the worst he was guilty of an error of clinical judgment’. My Lords, it is high time that the unacceptability of such an answer be finally exposed. 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 a rinding of negligence inevitable.” See also Barlow, op. cit., n. 46 at 180; Giesen and Fahrenhorst, op. cit., n. 12 at 82; and Cohen and Mariano, op. cit., n. 13 at 131.
51 Buls and Another v. Tsatsarolakis.
52 S v. Kramer and Another, Pringle v. Administrator, Tvl.
53 Blyth v. Van den Heever, Dube v. Administrator, Transvaal 1963 (4) SA 260 (W); Magware v. Minister of Health NO 1981 (4) SA 472 (Z).
54 X v. SA Blood Transfusion Service 1991 TPD (unreported).
55 Esterhuizen v. Administrator, Tvl; Richter and Another v. Estate Hammann 1976 (3) SA 226 (C).
56 See s. 13 of the Mental Health Act No. 18 of 1973, which obliges a medical practitioner to report a potentially dangerous patient. In this respect see the American case of Tarasoff v. Regents of the University of California (1976) 551 P 2d 334 where the University was held liable for failing to warn either a student or her parents of death threats made by another student to an analyst employed by the University. The student subsequently carried out his threat.
57 S v. Kramer and Another.
58 Giurelli v. Girgis.
59 Where different schools of opinion exist as to a preferred method of treatment for a specific ailment, a physician will not be acting improperly if he uses a method not generally used by the majority of practitioners, as long as the method is recognised as viable. See Pringle v. Administrator, Tvl at 386B-389C; Krige., Kovalsky v.This point was well made in the English case of Bolam v. Friem Hospital Management Committee [1957] 1 WLR 582 at 587 (per MCNAIR, J.): “A doctor is not guilty negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. …Putting it the other way round, a man is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion who would take the contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with the same old technique if it has been proved to the contrary to what is really substantially the whole of informed medical opinion.”Google Scholar
60 Castell v. De Greef. For an interesting discussion of the doctrine of “informed consent” see Earle, M., “Informed consent: is there room for the reasonable patient in South African law?” (1995) 112 SA.L.J. 629–642Google Scholar which unfortunately seems to have been written (but not published) before Castell was heard by the Full Bench of the Cape Provincial Division.
61 See n. 15.
62 Fv. R (1983) 33 SASR 189 at 194 per KingC. J. On this subject see Strauss, op. cit., n. 3, at 245; Morris, C. “Malpractice: medical—the most important events of the last two years”, (1963) 30 Insurance Counsel Journal 44;Google ScholarSimons, K. L. “The legal pitfalls of medical practice and how to avoid them” (1978) 11 De jure 133.Google Scholar
63 Van Wyk v. Lewis per Wessels, A.J., at 464: “The mere fact that a swab is left in a patient is not conclusive of negligence. Cases may be conceived where it is better for the patient, in case of doubt, to leave the swab in rather than to waste time in accurately exploring whether it is there or not, as for instance where a nurse has a doubt but the doctor after search can find no swab, and it becomes patent that if the patient is not instantly sewn up and removed from the operating table he will assuredly die. In such a case there is no advantage to the patient to make sure that the swab is not there if during the time expended in exploration the patient dies. Hence it seems to me that the maxim res ipsa loquitor has no application to cases of this kind.” For a critical discussion of the Van Wyk judgment see Strauss and Strydom, op. cit., 279 and C. Birrer, The Medical Cop-out, 1976, 118–19. See also Mitchell v. Dixon at 525 where the South African Appellate Division expressly rejected the principle when deciding on the question of the alleged negligence of a surgeon who broke off a hypodermic needle in the patient's back. Other cases where the South African courts have rejected the principle when considering medical negligence cases are: Webb v. Isaac 1915 EDL 273 (where the patient's broken leg was shorter once healed); Coppen v. Impey 1916 CPD 309 (where the patient was seriously burnt by X-ray); Allot v. Paterson and Jackson 1936 SR 221 (where a patient suffered a shoulder injury whilst under anaesthetic for dental treatment!); Pringle v. Administrator, Tvl (where the patient's superior vena cava was perforated during a mediastinoscopy).
64 Although rejected in South Africa when applied to medical cases, the principle is applied in England and in the vast majority of American states. A case almost on all fours with Van Wyk v. Lewis was Mahon v. Osbome [1939] 2KB 14, [1939] 1 All ER 535Google Scholar (CA), where a swab was left in the patient's stomach after an abdominal operation. Contrast the following passage with the finding made by the South African Appellate Division: “There can be no possible question but that neither swabs nor instruments are ordinarily left in the patient's body, and no one would venture to say that it is proper, although in particular circumstances it may be excusable, so to leave them. If, therefore a swab is left in the patient's body, it seems to me clear that the surgeon is called on for an explanation, that is, he is called on to show not necessarily why he missed it, but that he exercised due care to prevent it being left there” (at 50).
65 Percy, R. A.Charlesworth and Percy on Negligence, 7th ed., 1983, 350.Google Scholar
66 Harms, L. T. C.Antler's Precedents of Pleadings, 4th ed., 1993, 192.Google Scholar
67 Ibid.
68 With some exceptions. Cf. Washington v. City of Columbus 136 Ga. App 682, 222 S.E.2d 538 (1975).
69 See Clark v. Gibbons 66 Cal.2d 399Google Scholar at 416, 58 Cal. Rptr. 125 at 137, 426 P.2d 525 at 537 (1967) where Tobriner, J., equated the doctrine in medical negligence cases to that of strict liability. In the United States there are three general judicial approaches to the procedural effect of the doctrine. The first and prevailing view is that the doctrine merely creates a permissible inference of negligence: Wiles v. Myerly 210 N.W.2d 619 (Iowa 1973).Google Scholar The plaintiff will usually (but not always) avoid absolution. The jury is free to reject or accept the inference created by the doctrine. Most importantly, the burden of proof remains on the plaintiff. Therefore, effectively the procedural effect of the doctrine depends on the persuasive strength of the inference of negligence. The second approach shifts evidentiary burden (as opposed to the onus) to the defendant. The plaintiff will not only avoid absolution, but if the defendant does not produce evidence to rebut the inference of negligence created by the doctrine, the plaintiff will succeed. The third approach shifts the onus to the defendant on the question of fault: Anderson v. Somberg 67 NJ. 291,Google Scholar 338 A.2d 1, cert, denied 423 U.S. 929 (1975).Google Scholar The permissible inference rule is the more popular approach and is probably more consistent with the doctrine. King, J. H. in his work The Law qfMedual Malpractice in a Nutshell, 1977, at 135Google Scholar suggests that the doctrine be abandoned altogether and a rule adopted in its place whereby a plaintiff would be entitled to prove his case with circumstantial or direct evidence or both.
70 As in South Africa and the United Kingdom, the most common application of the doctrine is in cases where a sponge or swab was left in the patient's body after an operation: Easterling v. Walton 208 Va. 214, 156 S.E.2d 787 (1967)Google Scholar; Hestbeck v. Hennepin County 297 Minn. 419, 212 N.W.2d 361 (1973).Google Scholar See also Anderson v. Somberg (forceps broke off while being manipulated during surgery); cf. Hinev. Fox 89 So.2d 13 (Fla.1956)Google Scholar (cautery instrument broke and burnt the patient); Fogalv. Genesee Hospital 41 AD.2d 468, 344 N.Y.S.2d 552 (1973)Google Scholar (frostbite caused by a hypothermia blanket during vascular surgery); Wiles v. Myerly (burns on patient's buttocks during vascular surgery involving another part of patient's anatomy); Belshaw v. Feinstein 258. Cal.App.2d 711, 65 Cal.Rptr. 788 (1968)Google Scholar (where neurosurgeon cutting too deeply and lacerated patient's brain). Cf. Gould v. Winokur 98 NJ.Super. 554, 237 A.2d 916 (1968).Google Scholar
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72 S v. Kramer and Another
73 Ibid.
74 The origin of this doctrine can be traced to the now famous case of McCormellv. Williams 361 Pa.355, 65 A.2d 243 (1949)Google Scholar where the court adopted the test of whether other persons participating in the care of the patient were subject to the physician's control or right to control with regard to the work to be done and the manner of performing it. The court observed at 361 Pa. 355 at 362, 65 A.2d 243 at 246 that until the surgeon leaves the operating room “he is in the same complete charge of those present and assisting him as is the captain of a ship over all on board”. This is very similar to the “control test” initially advocated by South African courts, which cases are critically discussed in Mtetwa v. Minister of Health 1989 (3) SA 600 (D).Google Scholar
75 McConneU v. Williams
76 The doctrine has evoked strong criticism however and is now on the retreat. See Giesen, D. op. cit., n. 41 footnote 29.Google Scholar
77 The case of Marvulli v. Elshire 27 Cal.App.3d 180, 103 cal. Rptr. 461 (1972)Google Scholar where a surgeon was held not responsible for the actions of his anaesthetist which caused the patient to suffer severe brain damage. Contrast the South African case of S v. Kramer and Another where the opposite verdict was reached on very similar facts.
78 Ibid.
79 1924 AD 438.
80 1987 (1) SA 887 (W).
81 At 895D-E.
82 1924 AD 438 at 460. See Burchell, J. M. and Schaffer, R. P. “Liability of hospitals for negligence”, (1977) 6 Businessman's Law 109–11.Google Scholar
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84 Scott, W. E. “The theory of risk liability and its application to vicarious liability”, (1979) 13 C.I.L.S.A. 44.Google Scholar
85 Ibid, at 58.
86 Ibid.
87 Ibid.
88 Mletwa v. Minister of Health 1989 (3) SA 600 (D).Google Scholar
89 Stadsraad van Pretoria v. Pretoria Pools 1990 (1) SA 1005 (T);Google ScholarGibbins v. Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T);Google ScholarMhze v. Martens 1914 AD 382;Google ScholarMinister of Police v. Mbilini 1983 (93) SA 705 (A);Google ScholarMel v. Minister of Defence 1979 (2) SA 246 (R).Google Scholar
90 See Giesen, op. cit., n. 26 at 40–43.
91 Ibid, at 43–46; Strauss, op. cit., n. 3 at 299–305.
92 Scott, op. cit., n. 84; Atiyah, P. S.Vicarious Liability in the Law of Torts, 1967, 1 et seq.Google Scholar
93 Scott, op. cit., n. 84 at 45–16; Fleming, J. G. “Developments in the English law of medical liability” (1959) 12 Vanderbilt Law Review 633–35.Google Scholar
94 Giesen, op. cit., n. 26 at 39.
95 Ibid, at 40.
96 Ibid.
97 Ibid. at 41.
98 Ibid.
99 Ibid.
100 Jones v. Manchester Corporation [1952] 2 All ER 125 (CA)Google Scholar; Cf S v. Kramer and Another where the surgeon was aware of the anaesthetist's inexperience but was held not liable for the damage caused by his ineptness.
101 Giesen, op. cit., n. 26 at 43–44. A similar decision was arrived at in the South African case of S v. Kramer and Another.
102 See nn. 74–78 and the accompanying text.
103 Giesen, op. cit., n. 26 at 44 footnote 58.
104 Ibid.
105 Ibid.
106 Goldv. Essex County Council [1942] 2 KB 293.Google Scholar
107 Hillyer v. St. Bartholomew's Hospital [1909] 2 KB 820;Google ScholarStrangways-Lasmere v. Clayton [1936] 2 KB 11;Google ScholarDryden v. Surrey County Council [1936] 2 All ER 535.Google Scholar
108 Gold v. Essex County Council. The change was foreshadowed in Logan v. WaikUd Hospital Board [1935] NZLR 385, where the New Zealand Court of Appeal held a hospital liable for the negligence of a nurse administering heat treatment. The court rejected the traditional distinction between administrative and professional tasks.Google Scholar
109 Strauss, op. cit., n. 3 at 300.
110 Sisters of St. Joseph v. Fleming [1938] 2 DLR 417;Google ScholarHenson v. Perth Hospital [1939] 41 W. Austl. LR 15.Google Scholar
111 Cassidy v. Ministry of Health [1951] 2 KB 343.Google Scholar
112 Collins v. Hertfordshire County Council [1947] KB 598.
113 Gold v. Essex County Council.
114 Roe v. Ministry of Health [1954] 2 QB 66.Google Scholar
115 Mkize v. Martens 1914 AD 382;Google ScholarMinister of Police v. Mbilini 1983 (3) SA 705 (A);Google ScholarMel v. Minister of Defence 1979 (2) SA 246 (R).Google Scholar
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117 Cassidy v. Ministry of Health at 360.
118 Hartl v. Pretoria Hospital Committee 1915 NPD 336; Byrne v. East London Hospital Board 1926 EDL 128 at 142 and 158Google Scholar; Lower Umfolozi War Memorial Hospital v. Lowe 1937 NPD 31.Google Scholar
119 Dube v. Administrator, Transvaal; Esterhuizen v. Administrator, Transvaal.
120 Mtetwa v. Minister of Health which finally overruled the Full Bench decision of Lower Umfolozi War Memorial Hospital v. Lowe which had confirmed the traditional distinction between administrative and professional duties undertaken by professional staff, and which had in turn bound the single judge in the decision of St Augustine's Hospital (Pfy) Ltd v. Le Breton 1975 (2) SA 530 (D).Google Scholar
121 1989 (3) SA 600.
122 At 606B–G.
123 Claassen and Verschoor, op. cit., n. 25 at 96–98.
134 The Constitution of the Republic of South Africa Act No. 108 of 1996.
125 Siliciano, J. “Wealth equity and the unitary medical standard”, 77 Virginia Law Review (1991) 466.CrossRefGoogle Scholar
126 See the English case of Knight v. Home Office [1990] 3 All ER 237 at 243.Google Scholar
127 Strauss, op. cit., n.3 at 2; Giesen and Fahrenhorst, op. cit., n.12 at 80; Harland andjandoo, op. cit., n. 7 at 123.
128 The same might be said of most private hospitals which are clearly run on a profit-making basis and are covered by comprehensive insurance policies.
129 See nn. 9, 11, 19–21, 61–67, 79–82 and accompanying text.
130 Section 36, the “limitation clause” provides that “the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) die nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”