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To Err is Human, but….

/To Err is Human, but….

To Err is Human, but….

Medical Law in South Africa

To Err is Human, but….

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THE LEGAL PRINCIPLES:

When a patient approaches a Doctor, he does so with a certain expectation. The patient believes that the doctor will provide the medical relief sought with the proper skill and proficiency. A legal duty is therefore placed upon the medical practitioner to use his acquired knowledge and skill in the most appropriate manner, keeping in mind the interest of the patient at all times.

The establishment of the above patient doctor relationship  is not depended on whether a doctor charged or was paid for the service, but rather on whether the doctor had an impact on the patient’s medical care and outcome. By taking charge of his patient, the doctor assumes a duty of providing reasonable care of the patient.

Although doctors are not guarantors of perfect results, they are required to exercise the degree of skill and care that is expected of a reasonably competent practitioner in that particular branch of profession.

THE TEST FOR PROFESSIONAL NEGLIGENCE:

It must be established that a reasonable practitioner in those circumstances would have foreseen the likelihood of harm and would have taken steps to guard against its occurrence, and the practitioner failed to take such steps.

The degree of skill and care that can be expected is largely a question of evidence, but the court will not rely on the medical evidence alone in deciding what risks are the results of particular treatment.

In Blythe v van den Heever 1980(SA) 191(A), the court dealt with a claim where the plaintiff had sustained fractures of his right radius and ulna. After a medical practitioner had operated to reduce the fractures, sepsis set in together with an ischemic condition. As a result the plaintiff suffered pain and suffering and even after other operative procedures had nevertheless been left with a “claw-like” right arm. The court of Appeal found that the medical practitioner had been negligent in his post-operative treatment of the plaintiff in that he had failed to diagnose and take the necessary prompt action for the ischemia, as a reasonably skilled and careful medical practitioner would have done, and that had he done so the fractures would have healed satisfactorily and full use of the arm being regained; his negligence had caused or contributed to the ultimate catastrophe.

The Court summed up the issues which required adjudication as follows:
“Applying the basic principles relating to delictual negligence which is causally linked to the damage  suffered in the situation in the present case, it seems to me that this enquiry resolves around itself into the following questions:

  1. Whether the reasonably skilled and careful medical practitioner in the position of the respondent would have realised that a serious ischemic condition was developing or threatening to develop in appellant’s forearm; and, if so, when he would have reasonably have come to realise this.
  2. Whether there was remedial action which could reasonably have been taken.
  3. Whether the same notional practitioner would have known of this remedial action and would have realised that is had to be taken.
  4. Whether the remedial action, if taken when the need for it ought reasonably to have been realised, would have prevented the damage suffered by the appellant.
  5. Whether respondent himself failed to take such remedial action…”

Therefore, the ultimate question would be whether the practitioner’s conduct conforms to the standard of reasonable care as demanded by the law.

Monica Janse van Rensburg
Malcolm Lyons & Brivik inc

2018-10-28T15:48:01+00:00May 14th, 2015|

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