A doctor is not negligent if they act in accordance with a practice accepted at the time as proper by a reasonable and respected body of medical opinion. This is so even if other doctors might have acted differently based on other acceptable medical opinions.

In McGregor and another v MEC Health, Western Cape, the plaintiff’s six year old child fell and hit his head against the hard road surface, resulting in skull fracture. A few hours after the incident, the child was taken to hospital. The doctor who examined the child concluded that the child had suffered a minor injury, which she described as a bump on the head. After a brief discussion with the plaintiff, the doctor discharged the child.

The following morning, the plaintiff tried to wake the child, and found him to be in an unusually deep sleep. The plaintiff contacted the hospital and was told that if the child was still sleeping deeply at his normal waking time, he should be brought back to hospital. Shortly after this, the child wet the bed and vomited; and the plaintiff rushed him back to the hospital. A CT scan revealed that the child had suffered extradural haematoma caused by a bleed between the skull and the brain. This resulted in the child sustaining serious brain damage which left him with cerebral palsy.

The plaintiff alleged that the doctor should have referred the child for x-ray examination, which would have revealed that the child had sustained a skull fracture; and should have kept the child under observation at the hospital before being discharged. There were disputes between the expert witnesses on the issues.

The hospital’s imaging protocol for head injuries, and the provincial head injury guidelines indicated that skull x-ray was not required. These guidelines were adopted from the National Institute of Health and Care Excellence (NICE) by a team of senior practitioners, and consultant surgeons from the main teaching hospitals in the province. The doctor’s decision not to keep the child for further observation also accorded with the NICE guidelines for injuries of a similar nature.

The court found that the hospital’s protocols and provincial guidelines which informed the doctor’s clinical judgment were consistent with a body of responsible and respectable medical opinion. The doctor cannot be found negligent merely because another body of opinion holds a different view.

The court is however, not bound to absolve the doctor from liability just because the treatment or diagnosis accorded with sound medical practice. The court must be satisfied that the experts responsible for the body of professional opinion considered comparative risks and benefits, and reached a defensible conclusion on the matter. If a body of professional opinion overlooks an obvious risk which could have been guarded against, it will not be reasonable, even if that opinion is almost universally held (Bolitho v City and Hackney Health Authority).

The case is McGregor and another v MEC Health, Western Cape (SCA).