The problem facing departments of health around the country is how to improve service delivery to the public and the quality of medical care provided to patients and so significantly reduce the number and quantum of medico-legal claims. Instead of funding healthcare programmes and facilities, a large portion of the annual budgets is allocated to … Continue reading
On 15 January 2021 the Supreme Court of Appeal handed down a judgment which pronounced on the jurisdiction of the Health Professions Council of South Africa (HPCSA) as a medical malpractice watchdog and the primary guardian of morals of the health profession. The judgment confirmed that the HPCSA’s jurisdiction is not limited to the conduct … Continue reading
The Eastern Cape MEC for Health was held vicariously liable for the negligent conduct of provincial hospital nursing staff in failing to take the necessary steps to ensure that a patient’s wound was properly assessed and cleaned and that all debris, specifically a large shard of glass, had been removed. The patient’s wound became infected … Continue reading
The case of Felicia Meyers v MEC, Department of Health, Eastern Cape deals with the evidence required to give rise to an inference of negligence on the part of an operating surgeon as to whether the injury caused in the course of the operation resulted from negligence (the failure to apply the professional skill and … Continue reading
The claimant, suing the UK National Health Service, had a medical history of having undergone two caesarean sections and a tear to her womb. Her fourth pregnancy was therefore regarded as ‘high risk’ and her treatment plan provided for an elective caesarean section. She brought a claim against the hospital on the grounds of alleged … Continue reading
In December 2019, the Durban High Court rejected expert evidence attempting to introduce a third type of hypoxic ischemic injury as the basis for a damages claim by a child born with cerebral palsy. A hypoxic ischemic event is caused by a lack of oxygen or a lack of blood flow in the brain which … Continue reading
South African healthcare practitioners and insurers may take some comfort (on the basis that the grass is not greener) from the jury verdict of an Illinois, US Court in a medical malpractice claim against the West Suburban Medical Center and others. The jury awarded a record US$100.6 million damages against the hospital in respect of brain … Continue reading
Parties to any dispute who rely exclusively on opinions of experts without establishing the factual basis for those opinions do so at their peril. The opinion of an expert must be based on facts that are established by the evidence. The court then assesses the opinions of experts on the basis of ‘whether and to … Continue reading
In the AN case, the Supreme Court of Appeal held that despite the failure by the hospital to properly monitor the mother and foetus, during delivery, that did not cause the brain damage to the baby, which resulted from an unpreventable cause. The hospital had a legal duty to monitor the condition of the mother … Continue reading
The claimant, a retired teacher, developed a limb tremor in 2006. The defendant treated the claimant between 2007 and 2012 and prescribed a dopamine agonist. The claimant stated that the medication resulted in her overindulging in online shopping to the extent that she placed 200 bids on eBay during the course of one night. She … Continue reading
Personalised medicine involves the consideration of health risk factors and genetic information to determine individual risk profiles. This customisation of healthcare uses medical decisions, practices, treatments, and products that are tailor-made to an individual’s requirements, and is based on hereditary profile. This could result in quicker diagnosis and a more targeted form of treatment for … Continue reading
The England Appeal Court has held that a father’s claim against a clinic for breach of contract for damages suffered as a result of raising his child who was born by IVF to his estranged wife without his consent were not recoverable due to legal policy. The child was conceived via IVF using the gametes … Continue reading
A judgment of the English Court of Appeal which we called ‘bizarre’ and ‘peculiar’ has been predictably overturned by the UK Supreme Court. The Supreme Court found that the hospital run by the NHS Trust is liable to a patient with a head injury who had been given misinformation by the hospital receptionist that he … Continue reading
A doctor who covers for a colleague has an immediate legal duty to care for his colleague’s patients whilst on call. This was recently confirmed by the Supreme Court of Appeal in a case where a doctor (gynaecologist/obstetrician) agreed to cover for a colleague. The doctor positively responded to a telephone call from a midwife … Continue reading
In August 2017, the English Court of Appeal denied an appeal to a gynaecologist who was struck off the roll for practising without professional indemnity cover, which is compulsory in the UK. The doctor, who had a substantial private practice, was uninsured for a period of 5 years between 2007 and 2012. Until 2002, he … Continue reading
The South African Law Reform Commission has issued a lengthy paper on the investigations into medico-legal claims with proposals for the reform of the law in connection with those claims. The paper discusses the current situation and the legal principles underlying claims for damages for medical negligence, state liability, the basis for payment of compensation … Continue reading
A pregnant woman in the UK has sued a hospital and mental facility for failing to inform her that she had, through her father, a high risk of suffering from Huntington’s disease. Huntington’s Disease is a hereditary condition causing damage to the brain cells, giving rise to disruption of movement, cognition and personality change and … Continue reading
In a landmark judgment, the English court of appeal has opened the door in the UK to the extension of the duty of care owed by a hospital to the daughter whose father had been diagnosed with Huntington’s Disease despite the father refusing to consent to the disclosure. The facts of this case are tragic. … Continue reading
Over a 150 patients claimed damages against a hospital because of an outbreak of fungal meningitis and related infections which resulted from the patients receiving injections with contaminated substances. The court held that there was no claim under the insurer’s commercial package policy based on personal injury claims because the policies excluded bodily injury ‘due … Continue reading
Our law does not recognise a claim for constitutional damages for loss of a parent’s right to rear a child who was stillborn as a result of medical negligence. In Mbhele v MEC Health for the Gauteng Province, an expectant mother was admitted to Chris Hani Baragwanath Hospital with signs of foetal distress – an … Continue reading
In June 2016, the Australian New South Wales Supreme Court held a liability insurer liable to indemnify its insured, a prison detention centre, for a claim arising from the insured’s failure to note that one of its inmates suffered from chronic schizophrenia as a result of which he was not given access to his anti-psychotic … Continue reading
The judgment in Khoza v MEC for Health and Social Development, Gauteng re-emphasises the utmost importance of maintaining and preserving all hospital and medical records in the original state. This was a cerebral palsy claim for brain damage sustained during a birth at a provincial hospital. The CTG records had gone missing without any explanation. … Continue reading
Damages were sought and awarded by a court in Virginia, USA against an anaesthesiologist and her practice after the attending doctors were caught on tape mocking a patient while he was sedated during the course of a procedure. Amongst other abuses, the surgical team mocked and insulted the patient and the anaesthesiologist called the patient … Continue reading
Unlike in Pennsylvania, our courts do not require a plaintiff to produce a certificate of merit as a prerequisite for instituting medical malpractice claims. The certificate of merit is designed to confirm that the medical procedures in a case fall outside acceptable standards. When the requirement was introduced in Pennsylvania in 2003, the number of … Continue reading