Tag archives: Medical malpractice

The payment of medico-legal damages in services not money

By Donald Dinnie on April 26, 2021 Posted in Healthcare, Insurance

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

HPCSA – primary guardian of morals of the health profession

By Natasha Naidoo and Hishaam Khan on January 27, 2021 Posted in General

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

Medical malpractice claims, adverse inferences and res ipsa loquitur

By Donald Dinnie on October 31, 2020 Posted in General

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

Evidence to establish negligence of surgeon

By Patrick Bracher (ZA) on April 6, 2020 Posted in General

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

Negligent failure to perform caesarean section in time (UK)

By Natasha Naidoo on February 27, 2020 Posted in General

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

No case for sub-threshold hypoxic ischemic injury in cerebral palsy claims

By Carol Holness (ZA) and Deniro Pillay (ZA) on January 22, 2020 Posted in General

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

Medical malpractice: A USA birth injury comparison

By Donald Dinnie on November 19, 2019 Posted in Insurance

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

Expert evidence

By Donald Dinnie on September 18, 2019 Posted in General

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

Hospital’s negligence not causally linked to baby’s brain damage

By Erwyn Durman on September 5, 2019 Posted in General

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

Doctor liable for failing to warn patient about side effects (UK)

By Natasha Naidoo on August 27, 2019 Posted in General

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 and medical malpractice

By Natasha Naidoo on August 27, 2019 Posted in General

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

Damages not recoverable for raising IVF conceived child born without father’s informed consent

By Natasha Naidoo on January 24, 2019 Posted in General

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

Hospital receptionists owe duty to inform patients accurately regarding available medical assistance

By Sandra Sithole (ZA) on November 12, 2018 Posted in General

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

Covering doctors have an immediate legal duty of care to patients

By Deniro Pillay (ZA) on October 2, 2018 Posted in General

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

Struck off doctor practising without insurance refused appeal (UK)

By Sandra Sithole (ZA) on September 12, 2017 Posted in Insurance

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

Law Commission report on medico-legal claims for comment by 30 September 2017

By Donald Dinnie and Sandra Sithole (ZA) on July 31, 2017 Posted in General

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

Doctor/Patient confidentiality and failure to disclose genetic risk of Huntington’s Disease (UK)

By Sandra Sithole (ZA) on June 5, 2017 Posted in General

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

Duty to disclose diagnosis of a genetic disease may be extended to family members (UK)

By Sandra Sithole (ZA) on June 5, 2017 Posted in General

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

Exclusion for medical services in a medical malpractice claim (US)

By Sandra Sithole (ZA) on April 24, 2017 Posted in Insurance

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

Loss of the right to rear a child does not give rise to constitutional damages

By Justin Malherbe (ZA) and Rukshana Parker on March 20, 2017 Posted in General

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

Failure to assess risk of schizophrenic prison inmate covered by policy

By Sandra Sithole (ZA) on September 26, 2016 Posted in Insurance

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 importance of preserving medical records

By Donald Dinnie on August 5, 2015 Posted in Insurance

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

Doctors, mind your Ps and Qs

By Donald Dinnie on July 29, 2015 Posted in General

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

Medical malpractice claims fall to 14 year low in Pennsylvania, a lesson for South Africa

By Jay Page and Samantha Copeman on June 4, 2015 Posted in Insurance

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