Tag archives: Medical negligence

No special circumstances when sentencing a doctor for culpable homicide

By Donald Dinnie on November 25, 2020 Posted in General

The Constitutional Court in Van der Walt v The State set aside a doctor’s criminal conviction for culpable homicide on the basis of irregularities committed by the regional magistrate, which infringed the doctor’s right to a fair trial. The conviction was not set aside on the merits. Therefore, whether the doctor’s guilt was proved beyond a reasonable … 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

Doctors must act in accordance with a reasonable and respected body of medical opinion

By Siyabonga Mathe on August 18, 2020 Posted in General

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 … 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

General damages and contingency deductions in medical negligence cases

By Yash Naidoo on March 23, 2018 Posted in General

When a patient’s brain injuries diminishes their awareness and full appreciation of their pain and suffering, an award for general damages is appropriate if the patient experiences intermittent periods of heightened awareness. When determining the amount to be awarded for general damages, our courts prefer a flexible approach. The award should be determined by the … Continue reading

The massive cost of medical negligence cases is an international problem

By Sandra Sithole (ZA) on December 11, 2017 Posted in Insurance

It is not only in South Africa that the cost of medical negligence lawsuits is draining the health service. There are calls in Britain for reform to help protect the National Health Service from pay-outs which hit GBP1.4 billion in the fiscal year ending March 2016 alone. The UK Centre for Policy Studies says that the … Continue reading

Periodic compensation of future medical expenses

By Sandra Sithole (ZA) and Patrick Bracher (ZA) on November 6, 2017 Posted in General

In a landmark judgment, the Constitutional Court has left the door open for the development of the common law to have future damages in personal injury claims paid periodically and by way of services. The Constitutional Court was faced with the question whether massive future medical expenses based on speculation can be paid by way … 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

Facebook page costs woman future loss claim (UK)

By Sandra Sithole (ZA) on May 10, 2017 Posted in General

A 37 year old woman from Nottingham has lost a claim for future pain and suffering following failure by a hospital to notify her of a positive result of a sexually transmitted infection with the result that the infection was left untreated for a year. The woman who suffered from a pre-existing somatic symptom disorder … 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

Pain and suffering includes mental anguish from medical negligence

By Sandra Sithole (ZA) on September 21, 2016 Posted in General

In March 2016, the Austrian Supreme Court granted an award for pain and suffering to a patient for mental strain after a piece of broken scissors was left in his body following a surgery despite the fact that the claimant had not suffered any physical pain. The action was brought against the manufacturer of the … Continue reading