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Case law

Case law – or common law – is the body of written opinions made by judges when they make their rulings. The case law with most relevance for medical practitioners is that derived from civil claims alleging medical negligence, and the most relevant of these are those that define or clarify a breach of duty of care or causation.

An allegation of negligence will only succeed if the plaintiff can satisfy the court, on a balance of probabilities, that all three of the following conditions apply:

  1. The plaintiff was owed a duty of care by the defendant
  2. The duty of care was breached
  3. Harm resulted from the breach (causation).
It must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable
Assuming that the first criterion is established (which is usually the case), the plaintiff must then present convincing evidence that the healthcare professional concerned could reasonably have foreseen the consequences of his or her action and did not guard against such an eventuality; moreover, it must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable. The test of reasonable conduct was set out in the judgment of a 1924 case1 as follows:
It does not always follow that a breach of the duty of care results in harm to a patient

“[In] deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.”

This means that, if a doctor’s management of a patient is considered reasonable by a responsible body of his or her peers, a court would be unlikely to find him or her guilty of negligence.

It does not always follow that a breach of the duty of care results in harm to a patient. In fact, there are many instances in which the outcome would have been the same for the patient whether the breach of duty had occurred or not. For example, a delay in diagnosing an already untreatable tumour is unlikely to affect the outcome for the patient. This is where the testimony of expert witnesses can be crucial for arguing the causation element of a claim. What it often comes down to is if the judge prefers one expert’s opinion over another’s.

The plaintiff’s case will only succeed if the judge finds that a breach of duty did result in harm to the patient. The number and value of clinical negligence claims brought in South Africa has been rising rapidly in recent years. In MPS’s experience alone, the estimated value of reported claims rose by 132% between 2008 and 2010. The good news for general practitioners is that most of these increases have been seen in the riskier specialties such as obstetrics, spinal surgery, neurosurgery and neonatology.

However, family doctors who carry out invasive procedures should be aware that they are more at risk of litigation and take care to ensure that, except in an emergency, they only undertake procedures that are clinically indicated, act within their competence and take proper informed consent.

Delayed diagnosis is the number one reason for claims against general practitioners. This category includes failure to diagnose, failure to revise an incorrect diagnosis in light of new evidence and failure to examine or investigate. What also probably underlies many of these claims is an overall failure of communication, either with the patient or with colleagues, or both.

The number and value of clinical negligence claims brought in South Africa has been rising rapidly in recent years
In addition to facing a civil claim in negligence, doctors whose practice falls short of acceptable standards may face disciplinary action by the Health Professions Council.