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Good News for Medical Practitioners

20 October 2018Donald Dinnie and Dominique Spies, Natmed Medical Defence
Donald Dinnie

Donald Dinnie

Good news for healthcare practitioners and healthcare facility operators is found in the recent Supreme Court of Appeal judgment MEC for Health, Western Cape V Qole.

The Court was firm in its finding that the mere fact that harm has been occasioned to a patient is not on its own proof that the medical staff had caused it or that they had done so negligently.

The Court referred with approval to an earlier judgment of Goliath V MEC for Health, Eastern Cape 2014 SCA warning against reverse reasoning of this kind:

to hold a doctor negligent simply because something had gone wrong, would be to impermissibly reason backwards from effect to cause.”

Our courts have also previously referred with approval to English Judgments cautioning against the natural human tendency to find fault where an innocent patient is injured.

“. . . we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled, and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure”Roe v Ministry of Health & others.

Our courts have also cautioned against finding fault by relying on an expert opinion which is not based on logic simply because a patient suffered harm:

it is not open to a court simply to express a preference for the one rather than the other and on that basis to hold the medical practitioner to have been negligent. Provided a medical practitioner acts in accordance with a reasonable and respectable body of medical opinions his conduct cannot be condemned as negligent merely because another equally reasonable and respectable body of medical opinion would have acted differently” - Mediclinic v Vermeulen

On the facts of the Qole case a baby girl was born presenting with clinical features of spastic quadriplegic cerebral palsy caused by damage to her brain. The baby’s mother claimed alleging negligent medical treatment to herself and the baby by the various health practitioner, nurses and doctors, employed at the various State facilities she attended during her pregnancy and at the time of her child’s birth. The trial court found that the injuries suffered by the baby were a direct consequence of the negligent conduct of the MEC’s employees.

On appeal the Court considered the expert evidence presented on behalf of the parties and concessions made in evidence.

The Court accepted the MEC’s expert evidence that the extensive brain damage evidenced could only have developed over 4-5 weeks and it was unlikely that it was a result of an occurrence during delivery or a week before then. Among other things the baby’s blood pH at birth was inconsistent with intrapartum brain injury and there was evidence of previous bleeding in the baby’s brain. There was no trigger event during birth. The improvement of the Apgar score was uncharacteristic of intrapartum brain injury.

It is a firm principle of our law that a person who asserts a damage causing event must prove it. The legal duty owed by the medical staff treating the plaintiff and her baby require that they adhere to the general level of skill and diligence possessed at the time by the members of the profession to which they belong. Only reasonable care and skill is required. The Plaintiff had to prove through credible and persuasive evidence, on a balance of probabilities, that the doctors and nurses failed to adhere to the required standards.

The expert evidence presented was central to determining the required level of care and whether that had been breached. Expert witnesses need to support their opinion with valid reasons. It is not the mere opinion of the witness that is decisive but their ability to satisfy the court because of their special skill training and experience that their reasons for the opinion which they express are acceptable. The court must be satisfied that the opinion has a logical basis.

 The court found that the MEC’s expert opinion evidence was founded on clearly established facts, logical and well-reasoned and that on a conspectus of the evidence that the baby had suffered an ante-natal injury 34 weeks into the pregnancy or at least some weeks before labour was induced. The Plaintiff’s expert conceded that the foetus was probably already compromised by these dates.

Therefore, there was no causal link between the alleged failure to intervene or any other alleged negligence and the damage that was occasioned. Ultimately not only the cause of the damage remained unidentified but also, it’s timing.  

The judgment is a useful object lesson for all medical practitioners and can be read here: http://www.saflii.org/za/cases/ZASCA/2018/132.html 

 

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