What does “duty of care” mean in medical malpractice?

Doctors owe a duty of care to their patients, but what does that mean in the current environment where medical malpractice lawsuits are on the rise and specialists – such as gynaecologists, obstetricians and neurosurgeons – are most at risk of being sued for malpractice?

What is duty of care?

“Duty of care is the legal duty to provide care at a level reasonably expected of a competent doctor or medical professional,” states Natasha Naidoo, senior associate at Norton Rose Fulbright.

According to Naidoo, the duty of care arises immediately once the medical professional accepts a request by a patient to render services to them. A duty of care also arises if a colleague requests a healthcare practitioner to provide stand-by treatment to a patient of theirs, during the colleague’s absence. In the latter instance, the duty of care does not arise only if and when the patient requires emergency medical treatment; it arises from the moment that the healthcare practitioner agrees to the request to stand-in for his or her colleague.

Naidoo advises that the relationship between a doctor and their patient is founded on the basis that the doctor is required to treat the patient with a reasonable degree of skill and care; and that the patient undertakes to pay the medical professional a fee in return. The doctor therefore has a contractual duty not to be negligent. In addition to this contractual obligation, the law imposes a duty of care on the doctor in terms of which that doctor can be held negligent.

What this means, is that the doctor has a legal duty of care in addition to a contractual duty towards a patient, not to be negligent.

Why is it important?

In the case of a medical negligence claim, the onus is on the patient to prove that the doctor owed that patient a duty of care and that there was a breach of that duty of care – resulting in damages being suffered by the patient. The patient would need to establish legal and factual causation. It is easier to establish factual causation. In establishing legal causation, the test to be applied is the “but for” test. The question to be asked is whether the act or omission of the doctor was wrongful and negligent in causing the patient’s injuries.

“Evidence will be led by independent medical experts to assist the court in establishing whether the relevant professional standards of treatment and care were met; and in what way the actions of the doctor deviated from that of the reasonable doctor,” says Naidoo.

Duty of care and high-risk specialities

There has been a sharp increase in medical malpractice law suits in South Africa in recent years, which is the cause of great concern both in the public and private healthcare sectors. Some commentators claim that the rise in litigation is the result of a decline in professional standards among the medical profession.

A 2003 survey among six high-risk medical specialities in fact reported that 93 percent of practitioners admitted to practising defensive medicine – including ordering diagnostic tests and MRIs that were unnecessary, and avoiding procedures and patients that were perceived as risky.

Law reform needed

Concerns were raised by those in the practice of obstetrics and gynaecology following a judgment handed down in 2019. Some of the issues raised were that the profession is already under pressure due to the massive rise in medical negligence claims against healthcare professionals specialising in obstetrics and gynaecology, and that there is a high risk of medical negligence in this particular area of specialisation – which might occur suddenly and unexpectedly, and can often not be prevented.

A further issue raised is the precedent created by the judgment and the burden it has imposed on the profession itself.

There have been calls for the creation of a special tribunal consisting of a panel of experts, qualified in the field to preside over medical negligence claims against obstetricians and gynaecologists, for example, which will avoid the adversarial nature of court proceedings.

This position has been exacerbated by the high risk of medical negligence claims and the rise in costs of professional indemnity insurance payable by obstetricians and gynaecologists. This has resulted in those in private practice leaving to work in state hospitals in order to avoid personal liability arising from medical negligence claims.

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