Case law on medical recordkeeping

07 June 2021 Vanessa Rogers on behalf of Natmed Medical Defence

A claimant in a medical negligence case, under South African common law, may claim compensation arising from injuries, harm or death suffered due to the alleged negligence of a practitioner and/or a hospital. There has never been a better time to revise your medical recordkeeping procedures.


“The quantum claimed can range from anything between R7-million and R50-million. Claims arising as a result of birth injuries are usually higher. These claims may arise where a gynaecologist fails to perform a Caesarean section timeously; or the standard of treatment provided by the gynaecologist is of a substandard level, and there is failure to act timeously or at all; or to act as a reasonable gynaecologist would have acted under the circumstances.

“The claim is usually that the child suffered birth asphyxia, which resulted in cerebral palsy. A claim against a practitioner in private practice will be lodged against the practitioner who practices independently. The allegations are founded on negligent omissions, or positive acts, which deviated from the actions of the ‘reasonable practitioner’, who would have acted differently under the same circumstances. The allegation, further, is that the practitioner involved did not exercise the relevant skills and expertise required.

“Where the claim is lodged against a private hospital, it is usually due to alleged negligence on the part of the nursing staff, who are employed by that hospital. The allegations tend to be based on the standard of treatment, care and monitoring that is provided in the course and scope of their duties as employees of the hospital.”

These were the words of Natasha Naidoo, senior associate in Norton Rose Fulbright’s Insurance Litigation Team in Johannesburg, when she led a Medical Academic webinar, on behalf of Genoa Underwriting Managers, Indwe Risk Services and MC De Villiers Brokers, on the topics of “Medical Recordkeeping: A healthcare practitioner’s window of opportunity.
Additionally, Naidoo spoke about other cases, that involved a failure to adequately monitor a premature infant’s oxygen saturation levels, or a failure to refer the infant for ophthalmologic screening during the appropriate stage of the infant’s life – which resulted in retinopathy of prematurity, rendering the infant blind. “Very often,” said Naidoo, “the monitoring did in fact take place in accordance with the relevant guidelines but, unfortunately, it was not noted properly, or at all, in the clinical records.”

According to Naidoo, very common are claims against doctors not attending to hospitalised patients timeously. This is where the patient is under the treatment and care of a doctor, the patient’s condition takes a turn for the worse and the patient then requires emergency medical treatment. According to the clinical records, the doctor didn’t arrive timeously or at all. According to the treating doctor, he attended on the patient but it was not noted in the clinical records. Where the doctor was required to attend on the patient in hospital, and didn’t do so, he or she is then liable when the patient’s condition deteriorates and the patient dies.

While a doctor, in his defence, may plead that he did in fact attend on the patient, he remains liable when there is no record of this because the notes were not written into the clinical records.


Healthcare professionals and facilities are, by law, required to keep contemporaneous medical records of their patients. What this means is that the notes must be made, ideally, during the course of consultations with the patient, or while attending on the patient in hospital, or soon thereafter.

According to the Health Professions Council of South Africa (HSPCA) Guidelines, medical records include handwritten notes, notes taken by practitioners who treated a patient prior to the treating doctor, referral letters, laboratory reports, diagnostic X-ray reports, audiovisuals, medical aid forms, and more. Emails, text messages, and any form of oral or written communications between the practitioner and the patient all form part of the patient’s medical records, which must be noted and stored as part of the patient’s clinical records.

Adequate medical recordkeeping entails ensuring that the personal particulars of the patient are accurately recorded and that the patient is afforded the opportunity to update their details when they attend at the practice, reiterated Naidoo. As part of their training, reception staff should ensure that patients who have not attended at a practitioner’s practice for a considerable period of time are afforded the opportunity to update the information contained in their files to the extent that this is necessary.

Medical practitioners should ensure that all information relating to the patient, including blood test results, X-rays and results for any diagnostic tests are all kept together in the patient file, advised Naidoo. “It isn’t entirely necessary to keep tax invoices and statements in the same file as the patient records. These may be kept separately. Referral forms, or referral letters from another practitioner, must also be noted and stored in the patient file.

“Very often a patient may say that they consulted another doctor who gave them a particular view, which you feel is perhaps outrageous, or differs quite drastically from your own view. In such a case, you should consider the patient’s previous medical records, use your discretion, and give the practitioner a call to discuss your views – and of course all of this should be noted in the patient’s records,” was her advice to practitioners.

“Where you refer a patient to another practitioner, it is imperative that you note this and that a copy of the referral letter, stating why the referral is being made, what your views are, and what that particular practitioner should actually consider, should be given to the patient and a copy be kept in your file as well.”

To download and listen in to the entire webinar, which also covers the important matters of informed consent and the support of reception staff, please click here

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