When medical practitioners perform their duties and things go wrong in the process, it may have devasting and life-changing consequences on a patient and his/her loved ones. More often than not, these consequences present themselves as injury and/or loss. These consequences make it necessary to ask the question: why did things go wrong? And at times, the answer lies the in the manner in which the medical practitioners executed their duties.

Medical negligence v medical malpractice

It is true that medical practitioners are human and humans make mistakes. However, the nature and intensity of the consequences that arise from such mistakes make it necessary to delve into the intent and awareness of the practitioner when they made said mistakes. Medical negligence is distinguishable from medical malpractice. On one hand, medical negligence occurs when a medical practitioner fails to perform their duties with the degree of skill and care reasonably expected from a competent medical practitioner of their field, and thereby causing injury and loss that was foreseeable and preventable. Medical malpractice on the other hand includes negligent and intentional wrongful acts or omission by a medical practitioner. Hence, medical negligence relates to the conduct of the practitioner in not performing according to a reasonable standard, and medical malpractice relates to the conduct as well as the intent and awareness of the practitioner.

Medical negligence claims

Individuals who have suffered injury and/or loss due to medical negligence may institute a claim for compensation of damages against the negligent medical practitioner. The individual (claimant) instituting the claim for medical negligence bears the onus to prove the existence of negligence. As provided for in the frequently cited case of Kruger v Coetzee 2 SA 428 (A), the test for negligence is twofold. Firstly, the test asks a foreseeability question: would a reasonable competent medical practitioner in the same position foresee the reasonable possibility that their actions or omissions would cause injury and/or loss? Secondly, the test asks a preventability question: would a reasonable competent medical practitioner have taken any reasonable steps to prevent said injury and/or loss? Hence, to prove the existence of negligence the claimant must show that the injury and/or loss caused by the medical practitioner’s actions was reasonably foreseeable and that there existed reasonable steps that the practitioner could have take to prevent said foreseeable injury and/or loss but failed to do so.

Nevertheless, it is important to bare mind that the law does not place an unrealistic burden on medical practitioners to perform perfectly, in fact, a mistake or erroneous action by a practitioner does not necessarily amount to medical negligence. In the much-quoted case of Mitchell v Dixon 1914 AD 519, the court stated that a medical practitioner is not expected to employ the highest possible degree of professional skill, instead he is bound to employ reasonable skill and care; and he is liable for the consequences thereof if he does not.   This means that medical practitioners cannot be held liable for unavoidable or naturally occurring complications as well as mistakes that are considered reasonable in terms of the negligence test above.

In addition to proving the existence of negligence, the claimant instituting a claim against a negligent medical practitioner must prove that the practitioner’s negligence has caused actual injury and/or loss. The injury and/or loss may be in the form of loss of earnings; medical expenses; general damages being pain, suffering and loss of amenities of life; as well as loss of financial support from a deceased loved one whose death was caused by the practitioner’s negligence. The quantum of compensation for a medical negligence claim is dependent on the specific circumstances of each case such as the nature and consequences of the injury and/or loss, and factors such as the age and occupation of the claimant.

With the nobility and nature that the medical profession carries, it is important to guard against holding medical practitioners to an impossible standard. Medical practitioners should have the freedom to serve the public without fear of persecution. However, in the same breath, it is very important to hold medical practitioners liable for negligent practice and malpractice that causes harm and loss to the public, and provide compensation for such.