“If a physician makes a large incision with the operating knife and kills him, or open a tumour with the operating knife, and cut out the eye, his hands shall be cut off.”

Table 218 Code of Hammurabi

The Code of Hammurabi is the world’s oldest medical handbook found buried in the Nupur ruins after more than 4000 years. They are a set of laws relating exclusively to certain surgical interventions fully explaining patient’s rights, and imposing an authoritarian standard on surgical care, with the possibility of legal action to ensure justice and equity to each social class of the kingdom at the time, on a rough justice basis.1

Today a healthcare practitioner who is negligent in treating a patient, while no longer exposed to threats to their physical safety, may suffer from severe reputational, professional and financial harm including civil and/or criminal liability2.

The reasonable doctor and the duty of care

Our courts have long ago set out the test for medical negligence, the central principles of which have remain unchanged.

In Mitchell v Dixon3 :

“A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of skill and care, he is bound to employ reasonable skill and care; and he is liable for the consequences if he does not.”4

The test is and remains that of the reasonable healthcare practitioner in the particular circumstances of the case. This is the same whether the practitioner is a doctor, nurse or allied healthcare practitioner.5 In other words, a layperson is held to the standard of the reasonable layperson, when testing for negligence. A doctor is held to the standard of the reasonable doctor (not merely the reasonable layperson), a nurse must meet the standard of the reasonable nurse, etc.

This test for liability is essentially the same whether the healthcare practitioner or facility is sued in contract or delict. Unless, of course, the practitioner has bizarrely contracted with the patient on a no-fault basis, for example, guaranteeing to heal the patient.6

A delict is a civil wrong, or blameworthy conduct that causes harm to a person. You do not need to have a contract with a person in order to claim from them in delict – if someone causes you harm, you have a claim in delict if you can prove all of the legal elements of the delict, which are: Conduct (an act or omission), wrongfulness, fault (intention or negligence), causation and harm. A healthcare practitioner has a duty of care to the patient from when they agree to treat or commence treating the patient (in the absence of a contractual agreement to treat the patient). 7

Healthcare practitioners, who owe a duty of care to the patient, always have liability for their negligence which causes injury to a patient. If at that time they are employed by another party, for example a hospital, the hospital is also vicariously liable for that causal negligent conduct if the practitioner was acting in the course and scope of their employment with the hospital.

Vicarious liability and multiple defendants

In general terms vicarious liability may be described as the strict liability by one person for the delict of another. It usually arises in the context of an employer and employee relationship.8

In such a case the employer (the hospital, for example) is liable to the patient for the negligent conduct of its employee, the doctor, although neither the hospital nor the MEC for health (in the case of a public hospital) is at fault, in their own right. A doctor who employs a nurse in their practice would be vicariously liable for the negligence of the nurse who, in the course and scope of their employment, causes harm to the doctor’s patient.

In South Africa in the public health sector, the healthcare professionals attending to the patient at the hospital are all employed by the relevant provincial authority (usually the MEC for health) so that health authority has vicarious liability for negligent conduct of its healthcare employees. In the private sector, hospitals usually employ nurses and related staff but not the doctors. The doctors are independent contractors for whom the hospital as a general principle has no vicarious liability. However, the hospital and doctor may still share portions of the liability, depending on the circumstances of each case.

A public healthcare patient injured through the negligent conduct of their attending doctors and/or nurses will simply sue the MEC of the relevant province and does not need to sue the negligent healthcare practitioners themselves. They may do so if they wish to but that seldom occurs and there is little practical purpose to that because the resources for indemnifying the patient financially lie with the Province and not the employees.9 In the private sector, a patient who alleges they are injured because of the negligent conduct of both the nurses and the doctor, will sue the hospital on the basis of vicarious liability (seldom suing the nurse as well) and the doctor. In such a case there would be two defendants.

Determining who is liable is also more complicated when doctors employ locums or use covering doctors to treat their patients while they are away. Locums are generally considered

independent contractors, but this depends on the contract between the doctor and the locum and the nature of their relationship. The locum is responsible for their own conduct if they are acting as an independent contractor. A locum may be classified as an employee in some circumstances, and in that case, the doctor would be vicariously liable for the locum’s actions. Covering doctors are generally liable in their own right, from the time they accept responsibility for patients, be it by telephone or in person. Apart from questions around who is liable, doctors also have to be aware of the scope of their medical malpractice insurance cover, to determine whether people who work for them in different capacities are covered by their policy.

Remember, however, that a healthcare practitioner as an employee does not cease to be liable in their own right to the patient or their dependents because of their employer’s vicarious liability.

The employer, who is liable as a result of harmful conduct committed by the employee, is bound together with the employee to compensate the person who suffers damages as a result of the employer’s wrongful and negligent (or intentional) conduct.10

In complex medical malpractice litigation in the private sector, there may be a relatively long list of defendants. In a baby claim, for example, alleging causal negligence during the birth/delivery of the baby which resulted in the child suffering from cerebral palsy, the hospital, attending gynaecologist/ obstetrician and attending paediatrician may all be sued.

The patient bears the onus on the balance of probabilities of establishing their claim. 11 A balance of probabilities is the civil standard for the burden of proof (as opposed to the criminal law standard, which is beyond a reasonable doubt).

Where there is more than one person responsible for the patient’s injury, the patient can choose to sue all, one, or a combination of the wrong-doers. In those circumstances where, for example, the Hospital is sued, and judgment obtained against the Hospital, or liability is conceded, the Hospital may, in turn, institute action against the doctor for a contribution to the damages awarded.12

In S v Kramer13 the Court held that each specialist performs a specialised function as part of a team and that one is not responsible for the conduct of the other in their field of expertise.

Where a hospital, for example, is at fault in its own right for causing harm to the patient, the hospital or MEC will be liable to the patient. The hospital, for example, may have negligently implemented ineffective infection procedures and protocols resulting in patient infection, or they may have been negligent in appointing and employing an unqualified nurse, or granting a doctor they ought to know is incompetent surgical privileges at the hospital, or fails to maintain medical equipment as they should, which defective equipment subsequently injures the patient.

The hospital (and other healthcare professionals) may also have a strict liability to the patient in appropriate circumstances under certain legislation such as the Consumer Protection Act 14 regarding product liability. Strict liability is liability for which fault (usually negligence) does not have to be proved by the claimant.

The Consumer Protection Act protects consumers (such as patients) from harmful products and services. It also provides protection for unfair contractual terms, and therefore it influences how the courts look at exclusionary clauses in contracts between patients, hospitals and doctors.15 An exclusionary clause could try, for example, to exclude liability for certain actions or certain types of harm caused. However, legislation like the Consumer Protection Act may limit what liability can be excluded via contract.

So, healthcare practitioners and healthcare facility operators have liability exposure in their own right directly to the patient for their negligent conduct, and on appropriate facts a vicarious liability for the negligent conduct of their employees. They also have an exposure to a contribution to any damages awarded or agreed for injury to a patient where that person or entity is a joint wrongdoer.

The healthcare practitioner and healthcare facility operator’s financial exposure in those circumstances for damages suffered by the patient may be extremely serious. Special and general damages are awarded in respect of past and future medical expenses, past and future loss of earnings, loss of earning capacity, pain and suffering and loss of amenities of life.16

In the Life Healthcare and Suliman judgment, the agreed damages were R20 million (excluding the plaintiff’s legal costs which the defendant is liable for in this case; and the various defendants’ own legal fees). Financial exposure relates not only to the capital amount of the plaintiff’s award but to the cost of the litigation which may be very significant and run into millions of Rands.17 Special damages covers the more easily quantifiable aspects of loss, whereas general damages are awarded for things such as pain and suffering, which is hard to quantify. The courts look to previous awards in similar circumstances, as well as the particular circumstances of each case, in deciding what amount to award as general damages.

Medical practitioners and facilities may also be exposed to reputational harm and sanction from their professional bodies, such as the Health Professions Council of South Africa. 18

Bear in mind, however that simply because something has gone wrong during surgery or medical treatment, does not automatically mean that there is negligence and accordingly liability of the healthcare practitioner to the patient. Our courts have repeatedly said that this would be to impermissibly reason backwards from reason to cause. South African courts have consistently cautioned against the natural human tendency to find fault when an innocent party 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 … 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.”19