LIABILITY OF MEDICAL NEGLIGENCE (MEDICAL & DENTAL PRACTITIONER)


First Published: May 8, 2015

LIABILITY OF MEDICAL NEGLIGENCE (MEDICAL & DENTAL PRACTITIONER)

Prepared by: Bernard Furidzo

Medical practitioners in Zimbabwe include surgeons, physicians, anaesthetists, pediatricians, pathologists, radiologists, obstetricians and gyaecologists. Medical practitioners are governed by the Health Professions Act (Chapter 27:19). Suffice to say that the Act goes beyond the medical doctors in that it also governs other areas of health practice and supplementary health services.

Criminal Liability of a Medical Practitioner

Criminal law in Zimbabwe is now codified. This means there is now a piece of legislation which by and large gathers together in one place all the main aspects of our criminal law. This piece of legislation is the Criminal Law (Codification and Reform) Act (Chapter 9:23) hereinafter referred to as the Code.

  1. Murder

This crime is defined in Section 47 of the Code. It is committed where one person causes the death of another intending to kill that other person or continues to engage in conduct after realizing that there is a real risk that the conduct may cause death. Admittedly for medical practitioners this would occur in very exceptional cases but cannot be ruled out. For a medical practitioner to be found guilty of murder he/she should be the factual and the legal cause of death. A number of tests are applied for legal causation and they have been codified as guidelines in section 53 of the Code. A medical practitioner may for example be found guilty of murder where he/she supplies harmful substances to a patient in circumstances where death would be the likely consequence. In the South African case of S vs. Grotjohn 1970 (2) SA 355 (A), the court stated that a person who assists another in committing suicide may in certain circumstances be guilty of murder or culpable homicide.

The Code in Section 54 has codified the common law position with regards to both active and passive euthanasia.  Thus in terms of the Code it is no defence that a person caused the death of another in order to relieve suffering or that the deceased person requested that his or her life should be ended. (see S vs. Hartmann 1975 (3) SA 532 (C). However the Code allows passive euthanasia on the basis of a court order granted by the High Court.

  1. Culpable Homicide

The crime is codified in section 49 of the Code. A person commits this crime if he causes the death of another negligently, failing to realise that death may result from his or her conduct or if he realises that death may result from his or her conduct and negligently fails to guard against the possibility of death occurring. The locus classicus on this topic is S vs. McGown 1995 (1) ZLR 4 (HC) which is a must read for all medical practitioners. Examples of cases where medical practitioners can be found guilty of culpable homicide include:

  • A failure of a general practitioner to call in a specialist
  • Overdose of medicine
  • Incorrect procedure during anaesthesia
  • Excessive amount of contrast medium (radiology)
  • Failure by doctor to care for patient post-operatively

Other Offenses

A medical practitioner can also be charged with a number of offences under the Code or other legislation. These include:

  • Assault (Section 89 of the Code)
  • Negligently causing serious bodily harm (section 90 of the Code)
  • Criminal insult (section 95 of the Code)
  • Offences in terms of Section 19 of the Anatomical Donations and Post – Mortem Examinations Act (Chapter 15:01)
  • Offenses in terms of Section 19 of the Dangerous Drugs Act (Chapter 15:02)

Civil Liability

A medical practitioner can be liable under civil law either in contract or in delict. A medical practitioner who causes the death or injury of a patient where there is a contractual relationship between the two may be liable. An example is where a dentist furnishes a patient with ill-fitting dentures. A delict is simply an act which in a wrongful and culpable manner causes harm to another (the patient in this case)

A Zimbabwean case that comes to the fore is that of Thebe vs. Checkpoint Laboratory Services 2000 (1) ZLR 578 (SC) although it involved Laboratory HIV/AIDS tests. In this case the plaintiff was tested for HIV/AIDS at the defendant’s laboratory and was erroneously found to be positive. He went for further tests which showed that he was negative. The appeal court found the defendant negligent on the basis of the error in the collecting and labeling of the blood.

For a medical practitioner to be held liable in delict, the following elements must be proved:

           Act

  • This also includes an omission or failure to act by the medical practitioner

         Wrongfulness

  • In this cases the boni mores (legal convictions of society) test is used

         Fault

  • This can be in the form of intention or negligence. In medical law there are two types of cases involving the infringement of a patient’s interests of personality that occur frequently and these are medical treatment without consent and invasion of privacy.

Most delictual claims are however based on negligence and the requirements for negligence are similar to those         under criminal liability. In brief, the test is whether the said medical practitioner would have foreseen and     prevented harm suffered by the patient.

         Damage

  • There can be no delictual claim where there is no damage or injury to the patient.

Causation

  • The discussion on factual and legal causation under criminal liability also applies here.

It is important to note that a medical practitioner can be indirectly or vicariously liable for the wrongful acts of another where there is an employment relationship and the medical practitioner stands in a position of authority.

DISCIPLINE OF A MEDICAL PRACTITIONER

A medical practitioner can be disciplined in terms of Part XIX of the Health Professions Act. In this case there is a link between disciplinary proceedings and criminal liability of a medical practitioner in that a criminal conviction for an offence committed during a doctor’s practice will mostly be prima facie proof of unprofessional conduct.

DISCLAIMER

The contents of this publication are for general information purposes only. They do not constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

Copyright © Kanokanga & Partners 2015. All rights reserved

 

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