Suing a clinic, hospital or doctor in Zimbabwe

Did you know that it is possible to sue a clinic, hospital or doctor for medical negligence in Zimbabwe? Hospital authorities whether private hospitals or public hospitals may be liable for the negligent conduct of employees at all times, this includes nurses and doctors.

This is based on the principle of vicarious liability in terms of which a clinic or hospital may be liable for the acts or omissions of an employee acting within the scope of his or her authority and within the course of his or her employment.

The medical staff employed whether by a private hospital or a public hospital owe a duty of care to their patients, whether or not a contract exists between them. The duty of doctors and nurses to act with reasonable care and skill on a patient treatment is a duty in our law that is imposed by the law of delict. Therefore, a doctor or call and nursing staff who fail to act reasonably in order not to cause harm, or a doctor on call who fails in their duty to properly and timeously assess the condition of a patient may be liable.

It is therefore possible to sue a public hospital or private hospital for professional negligence, or any health institution operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic inventions, nursing, rehabilitate, palliative, convalescent preventive or other health services in Zimbabwe.

A clinic or hospital will be vicariously liable for the professional negligence of its employees committed in the course and within their scope of their employment. Leading commentator Feltoe observed that, when a ‘doctor performing an operation is not an employee of the hospital, but is instead an independent doctor who has simply been permitted to make use of the hospital facilities’ the hospital may not be liable. 42 With due respect, the observations of leading commentator Feltoe cannot be taken as being accurate in this regard for the following reasons. A hospital which has retained an independent doctor or a part time doctor whether as an independent contractor or servant under a contract of service may still be held liable for the acts or omissions of its ‘staff.’

In support of this view, Lord Denning in Cassidy v Ministry of Health (Fahrni, Third Party) held that:

    …where however, the doctor or surgeon, be he a consultant or not, is employed and paid, not by the     patient, but by the hospital authorities, I am of the opinion that hospital authorities are liable for the     negligence in treating the patient.

Where a primary surgery is improperly performed, the primary surgeon may be found guilty of medical negligence. A defence of contributory negligence in such instances will likely be dismissed, however, the hospital in which the primary surgery was conducted may be vicariously liable to compensate the aggrieved patient.