Suing a medical practitioner for medical malpractice in Zimbabwe

Medical malpractice is the same as medical negligence. It is a matter of semantics. With the changes in the law in Zimbabwe, a number of medico-legal claims are now being instituted in the courts involving medical mishaps and medical mistakes. Medical practitioners are not expected to employ the highest possible degree of professional skill, but are expected to employ reasonable skill and care.

In order for one to successfully sue a medical practitioner for medical malpractice in Zimbabwe, the test is whether the medical practitioner concerned exercised reasonable skill and care of a reasonable competent medical practitioner in his or her field. The failure of a medical practitioner to follow the general level of skill and diligence possessed and exercised at the same time by members of the branch of the profession to which he or she belongs would generally constitute negligence. A surgeon at law is in no different a position to any other professional person.

One commentator has assessed civil liability arising from medical care, and noted the following:

Similarly, it may amount to negligence if a physician leaves unattended a patient to whom he has administered a sedative, or an epileptic in imminent danger of a seizure, or a patient whom he has treated with barbiturates for a period of five years and whom he knows or ought to know to be a suicide risk when given new barbiturates in an amount sufficient to be lethal if taken at one time, either alone or in combination with other drugs or alcohol.

It may also amount to negligence if a health care provider fails to test apparatus used in diagnosis and treatment or, if so indicated or instructed in the manufacturer's directions for use, fails to make period checks on them, or fails to draw appropriate conclusions from established facts or symptoms and, therefore, omits to take the necessary therapeutic steps, for instance, by failing to consider that a patient recently returned from the tropics could well be suffering from malaria and not simply influenza, or fails to suspect diabetes rather than tonsillitis, or fails to diagnose diabetes, an infection, appendicitis, an imminent or actual rapture of the appendix, a perforate duodenal ulcer, a lacerated liver and internal bleeding.

The mere fact that a recommended treatment has not worked, or that the treatment was not successful does not in itself amount to medical negligence. ‘Many medical problems can be managed or treated in more than one way.’ However, where a treatment recommended by a medical practitioner is ‘palpably wrong and or dangerous to the patient’ a medical practitioner may be guilty of medical malpractice.