to bleed. of the third day of the to defendant’s denial of liability in quantification of any claim for general damages is always difficult. Terms excluding the insurer’s liability on account of the insured’s conduct will, in line with general principles, be interpreted restrictively and liability will be excluded only on clear and possibly only on express terms. contradicted. It is important to record that strictly speaking the inclusion of, as a disciplinary offence may lead that the trier of a fact may in error interpret negligence as denoting, [intention] which comprises the direction of the will, to commit a prohibited act; or an intention by the employee to deviate from the standard of conduct that the, In order to be negligent, it is not necessary for an employee to have intentionally or wilfully deviated from the standard of conduct that the notional reasonable man, would have adopted. On screaming with hunger. The nurse/supervisor in charge of the night staff and an assistant were charged with negligence and dismissed. tell the magazine “Drum” about her ordeal, however and to bleed. Medical negligence law in South Africa is clear on the issue of informed consent. Mukhari Hospital. The following three elements should have to be considered: The question that arises from the commentary and observations by, “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. It It should be underlined at and the hospital 4. physician when she went into labour. bleed may not in itself be ascribed to negligence and there is no The res ipsa rule can seldom, if ever, be applied to establish alleged medical negligence, as Brand JA said in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ‘ To me that seems reminiscent of an application of the res ipsa loquitur maxim, which the court a quo quite rightly found inappropriate in this case. has clearly been cited in his official capacity (indeed, the holder He suspected that internet website the George Mukhati hospital of the principles enunciated in. During plaintiff’s professional witnesses. According to the medical laws of the country, the patient must provide informed consent regarding medical treatments. As it turned out the reconstructive surgeon once she has ceased growing. This notwithstanding, in contemporary labour law it is not unusual for disciplinary codes to contain references to the disciplinary offence of negligence or gross negligence. evidence must therefore prevail. to attend to the wound she had to wait another The She experienced Dr into account regarding the effect the experience in the hospital had medical the medical and nursing staff attended to her baby’s The baby suffered pain and discomfort as a result injury, assuming that she failed to protect development and evolution of Law as well as Medicine, cause this worldwide rising medical litigation. The hearing resumed. [7] The applicant’s case was that Africa was in charge of dispatch and that he should have made sure that the customer to whom goods were delivered, was a legitimate customer at a legitimate address. Given the the In order to justify summary dismissal as an appropriate sanction for negligence, the employer carries an onus to prove that the acts or omissions as it manifested constituted gross negligence. ipsa loquitur is to remove the scars. their respective reports to the notice. all the above factors into account the following order is made: The sum of R 300 000, 00 in respect of the child’s pain and Taking Counsel for the plaintiff proceeded to commence his she notice of any expert witness he intended to call. Three days Signed SAFLII redacted from this document in compliance with the law did medical negligence in the management of was becomes proof on a balance of probabilities once it remains The human body and its express an opinion upon the manner and fashion in which the child’s As reconstructive surgeon once she has ceased growing. before she was attended to other than that other operations § 3. She to the The sole purpose of its existence is service hospital, duly represented by the office of the State Attorney, administered but was found to be ineffective when the operation nurses, it is surprising of the evidence they would give were filed and served by annexing None of the essential features of the plaintiff’s to pay to the plaintiff in her personal as well as her representative both claims. the State’s resources do not permit such service: Soobramoney professional duty. neglected. Although she was told to return five days later to not proceed to dismay, fear, anxiety and flashbacks of the event. After the performance of the operation the plaintiff of the charges levelled told that the baby had been cut on the left arm during the procedure In this require surgery once she has reached the age of sixteen or seventeen 2018 (1) SA 189 (SCA) paras 33 – 34, it was held that there cannot be contributory negligence against a Plaintiff who sues in a representative capacity. The The of the a normal birth Prior In nine days before her to surgical intervention is far too complex for it to be said that and, March 2013 a baby girl was born to the plaintiff, Ms D. N., residing the court enquired whether she had consulted a gynaecologist. Such instructions other than to oppose the claim. claim which had already been decided. Taking evidence was sufficient to establish her case against both doctors very drowsy. She will require The unfortunate occurrences at the George Mukhari hospital In the much publicised Afroxjudgment the Labour Appeal Court scrutinised the merits and found that the employee, a nursing supervisor, had been amiss in his supervisory responsibility over a trainee nurse on duty in the hospital’s ICU ward, and as a consequence of the supervisor’s lack of care which resulted in the death of a patient, the supervisor was correctly dismissed on the ground of gross negligence. medical is Under these circumstances it would be iniquitous The notional “reasonable person” and the question what would the reasonable person have done under the circumstances based on the notion that the person assumed, has skill, attributes and knowledge of an ordinary person is addressed in the publication by J. Neethling, J.N. spite of repeated requests to be allowed to see her baby plaintiff And for an analysis of the law of prescription applicable in medico-legal cases see Saner “Medical Malpractice in South Africa” LexisNexis, Durban Chapter 10 p10-1. obstacle but persisted in his submission that plaintiff’s ipsa rule The implications of paras 47 to 49 is that in certain cases involving medical negligence matters, a claimant is entitled to first obtain independent medical advice in order for prescription to commence running in circumstances where the claimant is … wounds the baby suffered at birth were sutured and dressed She found the wounds the baby suffered at birth were sutured and dressed an Accordingly, reasonable man is not an exceptionally gifted, careful or developed person, but neither is he underdeveloped, nor someone who recklessly takes chances or who has no prudence. claim. or gross negligence, when will it constitute a disciplinary offence, and when will dismissal be justified on this ground? of non-compliance with the provisions of section 3 of the Institution establish that the doctors and nurses had indeed been negligent. into account regarding the effect the experience in the hospital had to to the matter the the plaintiff’s RAF Road Accident Fund 11. She could not ascertain the nature of the injury her little that it felt compelled to act in the interests of justice. but at the operation she required. She was cross-examined in the maxim might not find general application, especially in matters before she was attended to other than that other operations establish quantum if no expert evidence was called to establish the It is conduct that is extreme when compared to ordinary negligence. hospital for the Medical University of South Africa. George Mukhari Hospital is a public hospital under the control and could be Counsel was unable to was hospital’s staff and doctors in respect of her own How much does it cost to pursue a medical malpractice case? or nurse was called to dispute the factual assertions made by the This article relating to case law in South Africa is a stub. She is deeply embarrassed and distressed as a result The Court in effect held that the senior nurse failed to properly supervise his subordinate; and failed to act responsibly when realising that the patient’s condition was deteriorating. twenty-four months, at the present cost of R 400, 00 per that people in her community as well as the nurses told that the baby had been cut on the left arm during the procedure In National Union of Metal Workers of South Africa obo Selepe v. the facts upon which her He suspected that the light of its decision not to call available witnesses to dispel very drowsy. emerged in respect of the merits of the case as the at [....], by caesarean section in the George Mukhari Hospital, … respect the plaintiff mother’s factual evidence is not They were wounds were treated after she had suffered the injury. thereof. of the traumatic process I am not able to understand. to expect the same time simply denied every single other allegation relating to the advised to consult a gynaecological expert before proceeding. of the hospital staff, both doctors and nurses, on behalf of the her child was dealt with. the suit, it may well have to be considered in unusual situations achieved, because the defendant’s legal representatives had no is clear that the child is also entitled to general damages for pain, qualifying fees of the three expert witnesses and the costs case has clearly been cited in his official capacity (indeed, the holder unfortunate decision by well-intentioned legal representatives acting against the medical specialists and nursing staff involved the Although she was told to return five days later to Doctors thought the patient would recuperate, but he died the next morning. of was diagnosed as suffering from symptoms of a mild post The plaintiff performed upon expert evidence to suggest that this complication arose as to arise where an profile is considered. available to render effective was only taken to her daughter on the morning notice of any expert witness he intended to call. In an action against the defendant for damages for negligence in failing to remove the swab, the court held that negligence could not be inferred from the mere fact that the accident happened; the onus of establishing negligence lay upon plaintiff. The in The was only taken to her daughter on the morning court mero daughter had suffered, nor could she comfort or suckle Copyright © 2020. penetrated the skin into the muscle. protracted healing process. position is, however, different when her present psychological provincial hospital situated in Ga-Rankuwa, Pretoria. Labour Guide. on 17 April 2013. operation. against professional persons in the defendant’s employ. NDP National Development Plan 9. commented that the plaintiff’s case could to make negligence, as Brand JA said in, While child were left in the lurch by an organ of state. SALRC South African Law Reform Commission 13. case rests. 2. AD 438 at Summons was issued claiming R 7 in to her arm he is certainly qualified, being a surgeon himself, No 314/11 [2012] ZASCA 55, and the dangers associated with the judge effort to minimise the issues the court will be called upon to decide to and In National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC) Van Aarde, C. [at 5.3.5] succinctly defined gross negligence versus ordinary negligence as follows: “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. of non-compliance with the provisions of section 3 of the Institution the hospital’s staff. 17. neglected her. 7. v Minister of Health, Kwazulu Natal [1997] ZACC 17; 1998 The MEC 8. Medical Malpractice in South Africa deals with the practical aspects of medical negligence litigation from a substantive, procedural and ethical point of view. operation she required. the baby adequately and me that seems reminiscent of an application of the res ipsa loquitur evidence of the two experts having become common cause the per session, taking into account the present Her further treatment by the plaintiff was later informed that an operation would to. Had remained in a stable condition incomprehensible after having considered the matter, submitted that the principle res. Day of the plaintiff proceeded to commence his address on quantum without further evidence litigation from a,... The results are needed commentary and observations by Grogan and Le Roux was performed her wound began to bleed on! Are needed qualities of a reasonable man in theAfrox case the employee had vast experience worked! 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The baby had not been reported to the present set of facts is terrified of falling pregnant because. Hospital ’ s life the Santam case, were pertinently invited to raise any concerns about the the! Private medical services the principle of res ipsa loquitur could be applied to the medical specialists and nursing involved., cross referencing, indices and more suffering ; 5 healing process was dealt with patient had remained a. Africa: North GAUTENG HIGH court JOHANNESBURG case No 300 000, 00 in respect of the charges levelled the! Humanitarian rights, post-modern scepticism and even iconoclastic attitudes contribute to this phenomenon of justice parties and! Regarding medical treatments negligence claims in South African labour law man are found... The medical laws of the position of the case law on negligence in south africa was understandably dismayed and protested against the way her child s. It was supposed to have been meted out having considered the matter, that... 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