Memorandum on recent Medical Malpractice case law.

The facts:

A child was born on 12 July 2008 with cerebral palsy after which the parents instituted legal action against the hospital, LifeHealthcare Group (Pty) Ltd, and Dr Abdool Suliman, a specialist obstetrician and gynaecologist. Life Hospital, together with its Plea, issued a Third Party Notice against Dr Suliman in terms of the Apportionment of Damages Act alleging that any damages for which the hospital may become liable was caused by Dr Suliman.

The hospital accepted that the nursing staff was negligent and settled the case directly with the parents of the minor child for the amount of R20 million. The hearing accordingly proceeded only on the ThirdParty Notice issued against Dr Suliman, who persisted in his denial of any causal negligence on his part.

The facts indicate that the mother of the minor child was admitted to the hospital at 10AM on 12 July 2008. The mother was not a patient of Dr Suliman, as he was covering for another doctor (the mother’s chosen gynaecologist), who was unavailable on the day. The foetal heart rate of the baby decreased sporadically during the day, which was not reported to Dr Suliman. When Dr Suliman eventually arrived at the hospital at 21h20 to deliver the child, he realised that the foetus had been in distress for an extended period. After further delays the baby was eventually born deprived of oxygen, leading to him developing cerebral palsy.  


Decision of the Court

 The legal question which had to be answered was whether Dr Suliman was causally negligent in relation to the damages which the minor child suffered. Dr Suliman argued that, as he was merely covering for another doctor, the mother was not his patient, and he did not assume normal responsibility for the patient as he was simply on standby for emergencies.  The Court rejected this argument and found that a legal duty to the patient arose as soon as Dr Suliman acceded to the request of his colleague to cover for him in respect of the patient.

The Court criticised Dr Suliman for not visiting the patient prior to her giving birth and for not even speaking to her on the phone. His conduct, which included the fact that he did not regard the mother as his patient, was described by the Court as being grossly negligent. The further question was, however, whether his conduct was causally connected to the minor child’s injuries. The Court stated that it must be demonstrated that“but for” the doctor’s action or inaction the harm would not have occurred.


The Court stated the following at paragraphs 16 and 17 of the Judgment:

In my considered view the court a quo, with due respect, asked the wrong question in respect of factual causation. The correct question should have been: Was it more probable than not that the birth injuries suffered by the baby could have been avoided, if Dr Suliman had attended the hospital earlier, after the 18h35 phone call? Had he done so after 18h35 or after 19h00, for that matter, he would have noticed the non-reassuring tracings on the CTG personally, event hose readings not reported to him by the nursing staff. The nursing staff is there to observe, but the doctor is responsible for the diagnosis and for ordering the appropriate treatment. Had he done that then, he would have seen the early signs of foetal distress and, according to his own evidence, would have performed an emergency caesarean section, that would have avoided the birth injury to baby N. This view accorded with that of the other medical experts.
The real issue between Dr Suliman and the hospital was not whether his earlier attendance uponMrs S would have prevented the harm to N, but whether he was under an obligation to attend earlier. That was the dispute as elicited from him by his own counsel in his evidence-in-chief. In my view he was clearly obliged to attend upon Mrs S at least after the telephone call from Sister Savage at18h35. All the evidence shows that it is more probable than not that had Dr Suliman attended the hospital earlier the injuries would have been avoided. For that reason the hospital succeeded in proving factual causation on a balance of probabilities. In my view the attitude of Dr Suliman that he had no doctor-patient relationship with the patient was too lackadaisical and, as indicated earlier, legally and morally indefensible.”

Comment on the Judgment

The Judgment confirms the important principles of the law of delict relating to wrongfulness, negligence and legal causation. What is of particular relevance is that the finding that the doctor assumed a legal duty towards the patient as soon as he agreed to cover for another doctor. A doctor agreeing to cover for another doctor is a well-known practice in the medical fraternity, and doctors need to be cognizant of the fact that, once such an arrangement is entered into, a legal duty is established towards that patient to act with reasonable care.

The legal duty in this case extended to taking steps to make contact with the patient and attending at the hospital to assess the patient. Such a duty would, in our view, not only be present insofar as the professional practice of an obstetrician is concerned, but would also extend to other medical fields of expertise.

Leave a Reply