Negligence is thus the failure to display the same degree of care in avoiding the infliction of harm which the reasonable person would have displayed in the circumstances. A limited number of medical negligence cases have been decided by Zimbabwean courts. The courts have laid down that the test to be applied does not demand that the medical practitioner possess the highest degree of expert skill but only that which would be exercised by an ordinary competent member of that profession. The courts have also stressed that not every slip or mishap during a medical procedure will constitute negligence; it will only be treated as negligence if it would not have happened if the medical practitioner had used reasonable skill and care. This article discusses the test for negligence, the elements that constitute negligence, damages and parties that may institute negligence claims.
The general test for negligence
The general test for professional negligence is as follows: –
(a) If a reasonable person in the position of the defendant-
(i) would have foreseen harm of the general kind that actually occurred;
(ii) would have foreseen the general kind of causal consequence by which that harm occurred;
(iii) would have taken steps to guard against it; and
(b) the defendant failed to take those steps.
In the case of an expert, such as a surgeon, the standard is higher than that of the ordinary layperson and the Court must consider the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.
Elements of medical negligence
The onus of proving medical negligence rests on the claimant to prove on a balance of probabilities that the injury or damage suffered is the result of medical negligence or malpractice. Four essential elements must be proved.
- That the harm suffered was the direct result or consequence of an action or omission by the medical professional for example a misdiagnosis, inappropriate procedure followed, omission of a vital step in treatment, or the failure to conduct an action in a timely manner according to a reasonable standard of care, leading to the suffering of the patient.
- The action or omission by the medical professional must be wrongful. If the medical professional followed the correct procedure and the patient experienced post-operation complications, the claimant must prove that they was wrongfulness and the injury suffered is thus the result of negligence.
- The claimant must prove that the treatment received by the medical professional was not in accordance with the appropriate standard for reasonable medical care for the same type of condition. To prove this, claim the treatment received must be measured against what is expected as a reasonable standard of care by a professional with the same level of qualification and training for the particular type of medical situation. A general practitioner or medical expert will be called to testify (depending on the level of qualification and training of the medical professional in question), regarding what would have been a reasonable standard of care by a medical professional for the specific medical condition.
- The claimant must prove medical harm. It is not sufficient to prove that the medical professional mistakenly diagnosed the patient if the mistake and subsequent treatment did not cause medical harm, then there was no negligence.
Circumstances of the case
In applying the test for negligence, the court will consider the circumstances under which the medical professional was working. A doctor dealing with an emergency, with inadequate facilities, and under great pressure, is not judged by the standard of the doctor working in more ideal circumstances. In Zimbabwe, medical accidents are not the outcome of poor professional behaviour, but rather of unbearable pressure on medical professionals due to understaffing. Severely overworked medical professionals working under great pressure are bound to make some mistakes. The situation is heightened where a shortage of specialist skills leads to junior doctors being given only minimal supervision.
Special and general damages
When damages are claimed in personal injury cases, they are claimed in two broad categories, namely general and special damages. Special damages (patrimonial loss) are those damages that have already occurred and can be precisely calculated at the date of the trial. A claim for special damages must not only be specially alleged and claimed but also be strictly proved with full details. Examples of special damages in medical negligence cases include loss of wages, medical bills and other expenses incurred as a result of the injury up to the date of the trial.
While general damages are those damages naturally flowing from the negligence that cannot be quantified, such as, pain and suffering, loss of limbs and so on. The harm which has occurred in the past (e.g., pain suffered) or which the claimant will suffer in the future (e.g., loss of amenities of life). These do not have a precise value, but the court will decide upon an appropriate award with reference to comparable previous cases.
Items for which claims can be made in a medical negligence case:
- Medical and hospital expenses (Past)
- Future medical expenses (Prospective)
- Other expenses occurring as a direct result of the negligence (Past)
- Loss of earnings (Past)
- Loss of earning capacity (Prospective)
- Pain and suffering (Past and Prospective)
- Disfigurement (Prospective)
- Loss of amenities of life (Prospective)
- Shortened expectation of life (Prospective)
Parties who may sue in cases of medical negligence
Primarily, the person entitled to sue for damages is the injured party. In cases where that person is a minor, or for some reason he or she does not have legal standing to litigate his or her natural guardian or legal representative may bring the action. A father may sue to recover damages in respect of medical expenses and loss of services where his minor child has sustained bodily injury. However, a father may not sue, in his own right, for damages in respect of disfigurement, pain and suffering, disability, etc. to the minor. A husband can sue in respect of his wife’s death if the wife had a legal duty to support him or to contribute towards his support. A husband may claim damages against someone who has caused bodily injury to his wife and thereby deprived the husband of his wife’s services. The husband must be able to show that the loss of his wife’s services has caused him patrimonial loss. The patrimonial loss in this case would, for instance, be the cost of replacing her in providing for the care and upbringing of children and the running of the household. It would also include the value of the wife’s services as assisting the husband in their business. The patrimonial loss would cover out-of-pocket expenses, such as hospitalization, medical expenses, etc. paid in respect of the wife’s treatment.
The right of a wife or child to claim loss of support for a husband’s or father’s injuries only arises when those injuries result in death. This is because, if as a result of injuries sustained, a husband and father have diminished earning capacity, then he is the person who is entitled to claim. A child (even an illegitimate child) can sue for loss of support caused by the death of either parent. Even a child who has attained majority can sue if he can prove a continued duty of support after majority. A parent can sue for loss of support caused by the death of a child if they can prove that they could not support themselves were dependent upon the support provided previously by the deceased child.
The onus of proving medical negligence rests on the claimant therefore it is important to understand the test and elements of medical negligence before making a claim. The expenses and loss experienced by the injured part and their family as a result of medical negligence are usually high hence the courts seek to ensure that they are compensated through an award for damages.
At JPLP we understand medical negligence claims. Get in touch with us so we can help you make your claim.
- Castell v de Greef 1993 (3) SA 501 (C)
- S v McGown 1995 (1) ZLR 4 (H) at 30D
- Mukheiber V Raath and Another 1999 (3) SA 1065
- Van Wyk v Lewis 1924 AD 438 at 444
- Hucks v Cole  118 New LJ 469 ( 4 Med LR 393
- Mdlongwa v Ngwenya HB-54-13
- McKelvey v Cowan NO 1980 ZLR 235 (G)