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MEDICAL NEGLIGENCE THE TEST FOR LIABILITY

Mrs M, started experiencing toothache. When the pain became unbearable she visited her Dentist by pre arranged appointment. After conducting an examination the Dentist explained that the problems were caused by her wisdom teeth and that it was necessary to extract those teeth which were affected. Mrs M consented to the recommended treatment and the Dentist duly extracted the wisdom teeth causing the pain. After the procedure had been completed Mrs M discovered that she had sustained permanent nerve damage. She sued her Dentist for damages claiming that the permanent nerve damage was caused by the extraction of her wisdom teeth.

These were the facts upon which the Cape High Court was called on to decide in the case of

McDonald v Wroe [2006] 3 All SA 565 (C)

Was the Dentist negligent? Well, the Presiding Judge held that it was negligent for a general dental practitioner to have extracted the teeth without warning the plaintiff of the risks involved and in fact doing what was special surgeon's work. The Court awarded Mrs M her damages and laid down the following principles which had to be established before it can be said that your medical practitioner is liable for damages on account of a procedure he performs with the Patient's consent:

•  A medical practitioner is always expected to exercise the degree of skill and care of a reasonably skilled practitioner in his field. However, a greater degree of skill is always expected of a specialist in the field than a general practitioner. An ear, nose and throat specialist is expected to show a greater degree of skill in removing tonsils then a General practitioner. Indeed, a general practitioner would be negligent if he undertook work that required specialist skill which the practitioner concerned did not have.

•  A medical practitioner had a duty to disclose a material risk of a planned procedure to the patient. In Mrs M'S case the Dentist would have been expected to forsee if there was a risk that permanent nerve damage could be consequence of the extraction procedure he envisaged and he would have been expected to have warned Mrs M of such risk before he commenced the procedure. It would have been open for the Dentist to have raised as a defence to the action the fact that he warned Mrs M of the potential risk and that despite having been given the warning she consented to the procedure being performed on her. It thus follows that for the consent to the planned procedure to constitute justification that excluded wrongfulness of the medical treatment and its consequences, the medical practitioner was obliged to have warned the patient so consenting of a material risk inherent in the proposed treatment.

•  If a medical practitioner through his wrongful and negligent conduct caused damage to a patient, the practitioner would be delictually liable to the patient if there was a causal connection between the conduct of the practitioner and the damage suffered by the patient. This means that the medical practitioner could not be held liable if his conduct had not caused damage.

Practically, it is seldom an easy task for a Patient to prove these elements purely due to the fact that the Patient would have to prove the aspect of negligence itself by calling an expert in that field to testify as to what went wrong and whether what went wrong was the result of negligent conduct on the part of the practitioner performing the procedure. In a recently well publicised case a Patient succeeded in obtaining an award for damages when an orthopedic procedure left her permanently disabled because the expert who had examined her subsequent to the procedure upon performing an attempt to correct the irreversible damage found on re opening the incision surgical instruments left inside the affected area, and that caused the damage. Had the Patient in this instance not had the expert upon whom she could rely to testify as to what went wrong, she would, in all probability not have succeeded.

A valuable lesson for us most mortal lay persons in the field of medical matters, is before consenting to any procedure ascertain from the professional recommending it, whether there is any danger of complications arising out of the procedure, and understand the complications explained to you before consenting thereto. Furthermore always read the consent form carefully before signing it and only pen your signature to the consent form when and if you understand filly what you are signing.

VICKY BOVE AND LESLIE KOBRIN

December 2006

 

 

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