When asked what the most important sphere of life is, almost all of us would answer with something including a mention of good health. Health constitutes the essence of living, not only being alive but living a life free of limitations, having basic abilities and to some, simply having the possibility of seeing another sunrise.

A harsh reality most of us have experienced, either first-hand or through someone we have known, is the gravity of illnesses such as cancer, and quite frequently, breast cancer, which has become a leading cause of death in women. The importance of creating awareness, to diagnose and get timeous treatment cannot be understated. It is however even more devastating when you react as you should: pick up the warning signs, go to the doctor (who you trust to give you the best care) and the results are still tragic because of the negligence of the doctor who misdiagnoses an illness that could have been cured.

Instances like this, where a medical professional acts negligently in the diagnosis and/or treatment of an illness is called medical malpractice, and we have lots of cases in our law reports where doctors have been sued on these grounds.

In the case of Estelle Kunneke, a misreading/failure to screen correctly and a failure to adhere to the “standard of care” formed the basis of her misdiagnosis claim. In this matter, heard in the Gauteng High Court in Pretoria in 2014, Mrs Kunneke was misdiagnosed with breast cancer and had a double mastectomy. It was later established that she did not have breast cancer at all, and that the doctor was negligent in his diagnosis. Mrs Kunneke won her claim and was awarded damages of R2.8 million.

In Shabbir Carrim v The Premier of the Gauteng Province (04/12338) 2009 ZAGPJHC 98, the government hospital where Mr Carriem was treated was found to be negligent and damages were awarded to Mr Carrim. The test applied in this case to establish whether the hospital had acted negligently was the following: (1) Could it be foreseen that there is a reasonable possibility of the hospital’s conduct causing harm or affecting the patient negatively? (2) If so, were reasonable steps are taken to guard against this happening? If not, the hospital would be found to have acted negligently, and the patient would be entitled to compensation.

What is the standard by which the conduct of a medical professional, will be judged? On the basis of previous case law it is clear that a doctor only needs to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he belongs. Only if he falls below this standard would this constitute negligence. As the judge put it in the case of Castell v De Greef 1993 (3) SA 501 (C): “the test remains always whether the practitioner exercised reasonable skill and care or, in other words, whether or not his conduct fell below the standard of a reasonably competent practitioner in his field‟.

Should you suspect medical malpractice, it is crucial that you speak to a medical malpractice attorney as soon as possible to ensure that you are properly advised, and remember, your claim against the doctor or the hospital will prescribe (become extinguished by the passing of time) after a period of 3 years, if you take no steps to enforce your rights.

Let’s be vigilant, moving forward with eyes wide open and let’s create awareness for early detection and early treatment – in support of those to whom the next sunrise is not a given.

Chené Labuschagne
Attorney
October 2019