Medical negligence is a form of delict defined as substandard care by a medical professional that causes injury or worsens an existing condition. For a medical negligence claim to succeed, the plaintiff must prove: 1. The doctor owed a duty of care to provide treatment in line with the standard of care. 2. The doctor breached this duty by failing to provide proper treatment. 3. This breach caused injury to the patient. 4. Monetary damages can compensate for the harm caused by the doctor's negligence. The case law discussed two examples where the court found doctors liable for medical negligence by breaching their duty of care and directly causing injury to patients.

1. Law of Delict
MEDICAL NEGLIGENCE

2. Student Names and number
•Rebecca Gontes: 219043604
•Doreen Lyomba: 219386396
•Fritz Dausab: 218337742
•Ashriff Feris: 219375961
•Utoue Tutu Kairi: 218202045

3. Introduction
•Medical Negligence is a form of delict that is defined as a substandard care that's been provided
by a medical professional to a patient, which has directly caused injury or caused an existing
condition to get worse.
•There are several ways that medical negligence can happen such as misdiagnosis, incorrect
treatment, or surgical mistakes.
•Medical Negligence can alternatively be defined as an act or omission (failure to act) by a
medical professional that deviates from the accepted standard of care.
•Similar to drivers, doctors and other medical professionals also owe a duty of care to their
patients, to provide treatment that is in line with the medical standard of care.
•This is usually referred to as the as the level and type of care that a reasonably competent and
skilled health care professional, with similar background and in the same medical community
would have provided under the circumstances that led to the alleged malpractice

4. Key Elements of Medical Negligence as a
form of Delict
Duty of Care
•As soon as a doctor and patient establish a confidential relationship, the doctor has a
responsibility to provide the most logical treatment plan possible, this is referred to as the
element of duty.
•In medical negligence cases, doctors often overlook more effective approaches to healing or
reject newer methods of treatments.
•However when a patient is admitted to hospital, a duty of care relationship is created, which can
be applied to any doctor coming into contact with the patient not just the admitting team.

5. Key Elements of Medical Negligence as a
form of Delict
BREACH
•When doctors graduate from medical school,
they promise to practice the Hippocratic Oath.
•The Hippocratic Oath states that doctors will
fulfill their duty to provide the best treatment
possible to their patients.
•When a doctor fails to fulfill their duty, they
breach their contract, and that is referred to as
the medical negligence element of breach.
•For a doctor to breach their contract, they must
therefore fail to perform their duty.
INJURY
•For claims of medical negligence to succeed,
there should be injury sustained by the
plaintiff.
•Injury refers to the actual harm caused to a
patient by the conduct of a health
professional.

6. Key Elements of Medical Negligence as a
form of Delict
Damages
•Damages are monetary compensation for the harm caused by a doctor’s negligence.
•For a medical malpractice case to stand up in court, the injury or harm caused must be able to
be remedied by money.
•For example, someone who has missed work can be monetarily compensated in court for that
time missed.

7. Key Elements of Medical Negligence as a
form of Delict
Causation
•For Causation interrogates the causal link
between the defendant's breach of duty
of careowed to the plaintiff and the injury
sustained by the plaintiff.
•That is to say, the harm sustained by the
plaintiff must be a direct result of the
defendant who has failed in their duty to
adhere to the required standard and the
injury must therefore be a result of
•‘If at the conclusion of the case the
evidence is evenly balanced, he cannot
claim a verdict; for he will not have
discharged the onus resting upon him’
Kruger v Coetzee 1966 (2) SA 428 (A)
‘For the purpose of liability culpa arises if the
following inquiries are successfully met
a) a diligens pater familias in the position of the
defendant –
b) would foresee the reasonable possibility of his
conduct injuring another in his person or
property and causing him patrimonial loss;
and
c) would take reasonable steps to guard against
such occurrence; and
d) the defendant failed to take such steps.

8. Actions
•One can institute action for patrimonial loss, action for pain and suffering and action
arising from personality infringement.
•For the purposes of the actio ledis aquiliae and the action for pain and suffering, either
intention or negligence suffices for liability.
•However, for the purposes of the action for infringement of personality, intention is
generally required and negligence is insufficient.
•Thus, an action for personality infringement does not suffice in claims of medical
negligence.

9. Case Law
Lopez v Minister of Health and Social Services
The mother of a patient who died due to the negligent behavior of a doctor on call brings the
matter before court holding him responsible for the death of her deceased daughter.
Legal Issue: whether any of the Walvis Bay State Hospital personnel did, by their conduct, act or
omission, breach their duty not to cause harm negligently.
The court stated that law does not expect a general medical practitioner to exhibit the same
level of skill as possessed by a specialist. However, one must take reasonable care to avoid acts
or omissions which they can reasonably foresee would be likely to injure their neighbor.
The court held that through his omission, Dr Nhiwatiwa breached the legal duty he owed to
Margratitha and thereby to the plaintiff, the mother of patient and who personally experienced
the traumatic incident and the consequence, that is the death of Margaritha, fairly considered,
should be regarded as within the risk created by Dr Nhiwatiwa’s omission and so, the defendant
is liable.

10. Case Law
MEC for Health, Western Cape v Q
•The respondent was pregnant and had
complications. The baby at birth presented
injuries such as abnormally small head, in
intracerebral bleed, brain injury etc. The
respondent alleged negligence by the medical
staff during pregnancy, at the time of birth and
after birth.
Legal issue: whether or not there was negligence
on the part of the MEC’s employees and if so, the
causal link, if any, between the negligent conduct
and the injury occasioned to the respondent.
•The court outlined that it is trite that who asserts a damage
causing event must prove it. The legal duty owed by the medical
staff at the various health facilities to the respondent entailed
that they adhere to the general level of skill and diligence
possessed and exercised at the time by the members of the
branch of the profession to which they belonged. Only
reasonable care and skill was required. The respondent has to
prove, through credible and persuasive evidence, that the
doctors and nurses failed to adhere to the required standard.
•The court held that whilst it must be accepted that the notional
reasonable medical practitioner in the place of the medical staff
who attended to the respondent at Paarl Hospital would not
have sent her home on 30 November, the damage to the baby’s
head had probably already occurred by hat time

11. Conclusion
In light of the above, medical negligence constitutes a delict for which an aggrieved party may seek redress according to
delictual remedies provided for by the law.