The legal duty of doctors when they cover for each other has for the first time being dealt with in SA, after a Durban High Court judgment on medical negligence damages, the Cape Times reports. Life Healthcare, which had settled a cerebral palsy damages claim, had sued specialist Dr Abdool Suliman for a contribution to the damages.Judge Johan Ploos van Amstel ruled that Suliman could not be found responsible for birth defects suffered by a baby after being deprived of oxygen while his mother was in labour.
The judge said while there was a ‘serious lapse which fell short of the degree of care and expertise that was expected’, he had been unable to find that had the doctor acted as it is said he should have, the outcome would have been avoided.
The report says the court was dealing with a case in which the parents of the baby took legal action against Life Healthcare and the specialist who delivered him at Crompton Hospital, in Pinetown, in July 2008. The matter was settled out of court and the parents were awarded damages.
The judge said Suliman denied he was negligent and said any settlement was made without this admission. But the hospital group took Suliman to court, seeking a contribution from him towards the damages. However, Judge Ploos van Amstel dismissed the hospital’s claim, saying the onus was on the hospital group to link the doctor’s alleged negligence with the cerebral palsy suffered by the baby.
The baby’s mother was admitted to hospital at 10am. Her own doctor was not available, but had arranged with Suliman to cover for him. Hospital staff called Suliman and he advised on treatment for the mother and was given telephonic updates until around 9.20pm when he arrived at the hospital and discovered that the baby was in distress and had to be delivered immediately.
Suliman’s legal team had argued that he owed the patient no legal duty until he arrived at the hospital. But Judge Ploos Van Amstel said Suliman had owed the patient a legal duty from the time that he was notified of her admission and started to manage her treatment. However, he went on, if the doctor had gone to the hospital after the 6.35pm call – which, it was suggested during proceedings, he should have done – he would have arrived at about 7.30 pm. “The question is whether this would have avoided the harm that caused the cerebral palsy,” he said. But the judge said an expert could not say with any certainty that the outcome could have been avoided.
The report says in response to questions, Suliman’s attorney Sivi Pather, from Pather and Pather Attorneys, said as far as the firm was aware, this was the first time that a medical malpractice case dealing with one doctor covering for another had come before a court in this country. “There is nothing in the medical legislation or ethical rules that deals with how covering is to take place, albeit that the judge in this matter accepted that covering is a universal practice.”
He said his client had not visited the patient earlier because in terms of his covering arrangement, he was only to attend to any emergency or actual delivery of the baby.
Pather also said his client had given instructions based on the information provided by hospital staff.
“Had he been correctly advised of the baby’s condition, he would have realised that there was in fact foetal distress and he would have attended the hospital immediately.”
According to the report, Barries Barnard, the manager of Crompton Hospital, said the group intended to appeal against the judgment.
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[link url="http://www.saflii.org/za/cases/ZAKZDHC/2017/12.html"]Judgment[/link]