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Essay Delict and Medical Negligence
Essay Delict and Medical Negligence
Essay Delict and Medical Negligence
1. Introduction
The facts are as follows: Mrs. M. was pregnant with her first
child. She contracted influenza and used medicine contra-
indicated for pregnant women, as it may cause serious
defects in the unborn child. She warned her doctor that she
is pregnant, but he answered that it should not be a problem.
The child was born with serious defects2.
1
Van der Walt, C, and Nienaber, AG, 2nd Ed. P. 121.
2 nd
Van der Walt, C, and Nienaber, AG, 2 Ed. P. 121.
3
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 162 at 1.1
4
Van den Bergh et al, Foundations of the South African Law, Unisa, p. 164-165 at 2.1 – 2.5 the five
elements of a delict, which is an act, wrongfulness, fault, causality and damage
5
The reasonable man test (diligens paterfamilias) as defined in Negligence in Delict, by Macintosh
and Scoble, Juta 1970 page 22 9(a), “It has been observed that where a man should reasonably
anticipate the risk of harm to others, he is under a duty to exercise due care”, is differently applied to
the mother as to the doctor.
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In the sequence of events the mother was negligent6 in
taking the medicine without first consulting the
doctor/pharmacist first, and by not consulting the instructions
included with the medicine box, which, in terms of the
Medicines and Related Substances Control Act7 regulations
must be supplied by the manufacturer.
3. Conclusion
It is clear from the facts above that the mother might have a
claim against the doctor. It must be said that the child will
have a delictual claim of negligence against both the doctor
and the mother, by applying the law of delict, without having
to rely on the nasciturus fiction11 to win the case.
6
Claassen & Verschoor, Medical negligence in South Africa, p6 at 1.2 “Would the reasonable man, in
the same circumstances as the accused, have foreseen the possibility that a particular circumstance
existed or that a particular result could ensue? Would the reasonable man have taken precautions
against such a possibility? Did the accused’s conduct fall short when compared with that of a
reasonable man in the same circumstances?”
7
No. 101 of 1965 s 35
8
Claassen & Verschoor, Medical negligence in South Africa, p13 at 2.2.1 “When someone enters a
profession or vocation which requires special knowledge or skill, the law demands such degree of
capability as can reasonably be expected from a practitioner of such profession or vocation.”
9
Claassen & Verschoor, Medical negligence in South Africa, p7 at 1.2 “Did the accused’s conduct fall
short when compared with that of a reasonable man in the same circumstances?”
10
Whitehouse v Jordan and Another [1981] 1 All ER 267 Lord Justice Denning: “… we must say, and
say firmly, that, in a professional man, an error of judgment is not negligent” . The doctor may, on the
grounds of this landmark case in England, not be deemed negligent. However, that will be for the
court to decide.
11
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA). Farlam AJ decided that the ordinary rules of
delict should be followed in this case, and dismissed the nasciturus fiction. Also see Pinchin and
Another, NO v SANTAM Insurance CO LTD 1963 (2) SA 254 (W),
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