Medical negligence during childbirth

The childbirth process is a period that is exciting to most women. However, this process sometimes comes with its fair share of challenges, such as instances of medical negligence during the childbirth that have become quite common. This may be caused by improper or inadequate medical intervention, ill equipped facilities, or even negligence on the part of the medical practitioners.  The COVID-19 pandemic also serves as a great concern due to its contribution to the increased pressure on healthcare facilities and medical practitioners.

The following questions will assist women who have been impacted in better understanding their rights and knowing what procedures to follow.

What constitutes medical negligence during the childbirth process?

  • Medical negligence during the childbirth process will occur where a medical practitioner or facility fails to meet the set standards of treatment and care expected in the specific situation.
  • A medical practitioner or facility is any person or institution in the medical profession registered under the Health Professions Act, such as doctors, nurses, hospitals and so on.
  • A medical practitioner’s or facility’s actions, or lack thereof, must directly result in injury to either the mother or the child.
  • Some common examples of medical negligence during the childbirth process include:
  • failure to monitor the birth process and anticipate birth complications;
  • incorrect use/administration of medication or an anaesthetic;
  • failure to respond to signs of fetal distress;
  • failure to correctly diagnose medical issues or properly take them into account;
  • untreated or undetected preeclampsia that leads to a mother's seizure during delivery; and
  • any other action, or lack thereof, which causes injury that is due to the failure to meet the set standards of treatment and care.

What is the test for medical negligence?

  • The test for medical negligence looks at the standard of the reasonable medical practitioner or the reasonable specialist medical practitioner in that field of practice.
  • This means that the following two questions assist with establishing whether medical negligence occurred or not:
    • Would a reasonable medical practitioner with a similar degree of professional skill, in the same circumstances, have foreseen that his/her actions would cause injury to the mother or child?
    • If yes, would a reasonable medical practitioner in that position have taken steps to prevent the injury from occurring?
  • The courts have often quoted Mitchell v Dixon 1914 AD 519 at 525, where the following was stated:

“a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care; and he is liable for the consequences if he does not”

What are the requirements for a medical negligence claim?

  • If a mother wants to claim for medical negligence during childbirth, she must prove all requirements for a delict, such as:
    • the medical practitioner performed a medical service;
    • a duty to perform a medical service with reasonable skill and care was owed by the medical practitioner;
    • the duty was breached by not acting with reasonable skill and care;
    • she or the baby who received a medical service is injured resulting in damage/loss;
    • the breach of the medical practitioner’s duty caused damage/loss.

What information is needed when making a claim?

  • The following records and documents will be necessary as supporting evidence when making a claim: 
  • medical records associated with the birth;
  • all medical bills and invoices; and
  • names and contact details where possible, of relevant medical staff and other potential witnesses.
  • It is also important that as soon as possible while the incident is still fresh in mind, that the claimant make a written statement recording the actions, or lack thereof, that led to the medical negligence.

When and how should you proceed to make a claim?

  • It is important that the claim be made as soon as possible, as there are prescribed time limits for making a medical negligence claim. For example, in a claim against a state hospital, a notice of intention to claim damages must be served with the relevant department within six months of the incident.
  • Since this is a specialised field and claims are ordinarily brought before the High Court, it is advisable to get the necessary legal advice to ensure correct procedures are followed.
  • A complaint can also be lodged against the medical practitioner with the Health Professions Council of South Africa (“HPCSA”).  

Unlike other personal injury claims, such as road accident claims, there is no specific legislation dealing with medical negligence claims. However, the National Health Act does provide a standard for the health care system in South Africa and provides for a number of basic healthcare rights. In addition, the Constitution states that everyone has a right to access to health care services, which explicitly includes reproductive health care. This includes pre-natal care, safe delivery and post-natal care.

It is important for women to be aware of their rights and understanding how to enforce their rights should they become victims of medical negligence claims.

Did you know…

A complaint can be lodged against the medical practitioner with the Health Professions Council of South Africa.

To get access to our legal counsellors, or for more information about our membership options visit our legal services page.

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