23 June 2022

Contributory negligence and apportionment of damages

Submitted by Vanessa Rogers
Contributory negligence and apportionment of damages

Medical malpractice lawsuits are on the rise in South Africa. Healthcare practitioners, including doctors and nursing staff, need to be vigilant in diagnosing, treating, monitoring, observing and providing general care to patients. Healthcare practitioners may be held liable for acting negligently to the extent that they owed the patient a legal duty of care.

The fact that an action has been instituted against a hospital on the grounds that the hospital’s nursing staff acted negligently does not absolve the doctor from liability to the extent that the doctor may be liable. Claims for alleged negligence against healthcare practitioners that are employed by state hospitals are instituted against the Minister of Health.

South Africa has witnessed a steep increase in the number of medical malpractice lawsuits in the past few years, with obstetricians, gynaecologists and neurosurgeons falling into the high-risk category.

According to Natasha Naidoo, senior associate at Norton Rose Fulbright Inc, most medical negligence claims range between R3 million and R100 million depending on the nature of the injuries suffered and the long-term repercussions of such injuries.

What is contributory negligence?

Parties are contributorily negligent when the damages suffered are due to the fault of more than one party.

According to Naidoo, the “reasonable person” test is applied by the courts in establishing a party’s liability. In applying the test, a party is liable if, for example:

The reasonable obstetrician or midwife in the position of the party to the action would have foreseen the consequences of their actions, and the patrimonial loss that could possibly result; andThe reasonable obstetrician or midwife would have taken steps to avoid the foreseeable consequences suffered to safeguard against such occurrence; andThe party to the action deviated from the behaviour of a reasonable obstetrician or midwife.

Naidoo goes on to state that, where the doctor has not been cited as a party to the action, the hospital may join the doctor to the proceedings in which case the court may hold that both parties are joint wrongdoers in terms of the Apportionment of Damages Act, 1956. A court will determine the degree to which the parties are at fault and apportion damages against them in proportion to the degree of fault.

Where either party is joined by the other as a third party to the action, if either are found not to be liable or if one is found to be liable to a lesser degree than the other, the party that is not liable or less liable may seek a contribution towards costs incurred in defending the action, she advises.

Life Healthcare v Dr Suliman case study

A good illustration of contributory negligence is the case of Life Healthcare v Dr Suliman (2018), according to Naidoo. The facts of the case are, briefly, as follows.

The patient consulted with her doctor to oversee her pregnancy and deliver her baby. However, the doctor was not available on the day on which the patient went into labour and her doctor arranged for Dr Suliman to ‘cover’ for him by attending to the patient during his period of absence. Dr Suliman agreed to stand-in and subsequently responded to a call from a nurse at the hospital at about 10:30 on 12 July 2018, informing him that the patient was in labour and had been admitted to the hospital. Dr Suliman provided telephonic instructions to the nurse regarding management of the patient’s labour.

The nurse called Dr Suliman again at 18:35 to report that the patent was 4cm dilated with the head of the baby 3/5 above the pelvic brim. She also reported a deceleration of the foetal heart rate, which had recovered quickly. Dr Suliman gave further telephonic instructions but, at 18:40, the CTG tracing indicated that the foetal heart rate had decreased to 90 beats per minute. A normal foetal heart rate is said to be between 110 and 160 beats per minute. Dr Suliman did not consider the CTG tracings himself, as he did not attend on the patient at 18:40 that evening.

Upon arrival at the hospital at 21:20 that same night, for the first time since the patient’s admission, Dr Suliman realised that the baby was in distress and that delivery had to take place urgently. Dr Suliman delivered the baby at 22:10 via normal vaginal birth.

The evidence led by the experts and factual witnesses, including Dr Suliman himself, established that the baby’s cerebral palsy could have been prevented if the foetal distress had been detected timeously.

While the court found both the nursing staff and Dr Suliman liable for the damage caused, it explained that Dr Suliman’s negligence was greater than that of the nursing staff because the ultimate responsibility to care for the patient rested with him. The court stated further that the role of nursing staff is to make observations that assist the doctor in decision-making.

Instead of acting in accordance with his responsibilities, it was stated that Dr Suliman “abdicated his duties” and “adopted a hands-off approach”. Dr Suliman was therefore held liable for 60 percent of the damages, and the hospital for 40 percent. The hospital was held liable to the extent that the nursing staff did not report the foetal distress at 18:40 to Dr Suliman.

A look at apportionment of damages

One of the outstanding issues of the case, taken on appeal by the hospital to the Supreme Court of Appeal, was the issue of apportionment of costs – as Dr Suliman pleaded that the hospital was not entitled to a contribution from him. The hospital sought a contribution from him in terms of the Apportionment of Damages Act on the basis that both were jointly and severally liable to the plaintiff and that they were joint wrongdoers.

As such, the hospital was successful in claiming a contribution from Dr Suliman in respect of his responsibility towards the damages caused to the patient; and a contribution towards the hospital’s costs in defending the action, to the extent that the hospital was liable to a lesser degree than Dr Suliman.

The position in relation to apportionment of damages, according to Naidoo, is therefore as follows: “A claim is instituted by the patient against the doctor and the hospital as co-defendants. In the event of either defendant seeking to claim from the other defendant where one is held liable and the other is absolved, contributory negligence must be pleaded.

“Where a court holds that the hospital, for example, is liable, and if the hospital has joined the doctor as a joint wrongdoer to the proceedings in terms of the Apportionment of Damages Act, then the hospital may seek a contribution from the doctor in terms of this Act – where the hospital is held liable. The hospital may furthermore seek a contribution towards its own costs as illustrated in the case study.”

The need for malmed insurance

In addition to financial losses, healthcare practitioners face exposure to potential reputational harm, says Naidoo. She emphasises that a court case may place enormous financial, emotional and administrative strain on a healthcare practitioner.

With the rise of medical negligence claims against hospitals and doctors, it is important that healthcare practitioners have sufficient professional indemnity insurance in place.

As a leading malmed insurer, Natmed Medical Defence has been at the forefront of medical malpractice insurance products in South Africa for over two decades. For more information about them, visit https://medicaldefence.mobi/brochure/.



1. Covering doctors have an immediate legal duty of care to patients https://www.financialinstitutionslegalsnapshot.com/2018/10/covering-doctors-have-an-immediate-legal-duty-of-care-to-patients/

2. Life Healthcare Group (Pty) Ltd v Dr Abdool Samad Suliman http://www.saflii.org/za/cases/ZASCA/2018/118.html

Published in Health and Medicine

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Working alongside a select group of skilled associates and freelancers, owner Vanessa Rogers has clocked up over two decades in the print and digital media industries. She believes editorial providers should be adaptable, accurate and show keen time-keeping when it comes to deadlines.