Criminal & Delictual Liability: “The Reasonable Man” and

“Reasonable Doubt”

Yolande Guidozzi

BScNurs, LLB, MBA (Wits)

Steve Biko Centre for Bioethics

University of the Witwatersrand

Lecture Structure

• Public v Private Law overview.

• Differences between a crime and a delict.

• Elements of both.

• Professional Negligence.

• Case examples.

• Vicarious liability.

• Unprofessional conduct.

Divisions of Law

PUBLIC LAW PRIVATE LAW

Governs the relationships between organs of state

and

the state and the citizen:

eg

• Constitutional Law

• Administrative Law

• Criminal Law

Kleyn, Viljoen, 2002

Governs the relationships between people:

eg

• Law of Delict

• Law of Persons & Family

• Law of Personality

• Law of Patrimony

• Indigenous Law

DIFFERENCES

CRIME (public law)

• Protects the interests of the public

• The State prosecutes people

• Unequal power distribution

• Proof of guilt must be “beyond a reasonable doubt”

• Consequence of a conviction is punishment (jail, fine, community service...)

DELICT (eg of private law)

• Protects individual interests

• People sue other people (the state can be a party, too)

• Equal power between parties

• Proof of liability must be “on a balance of probabilities”

• Consequence of being found liable is compensation for harm caused, the payment of money

Burden of Proof • The responsibility to prove the case, or “burden of proof”

in a criminal trial is on the State. The State brings the accused to court, and through the trial process must attempt to prove guilt “beyond a reasonable doubt”. This is a difficult task because the guilt of the accused must then be the only reasonable conclusion that can be drawn from the facts after all the evidence has been led.

• With civil cases (private law) the burden of proof for the plaintiff (complainant) is on “a balance of probabilities” which is easier to achieve. The complainant must simply show that his/her story is more believable than his opponent’s in order to “win” his case.

Kleyn, Viljoen, 2002

ELEMENTS

CRIME

• Act or omission

• Against the law (unlawfulness)

• Accused is at fault (blameworthy state of mind)

• Causal link between act and consequence may be required (eg murder)

DELICT

• Conduct which is

• Wrongful and

• Culpable and

• Causes

• Damage/harm to another

AIM • For criminal cases the aim is to punish people who

threaten the good order of society;

• The outcome is that the accused is found guilty (and sentenced) or not guilty.

• For civil cases, remedies are granted and clarity brought to disputed legal positions.

• The outcome is that an action (trial) or application (case argued on paper by advocates; no witnesses) is either allowed or dismissed.

Kleyn, Viljoen, 2002

NB: an act can be a crime and have a claim in delict, too, for example a case of culpable homicide because of medical error.

PROFESSIONAL NEGLIGENCE

Professional Negligence

• When a HP negligently fails to exercise the degree of skill and care of a reasonably skilled practitioner in his/her field of practice (ref: Castell v De Greef 1993 (3) SA 501(C)).

R v Van Schoor 1948 (4) SA 349 (C)

incorrect administration of medicines

• Specialists are expected to exercise a greater degree of skill and care than general practitioners.

• More complicated procedures also require a greater degree of skill and care than simple ones.

Test for Professional Negligence

The HP failed to foresee the possibility of harm in circumstances where...

a reasonable person, in the same position, would have foreseen the possibility of harm occurring and...

would have taken steps to avoid it.

Note: There are no degrees of negligence for a health professional: either you are negligent or you are not.

Culpability: Who is “The Reasonable person…?”

- A fictitious person.

- Not exceptionally gifted, careful or developed;

- Not underdeveloped, reckless or someone who lacks prudence;

- Able to be contextualised to the “Reasonable Expert” or the “Reasonable student nurse”, for example.

(Slide adapted from H Snoyman)

Negligence is determined by the criteria of forseeability and reasonableness

• There may be NO LIABILITY when UNFORESEEABLE complications arise during treatment (eg due to hypersensitivity).

• The greater the likelihood of harm arising from the procedure, the greater the degree of care required. (eg where the HP is working with dangerous substances.)

• Also applies where the HP has special knowledge of an increased risk.

• In case of a “sudden emergency” a different level of skill may be justified, depending on the circumstances.

• A HP’s liability is essentially dependent on the evidence given. It is case specific.

Doctrine of “sudden Emergency” There are 3 requirements for a HP to not be judged as

negligent where the HP responds to an emergency situation–

• The HP must be faced with imminent harm;

• The harm must not be caused by the HP’s own negligence;

• The HP must not have acted in a grossly unreasonable manner;

ie a reasonable person in that situation would have made the same error of judgment.

Case Examples

Some examples of intentional conduct that amount to *medical malpractice but not negligence are:

• Unlawfully and intentionally failing to get informed consent from a patient (= assault).

eg. LM v Gov. of Republic of Namibia 2012 JDR 1217(Nm)

• Unlawfully and intentionally killing a patient by active euthanasia (= murder).

eg. R v Hartmann 1975 (3) SA 532 (C))

*Refers to intentional or negligent unlawful conduct of a HP that causes injury or damage to their client or his/her property.

(McQuoid-Mason, Dada, A-Z of Medical law, p263).

Case Examples

Successful litigation

• Plaster cast applied too lightly – ischaemia, sepsis undetected, amputation of arm (Dube v Administrator, Tvl 1963 (4) SA 260 (W))

• Plaster cast applied too tightly – arm became shrunken, claw-like with limited function (Blythe v van den Heever 1980 (1) SA 191 (A))

Unsuccessful litigation

• Platinum needle of a syringe broke off in chest cavity and remained in body – no negligence proved (Mitchell v Dixon 1914 AD 519)

• Swab left in abdomen after appendectomy and gall bladder operation-court said it was the theatre sister’s duty to count swabs, not surgeon’s (van Wyk v Lewis 1924 AD 438-444)

Reminder: Informed Consent (NHA, s6) Requires ensuring full knowledge by informing:

• in a language the patient understands;

• of health status (except if not in the best interests);

• the range of diagnostic procedures;

• treatment options;

• the benefits, risks, costs and consequences associated with them;

• that they may refuse health services and the implications of refusal.

VICARIOUS LIABILITY

Vicarious Liability

• Refers to the situation where one person is liable for another person’s unlawful conduct even where the first person is not at fault (employer/employee relationship).

• This depends on the employer having control over the employee’s actions such as in hospitals, nursing homes.

• It occurs where the employee commits an unlawful act/omission while performing his/her work. The employer is sued as well as the employee.

Vicarious Liability

• Double damages cannot be awarded, but once the employer has paid damages for the negligence of its employee, it can still claim the payment back from its employee afterwards.

• The courts have held that where there is a shortage of resources at a hospital (insufficient staff on duty), a standard of excellence cannot be expected which is beyond the financial resources of the hospital authority. (NB: In light of the Constitution in force from 1996, this may no longer be an acceptable reason for a lack of good service).

(eg Collins v Administrator, Cape 1995 (4) SA 73 (C) 82)

Finally, SANC: Unprofessional Conduct 'unprofessional conduct' means a conduct which, with regard to

the profession of a practitioner (ie any person registered ito s31(1) of the Nursing Act, No 33 of 2005), is improper, disgraceful, dishonourable or unworthy.

S1, Nursing Act 33 of 2005

Eg: 31/01/13, The Herald “R50 000 award in landmark Bay case”

• R50 000 will be paid out to a Bethalsdorp woman after she was treated in an “inhumane and contemptuous manner” by nursing staff in PE.

• She was left holding her stillborn baby in a ward for hours while “nurses joked and laughed around her”.

So, the consequences of medical malpractice & professional negligence are... • Criminal prosecution, where negligence causes death

or intentional conduct results in harm.

– fine; sentence

• Civil liability for negligence, intentional wrongful acts (eg breach of confidence) or breach of contract.

– Payment of damages for financial loss (eg. medical expenses, loss of future earnings), may include a payment to cover pain and suffering as well; also payment for sentimental damages is possible.

• SANC takes disciplinary action:

– fine, suspension, struck of the roll.

Thank you!