In the case of Mukheiber v Raath, Mrs. Raath (hereafter referred to as “R”) told Dr Mukheiber (hereafter referred to as “M”) during their meeting that she did not want to become pregnant again and they considered sterilisation, however, no decision was reached. This was during her third pregnancy when she unexpectedly delivered her baby through an emergency c-section. The parties did not expressly agree that sterilisation would take place concurrently, and there was no signed permission form for the sterilisation surgery before the c-section. The plaintiffs said that Dr M told them at a follow-up appointment soon after the c-section that a sterilisation surgery had been completed and that they did not need to use contraception going ahead. A few months later, Mrs. R became pregnant, which prompted an allegation of improper conception. 

The issue involved careless misrepresentation and a delictual claim, according to the Supreme Court of Appeal. It had been established beyond a reasonable doubt that Dr M had made a false statement (i.e. that Mrs. R had been sterilised during the C-section with the birth of her third child). The judge determined that a plaintiff who can demonstrate the following may bring an action:  

“(i) that the defendant, or someone for whom the defendant is vicariously liable, made a misstatement to the plaintiff; 
that in making the misstatement the person concerned acted unlawfully; 
that such person acted negligently 
that the plaintiff suffered loss.” 

The criteria for culpa, according to Olivier JA, are as follows: 
“For purposes of liability culpa arises if- 
A reasonable person in the position of the defendant- 
Would have foreseen harm of the general kind that actually occurred. 
Would have foreseen the general kind of causal sequence by which that harm occurred. 
Would have taken reasonable steps to guard against it, and 
The defendant failed to take those steps.”  

As a result, Dr M. violated the law by failing to take the necessary precautions to confirm the accuracy of his claim before presenting it to a patient. The threshold is greater than it would be for a regular layperson to judge carelessness in the instance of an expert, such as a surgeon. The general degree of expertise and diligence that the members of the branch of the profession to which the Health Care Practitioner (hereinafter, HCP) belongs possessed and practiced during the pertinent time must be taken into account by the court. It was determined that Dr M should have taken reasonable precautions to prevent the potential that Mr. and Mrs. R would suffer harm as a result of his misrepresentation, which he did not do. Real causality — the "but for"-test was met. If not for Dr M's false assertion, Mr. and Mrs. R would have used contraception, and the fourth child most likely would not have been conceived or born. The legal and Bonos mores grounds given by Mr. and Mrs. R for not desiring any more children.

Courts need to be cautious not to place an undue burden on HCPs. It was valid and reasonable to anticipate in this situation that the HCP would refrain from acting carelessly by making an uninvited misstatement. Damages claimed for purely economic damage include child confinement and child maintenance until the child could support themselves. Costs of confinement, or expenses related to the pregnancy and delivery of the child, were reasonable and foreseeable; there was no justification for limiting them. The maintenance claim could not be infinite, but public policy could not prevent holding Dr M accountable. It cannot be larger than what is owed to the parents in light of their financial status and stage of life. It ends when the child is eventually able to support himself.

It is important that HCP’s and related professionals study their client’s instructions and records carefully and make an informed decision based on that. Medical negligence can happen in the blink of an eye and impact lives permanently.

WRITTEN BY LIZANNE SCHOLTZ
Lizanne Scholtz is a candidate attorney at Miller Bosman Le Roux.

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