4 Most Common Types of Medical Malpractice in South Africa

The four most common types of medical malpractice in South Africa include birth injury claims; maternal injury claims; neurosurgery claims; and orthopaedic claims.

This was recently confirmed by the provincial government in Gauteng, according to which “the main areas of litigation are obstetrics and gynaecology, neurosurgery, neonatology and orthopaedic surgery.”

Birth injury claims

Birth injuries remain alarmingly high in South Africa. Among the most prevalent of these are cerebral palsy and brain damage claims due to oxygen deprivation/asphyxia.

The average prevalence of cerebral palsy around the world is 2 per 1000 births. In South Africa, a 2022 article reports this figure to be as high as 10 per 1000 births.

According to the Clinton Health Access Initiative, as many as “50% of all claims are cerebral palsy-type claims (birth asphyxia, neonatal encephalopathy, cerebral palsy), making up more than 60% of the liabilities in six out of the nine provinces.”

Payouts for cerebral palsy claims may be in the millions. This is because of the lifelong needs of those affected by the disorder. For example, the plaintiff in a claim involving malpractice at the Shongwe Hospital in Mpumalanga was awarded R7.4 million in damages.

Examples of types of medical malpractice that can result in birth injuries include:

• failure to detect infection or abnormalities prior to birth
• failure to act appropriately when the umbilical cord is wrapped around the baby’s neck
• failure to deliver by Caesarean section, when required
• failure to detect signs of foetal distress
• delays in inducing labour, where necessary
• failure to manage a breech birth
• use of excessive force when delivering a baby with forceps.

Maternal injury claims

South Africa suffers from a high rate of maternal injuries and deaths. A disturbing number of these cases are due to medical negligence.

It’s reported that as many as 40% of maternal deaths in South Africa may be due to community, administrative and clinical failures.

One of several contributing factors is the high number of Caesarean sections performed in South Africa hospitals.

A study published in the South African Medical Journal claimed that as many as 71% of maternal deaths due to Caesarean sections were “preventable”.

Some examples of malpractice that can lead to maternal deaths or injuries include:

• failure to diagnose preeclampsia or eclampsia
• delays in providing care during labour
• non-consensual care or abuse during childbirth
• inadequate hospital staff or resources
• errors and delays in diagnosis and referrals
• poor monitoring and lack of action.

Neurosurgery claims

Neurosurgery is a specialised medical field, requiring a high level of skill. When things go wrong, the results can be life-altering.

Neurosurgery is typically associated with the brain but can also include surgery on the spine, the nervous system and major sensory organs such as the eyes. Mistakes during neurosurgery can cause brain injuries, aneurysms, loss of limb functions or feeling and complex regional pain syndrome.

Worldwide, neurosurgery claims result in some of the largest medical malpractice payments.

In 2013, an 11-year old girl was left with brain damage after a series of unsuccessful operations in Mossel Bay. She was awarded a R25-million medical payout. At the time, this was the highest payout of this type in South Africa.

Examples of types of malpractice that can lead to neurosurgery claims include:

• errors in surgery due to misinterpreted test results
• incorrectly performed procedures due to negligence, ineptitude or intoxication
• failure to properly monitor the patient during and after surgery
• performing unnecessary procedures
• operating in the wrong location
• failure to secure consent before operating.

Orthopaedic claims

Orthopaedic medical negligence arises when there are avoidable complications during orthopaedic treatment that lead to further injury or general malpractice that leads to an orthopaedic injury.

Orthopaedic claims relate to the body’s musculoskeletal system including the bones, joints, muscles, ligaments, tendons and cartilage. Medical malpractice cases involving orthopaedics is very common in South Africa.

In an example from 2015, a plaintiff was awarded damages after hip replacement surgery when complications a couple of years later resulted in limping and shortening of the leg. It was ruled that the Department of Health failed to properly diagnose and treat the complication.

Some examples of orthopaedic malpractice include:

• misdiagnosis or missed diagnosis
• substandard treatment or care
• wrong site surgery
• surgery without consent
• avoidable injury to nerves
• plaster of paris complications
• anaesthetic-related complications
• retained surgical instruments (instruments left in the body).