Can I Sue for Nursing Negligence in a South African Hospital?

Hospitals are supposed to be places you go to get better. Unfortunately, this is not always the case in South Africa.

In a high proportion of successful negligence claims against South African hospitals, nursing negligence is to blame.

Below we cover:

• causes of nursing malpractice
• nursing negligence in South Africa, with examples.

What constitutes nursing negligence or malpractice?

Nursing negligence occurs when nurses fail to follow accepted standards of care.

Where failure to do this leads directly to harm to a patient, a personal injury claim may be pursued.

Researcher Amy Williams notes that the moment any nurse acts irresponsibly and fails to perform a task according to policies and procedural guidelines, the nurse can be liable for professional negligence.

Causes of nursing malpractice

Professor Ethelwynn Stellenberg from Stellenbosch University’s Faculty of Medicine and Health Sciences investigated common factors leading to nursing malpractice.

Among the most common causes were:

• failure to follow guidelines
• insufficient knowledge
• poor patient monitoring
• failure to administer prescribed medication
• failure to respond to clinical signs
• inadequate training.

Professor Stellenberg warns that, “The quality of care is declining, in both the state and private sectors”.

Nursing negligence in South Africa

Hardly a month goes by in South Africa without a story of nursing negligence making the headlines.

The Esidimeni Life scandal must figure as one of the world’s most appalling. In 2017, 143 psychiatric patients died of causes ranging from dehydration to pneumonia, largely as a result of neglect.

Since then, the state of care in South African state hospitals has remained alarming.

The SA Federation of Trade Unions (Saftu) condemned the rise in the number of “hospital horrors emanating from medical negligence in the country.”

In 2023, the Northern Cape Health Department alone has medical malpractice claims against it of R2.1 billion. The Gauteng Health Department has attracted malpractice claims totalling R1.6 billion.

South African examples of nursing negligence

Just a few examples of shocking incidents making headlines:

• a four-month-old baby admitted to an Mpumalanga hospital for diarrhoea ended up with her hand having to be amputated
• a man admitted to a Durban hospital for gangrene in his leg was found by his son four days, with maggots squirming under his upper lip
• a homeless man died outside a Tshwane district hospital after nurses refused him entry because he “smelled bad”
• a 45-year old woman gave birth on the pavement outside a clinic in Mamelodi after nurses turned her away while she was in labour for being a high-risk case.

Legal liability: who may be sued for compensation in the event of injury or a fatality?

In South Africa, claims based on medical negligence are dealt with under the common law – particularly on the basis of the law of delict, according to a report of the South African Law Reform Commission on Medico-Legal Claims.

Where nursing negligence leads to injury or a fatality, a personal injury claim is not typically made against the nursing staff.

Instead, a claim may be made against the employer (the hospital), the owner of a private hospital or, in the case of injury at a state hospital, the MEC or Minister of Health.

Find out more about what’s involved in our earlier article about suing a doctor or hospital in South Africa.

Successful nursing negligence claims in South Africa

In a medical malpractice or negligence case, a hospital, physician and/or nursing staff may be found liable for injuries.

Some examples of South African cases:

• in Goliath v MEC of Health in Province of Eastern Cape, a registered nurse was found liable for failing to confirm an accurate swab count before a surgeon closed a patient (a swab was left in the patient’s abdomen)
• in Michael v Linksfield, a nurse was found liable for incorrect operation of resuscitation equipment, resulting in a man suffering a cardiac arrest, resulting in cerebral anoxia and leaving the patient in a vegetative state
• in Ntsele v MEC for Health, Gauteng Provincial Department, medical staff were found responsible for failing to initiate emergency care for a pregnant patient whose child suffered hypoxia and perinatal asphyxia, resulting in cerebral palsy
• in NP v MEC for Health, Eastern Cape, poor nursing assessment was found to have led to the birth of a child with an avoidable physical deformity.