Case Name:
Premier, KwaZulu-Natal v Sonny and Another 2011(SCA)

Area of Law:
Medical Negligence

Brief Facts/ Summary:

Whilst pregnant, Mrs Sonny, the second respondent attended a provincial hospital under the control and administration of the appellant, the Premier of KwaZulu-Natal, for an ultrasound scan of her foetus.

Due to the awkward position of the head of the foetus, the computer-generated ultrasound report indicated that it was too difficult to assess its medical condition and suggested a scan in two weeks time.

The hospital staff then referred her to a satellite clinic to make the follow-up appointment, but when she contacted the satellite clinic, the nursing sister that she spoke to did not make the appointment, explaining that a second scan would only be necessary towards the end of the pregnancy. As the original hospital  staff had not fully explained the importance of this second appointment, Mrs Sonny missed it.

The child was later born with Down’s Syndrome and as a result, Mr and Mrs Sonny instituted a claim against the appellant for the costs of caring for the child until she reached the age of 55, as had they been advised of the condition of the foetus timeously, they would have terminated the pregnancy.

The High Court held that the Premier was liable, hence the appeal to the SCA. The appeal was dismissed with costs.

The Law:
The SCA held that there was no reason to interfere with the finding of the High Court. The doctor who examined Mrs Sonny did not tell her why the second scan was required. The Court held that the doctor should have informed Mrs Sonny as to why the second scan was so imperative. The doctor’s failure to do so, coupled with the clinic’s assurance that there was nothing untoward in the ultrasound scan report, and the clinic nurse’s statement that a second scan was only required towards the end of the pregnancy, understandably lulled Mrs Sonny into a false sense of security.

Conclusion:
As a result of the doctor’s inadequate communication to the patient, the Premier was liable for the costs of caring for the Down’s Syndrome child.

Importance/ Significance:
This judgment means places a duty on all doctors and hospital staff to keep a patient fully informed, and if they fail to do so, they could be held liable for the results of their failing to inform that patient.

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