7


emergency situation intubations where the laryngoscope either didn’t have a working battery, or worse, didn’t even have a globe inserted. In the latter case it took 20 minutes to get a working laryngoscope from another ward, by which time the patient had aspirated. You don’t need to be a lawyer to understand the profound legal consequences such cases can possibly create. Of particular concern is the


new Consumer Protection Act. Quoting Casebook Vol 18 (3), p13: “If the patient can show that the [prosthesis] was defective and you were part of the supply chain, then you can be held fully liable for the cost of the damages that follow. Unfortunately, the defective goods are not limited to prostheses, but extend to blood products, implants, pacemakers, medication and as far as litigant attorneys can possibly stretch it.”1


(Which


I am afraid may possibly include faulty defibrillators and laryngoscopes.) It remains to be seen if


some of the Act’s provisions will be challenged in the Constitutional Court, should such a case arise. Once again the argument of the reasonable practitioner is likely to play a central role in the case. To give an example, it is likely that it would be deemed reasonable for an orthopaedic surgeon to test the mechanical function of an artificial joint, or a plastic surgeon to test a breast implant for leaks before insertion, but not to personally recheck the blood group of a unit of blood from the blood bank (although one would likely consider it reasonable to monitor each patient for allergic reactions during the transfusion). For faulty equipment, it will be determined who was responsible for maintaining the equipment and if reasonable precautions were taken to prevent errors. Frustrations in our hospitals


also extend to human resources. I believe that if


ward staff were trained in even the most basic life support, many more of our ward patients could survive the nights in our hospitals. Resuscitation is a team effort and the team is really just as strong as the weakest link. Consider, however, that even if the patient dies or suffers hypoxic brain damage, litigation is unlikely to arise since nobody other than the team will be aware that the patient could potentially have been saved had the staff resuscitated properly. Therefore the responsibility lies with the team to improve their efforts and training. Should such a case be brought forth, the possibility of vicarious liability may be argued, but it is unlikely that the doctor can be held liable for the actions of other team members whom he has never seen before. In private practice, however, if a nurse is employed by the doctor himself, he may be liable for damages caused by the actions of his employee. We all experience many


problems with hospital maintenance and broken or defective equipment, yet there do not seem to be many cases arising from these problems. One can speculate about the reasons for this but it is possible that the limitations these circumstances impose are generally not serious and we can find ways and means to compensate for them, ie, they are generally irritations rather than being life- threatening disasters. Another major contributing factor is probably an uneducated patient population. Ultimately all of these


problems, although difficult and frustrating, can be overcome with a proactive, positive attitude, continuing training programs and reporting of specific problems. The system can be improved, but it needs to be a collective effort and the process needs to be initiated somewhere; the most logical place being the junior doctors faced with these obstacles on a daily basis.


LEARNING POINTS


■■ All problems need to be reported to the correct person, and fully documented


■■ Check equipment prior to using it; perhaps check resuscitation equipment and the defibrillator when you come on shift


■ ■ Insist on the correct equipment ■■ Have a good working relationship with the


sisters and explain your problems to them; encourage team-working and involvement with other healthcare workers in the team


■■ Document everything! ■■ Get informed consent where possible and explain the circumstances to the patient


■■ When in doubt, consult seniors and document what they recommend.


REFERENCES 1. Howarth G and Davidow R, Don’t be Consumed by New Act, Casebook 18 (3) (2010)


ARTICLE


JUNIOR DOCTOR | VOLUME 2 | ISSUE 1 | 2011 | SOUTH AFRICA www.medicalprotection.org


NANCY LOUIE/ISTOCKPHOTO.COM


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