In any given context, negligence means that the defendant or the accused failed to foresee the possibility of harm (bodily/mental injury or death) occurring to another in circumstances where the reasonable person (diligens paterfamilias) in the defendant’s or accused position would have foreseen the possibility of harm occurring to another and would have taken steps to avoid or prevent it. The generic test for negligence is thus one of foreseeability and preventability. Although the test for negligence is fundamentally objective, it does contain subjective elements when the negligence of an expert is assessed. Where the defendant or accused is an expert, the standard of negligence is upgraded from the reasonable layperson to the reasonable expert. Where the expert is a medical practitioner, the standard is that of the reasonable medical practitioner in the same circumstances. It is to be noted that the standard of care and skill, in context of medical negligence, required of a general practitioner is to be distinguished from the standard and care and skill required of a medical specialist. Simply stated, if the physician is a general medical practitioner, the test is that of the reasonable general practitioner. If the physician is a specialist, the test is that of the reasonable specialist with reference to the specific field of medical specialisation. This principle is of particular significance as it has definite implications for the practice of medicine in a developing country as South Africa. Due to the shortages of medical services and qualified health care practitioners and/or compromised medical services, particularly in rural areas, health care practitioners (inclusive of doctors, nurses and paramedics) are often called upon to perform medical services for which they are, strictly speaking, not qualified to undertake – for example, a general practitioner in a small rural hospital may be required to administer anaesthesia to a patient despite not being a qualified anaesthetist; a nurse might be required to assist with the extraction of a tooth without being a dentist. The question arises, according to which yardstick they should be judged in instances of alleged negligence? The locality of practice and the imperitia culpae adnumeratur – rule are clearly also relevant factors in answering this question.In view of the aforesaid, it is the aim of this note to revisit the meaning and application of the maxim imperitia culpae adnumeratur and its possible link with conscious negligence (luxuria) in context of medical negligence. It is to be noted, for purposes of this discussion, that the test for medical negligence is exactly the same in civil law as it is in the criminal law – it makes no difference whether a medical practitioner is sued civilly for damages or by a patient who alleges that he has been negligently treated or is prosecuted by the state. The burden of proof in criminal cases though, is heavier than in civil cases since in the latter the plaintiff must only prove his case on a balance of probability, whereas in the former negligence must be proven beyond reasonable doubt.
The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof have Weakened the Presumption of Innocence