Beyond a bad outcome: What really separates an honest mistake from medical malpractice or negligence

JULITA MUSHATI AND FUNGAI CHIMWAMUROMBE

You go in for surgery expecting relief but instead come out with a life-altering condition.

Is it just bad luck?

Or did someone fail to do their job properly?

Not every negative medical result amounts to negligence. Doctors are human, and no procedure is without risk. However, when a medical professional fails to act with the care and skill expected of someone in their position and that failure causes injury it may cross the line into medical malpractice.

In Zimbabwean law, the terms “medical negligence” and “medical malpractice” are used interchangeably, both referring to the failure of a healthcare provider to meet the standard of care expected in their profession, resulting in harm. Other jurisdictions attempt to draw a distinction:  with medical negligence referring broadly to any breach of duty, even if it doesn’t cause harm; medical malpractice is seen as a specific kind of negligence that results in injury or worsens a patient’s condition. Still, in both local and international contexts, the two concepts are often more similar than different, and the focus is usually on the outcome and the professional’s conduct.

For example:

• A doctor who fails to diagnose a serious condition may be negligent, even if no harm results.
• A surgeon operating on the wrong body part, or leaving an instrument inside the patient, clearly commits medical malpractice because harm directly results from the mistake.

Whether the error was an “honest mistake” or malpractice depends on the key issue: did the healthcare provider breach their duty of care and did that breach cause harm?

WHAT MUST BE PROVEN IN COURT?

Regardless of the label, both medical negligence and malpractice fall under the law of delict. A claimant must prove the classic delictual elements:

1. Duty – The medical professional owed the patient a duty of care.
2. Breach – The professional breached that duty by failing to act as a reasonable practitioner would in similar circumstances.
3. Causation – The breach directly caused the injury or worsened the patient’s condition.
4. Damages – The patient suffered actual harm (physical, emotional, or financial).

Courts will also consider the general test of negligence of whether:

• A reasonable practitioner would have anticipated the kind of harm that occurred.
• The harm was reasonably foreseeable in the sequence of events.
• The practitioner took reasonable steps to avoid the harm or failed to do so.

Medical negligence and malpractice, as governed by the law of delict, raise difficult legal and ethical questions. As the medical field continues to advance, the legal system must adapt to ensure that patients are treated fairly when harm occurs. This includes improving legal protections, holding healthcare providers to consistent professional standards, and making sure that patients understand their rights. These measures are vital for preventing avoidable harm and promoting accountability within the healthcare system.

Julita Mushati is a legal intern at Zenas Legal Practice and can be contacted for feedback on [email protected] and whatsapp 0772306088

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted at fungai@ zenaslegalpractice.com 

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