The use of locum doctors is a well-established feature of medical practice, enabling practitioners to manage workloads and ensure continuity of care. However, as a recent judgment of the High Court (Eastern Cape Division, Mthatha) illustrates, the involvement of a locum in a patient's treatment introduces legal complexities that demand careful attention.
In B.Y.Z v Mduna (Case No. 2361/2018) [2026] ZAECMHC, the High Court was required to determine whether a medical practitioner remained liable in delict for injuries suffered by a patient who presented at his practice for a termination of pregnancy but was attended to, not by him, but by a locum doctor.
The plaintiff alleged that she entered into an oral agreement with the defendant for the termination of her pregnancy and that she had been treated negligently, resulting in a total hysterectomy due to an irreparable uterine rupture, leaving her permanently sterile.
The defendant denied liability, pleading that, on the date in question, the plaintiff had been treated by a locum doctor rather than by him and that it was therefore the locum doctor's conduct that had given rise to the plaintiff's alleged damages. In support of this defence, the defendant produced corroborating documentation, including the plaintiff's medical records, which contained entries completed by the locum doctor, and a medical certificate issued by the locum doctor. The defendant explained that a locum works at, and in the place of, another practitioner, using that practitioner's facilities while practising independently and on his or her own account.
Despite the defendant's plea, which clearly identified the locum doctor as the treating practitioner, the plaintiff elected to pursue her claim against the defendant alone.
The court was unable to make any finding against the locum doctor because no case had been pleaded against him. Equally, vicarious liability, which had not been pleaded in the particulars of claim, could not be considered.
The court found that it would not be reasonable to impose liability on the defendant and accordingly made no finding of wrongfulness or negligence on his part. Counsel for the plaintiff argued that the defendant had negligently or fraudulently misrepresented that he would personally be the attending doctor. The court rejected this submission on the basis that it had not been pleaded in the particulars of claim. Citing Minister of Safety and Security v Slabbert, the court reaffirmed that it is both fundamentally unfair and inherently unreliable for a court to determine a matter based on a legal issue not advanced in the pleadings. The court also referred to the Constitutional Court's observation that:
"Holding parties to pleadings is not pedantry; it is an integral part of the principle of legal certainty, which is an element of the rule of law, one of the values on which our Constitution is founded."
The plaintiff's claim was accordingly dismissed with costs.
The judgment also carries important practical implications for practitioners who engage locum doctors. In this case, the defendant escaped liability because the arrangements governing the locum's engagement were sufficiently clear to establish that the locum practised independently, leaving no basis for a finding of vicarious liability. Practitioners should therefore ensure that locum arrangements are formally documented and that the scope of the locum's independent practice is clearly defined. This is not merely as a matter of good governance but an important safeguard in the event of a medical negligence claim. Where the terms of engagement are ambiguous or undocumented, the door may remain open to arguments that the principal practitioner is vicarious liable.
This case also serves as a stark reminder of the importance of properly formulated proceedings. The plaintiff suffered catastrophic and permanent harm yet was unable to recover any damages. This was not because the court doubted the severity of her injuries, nor because it found that no negligence had occurred. Rather, it was because the pleadings identified the wrong defendant. No amendment was sought, no alternative basis of liability was pleaded and no case was advanced against the locum doctor who had treated the plaintiff. In those circumstances, the court had no legally sustainable basis on which to grant the relief sought.
