Medical Negligence in Zambia and South Africa: A Comparative Legal Analysis

Abstract

Medical negligence has become a pressing issue across Africa, reflecting the intersection of law, healthcare, and human rights. Zambia regulates negligence largely through professional codes and common law, while South Africa enshrines healthcare rights in its Constitution, allowing courts to frame negligence as both a private wrong and a constitutional breach. This article explores the legal frameworks of both jurisdictions, drawing from statutory law, case law, and judicial interpretation. It situates the discussion within the broader African and global discourse on the right to health, highlights challenges such as underreporting in Zambia and financial strain from litigation in South Africa, and offers reform strategies. The article concludes that Zambia should adopt constitutional and statutory recognition of healthcare rights, strengthen regulatory bodies, and promote judicial activism, drawing lessons from South Africa’s rights-based model to better protect patients.

Introduction

Medical negligence, also referred to as medical malpractice, arises when a healthcare provider fails to meet the required standard of care, resulting in harm to a patient. The stakes are particularly high in healthcare because errors often result not merely in financial loss but in serious injury, disability, or death. Globally, negligence claims have surged, reflecting both heightened awareness of patient rights and increasing scrutiny of medical practices. The World Health Organization (WHO) has emphasized patient safety as a core global health priority, urging member states to adopt stronger legal and institutional safeguards.¹

In Africa, where health systems face chronic underfunding and infrastructural weaknesses, medical negligence is both a legal and a public health concern. The African Charter on Human and Peoples’ Rights recognizes the right to health under Article 16, obligating states to protect and promote access to medical services.²Yet the legal mechanisms for enforcing this right vary widely.

Zambia and South Africa offer a compelling comparative study. Zambia’s framework remains fragmented, relying primarily on the Health Professions Council of Zambia (HPCZ) and judicial precedent. South Africa, by contrast, places healthcare at the heart of its 1996 Constitution, empowering courts to treat medical negligence not only as a tort but also as a constitutional violation. This divergence provides insights into how legal systems shape patient rights and accountability in healthcare.

This article undertakes a comparative legal analysis of medical negligence in Zambia and South Africa. It examines the statutory and constitutional frameworks, judicial interpretation, systemic challenges, and recent reforms, before offering recommendations for Zambia’s way forward.

The Legal Landscape of Medical Negligence in Zambia

Unlike South Africa, Zambia’s Constitution does not explicitly guarantee the right to healthcare.³ Regulation rests primarily on statutory instruments and professional codes, particularly the HPCZ Professional Code of Ethics (2014), which outlines standards for medical practitioners.⁴However, enforcement has been inconsistent, with limited resources and institutional weaknesses undermining oversight.

The Penal Code (Cap. 87, Laws of Zambia) provides for criminal liability in cases of negligence causing harm or death.⁵Yet these provisions are generic, lacking detailed guidance on medical malpractice. As a result, most claims proceed through civil litigation under tort law.

Judicial Precedent

Case law illustrates how Zambian courts approach negligence. In Kopa v. University Teaching Hospital Board of Management⁶,the Supreme Court applied the Bolam test, developed in Bolam v. Friern Hospital Management Committee (1957),⁷which asks whether a medical professional acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This reliance on imported common law shows the absence of a domestically rooted doctrine of negligence.

In Dr Sultanova Zumrad v. Kalinda & Another,⁸ the Court upheld liability where delayed medical intervention led to preventable death. The judgment underscored that patients are entitled to timely and competent medical care, but it remained within the common law framework rather than rights-based reasoning.

Other negligence cases in Zambia highlight recurring issues of delay, inadequate facilities, and lack of informed consent. Yet the courts remain restricted in scope, often avoiding broader questions of systemic failure. Scholars such as Benny Kangwa argue that Zambia’s framework leaves patients vulnerable, as remedies depend on costly and slow litigation, inaccessible to most.⁹Public awareness of negligence claims remains low, with many cases unreported due to mistrust of the legal system

Constitutional Entrenchment of Health Rights in South Africa

South Africa enshrines access to healthcare in Section 27 of the Constitution of the Republic of South Africa, 1996, which guarantees everyone the right to healthcare services, including reproductive health care.¹⁰The National Health Act (2003) provides statutory reinforcement, regulating the duties of healthcare providers.¹¹

Judicial Enforcement

South Africa’s courts have consistently interpreted Section 27 to impose positive obligations on the state. In Soobramoney v. Minister of Health (1997),¹² the Constitutional Court recognized the limits of resources but affirmed the justiciability of healthcare rights. In Minister of Health v. Treatment Action Campaign (2002),¹³the Court compelled the government to expand access to anti-retroviral drugs, establishing precedent for enforceable socio-economic rights.

Specific to negligence, in AN v. MEC for Health, Eastern Cape (2019),¹⁴the Supreme Court of Appeal held that systemic failure in providing adequate care constituted both negligence and a breach of constitutional rights. Courts have also emphasized doctrines of informed consent, requiring providers to disclose risks and alternatives.

Challenges in Practice

South Africa’s progressive framework faces practical hurdles. Rising malpractice claims have strained provincial budgets, with billions of rand in contingent liabilities.¹⁵ Some scholars warn that this threatens the financial sustainability of public healthcare, requiring reform of compensation mechanisms. The proposed National Health Insurance Bill has intensified debates on whether the state can balance universal access with liability for negligence.

Comparative Judicial Attitudes

A striking divergence lies in judicial philosophy. Zambian courts, adhering to common law traditions, tend to adopt a conservative, precedent-driven approach, focusing narrowly on duty of care and breach. South African courts, however, embrace a rights-based stance, treating negligence as an affront to constitutional values such as dignity, equality, and access to health.

This divergence affects remedies. In Zambia, damages are primarily compensatory. In South Africa, damages may include constitutional redress, broadening the scope of accountability. Comparative jurisprudence also shows Zambia lagging behind Kenya and Nigeria, both of which have begun integrating constitutional health rights into negligence cases.¹⁶

Critical Analysis of Systemic Challenges

• Zambia: The absence of constitutional protection, weak regulatory institutions, underreporting, and lack of public awareness hinder accountability. Litigation is costly and inaccessible for many patients.
• South Africa: Despite constitutional strength, the system is strained by escalating malpractice litigation, with some arguing it diverts funds from healthcare delivery. The proposed National Health Insurance Bill seeks to address equity, but its implementation remains contested.
• Comparative Insight: Zambia offers fewer avenues for redress, while South Africa risks overburdening its system with litigation costs. Both jurisdictions need reforms tailored to their contexts.

Recent Developments

In South Africa, the National Health Insurance Bill [B11-2019] seeks to centralize funding and ensure universal access.¹⁷Critics argue that without addressing medical negligence liabilities, the Bill may exacerbate financial risks.

In Zambia, civil society groups and professional associations have begun advocating for stronger protections, though legislative reform remains limited. The Ministry of Health has acknowledged systemic challenges, but no comprehensive medical negligence statute has been introduced.¹⁸

At the continental level, the African Commission on Human and Peoples’ Rights has urged states to align domestic law with Article 16 of the African Charter, reinforcing the right to health as justiciable.¹⁹

Towards a Stronger Framework for Zambia

Zambia must move beyond piecemeal regulation. Key reforms include:

1. Legislative Reform: Enact a comprehensive Medical Negligence Act consolidating patient rights, duties of care, and remedies.
2. Judicial Activism: Courts should expand reasoning beyond Bolam, integrating constitutional and human rights principles.
3. Regulatory Strengthening: Enhance the mandate and capacity of the HPCZ to enforce professional discipline.
4. Alternative Dispute Resolution: Introduce mediation and health tribunals to resolve claims more efficiently.
5. Public Awareness: Educate patients on healthcare rights and legal remedies.
6. Comparative Learning: Draw lessons from South Africa’s constitutional framework while avoiding its excessive financial exposure by adopting capped damages or alternative compensation models.

Conclusion

Medical negligence sits at the intersection of healthcare delivery and the law, with profound implications for patient safety, dignity, and trust. South Africa demonstrates the transformative potential of constitutional entrenchment and judicial activism, though it faces sustainability challenges. Zambia’s reliance on fragmented statutory instruments and common law leaves patients vulnerable, undermining both justice and public health.

For Zambia, meaningful reform requires enshrining healthcare rights in its Constitution, passing a dedicated statute on medical negligence, and empowering regulatory institutions. Comparative insights from South Africa, Kenya, and Nigeria show that stronger legal frameworks can protect patients while promoting accountability. By embracing reform, Zambia can align with international human rights standards and move toward a healthcare system that safeguards not only the lives but also the dignity of its citizens.

Reference(S) / Bibliography

1. World Health Organization, Global Patient Safety Action Plan 2021–2030 (2021).
2. African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5.
3. Constitution of Zambia (Amendment), Act No. 2 of 2016.
4. Health Professions Council of Zambia, Professional Code of Ethics and Discipline: Fitness to Practice (2014).
5. Penal Code (Zambia), Cap. 87, Laws of Zambia.
6. Kopa v. University Teaching Hospital Board of Management, SCZ No. 8 of 2007. 7. Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. 8. Dr Sultanova Zumrad v. Kalinda & Another [2018] ZMSC 310.
7. Benny Kangwa, Medical Negligence in Zambia: A Critical Analysis of the Kopa Case (2019).
8. Constitution of the Republic of South Africa, 1996, §27.
9. National Health Act 61 of 2003 (South Africa).
10. Soobramoney v. Minister of Health (KwaZulu-Natal) 1997 (12) BCLR 1696 (CC). 13. Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC).
11. AN v. MEC for Health, Eastern Cape (585/2018) [2019] ZASCA 102.
12. South African Law Reform Commission, Discussion Paper on Medico-Legal Claims (2017).
13. Mercy K. Wanjala, “Medical Negligence in Kenya: The Emerging Role of Constitutional Rights,” Kenya Law Review (2018).
14. National Health Insurance Bill [B11-2019] (South Africa).
15. Zambia Ministry of Health, Health Sector Annual Report (2021).
16. African Commission on Human and Peoples’ Rights, General Comment No. 2 on the Right to Health (2015).

¹ World Health Organization, Global Patient Safety Action Plan 2021–2030 (2021).

² African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, art. 16.

³ Constitution of Zambia (Amendment), Act No. 2 of 2016.

⁴ Health Professions Council of Zambia, Professional Code of Ethics and Discipline: Fitness to Practice (2014).

⁵ Penal Code (Zambia), Cap. 87, Laws of Zambia.

⁶ Kopa v. University Teaching Hospital Board of Management, SCZ No. 8 of 2007.

⁷ Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582.

⁸ Dr Sultanova Zumrad v. Kalinda & Another [2018] ZMSC 310.

⁹ Benny Kangwa, Medical Negligence in Zambia: A Critical Analysis of the Kopa Case (2019).

¹⁰ Constitution of the Republic of South Africa, 1996, §27.

¹¹ National Health Act 61 of 2003 (South Africa).

¹² Soobramoney v. Minister of Health (KwaZulu-Natal) 1997 (12) BCLR 1696 (CC).

¹³ Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC).

¹⁴ AN v. MEC for Health, Eastern Cape (585/2018) [2019] ZASCA 102.

¹⁵ South African Law Reform Commission, Discussion Paper on Medico-Legal Claims (2017).

¹⁶ Mercy K. Wanjala, “Medical Negligence in Kenya: The Emerging Role of Constitutional Rights,” Kenya Law Review (2018).

¹⁷ .National Health Insurance Bill [B11-2019] (South Africa).

¹⁸ Zambia Ministry of Health, Health Sector Annual Report (2021).

¹⁹ African Commission on Human and Peoples’ Rights, General Comment No. 2 on the Right to Health (2015).