Medical practice usually involves different activities that, if not professionally handled, may give rise to liabilities on the part of the medical practitioner. These liabilities may arise in tortious claims, and in some other cases, they may go beyond the realm of civil liabilities to criminal liabilities.

There are other instances of malpractice that may not amount to negligence but may suffice to give rise to a successful cause of action in other branches of substantive law, including claims for breach of fundamental human rights, contracts, and fiduciary relationships. One can never emphasise enough the need for caution and the need to ensure that justice is seen to be done not only to the victims but also to the medical practitioners, who deserve all legal protection in the exercise of their professional duties.

Medical negligence is an act or omission by a medical practitioner that falls below the accepted standard of care and results in injury or death to the patient. To establish a case of negligence, it must be shown that a duty of care was owed, that there had been a breach of that duty, and that damage or injury was suffered as a direct result of a breach of the duty owed. In medical negligence, and going by the definition above, medical practitioners who undertake the care and treatment of patients owe a duty of care to such patients.

A duty of care is necessarily implied when a patient is registered and being treated in a hospital. One could additionally and legally argue that the care of medical practitioners ought not to be limited only to the patients under their direct management but to be extended to any patient whom they come across in their professional environment, and as such, a medical practitioner owes the duty to care for every patient found within the hospital premises, whether or not he is on the management team of such a patient. The fact that this may minimise incidents of direct or vicarious liability by a hospital as an entity for negligence may make this view desirable to some extent.

Medical errors occur when a medical practitioner chooses an inappropriate method of care or improperly executes an appropriate method of care. A medical error is a commission or omission with potentially negative consequences for the patient that would have been judged wrong by skilled and knowledgeable peers at the time it occurred, independent of whether there were any negative consequences.

A very thin line separates acts that constitute medical negligence from medical errors or malpractice. Acts that constitute medical errors may or may not give rise to a claim for medical negligence. Under the juridical concept of negligence, not all medical errors and malpractices will qualify as acts of negligence. For instance, a medical error may not have given rise to any injury or damages, and thus, a claim of negligence hinged solely on such an act is unlikely to succeed. Such an act may, however, give rise to disciplinary action against such medical practitioners by professional bodies such as the Medical Council.

There are also cases where the patient suffers damages or injury but has no valid claim against the medical practitioner. This will arise where the patient has given informed consent or where the medical practitioner acted based on a compulsion to save the patient's life. An apt example will be the removal of a patient's uterus that refuses to contract during a caesarean section operation. The medical practitioner's action is unlikely to amount to negligence or a breach of his fiduciary duty, especially in circumstances where his actions were in good faith and in the best interest of the patient.

Liability for medical error or malpractice may also validly arise as a breach of a patient's fundamental human right. The relevant basic fundamental rights of a patient must be borne in mind and safely guarded in the course of their treatment by medical practitioners. The patient's autonomy should also not be disregarded by attending physicians.

The right of the patient to make a final and conclusive decision about his medical care is well recognised under the principle of the patient's autonomy and also well enshrined in the fundamental human rights of persons.

The right to privacy has been held by the courts to include the right of a mature adult to refuse treatment that may prolong his life, even though such a refusal may seem unwise, foolish, or ridiculous to others.

The right to personal liberty and self-determination may also be implied in some medical cases to buttress autonomy. The use of a right-based approach to deal with issues in medical practice is not to "play the blame game" or punish erring individuals but primarily to form a basis for practical accountability on the part of government and health care providers in the provision of health care services to citizens.