Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
The distinction between motive and intention is well demonstrated by the facts
of S v Hartmann. 34 The Court dealt with the legal position in respect of what it
termed ‘mercy killing.’ 35 The accused was a medical practitioner. He was charged
with the murder of his father, aged 87. His father had for many years been suffering
from a carcinoma of the prostate. Secondary cancer had manifested itself
in his ribs. The accused had visited his father and found him bedridden and
suffering great pain. There was no prospect of a cure for the deceased. He was
emaciated, incontinent and on painkilling drugs. Shortly before the death of the
deceased, expert medical evidence described him as being moribund and close
to death. The accused administered a fatal dose of pentothal to the deceased.
Within seconds the deceased died. The Court held that the accused was guilty of
murder. The Court accepted that the accused had performed an unlawful act by
injecting the pentothal into the drip connected to the deceased’s body and that
this act had led directly to the death of the deceased. The Court also accepted
that the accused did not desire to end his father’s life, and that the motive for
his action was a compassionate one, being to relieve his father of the further
endurance of pain and the continuation of his pitiable condition. However, the
accused was prepared, in order to achieve such relief, to do an act which he knew
would terminate his father’s life. This constituted intention and the accused was
convicted of murder. 36 (It should be noted that the Court, in respect of sentence,
regarded the appropriate punishment as one in which full measure was given to
the element of mercy — the Court sentenced the accused to a term of imprisonment
of one year, with the sentence totally suspended. The accused was accordingly
detained until the rising of the Court, whereafter the suspended sentence
became operative. The accused’s motive was therefore relevant to sentencing in
a criminal matter, and will also be relevant to damages in civil claims under the
actio iniuriarum).
A civil matter which illustrates the distinction between motive and intention
is Esterhuizen v Administrator Transvaal. 37 The plaintiff sued the defendants
34
1975 (3) SA 532 (C), is a criminal case. However, since the offence in question was a consequence
crime — that is, in a crime which requires a certain consequence to eventuate (S v
Goosen 1989 (4) SA 1013 (A)) — the principle is relevant to the law of delict. For other cases
on the issue of euthanasia see, generally; Clarke v Hurst 1992 (4) SA 630 (D) (an important
case which establishes the principle in our law that the court will authorise terminating a
patient’s life in an appropriate case, and thereby make the conduct lawful); S v Gordon 1962
(4) SA 727 (N); Ex parte die Minister van Justisie In Re: S v Grotjohn 1970 (2) SA 355 (A); S v De
Bellocq 1975 (3) SA 538 (T); S v Hibbert 1979 (4) SA 717 (D); S v McBride 1979 (4) SA 313 (W); S v
Williams 1986 (4) SA 1188 (A); S v Marengo 1991 (2) SACR 43 (W); S v Smorenburg 1992 (2) SACR
389 (C); S v Nkwanyana 2003 (1) SA 303 (W). A note of caution should be sounded, however.
The decision in Clarke v Hurst supra authorised the withdrawal of life-support by the patient’s
curator personae in advance — it is submitted that this is the appropriate route when such
action is contemplated.
35
More properly classified as ‘active euthanasia.’
36
The fact that the deceased was dying and would have died as little as a few hours later did
not assist the accused (see R v Makali 1950 (1) SA 340 (N) and the element of Causation in
Chapter 5).
37
1957 (3) SA 710 (T).