Dutton - Medical Malpractice in SA

Fault 85
for subjecting her to radium treatment without her consent, which had caused
her serious injuries. The defendant contended that there was no intention to
injure the patient, as the defendant administered the treatment with the laudable
motive of attempting to cure her. The Court held that intention and motive are
different concepts and the fact that the motive for an assault might be laudable
does not negative the fact that the intention to assault or the assault itself might
nevertheless be unlawful. The defendant had no right to subject the plaintiff to
the particular treatment without her consent. The contention that there was no
‘wrongful intent’ therefore failed. It is therefore evident that a person may act
from a supposedly morally laudable motive, but still have the necessary legal
intent.
6.12 Intention in claims for the invasion of privacy
In South African law, an action for invasion of privacy is available as an infringement
of rights of personality under the actio iniuriarum. In the leading case on
breach of medical confidentiality, Jansen van Vuuren and Another NNO v Kruger, 38
the defendant was the patient’s medical practitioner. As such, he had owed the
patient a duty of confidentiality regarding any knowledge of the patient’s medical
and physical condition. The defendant became aware of the patient’s HIV status.
In breach of his professional duty of confidentiality, the defendant disclosed the
HIV test results to third parties. The plaintiff’s case against the defendant was
based on an injury to the plaintiff’s rights of personality and the patient’s right to
privacy. Because the claim was based on the breach of rights of personality, intention
had to be established on the part of the medical practitioner; negligence was
insufficient. The state of mind of the medical practitioner was therefore decisive.
The Court held that the disclosure had been made intentionally — the defendant
had intended the consequences and had directed his will to the result. The Court
accordingly held that the plaintiff had suffered an invasion of, and had been
injured in, his rights of personality, particularly his right to privacy.
NEGLIGENCE (CULPA)
6.13 Definition
A person is negligent when his or her conduct falls short of the standard which
the law expects of the reasonable person in the particular circumstances of the
case. 39
38
1993 (4) SA 842 (A). The appeal against a judgment delivered in the Witwatersrand Local
Division in which a claim for damages for the breach of the plaintiff’s right to privacy was
dismissed. In the appeal, the appellants were the executors of the estate of the plaintiff, Mr
McGeary, who had died during the course of the trial of an Aids-related disease.
39
Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 269; Burchell Principles of
Delict (Juta 1993) at 31; See also Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 131.