Dutton - Medical Malpractice in SA

2
Medical Malpractice in South African Law
last thirty years of its law reports’ 3 seems particularly poignant. The practice of
medicine is presently plagued by an obstructive anxiety, as medical malpractice
claims continue to sharply increase in number and in value. The health professions
feel under siege: the South African Medical Journal recently described the
climate of medical practice as ‘increasingly hostile, pressurised and uncertain.’ 4
And the provision of an acceptable public sector healthcare system seems to be
an impossible ideal. Our healthcare system should protect and foster our bodily
and psychological integrity, and progressively realise access to healthcare services
— an essential feature of our common humanity. Instead, a fundamental
component of our constitutional democracy faces paralysis and failure.
These challenges are further complicated by the fact that, since 1994, the foundations
of South African law have undergone ‘a paradigm shift with profound
implications.’ 5 The changes introduced by the Interim and Final Constitutions 6
were as drastic as any in the long pedigree of this area of the law, which dates
back more than two millennia. 7 Twenty years after the enactment of the Interim
Constitution, 8 these developments have had time to settle into practical reality.
Structurally, our legal system has, on the whole, assimilated the constitutional
changes with somewhat surprising ease and equanimity. The reason for this relatively
untroubled transition lies in the innate flexibility of the inherited legal
principles governing medical malpractice. Liberated from the strictures of Roman
casuistry by the quintessentially pragmatic Roman-Dutch jurists, the ancestor
of modern South African malpractice law acquired a remarkably robust adaptability,
and it is this malleable quality which allowed the changes brought about
by the new Constitutional order to be accommodated.
But to say that the inherent structure of our common law has demonstrated
a commendable ability to accommodate profound change is not to say that the
law has met its objective. The purpose of the private law is, in a narrow sense,
to regulate relationships between individuals by allowing a person to claim
damages negligently or intentionally caused by another in civil proceedings. 9
3
Proculus Redivivus ‘South Africa at the Crossroads or, What is the Common Law?’(1965) 82
SALJ 17 at 24.
4
G Howarth et al ‘The importance of comprehensive protection in today’s healthcare environment’
S Afr Med J 2013; 103(7): 453–454.
5
A phrase used by Alfred Cockrell in ‘Rainbow Jurisprudence’, (1996) 12 SAJHR at 1. The article
remains as relevant as when it was first published.
6
The Interim Constitution, Act 200 of 1993; the Constitution of the Republic of South Africa,
1996.
7
The delict known by the Romans as the damnum iniuria datum, which is now (in extended
form) the mainstay of the modern South African delictual action for patrimonial loss suffered
through injury to person or property, was created by the lex Aquilia in 287 bc; the
delict of iniuria, which today affords a remedy for injury to personality, enjoys an even more
ancient heritage, having been enacted in the Twelve Tables in approximately 450 bc.
8
Constitution of the Republic of South Africa Act 200 of 1993.
9
McKerron The Law of Delict 7 ed (Juta, 1971) 1; Neethling et al Law of Delict 6 ed (LexisNexis
2010) 3; Boberg The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 1–3.